IT-08-91-PT 3153 D3153 - D3107 31 July 2009 SF THEU INTERNATIONAL CRIMINAL TRIBUNAL FORU THE FORMER YUGOSLAVIA CaseU No. IT-08-91-PT INU THE TRIAL CHAMBERU Before: Judge Iain Bonomy, Presiding Judge Ole Bjørn Støle Judge Frederik Harhoff Registrar: Mr. John Hocking Date Filed: 31 July 2009 THE PROSECUTOR v. MIĆO STANIŠIĆ STOJAN ŽUPLJANIN PUBLIC CONFIDENTIAL ANNEXES A, B, and C ________________________________________________________________________ SUPPLEMENTAL PRE-TRIAL BRIEF OF THE DEFENCE OF MIĆO STANIŠIĆ ________________________________________________________________________ TheU Office of the ProsecutorU Mr. Thomas Hannis Ms. Joanna Korner QC CounselU for the AccusedU Mr. Slobodan Zečević and Mr. Slobodan Cvijetić for Mr. Mićo Stanišić Mr. Igor Pantelić for Mr. Stojan Župljanin 3152 SUPPLEMENTAL PRE-TRIAL BRIEF OF THE DEFENCE OF MIĆO STANIŠIĆ 1. At all times relevant to the indictment, Mr. Stanišić was the Minister of the Serbian Ministry of Internal Affairs in Bosnia and Herzegovina (“RS MUP”). He is charged under Article 7(1) of the Statute with committing – as a participant in a joint criminal enterprise (“JCE”) – instigating and aiding and abetting the crimes alleged in the indictment and under Article 7(3) of the Statute as a superior authority who failed to prevent or punish the crimes alleged in indictment. 2. Pursuant to Rule 65ter(F)(i) the Defence Pre-Trial Brief makes the following written statement setting out, in general terms, the nature of his defence: a. Mr. Stanišić never acted criminally nor did ever harbour or manifest any criminal intent. b. Legally and factually, there was no JCE as alleged by the Prosecution and Mr. Stanišić was never a part of any JCE or common plan to permanently remove Bosnian Muslims, Bosnian Croats, and other non-Serb from the territory of the planned Serbian state by means which included the commission of the crimes alleged in the indictment. c. Legally and factually, Mr. Stanišić never instigated anyone to commit a crime. He never prompted anyone to commit a crime, nor did he ever intend to provoke or induce the commission of a crime. d. Legally and factually, Mr. Stanišić never aided and abetted the commission of any crime. He never rendered any practical assistance, encouragement, moral support, or assistance in the commission of any crime. e. Factually and legally, Mr. Stanišić never failed to discharge his duties and obligations as Minister of the Interior in relation to his subordinates. Case No.: IT-08-91-PT 2 31 July 2009 3151 3. The Prosecution cannot prove the allegations contained in the indictment beyond reasonable doubt. 4. Pursuant to Rule 65ter(F)(ii) the Defence Pre-Trial Brief must include a written statement setting out the matters with which Mr. Stanišić takes issue in the Prosecutor’s pre-trial brief and pursuant to Rule 65ter(F)(iii), in the case of each such matter, the reason why he takes issue with it. 5. Before turning to the matters with which Mr. Stanišić takes issue with the Prosecutor and his reasons for taking issue, he wishes to specifically identify the 1 following matters on which there has been agreement with the Prosecution:TPF F PT a. For centuries the population of Bosnia and Herzegovina, more so than any other republic of the former Yugoslavia, has been multi-ethnic. b. The large Muslim population of Bosnia and Herzegovina owes its religion and culture, and hence its identity, to the long Turkish occupation, during which time many Slays adopted the Islamic faith. c. Immediately after the First World War, and as part of the break-up of the Habsburg empire, the Kingdom of Serbs, Croats and Slovenes was created out of the union of the Kingdom of Serbia, which in the nineteenth century had already achieved independence from Turkey, with Montenegro, which had also been an independent principality, and with Croatia, Slovenia, and Bosnia and Herzegovina. d. In 1929 that Kingdom changed its name to the Kingdom of Yugoslavia, that is, the Kingdom of the southern Slays. e. For many centuries Roman Catholicism had predominated in the northern and western sectors, whereas Orthodox Christianity and Islam prevailed in its southern and eastern sectors under the rule of the Ottoman Empire. 1 TP PT Prosecutor v. Mićo Stanišić, Case No. IT-04-79-PT, Decision on Judicial Notice, 14 December 2007, para. 50. Case No.: IT-08-91-PT 3 31 July 2009 3150 This same general religious division persisted into this century and indeed still persists. f. The “Socialist Republic of Bosnia and Herzegovina” became one of the six republics in the Socialist Federal Republic of Yugoslavia (SFRY) a successor state of the Kingdom of Yugoslavia. Due to the century-long dramatic and complicated history of the Balkans and political developments in the former Yugoslavia after the two World Wars, the Republic of Bosnia and Herzegovina was populated primarily by Serbs, Croats and members of the Muslim-Slavic community. Apart from the differences in their cultural heritage and religious tradition, the three groups had much in common and peacefully coexisted for most of the time. g. During the time of Axis occupation, a portion of the territory of the state was annexed by Italy and two other areas were transferred to Bulgarian and Hungarian control respectively. Much of what remained became the formally independent but in fact Axis puppet state of Croatia, extending far beyond previous, and subsequent, Croatian boundaries and divided between Italian and German zones. h. The Second World War was a time of prolonged armed conflict in Yugoslavia, in part the product of civil war, in part a struggle against foreign invasion and subsequent occupation. Although this wartime situation was short-lived, lasting only from 1941 to 1945, it left bitter memories, not least in Bosnia and Herzegovina, large parts of which, including the Prijedor municipality, were included in the puppet state of Croatia. i. Three distinct Yugoslav forces each fought one another during the Second World War: the Ustaša forces of the strongly nationalist Croatian State, supported by the Axis powers, the Chetniks, who were Serb nationalist and monarchist forces, and the Partisans, a largely communist and Serb group. Case No.: IT-08-91-PT 4 31 July 2009 3149 j. Many of the hard-fought and bloody conflicts took place in Bosnia and Herzegovina. k. After the occupation of the Kingdom of Yugoslavia in 1941, the German Nazi regime created the “Independent State of Croatia”, headed by an anti- Serb Ustaša regime. Allied with Germany and Italy, Croatian fascists (Ustaša fought both Serb monarchists (Chetniks) and communists (Tito’s partisans). Many Serbs, but also Jews and other targeted groups, were systematically killed in extermination camps because of their religion and ethnicity. One of the most infamous camps was located at Jasenovac in Western Slavonia, north of Prijedor municipality, near the border between Bosnia and Herzegovina and Croatia. l. During World War II, when Yugoslavia was occupied by Germany and Italy, the municipality of Prijedor formally became part of the aforementioned “Independent State of Croatia”, led by an anti-Serb Ustaša government. The municipality was the scene of many massacres of Serbs by the German Nazi regime and the Ustaša aided by a segment of the Muslim population. Croats and Muslims who sided with the predominantly Serb partisan resistance, which was particularly strong in a mountainous and heavily wooded northeastern area around Mount Kozara, also became victims. Thousands of Bosnian Serbs, Jews and other targeted groups were sent to concentration camps run by the forces of the German Nazi regime and the Ustaša. m. In the post-war years until about 1991, at least in the Prijedor municipality, particularly in rural areas, the three populations, Serbs, Croats and Muslims, tended to live separately so that in very many villages one or another nationality so predominated that they were generally regarded as Serb or Croat or Muslim villages. Many witnesses speak of good inter-communal relations, of friendships across ethnic and coincident religious divides, of intermarriages and of generally harmonious relations. Case No.: IT-08-91-PT 5 31 July 2009 3148 n. Marshal Tito and his communist regime took stem measures to suppress and keep suppressed all nationalist tendencies. o. Under its Constitution of 1946, the country was to be composed of six Republics: Serbia, Croatia, Slovenia, Bosnia and Herzegovina, Macedonia, and Montenegro and two autonomous regions, Vojvodina and Kosovo. p. According to the 1946 Yugoslav Constitution, the peoples of the Republics, other than Bosnia and Herzegovina, were regarded as distinct nations of federal Yugoslav. q. The situation of Bosnia and Herzegovina was unique; although it was one of the six Republics, it, unlike the others, possessed no one single majority ethnic grouping and thus there was no recognition of a distinct Bosnian nation. However, by 1974 the Muslims were considered to be one of the nations or peoples of federal Yugoslavia. r. Throughout the years of Marshal Tito’s communist Yugoslavia, religious observance was discouraged. Nevertheless, the population remained very conscious of so-called ethnic identity, as Serb, Croat or Muslim. s. Today, in Bosnia and Herzegovina, whether practising or non-practising, the great majority of Serbs remain Orthodox Christian and the Croats Roman Catholic, while the title Muslim speaks for itself. t. Post-war Yugoslavia was, at first, a highly centralist State, with substantial power exercised federally from Belgrade. Then, in the 1960s and on into the 1970s, there was a trend towards devolution of power to the governments of the Republics, a trend enhanced by a new Constitution adopted in 1974 and which continued on into the 1980s. u. After World War II, the Partisan resistance in Prijedor acquired almost mythical proportions. As a memorial to these events, the famous Kozara Monument was built in the early 1970s to honour the partisans and civilians who perished.