Celebici Trial: Closing Arguments

Wednesday, 4 May, 2005

The link has been copied

IWPR ICTY

After sentencing, which is expected in October, it will continue before the Appeals Chamber, and perhaps there will even be a retrial before some new Trial Chamber. The prosecution has already indicated such a possibility in its leave to appeal against the Trial Chamber's Decision on 19 August not to re-open the prosecution case and warned that the rejection of their additional evidence, might lead to a request for a retrial.

The prosecution's leave to appeal, however, was denied at the end of August by the Appeals Chamber, on the ground that the Trial Chamber decisions would not "cause such prejudice to the case of the Prosecution as could not be cured by the final disposal of the trial including post-judgement appeal".

On the other hand, the defence has a trump-card of its own for a possible request for a re-trial. In May this year it requested the disqualification of Judge Elisabeth Odio Benito, who was elected Vice-President of the Republic of Costa Rica while the trial was underway and, according to the opinion of the defence, "acquired an association which may affect her impartiality" (See Update 78). The defence request was turned down by the ICTY Bureau (made up of the president, vice-president, and the presiding judges of the two Trial Chambers), concluding that Judge Odio Benito has been vice-president in name only and has committed herself not to take up her post until she has completed her judicial duties.

The Bureau concluded that "the mere fact that a person who exercises judicial functions is to some extent subject, in another capacity, to execute supervision, is not by itself enough to impair judicial independence". With the way cleared for the ending of the trial, the prosecution and the defence presented their closing statements on the last day of August and on the first day of September.

Prosecutor Teresa McHenry started out with the facts in her closing statements. According to her, there is no argument about the fact that in May 1992 Bosniak and Croat forces attacked and took control of a number of Bosnian Serb villages in the Konjic Municipality in Central Bosnia.

Furthermore, she said, the forcible expulsion of Bosnian Serb residents from these villages and their detention at various collection centres, including the former JNA facility in Celebici, is not disputed. And there is no serious controversy that some of the detainees at the Celebici camp were killed, tortured, sexually assaulted, beaten and otherwise subjected to cruel and inhumane treatment. Finally, McHenry claims, there is no serious controversy about the role of the four accused: Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo.

The first three accused are charged with command responsibility for the crimes, which according to McHenry, "undoubtedly took place in Celebici", (and 13 dead inmates are a testimony of this, she argued). McHenry pointed out that one of the first sentences for command responsibility will be passed in this case. On the evidence presented, the prosecution continued, the guilt of the accused has been established beyond reasonable doubt and a possible acceptance that they are not responsible would represent a loss for international law and would obscure the borders of responsibility.

The defence (Edina Residovic for Delalic, Tomislav Kuzmanovic for Mucic, Thomas Moran for Delic and Cynthia McMurrey for Landzo) dispute many of the prosecution's "facts", claiming that the definition of crime is too wide, that the prosecution case was full of contradictory testimony; that prosecutors had failed to produce credible witnesses, and that consequently the responsibility of the accused was not proved beyond reasonable doubt. The defence counsel particularly disputed the prosecution argument about the international character of the conflict that took place in Central Bosnia in 1992.

The conflict at issue was internal, they argued. It was armed insurrection against the legitimate authorities of Bosnia and Herzegovina and the Serbs detained in Celebici were Bosnian citizens, and as such, were not protected by the Geneva Convention. More than half of the total of 49 counts of the Celebici indictment, which qualify the acts of the accused as Grave Breaches of the Geneva Conventions, depend on the judges' qualification of that conflict.

The Celebici Trial Chamber (Judge Adolphus Karibi-Whyte, presiding; Judge Saad Saood Jan and Judge Elisabeth Odio Benito) requested that both sides submit their sentencing submissions. In these they will point to any exacerbating or mitigating circumstances which are significant for the length of the sentence, should all or some of the accused be found guilty.

The sentencing will, as announced last week, be held from 12-14 October, while the prosecution will have one day at their disposal, and the defence will have the maximum of two days' sitting.