Page 28731

 1                           Thursday, 28 June 2012

 2                           [Rule 98 bis Judgement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 11.00 a.m.

 6             JUDGE KWON:  Good morning, everyone.  Would the Registrar please

 7     call the case.

 8             THE REGISTRAR:  Thank you and good morning, Your Honours.  This

 9     is case number IT-95-5/18-T, the Prosecutor versus Radovan Karadzic.

10             JUDGE KWON:  Thank you.

11             May have the appearances for the Prosecution, Mr. Tieger.

12             MR. TIEGER:  Good morning, Mr. President, Your Honours.

13     Alan Tieger, Hildegard Uertz-Retzlaff, and Iain Reid appear for the

14     Prosecution.

15             JUDGE KWON:  Thank you, Mr. Tieger.

16             Yes, for the Defence.

17             THE ACCUSED: [No interpretation]

18             JUDGE KWON:  I'm not sure we are getting the English translation.

19     Could you repeat, Mr. Karadzic.

20             THE ACCUSED: [Interpretation] Good morning, your Excellencies.

21     Good morning, to all.  I have with me here today my legal counsel,

22     Mr. Peter Robinson, and I also have a Case Manager nearby.

23             JUDGE KWON:  Thank you.  For the stand-by counsel.

24             MR. HARVEY:  Good morning, Your Honours.  Richard Harvey, lead

25     stand-by counsel, assisted by Mirijana Vukajlovic.

Page 28732

 1             JUDGE KWON:  Thank you, Mr. Harvey.

 2             I'm not sure if the French translation is being done.

 3                           [Trial Chamber and Registrar confer]

 4             JUDGE KWON:  The Chamber convened this hearing to deliver its

 5     ruling on the accused's oral motion for a judgement of acquittal pursuant

 6     to Rule 98 bis of the Tribunal's Rules of Procedure and Evidence.  On the

 7     11th of June, 2012, the accused moved for a judgement of acquittal on

 8     each of the 11 counts in the indictment.  The Prosecution respond on 13th

 9     of June, 2012, opposing the motion.

10             The Chamber will start by recalling the applicable legal

11     standard.  Rule 98 bis as amended in 2004 provides that at the close of

12     the Prosecutor's case, the Trial Chamber shall, by oral decision, and

13     after hearing the oral submission of the parties, enter a judgement of

14     acquittal on any count if there's no evidence capable of supporting a

15     conviction.

16             As enunciated in numerous 98 bis decisions, including the cases

17     against Mrksic et al., Popovic et al., and Milutinovic, et al., the test

18     to be applied is whether there's evidence upon which, if accepted, a

19     reasonable trier of fact could be satisfied beyond reasonable doubt of

20     the guilt of the particular accused on the count in question.  The test

21     is not whether a Trial Chamber would convict beyond reasonable doubt but,

22     rather, whether it could do so.  Therefore, where there is no evidence to

23     sustain a count or where the only relevant evidence is so incapable of

24     belief that it could not properly sustain a conviction even when the

25     evidence is taken at its highest for the Prosecution, a judgement of

Page 28733

 1     acquittal will be entered with respect to that count.  At this stage, the

 2     Trial Chamber is not to evaluate the credibility of witnesses or the

 3     strengths and weaknesses of contradictory evidence.  Furthermore, a

 4     ruling now that there is evidence capable of sustaining a conviction on a

 5     particular count does not mean that the Trial Chamber will enter a

 6     conviction at the end of the case.

 7             The Chamber also notes that where evidence is mentioned later in

 8     support of its findings, the fact that it has been considered for the

 9     purpose of this ruling is no fixed indication that the Chamber will

10     ultimately accept it in whole or in part.  Similarly, the fact that

11     certain evidence is not mentioned in the Rule 98 bis rulings does not

12     mean that the Chamber may not accept it and rely upon it in its final

13     judgement.

14             The Rule also does not require that the Chamber be satisfied that

15     there's evidence supporting each of the individual charges making up a

16     specific count.  For instance, for persecutions under Count 3, it is

17     sufficient that there be evidence on one or several forms of persecutions

18     alleged.  It is also sufficient if there is evidence capable of

19     supporting a conviction on the basis of one of the modes of

20     responsibility charged in the indictment.  Although the accused has

21     challenged all of the modes of responsibility, this decision concentrates

22     on assessing the responsibility of the accused on each of the 11 counts

23     for commission under Article 7(1) of the Tribunal's Statute through his

24     participation in the four alleged joint criminal enterprises.  Only if

25     there were no evidence under this mode of responsibility would the

Page 28734

 1     Chamber turn to the other modes under Articles 7(1) and 7(3) of the

 2     Statute.

 3             The Chamber wishes to make two preliminary notes.  First, with

 4     regard to the accused's challenge in relation to the overly broad use of

 5     the term "Bosnian Serb forces," the Chamber recalls paragraph 32 of the

 6     decision on two motions alleging defects in the form of the indictment

 7     issued by the Pre-trial Chamber in this case on the 12th of May, 2009, in

 8     which it found that the indictment was not defective in regard to the

 9     specificity of pleading the identity of the alleged members of the joint

10     criminal enterprises and the physical perpetrators.  The Chamber further

11     notes that throughout this ruling it will use the term "Bosnian Serb

12     forces" as defined by the Prosecution in paragraph 14(b) of the

13     indictment.  Second, the Chamber notes that for the purpose of this

14     ruling, it will use the term of "municipalities" as defined by the

15     Prosecution in paragraph 48 of the indictment.

16             The Chamber will present its ruling first in relation to the

17     hostages component of the case before turning to the Sarajevo component,

18     then the Srebrenica component, and finally concluding with the

19     municipalities component.

20             The Chamber now turns to the accused's challenges in relation to

21     the hostages component of the case.

22             As part of his challenges, the accused submits that the detained

23     UN personnel were combatants taking part in the hostilities and that

24     Article 3 of the Statute encompasses protections guaranteed by

25     Common Article 3 of the Geneva Conventions of 1949 and thus only protects

Page 28735

 1     persons who were taking no active part in hostilities.  In relation to

 2     his mens rea, he further submits that he considered at the time of their

 3     detention that the UN personnel were being detained as prisoners of war.

 4     The Prosecution responds that the status of UN personnel is irrelevant

 5     because Common Article 3 protects persons taking no active part in

 6     hostilities, including members of the armed forces who have laid down

 7     their arms and those placed "hors de combat" by their detention.  The

 8     Prosecution further responds that any statements by the accused that the

 9     detained UN personnel were prisoners of war is contradicted by evidence

10     showing his intent to gain an advantage or obtain a concession as a

11     direct consequence of their detention.

12             The Chamber will not determine at this stage what constitutes the

13     legal elements of the time of hostage-taking under the Statute.  However,

14     the Chamber recalls that the Appeals Chamber in this case, in its

15     decision on appeal of Trial Chamber's decision on preliminary motion to

16     dismiss Count 11 of the indictment issued on the 9th of July, 2009, held

17     that Common Article 3 prohibits hostage-taking of any person taking no

18     active part in the hostilities, including those placed "hors de combat"

19     by detention.  It is therefore sufficient to note that even if the UN

20     personnel were combatants immediately before their detention, they were

21     rendered "hors de combat" by virtue of their detention and thus were

22     entitled to the minimum protections guaranteed by Common Article 3.  The

23     Chamber received evidence from Patrick Rechner, Joseph Gelissen, and

24     Marcus Helgers, who were UN personnel in 1995 detained by the

25     Bosnian Serb forces and placed in areas of military significance for the

Page 28736

 1     Army of Republika Srpska, also known as the VRS.  They were threatened

 2     with death unless NATO stopped their air-strikes against Bosnian Serb

 3     military targets.  The Chamber also heard evidence from Rechner, Helgers,

 4     and Rupert Smith that the threats were communicated both to the detained

 5     UN personnel directly, as well as to Smith and the headquarters of the

 6     United Nations Protection Force, also known as UNPROFOR.

 7             Accordingly, the Chamber finds that there's evidence on which, if

 8     accepted, a reasonable trier of fact could be satisfied beyond reasonable

 9     doubt that the crime of taking hostages as a violation of the laws or

10     customs of war under Article 3 of the Statute and specifically

11     Common Article 3 was carried out by Bosnian Serb forces between May and

12     June 1995.

13             Turning now to the accused's responsibility under Count 11, the

14     Chamber heard evidence from Smith and has admitted documents such as

15     P2137, P2149, P2268, and P5013, all of which indicate that following the

16     NATO air-strikes, the Bosnian Serb political leadership and the VRS

17     enacted a plan to detain UN personnel and place them in locations of

18     military significance for the VRS.  The objective of this plan was to

19     stop NATO from continuing further air-strikes as shown by the threats

20     made to the UN that the detained personnel would be killed if another

21     air-strike occurred.  The same evidence also indicates that the members

22     of the Bosnian Serb political leadership and military who participated in

23     this plan included the accused and Ratko Mladic.

24             Accordingly, the Chamber is satisfied that there is evidence upon

25     which, if accepted, a reasonable trier of fact could find beyond

Page 28737

 1     reasonable doubt that there existed a joint criminal enterprise, the

 2     common purpose of which was to take UN personnel hostage in order to

 3     compel NATO to abstain from conducting further air-strikes against

 4     Bosnian Serb military targets and which involved a plurality of persons,

 5     including the accused.

 6             In relation to the accused's contribution specifically, the

 7     Chamber received evidence that by virtue of his position as the

 8     Supreme Commander of the VRS and president of the Republika Srpska, he

 9     approved orders issued by the VRS to detain UN personnel.  These are

10     P2137 and P5026.  The Chamber also heard from Smith that prior to the

11     detention of UN personnel, the accused told him that if NATO were to

12     conduct air-strikes against Bosnian Serbs, the Bosnian Serbs would treat

13     the UN as their enemy and would attack or detain UN personnel.  This is

14     confirmed by P2264 and P2265.  The Chamber also received evidence

15     indicating that the accused shared the intent to take the UN personnel

16     hostage.  For example, as can be seen from P2137, the accused approved an

17     order on the 27th of May, 1995, directing the VRS to place UN personnel

18     in locations of potential targets for the NATO air-strikes.  On the

19     29th of May, 1995, the accused, in a telephone conversation which

20     included Krajisnik, stated that his demand as a condition for the release

21     of the UN personnel was -- that his demand as a condition for the release

22     of the UN personnel was that there would be no more NATO air-strikes.

23     This is P5626.  Later, on the 15th of June, 1995, at the 51st Session of

24     the RS Assembly, the accused stated that the Bosnian Serbs had released

25     most of the UN personnel except for the 15 people who were still being

Page 28738

 1     detained for the purpose of trying to keep the VRS weapons in Sarajevo

 2     and added that, "We even somewhat benefited from this whole crisis."

 3     This is Exhibit P1410.

 4             Accordingly, the Chamber is satisfied that there's evidence upon

 5     which, if accepted, a reasonable trier of fact could find beyond

 6     reasonable doubt that the accused voluntarily participated in a joint

 7     criminal enterprise, the common purpose of which was to take UN personnel

 8     hostage in order to compel NATO to abstain from conducting further

 9     air-strikes against Bosnian Serb military targets.  There is also

10     evidence to suggest that he shared the intent of the other members of

11     this joint criminal enterprise to carry out its objective.

12             The Chamber will now deal with the accused's challenges as they

13     concern the Sarajevo component of the case.

14             In relation to Count 5 and 6, the accused submits that there is

15     no evidence of his mens rea in terms of planning, aiding, abetting,

16     instigating, and committing murders.  Because the accused also submits in

17     relation to his challenges to Counts 9 and 10 that there is no evidence

18     that any sniping or shelling incident was committed from the Serb side,

19     the Chamber understands his challenge to also cover the actus reus of

20     murders alleged to have occurred in Sarajevo.  The Prosecution responds

21     that evidence shows that civilians in Sarajevo were frequently targeted

22     by Bosnian Serb fire.

23             The Chamber will first address the issue of whether there's

24     evidence that murders occurred in Sarajevo and were committed by

25     Bosnian Serb forces.  The Chamber has received a large body of evidence

Page 28739

 1     going to the killings that took place in Sarajevo, as well as to the fact

 2     that these were committed by Bosnian Serb forces.  For example,

 3     Bakir Nakas, Fatima Zaimovic, and Dragan Miokovic testified generally

 4     about a large number of persons killed in Sarajevo as a result of the

 5     shelling and sniping in the city.  In addition, there is also testimonial

 6     and documentary evidence relating to a number of scheduled shelling and

 7     sniping incidents which resulted in deaths and which were said to have

 8     been committed by Bosnian Serb forces.  As an example, in relation to

 9     scheduled shelling incident G6 where a number of children died as a

10     result of shelling while playing football in Dobrinja, the Chamber

11     received not only testimonial evidence but also evidence in the form of

12     investigative reports prepared at the time by the BiH

13     Ministry of Internal Affairs, also known as BiH MUP, as well as by

14     UNPROFOR, all pointing to the Bosnian Serb forces as the perpetrators.

15     The Chamber refers here to P1443 and P1698.

16             Accordingly, the Chamber finds that there's evidence on which, if

17     accepted, a reasonable trier of fact could be satisfied beyond reasonable

18     doubt that murder charged as a crime against humanity pursuant to

19     Article 5(a) of the Statute and as a violation of the laws or customs of

20     war under Article 3 of the Statute and specifically Common Article 3 were

21     carried out by Bosnian Serb forces in Sarajevo.

22             In relation to Counts 9 and 10, the accused submits that there's

23     no evidence of the existence of a siege in Sarajevo but rather the

24     Bosnian Serbs conducted a military policy of "containing" the 1st Corps

25     of the Army of Bosnia and Herzegovina, also known as ABiH.  He also

Page 28740

 1     submits that there's no evidence of terror in Sarajevo or that any

 2     sniping or shelling incident was committed from the Serb side or that the

 3     Serb side fired indiscriminately.  Finally, he claims that there is no

 4     evidence that Sarajevo was a civilian zone or that it was the target of

 5     any militarily unjustified action by the Serb side.  In response, the

 6     Prosecution refers to numerous witnesses who have testified that the

 7     campaign of shelling and sniping conducted by Bosnian Serb forces was

 8     intended to inflict terror on the civilian population, that the fire

 9     directed against Sarajevo was indiscriminate, and that it was directed

10     primarily at the civilian population.

11             The Chamber notes that a number of witnesses testified that the

12     city of Sarajevo, together with its civilians, was in fact encircled or

13     besieged by Bosnian Serb forces and not just contained for a military

14     purpose.  The Chamber refers here to the testimony of Colm Doyle,

15     Jeremy Bowen, and Richard Mole, as well as to D235.  These witnesses, in

16     addition to Anthony Banbury, Pyers Tucker, David Harland and Herbert Okun

17     also testified that, while besieged, the city was constantly shelled and

18     sniped by the Bosnian Serb forces using indiscriminate and

19     disproportionate fire with the intent to terrorise the civilian

20     population, including women and children.  Indeed, many witnesses used

21     the term "terror" during their testimony.  The Chamber has also been

22     provided with both testimonial evidence, such as the evidence of

23     Ekrem Suljevic, Milomir Soja, and Harry Konings and documentary evidence

24     such as P1201 and P1310, going to the use by the Bosnian Serb forces of

25     highly inaccurate and highly destructive modified air-bombs.

Page 28741

 1             Accordingly, the Chamber finds that there is evidence on which,

 2     if accepted, a reasonable trier of fact could be satisfied beyond

 3     reasonable doubt that the crimes of terror and unlawful attacks charged

 4     under Article 3 of the Statute were carried out by Bosnian Serb forces in

 5     Sarajevo.

 6             The Chamber now turns to the accused's responsibility for Counts,

 7     5, 6, 9, and 10, still in relation to Sarajevo.  Some of his challenges

 8     mentioned earlier such as his submission that there was no terror in

 9     Sarajevo or that he had no mens rea to commit murders also pertained to

10     his responsibility.  In addition to those challenges, he submits that

11     there was no motive for the Serbs to terrorise the population in Sarajevo

12     as the Serbs were not seeking to capture the territory in and around it.

13     The Prosecution responds that these assertions are directly contradicted

14     by the weight of the evidence.

15             First, the Chamber has heard from a number of witnesses,

16     including Harland, KDZ088, and Okun that the Bosnian Serb military and

17     political leadership, including the accused, Krajisnik, Biljana Plavsic,

18     Nikola Koljevic, Mladic, and Stanislav Galic were in general united in

19     their position when it came to Sarajevo.  For example, Okun testified

20     that one of the Serb goals was the division of Sarajevo into Serb and

21     Muslim parts and that this was the constant refrain of Bosnian Serb

22     leadership during the peace negotiations.

23             Second, the Chamber recalls the evidence briefly referred to

24     earlier in relation to the campaign of sniping and shelling in Sarajevo

25     as charged under Count 9.  In addition, and with respect to the accused's

Page 28742

 1     challenge that Bosnian Serbs had no know motive to terrorise the city,

 2     the Chamber has heard from a number of witnesses such as Doyle, Mole,

 3     Michael Rose, and Harland contradicting that assertion.  For example,

 4     Harland testified that the overall strategy of the Bosnian Serb

 5     leadership, and in particular that of the accused, was to modulate the

 6     level of suffering in Sarajevo as it suited his political goals,

 7     increasing it to force the Bosnian Muslims to accept peace deals on Serb

 8     terms and preserve territorial status quo, or reducing it in the face of

 9     threats of international military intervention.

10             Accordingly, the Chamber finds that there's evidence upon which,

11     if accepted, a reasonable trier of fact could be satisfied beyond

12     reasonable doubt that between April 1992 and November 1995, there was a

13     joint criminal enterprise to establish and carry out a campaign of

14     sniping and shelling against the civilian population of Sarajevo.  There

15     is also evidence upon which, if accepted, a reasonable trier of fact

16     could be satisfied beyond reasonable doubt that the objective of this

17     joint criminal enterprise involved the commission of crimes of terror,

18     unlawful attacks on civilians, and murder.

19             With respect to his own contribution to the events in Sarajevo,

20     the accused submits that there's no evidence that he had anything but a

21     positive attitude on the delivery of humanitarian aid to the city.  He

22     also mentioned difficulties in controlling a popular army consisting of

23     soldiers who were locals and former residents of Sarajevo.  The

24     Prosecution responds that these assertions are directly contradicted by

25     the weight of the evidence and that on the contrary, the very nature of

Page 28743

 1     the campaign against the city shows that the accused was in overall

 2     control over the shelling, the sniping, and the terror.

 3             The Chamber has heard extensive evidence about the accused being

 4     both the president of the Republika Srpska and the Supreme Commander of

 5     the VRS, as shown by P3036, which gave him broad de jure and de facto

 6     powers over those forces, including the Sarajevo-Romanija Corps, also

 7     known as the SRK, and which ensured his presence at various negotiations

 8     relating to Sarajevo.

 9             The Chamber also heard ample evidence about the accused's

10     involvement in the events in Sarajevo as alleged in paragraphs 14 and 19

11     of the indictment.  For example, the Chamber heard that during his speech

12     at the 16th Assembly Session of the Serbian Republic of BiH of

13     12th of May, 1992, the accused explained, with respect to Sarajevo, that,

14     "The battle in Sarajevo and for Sarajevo, seen strategically and

15     tactically, is of decisive importance because it does not allow the

16     establishment of even the illusion of a state," and stated that, "Alija

17     does not have a state while we have a part of Sarajevo."  The accused

18     also stated that "the fighting in Sarajevo keeps the fighting far away

19     from all those areas where we could possibly have conflicts with

20     Muslims," noting also that, as the Bosnian Serbs expected, "if there's a

21     war, it would start in Sarajevo and end in Sarajevo. " These are quotes

22     from P956.

23             Harland testified that in line with the Serb leadership's

24     strategy to terrorise the city for political gains, the accused told him

25     that it would not be politically useful to force the city to surrender as

Page 28744

 1     this would prompt a Western military response.  The Chamber also notes

 2     here the evidence of KDZ088.

 3             In relation to the accused's challenge that it was difficult to

 4     control a popular army of soldiers who were Sarajevo locals, the Chamber

 5     has heard evidence to the effect that the accused was in complete de jure

 6     and de facto control over the VRS.  The Chamber refers to D325 and the

 7     testimony of John Wilson, Harland, and Rose.  Also, Okun testified that

 8     the accused said to him in September 1992 that the VRS had a unified

 9     command and that he had full power over it, including over 95 per cent of

10     the irregulars.

11             The Chamber also heard evidence from Okun, Wilson, and Harland

12     that the accused justified the activities of the Bosnian Serbs in

13     Sarajevo, stating that they were conducted in self-defence or in response

14     to provocation by the Bosnian Muslims.  Harland also added that during

15     their meetings the accused would be presented with information about

16     specific shelling or sniping incidents but would normally deny that there

17     was a problem or would say that he would look into it or that he had

18     already issued orders that the firing should stop.  According to Harland,

19     such promises by the accused had very little effect.

20             Contrary to the accused's submission, the Chamber also heard

21     evidence from Harland, Smith, and Rose about the accused directing and/or

22     authorising the restriction of humanitarian aid to Sarajevo.  Harland

23     testified that the accused would use eight levers of pressure on

24     Sarajevo, one of which was the control over humanitarian supplies, and

25     would often stop the supplies from coming into the city when there was no

Page 28745

 1     threat of a NATO intervention.  Harland also testified that on

 2     26th of July, 1994, the accused decided to close two of the Blue Routes

 3     used to deliver humanitarian aid and that, on the 8th of April, 1995, he

 4     decided to close Sarajevo altogether by halting the Sarajevo air-lift.

 5             Accordingly, the Chamber is of the view that there is evidence

 6     upon which, if accepted, a reasonable trier of fact could be satisfied

 7     beyond reasonable doubt that the accused voluntarily participated in the

 8     joint criminal enterprise relating to Sarajevo through both his acts and

 9     omissions and that he shared the intent of the other members of this

10     joint criminal enterprise to carry out its objective, namely to establish

11     and carry out a campaign of sniping and shelling against the civilian

12     population of Sarajevo with the incident of spreading terror.  There is

13     also evidence to suggest that he shared the intent of the other members

14     of the joint criminal enterprise to commit the crimes of murder, terror,

15     and unlawful attacks on civilians.

16             The Chamber will now deal with the accused's challenges regarding

17     the Srebrenica component of the case.

18             In relation to Counts 4, 5, and 6 in Srebrenica, the accused

19     submits that there is no evidence that civilians were killed and makes a

20     number of challenges to specify killing incidents.  The Prosecution

21     responds citing evidence to the contrary.

22             The Chamber has received a considerable body of evidence

23     suggesting that a substantial number of unarmed Bosnian Muslims were

24     killed in Srebrenica by Bosnian Serb forces during the period alleged in

25     the indictment.  The Chamber refers, for example, to KDZ039 and KDZ064 in

Page 28746

 1     relation to Orahovac; to KDZ066 in relation to Cerska Valley; to KDZ084

 2     in relation to Sandici; and to Ahmo Hasic and Drazen Erdemovic in

 3     relation to Branjevo Farm.  Additionally, the Chamber heard evidence from

 4     KDZ063 and KDZ071 in relation to the killing on the 13th of July, 1995,

 5     of hundreds of Muslim men in a warehouse in Kravica, which goes against

 6     the accused's challenge as to why the Kravica incident occurred.

 7     Furthermore, the Chamber heard evidence from KDZ065 in relation to the

 8     killing on the 13th of July, 1995, of Bosnian Muslim men at the bank of

 9     the Jadar River, which goes against the accused's challenge that there is

10     no evidence proving killings before the Kravica incident.  The Chamber

11     also heard evidence from Johannes Rutten and Paul Groenewegen in relation

12     to killings in Potocari on or about 12th and 13th of July, 1995, which

13     goes against the accused's challenge that there were no killings in

14     places where there was a greater military or police presence, such as in

15     Potocari.

16             The Chamber also received extensive evidence regarding the

17     presence of Bosnian Serb forces in the Srebrenica area which were

18     involved in the alleged commission of crimes against Bosnian Muslims.

19     For example, the Chamber received evidence from KDZ064, KDZ084,

20     Dragan Jovic, Srecko Acimovic, Mevludin Oric, and Erdemovic on the

21     presence of, inter alia, security officers from various VRS units and

22     members of the RS MUP, the 10th Sabotage detachment, and the

23     Zvornik Brigade's 2nd and 4th Battalions at various execution sites.

24             Accordingly, the Chamber finds that there's evidence on which, if

25     accepted, a reasonable trier of fact could be satisfied beyond reasonable

Page 28747

 1     doubt that murder charged as a crime against humanity pursuant to

 2     Article 5(a) of the Statute and as a violation of the laws or customs of

 3     war under Article 3 of the Statute and specifically Common Article 3 and

 4     extermination charged as a crime against humanity pursuant to

 5     Article 5(b) of the Statute were carried out by Bosnian Serb forces in

 6     the Srebrenica area in 1995.

 7             The Chamber will now turn to the accused's challenges in relation

 8     to Counts 7 and 8 insofar as they relate to Srebrenica.  The accused

 9     submits that there was no planned deportation but that by the 11th of

10     July, 1995, the Bosnian Muslims in Srebrenica wanted to be evacuated and

11     conveyed that request to Mladic and the UN.  The Prosecution submits on

12     the contrary that there was a clear intent by the accused and the VRS to

13     forcibly displace the population and that the desperate conditions

14     imposed by them on the enclave were intended to make life unbearable in

15     the months leading up to the attack, contributing to the population's

16     lack of any other choice but to leave the enclave.

17             The Chamber notes that it will not make a determination at this

18     stage as to what constitutes a de facto or de jure border for the

19     purposes of deportation.

20             The Chamber heard evidence from Joseph Kingori, Rutten, and

21     Robert Franken that when the Srebrenica enclave fell to Bosnian Serb

22     forces, the Bosnian Muslim population had no other choice but to leave

23     Srebrenica town and move to Potocari.  Kingori and Christine Schmidtz

24     both testified about the dire humanitarian situation faced by

25     approximately 20.000 refugees in Potocari due to the lack of food and

Page 28748

 1     medical supplies.  The Chamber also received evidence from various

 2     witnesses, including KDZ070, KDZ186, and Rutten about the forcible

 3     displacement of thousands of Bosnian Muslim women, children, and elderly

 4     men from Potocari in July 1995, when they were ordered by the VRS

 5     soldiers to board buses.

 6             The Chamber also heard from Kingori and Mile Janjic that the

 7     forcible displacement of population from Srebrenica was planned by the

 8     VRS.  There is also testimonial documentary evidence such as the evidence

 9     of Kingori and P1385, suggesting that the goal of the Bosnian Serb

10     leadership in organising the forcible displacement was to permanently

11     remove the Bosnian Muslims from Srebrenica.  The intent of Bosnian Serb

12     forces to forcibly displace the Bosnian Muslims in Srebrenica is shown by

13     the organisation of the transportation for the refugees in Potocari and

14     the systematic nature in which the women, children, and some elderly men

15     were separated from the military-aged men and taken towards

16     Bosnian Muslim held territory as shown, for example, by the testimony of

17     KDZ070, Hasic, Groenewegen, and Evert Albert Rave, and by P4935 and

18     P4464.  Further evidence supporting the intent to forcibly displace this

19     population is shown in P4075, a Bratunac Brigade report of the

20     4th of July, 1995, setting forth the goal for the civilian population of

21     Srebrenica that "their life has to be made unbearable and their temporary

22     stay in the enclave impossible, so that they leave the enclave en masse

23     as soon as possible, realising that they cannot survive there."

24             Accordingly, the Chamber is satisfied that there is evidence upon

25     which, if accepted, the reasonable trier of fact could find beyond

Page 28749

 1     reasonable doubt that the crimes of deportation and forcible transfer, an

 2     inhumane act, as crimes against humanity and charged under Articles 5(d)

 3     and 5(i) of the Statute were carried out by Bosnian Serb forces in

 4     Srebrenica in July 1995.

 5             The accused does not raise any specific challenges to Count 3

 6     with respect to Srebrenica, although some of the submissions he made in

 7     relation to the killings and the forcible displacement of the population

 8     from Srebrenica could also be considered as challenges to Count 3.  The

 9     evidence before the Chamber in relation to forcible displacement and

10     killings in and around Srebrenica in 1995, as already addressed earlier,

11     suggests that the events occurred according to a persecutory pattern of

12     behaviour.  This pattern can first be inferred from the evidence on the

13     number of Bosnian Muslim victims killed in Srebrenica, as evidenced by,

14     among others, the testimony of Ewa Tabeau, and Dusan Janc, as well as by

15     the number of victims transferred to Bosnian Muslim held territory and

16     the organised way in which the forcible displacement was carried out in a

17     short period of time.  Furthermore, the Chamber heard evidence suggesting

18     that Bosnian Muslims in Srebrenica were killed on the basis of their

19     ethnic and religious affiliation, thus indicating that the killings were

20     therefore carried out with the requisite persecutory intend by the

21     Bosnian Serb forces.  Similarly, in relation to the specific intent

22     required for the forcible displacement of people out of Potocari to

23     constitute persecutions, the Chamber has received evidence suggesting

24     that Bosnian Muslims were subject to forcible displacement on the basis

25     of their ethnic and religious affiliation.  Therefore, the perpetrators

Page 28750

 1     acted with the requisite specific intent to discriminate on political,

 2     racial, or religious grounds.

 3             Accordingly, the Chamber finds that there's evidence on which, if

 4     accepted, a reasonable trier of fact could be satisfied beyond reasonable

 5     doubt that the persecutions charged as a crime against humanity pursuant

 6     to Article 5(h) of the Statute were committed in Srebrenica in July and

 7     August 1995 by Bosnian Serb forces against Bosnian Muslims with the

 8     intent to discriminate against them specifically based on political,

 9     racial, or religious grounds.

10             The Chamber now turns to the accused's challenges in relation to

11     Count 2, genocide, Srebrenica.  In addition to the accused's challenges

12     to the killings per se, which have already been dealt with earlier, the

13     accused submits that there's no evidence on the perpetrators' intent to

14     destroy the Bosnian Muslims in Srebrenica.

15             As discussed earlier in relation to Counts 4, 5, and 6, there's

16     evidence before the Chamber that the military-aged Bosnian Muslim men in

17     Srebrenica were the target of large-scale killings.  This indicates that

18     the part of targeted group within the meaning of Article 4 of the Statute

19     was indeed the Bosnian Muslims in Srebrenica as part of

20     Bosnian Muslims -- as part of the "Bosnian Muslim national, ethnical

21     and/or religious group as such" as alleged in paragraph 41 of the

22     indictment.  Accordingly, the Chamber finds that there is evidence on

23     which, if accepted, a reasonable trier of fact could be satisfied beyond

24     reasonable doubt that the Bosnian Muslims in Srebrenica were targeted for

25     destruction.

Page 28751

 1             In relation to the accused's challenge as to the lack of

 2     genocidal intent of the physical perpetrators of the killings in

 3     Srebrenica, the Chamber recalls that the specific intent of such

 4     perpetrators by its nature is not usually susceptible to direct proof but

 5     can be inferred from various factors, including the general context of

 6     the case, the numerical size of the atrocities committed, the repetition

 7     of destructive and discriminatory attacks, or the existence of a plan or

 8     policy to commit the underlying offence.  In this respect, the Chamber

 9     refers to the Jelisic and Krstic Appeal Judgement.  First, the evidence

10     before the Chamber on the scheduled incidents as a whole suggests that

11     killings were organised on a large scale, similarly to a military

12     operation.  In addition to the extensive evidence before the Chamber on

13     the presence of various VRS and MUP units in Srebrenica, as discussed in

14     relation to Counts 4, 5, and 6, the Chamber also received evidence,

15     including from Milenko Katanic, on the assistance of local authorities in

16     the burial of bodies after the mass executions.  Accordingly, the

17     evidence before the Chamber on the number of victims killed as well as on

18     the facts that only Bosnian Muslim men and boys were targeted for summary

19     executions and that the Bosnian Serb forces tried to kill each and every

20     able-bodied Bosnian Muslim man in Srebrenica suggests the systematic

21     nature and scale of the crimes committed, as well as the systematic

22     targeting of the group.

23             Accordingly, the Chamber finds that there is evidence on which,

24     if accepted, a reasonable trier of fact could be satisfied beyond

25     reasonable doubt that genocide charged pursuant to Article 4 of the

Page 28752

 1     Statute was carried out by Bosnian Serb forces in Srebrenica.

 2             The Chamber now turns to the accused's responsibility for

 3     Counts 2 to 8 inclusive still in relation to Srebrenica.  The accused

 4     submits that the combat activities in Srebrenica had a legitimate

 5     military purpose, that the question of the VRS entering Srebrenica only

 6     became relevant on the night of 10th of July, 1995, and that the VRS only

 7     entered Srebrenica once the town was abandoned by the 28th ABiH division

 8     and the civilian population.  The Prosecution submits on the contrary,

 9     that the operation to take Srebrenica was a culmination of the accused's

10     efforts to ethnically cleanse Eastern Bosnia and refers to evidence

11     showing contact by the VRS with civilians in Srebrenica town on the

12     11th of July, 1995.

13             First, the Chamber heard evidence that as early as 1992 and

14     continuing until the 11th of July, 1995, the Bosnian Serb leadership

15     implemented a policy which resulted in the large-scale expulsion of the

16     non-Serb population from Bosnian-Serb claimed territories in BiH, and

17     specifically in the permanent removal of Bosnian Muslim populations in

18     Srebrenica.  This policy was first formulated by the accused in May 1992

19     through the six strategic goals and following the creation of the VRS and

20     the appointment of Mladic as the commander of the VRS Main Staff,

21     implemented through the issuance of a number of successive operational

22     directives, as well as by the issuance by the Drina Corps of order

23     Krivaja 95 on the 2nd of July, 1995, which culminated in the attack on

24     the Srebrenica enclave a few days later.  The documentary evidence before

25     the Chamber in support of this policy includes P781, P838, P961, P976,

Page 28753

 1     P2246, and P4481.  There is also evidence suggesting that the accused

 2     approved the Srebrenica operation, as illustrated by his own statement at

 3     the 52nd and the 54th Sessions of the Republika Srpska Assembly in August

 4     and October 1995, as well as during a television interview.  These are

 5     P1412, P1415, and P4555.

 6             The Chamber also heard evidence indicating that as the Srebrenica

 7     enclave fell, the Bosnian Serb leadership implemented a policy to

 8     eliminate the Bosnian Muslim population in Srebrenica.  There is evidence

 9     that shows that the heavy VRS offensive, as shown in documents P4143 and

10     P4147, led to the fall of Srebrenica town on the 11th of July, 1995.

11     Video footage taken at the time shows that once Srebrenica town was

12     taken, Mladic, Zivanovic, Radislav Krstic, Vujadin Popovic,

13     Vinko Pandurevic and other Bosnian Serb forces advanced onwards towards

14     Potocari, where part of the civilians had fled, and then towards

15     Bratunac.  This is P4201.  The Chamber also refers to P2992.  Contrary to

16     the accused's submission that the VRS only entered Srebrenica town once

17     it was abandoned by the civilian population and the ABiH 28th Division,

18     the Chamber heard evidence from Erdemovic, a member of the VRS

19     10th Sabotage Detachment, that his unit established contact with the

20     Bosnian Muslim population, including some elderly people and a

21     military-aged man upon his surrender in the centre of Srebrenica town on

22     the 11th of July, 1995.

23             The Chamber received evidence from Kingori as well as from P4935

24     and the video footage admitted as P4201 on the meetings held at the

25     Hotel Fontana in Bratunac on the 11th and 12th of July, 1995, with

Page 28754

 1     DutchBat officials, Mladic, and other members of the Bosnian Serb forces.

 2     This evidence indicates that during these meetings Mladic told the

 3     Bosnian Muslim civilian representatives "you can either all leave, all

 4     stay, or all die here."  Mladic also told them to bring the people who

 5     can secure the surrender of weapons and save their people from

 6     destruction.  The evidence before the Chamber discussed earlier in

 7     relation to Counts 2 through 8 shows the separation of Bosnian Muslim men

 8     of military age from the Bosnian Muslim women, children, and elderly men

 9     by the VRS.  Bosnian Muslim women, children, and some elderly men were

10     subjected to forcible displacement, while the military-aged men were

11     taken to various locations and executed.  The evidence cited previously

12     in relation to Counts 2 to 8 inclusive also shows the organised and

13     systematic manner in which the VRS acted to implement the policy to

14     eliminate the Bosnian Muslims in Srebrenica.

15             Accordingly, the Chamber is satisfied that there is evidence upon

16     which, if accepted, a reasonable trier of fact could be satisfied beyond

17     reasonable doubt that there existed a joint criminal enterprise composed

18     of members of the VRS, MUP, and the Bosnian Serb leadership, including

19     the accused, the purpose of which was to eliminate the Bosnian Muslims in

20     Srebrenica.

21             With respect to his own contribution to the events in Srebrenica,

22     the accused submits that there is no evidence that he planned,

23     instigated, ordered and/or aided and abetted genocide in Srebrenica, nor

24     as to who made the decision on the genocide and the killings in general.

25     The accused adds that he could not and did not have knowledge of what was

Page 28755

 1     happening on the ground both in relation to the killings or the forcible

 2     displacement in Srebrenica.  The Prosecution responds that, on the

 3     contrary, the accused was constantly kept abreast by the VRS, the MUP,

 4     and the civilian authorities of developments on the ground and that he

 5     knew of the forcible displacement and the killings as they were

 6     happening.

 7             As stated earlier, the Chamber has heard ample evidence,

 8     including testimony of Milovanovic and Skrbic, and as shown by P3036,

 9     about the accused's role as president of the Republika Srpska and

10     Supreme Commander of the VRS which gave him broad de jure and de facto

11     powers over those forces, including all the VRS units deployed in

12     Srebrenica.  This is confirmed by the accused's own statements during the

13     39th Session of the RS Assembly that:  "I am the one who signs, who

14     decides, and I will be responsible for each decision."  This is P1388.

15             The Chamber also heard ample evidence about the accused's

16     involvement in the events in Srebrenica as alleged in paragraphs 14 and

17     24 of the indictment.  Contrary to his challenge that he did not and

18     could not have had knowledge of what was happening on the ground during

19     the Srebrenica operation, the Chamber received evidence on the flow of

20     communication up and down the chains of command in the VRS, the police,

21     and the State Security Service, as well as between different reporting

22     entities.  The Chamber refers, inter alia, to the evidence of

23     Christian Nielsen and to P2984, P2996, P4450, P4932, and D2099.

24             Generally, in relation to information coming from the VRS, there

25     is documentary evidence showing that daily reports were sent to the

Page 28756

 1     accused by the Main Staff, at least from 12th to 14th of July, 1995.

 2     These are P3054, P4457, and P4464.  In addition, the Chamber heard

 3     evidence from Slavica Ristic, Tomislav Premovic, and Robert Djurdjevic on

 4     the accused's direct communication with Mladic on the 13th and 14th of

 5     July, 1995, regarding the Srebrenica operation.  The evidence also

 6     indicates that the accused was receiving information from the MUP as

 7     exemplified by the meetings between the accused and Tomo Kovac on the

 8     13th, 14th, 15th, and 18th of July, 1995, and by the fact that Kovac was

 9     receiving intelligence information reports from the field.  The Chamber

10     refers to P2242, P2987, P4932, P4933, and P5137.  The Chamber also heard

11     evidence from Katanic that Miroslav Deronjic communicated by telephone

12     almost daily with the accused during the Srebrenica operation as

13     confirmed by their conversation on the 13th of July, 1995, in which

14     Deronjic reported to the accused about approximately 2.000

15     Bosnian Muslims from Potocari who were transported and detained in

16     Bratunac.  This is P4618.  The accused also met with Deronjic on the

17     14th of July, 1995, as indicated by P2242, P4382, and Djurdjevic's

18     evidence.

19             In relation to the accused's challenge as to his knowledge of the

20     killings in Srebrenica, the Chamber heard evidence, including that of

21     KDZ122, that members of the VRS chain of command were aware of orders to

22     kill the Bosnian Muslim men from Srebrenica.  The Chamber also heard

23     evidence from Katanic about a meeting between Deronjic and the accused

24     where Deronjic allegedly reported on the killings in Kravica on the

25     13th of July, 1995.

Page 28757

 1             As for the accused's submission that there's no evidence that he

 2     knew or contributed to any deportation in Srebrenica, the Chamber refers

 3     to documentary evidence indicating that the accused was being informed by

 4     the VRS Main Staff as early as 12th of July, 1995, of the organised

 5     transport of about 10.000 Bosnian Muslims from Potocari towards Kladanj.

 6     The Chamber here refers to P166, P3054, P4388, and P4464.

 7             The Chamber has also heard evidence of the accused's

 8     encouragement of the VRS involved in the Srebrenica operation.

 9     Specifically, the Chamber received documentary evidence such as P1412,

10     P4501, P4555, and P5121, as well as the testimony of Skrbic, Djurdjevic,

11     and Premovic in relation to the promotion of Krstic on the

12     13th of July, 1995, to corps commander of the Drina Corps, immediately

13     after the fall of Srebrenica, as a result of his direct involvement in

14     the planning of the taking over of the Srebrenica enclave.

15             As discussed earlier, the Chamber has heard evidence indicating

16     that genocidal acts took place in the Srebrenica area in the summer of

17     1995 and that they were committed with the requisite specific intent for

18     genocide.  In light of all the evidence presented, the Chamber is of the

19     view that the accused's genocidal intent may be inferred from the

20     evidence received on the systematic nature and scale of the crimes

21     committed in Srebrenica, as well as from the evidence on the targeting of

22     the specific group of Bosnian Muslims and the accused's acts and

23     omissions in relation to the events that took place there in 1995, as

24     discussed earlier.

25             Accordingly, the Chamber is of the view that there is evidence

Page 28758

 1     upon which, if accepted, a reasonable trier of fact could be satisfied

 2     beyond reasonable doubt that the accused voluntarily participated in a

 3     joint criminal enterprise, the common purpose of which was to eliminate

 4     the Bosnian Muslims in Srebrenica through the commission of the crimes as

 5     charged in paragraph 20 of the indictment.  There is also evidence to

 6     suggest that the accused shared the intent of the other members of this

 7     joint criminal enterprise to carry out its objectives, including the

 8     specific intent to commit genocide and the specific intent to

 9     discriminate against the Bosnian Muslims in Srebrenica specifically based

10     on political, racial, or religious grounds.

11             Before we turn to the municipalities component, given the timing,

12     the Chamber will take a break for 15 minutes.

13                           --- Recess taken at be 12.06 p.m.

14                           --- On resuming at 12.23 p.m.

15             JUDGE KWON:  The Chamber will now turn to the municipalities

16     component of the case.

17             In relation to Count 3, the accused submits that there is no

18     evidence that events occurred in the municipalities according to a

19     pattern of behaviour.  The Prosecution does not respond directly to this

20     specific challenge by the accused but refers as an example to the active

21     destruction of virtually all the Bosnian Muslim and Bosnian Croat

22     religious sites in the municipalities.  The Chamber has received

23     extensive evidence about a pattern of persecutions through killings,

24     deportations, and destruction of cultural and religious symbols committed

25     across the municipalities by Bosnian Serb forces against the

Page 28759

 1     Bosnian Muslim and/or Bosnian Croat population.  For example, in relation

 2     to Drina valley and the Prijedor area, Harland testified that:  "You

 3     would sometimes find hundreds and hundreds of houses blown up, burnt out,

 4     or destroyed, and then one house would not be destroyed in the middle,

 5     would have little garden or something, and then they would have written

 6     on it in big paint 'Srpska Kuca,' meaning this is a Serbian house,

 7     indicating that huge numbers of the non-Serb population had been

 8     violently expelled."  On this topic, the Chamber also refers to the

 9     evidence of KDZ240.

10             The accused also submits that there is no evidence of forcible

11     transfer or deportation as acts of persecutions in the municipalities.

12     However, the Chamber has received extensive evidence that a large number

13     of Bosnian Muslim and/or Bosnian Croats from the municipalities were

14     intentionally forcibly displaced either within or across a de jure or a

15     de facto border by Bosnian Serb forces.  The Chamber refers here to the

16     evidence of Asim Egrlic, KDZ011, and KDZ605.

17             In addition, the accused submits that there is no evidence that

18     people were detained on the basis of their ethnic affiliation but argues

19     that they were detained for the purpose of investigations.  He also

20     claims that there is no evidence of forced labour in the municipalities

21     and refers instead to evidence showing that work was voluntary.  However,

22     the Chamber notes that it has received evidence about Bosnian Muslims and

23     Bosnian Croats, including women and children, being detained in the

24     municipalities, specifically on the basis of their ethnic affiliation and

25     not solely for the purposes of investigation.  The Chamber here refers to

Page 28760

 1     the testimony of KDZ051, KDZ239, and KDZ240.  The Chamber has also

 2     received evidence from a number of witnesses, including KDZ024, KDZ051,

 3     and KDZ610, about instances of Bosnian Muslim and Bosnian Croat detainees

 4     being forced by Bosnian Serb forces to work, including digging graves and

 5     trenches in detention facilities.

 6             Accordingly, the Chamber finds that there is evidence on which,

 7     if accepted, a reasonable trier of fact could be satisfied beyond

 8     reasonable doubt that during the period relevant to the indictment in the

 9     municipalities, Bosnian Muslims and/or Bosnian Croats were detained

10     specifically on the basis of their ethnic affiliation, that forced labour

11     was imposed on Bosnian Muslims and/or Bosnian Croats by Bosnian Serb

12     forces, and that Bosnian Muslims and/or Bosnian Croats were forcibly

13     displaced either within or across a de jure or a de facto border with the

14     specific intent to discriminate against them on political, racial, or

15     religious grounds.

16             In addition to the evidence discussed earlier, the Chamber

17     received extensive evidence supporting Count 3 in the municipalities as

18     charged in the indictment.  This includes the testimony of KDZ024

19     relating to Kljuc; KDZ048 relating to Prijedor; KDZ239 relating to Foca;

20     KDZ610 relating to Zvornik; Hajrudin Karic relating to Pale; KDZ240

21     relating to Bosanski Novi, and KDZ605 relating to Bratunac.

22             Accordingly, the Chamber finds that there is evidence on which,

23     if accepted, a reasonable trier of fact could be satisfied beyond

24     reasonable doubt that persecutions charged as a crime against humanity

25     pursuant to Article 5(h) of the Statute were carried out by Bosnian Serb

Page 28761

 1     forces against Bosnian Muslims and/or Bosnian Croats.

 2             In relation to Counts 4, 5, and 6, the accused does not raise any

 3     specific challenges with respect to municipalities.  The Chamber has

 4     received evidence which suggests that Bosnian Muslims and/or

 5     Bosnian Croats were killed by Bosnian Serb forces in the municipalities

 6     on a large scale in detention facilities, including as a result of cruel

 7     and inhumane treatment, and killings which occurred during and after the

 8     alleged take-over of these municipalities.  This includes the testimony

 9     of Musan Talovic relating to Bratunac; Munira Selmanovic relating to

10     Sokolac; Ahmet Zulic relating to Sanski Most; Eset Muracevic relating to

11     Vogosca; KDZ041 relating to Novi Grad; and KDZ048 relating to Prijedor.

12     The Chamber also received into evidence exhumation records as well as

13     pathology and autopsy reports which provide evidence that Bosnian Muslims

14     and Bosnian Croats were killed in municipalities including in Rogatica,

15     Sokolac, and Zvornik.  The Chamber refers, for example, to P3276, P3297,

16     P4106, and P4903.

17             Having reviewed the evidence presented by the Prosecution, the

18     Chamber finds that there is evidence on which, if accepted, a reasonable

19     trier of fact could be satisfied beyond reasonable doubt that murder

20     charged as a crime against humanity pursuant to Article 5(a) of the

21     Statute and as a violation of the laws or customs of war under Article 3

22     of the Statute and specifically Common Article 3 and extermination

23     charged as a crime against humanity pursuant to Article 5(b) of the

24     Statute were carried out by Bosnian Serb forces in the municipalities.

25             In relation to Counts 7 and 8, the accused generally submits that

Page 28762

 1     there is no evidence of forcible transfer or deportation in the

 2     municipalities.  The Chamber has heard evidence which suggests that a

 3     large number of Bosnian Muslims and/or Bosnian Croats from the

 4     municipalities were intentionally forcibly displaced either within or

 5     across a de jure or de facto border by Bosnian Serb forces.  This

 6     includes the evidence of KDZ605, Mehmed Music, KDZ024, KDZ026, and

 7     Selmanovic.  The Chamber also received into evidence the report of

 8     Tabeau, who testified about refugees and displaced persons as well as

 9     changes to the ethnic composition in the municipalities.  This is P4994.

10             Having reviewed the evidence presented by the Prosecution, the

11     Chamber therefore finds that there is evidence on which, if accepted, a

12     reasonable trier of fact could be satisfied beyond reasonable doubt that

13     deportation charged as a crime against humanity punishable under

14     Article 5(d) as well as forcible transfer, and inhumane act charged as a

15     crime against humanity punishable under Article 5(i) of the Statute were

16     carried out by Bosnian Serb forces in the municipalities.

17             In relation to Count 1, the accused submits that there is no

18     evidence upon which the Chamber could conclude that there was an

19     intention to destroy the Bosnian Muslims or Bosnian Croats.  He further

20     submits that displacement does not equate destruction and that the

21     pattern of prisoner exchanges flies in the face of genocide as thousands

22     of Bosnian Muslims were exchanged and released in 1992.  The accused

23     contends that the objective of the Bosnian Serb leadership to create a

24     larger Serb state did not necessarily entail the destruction of the

25     non-Serb population.  In support, the accused refers to, inter alia, the

Page 28763

 1     2007 judgement of the ICJ in the case of Bosnia and Herzegovina against

 2     Serbia and Montenegro and several judgements of this Tribunal where

 3     genocide in the municipalities was found not to have been proven.  He

 4     also refers to D2250, a chart prepared by Prosecution witness Tabeau

 5     reflecting the total numbers of dead and missing Bosnian Muslims from the

 6     seven municipalities where genocide is alleged to have occurred.

 7             The Prosecution responds that the fact that the desire to create

 8     a Serbian state may have had motives other than the commission of

 9     genocide is irrelevant.  The Prosecution submits that what is of

10     relevance is whether there was dolus specialis.  In that respect, the

11     Prosecution responds by reference to statements of the accused that he

12     shared the intent to destroy the Bosnian Muslim and/or Bosnian Croat

13     groups in part and that he encouraged the destruction of this protected

14     group by the organs under his authority and control.  It further cites

15     illustrative examples of incidents in Zvornik and Prijedor which, in the

16     Prosecution's submission show genocidal intent.  Finally, the Prosecution

17     adds that there's no minimum numerical requirement for genocide and that

18     displacement itself can contribute to destruction or can be evidence of

19     genocidal intent.

20             At the outset, the Chamber notes that the ICJ judgement and the

21     Tribunal jurisprudence cited by the accused and the findings found

22     therein in relation to the alleged genocide in municipalities in BiH are

23     not binding in any way on the Chamber including for the purposes of its

24     Rule 98 bis determination.  Similarly, while the Prosecution correctly

25     observes that no Chamber of the Tribunal referred to by the accused has

Page 28764

 1     entered a judgement for acquittal at the Rule 98 bis stage for genocide,

 2     this does not preclude this Chamber from reaching that conclusion on its

 3     review of the evidence before it.  If the Chamber is convinced that

 4     taking the totality of the evidence presented by the Prosecution even at

 5     its highest there is no evidence on which it could convict the accused of

 6     genocide under Count 1, the Chamber should enter a judgement of acquittal

 7     for Count 1 at this stage.

 8             For the purposes of Count 1, the Prosecution alleges in the

 9     indictment that in some municipalities the alleged campaign of

10     persecution between 31st March and 31st December 1992, "escalated to

11     include conduct that manifested an intent to destroy in part the

12     national, ethnical, and/or religious groups of Bosnian Muslims and/or

13     Bosnian Croats as such."  The Chamber recalls that the alleged genocidal

14     acts as charged in the indictment under Count 1 include:  (1) killing of

15     members of the protected group; (2) causing of serious bodily and mental

16     harm to members of the protected group; and (3) detention under

17     conditions of life calculated to bring about physical destruction of the

18     protected group.

19             The Chamber has reviewed evidence relating to the municipalities,

20     including the testimony of Talovic from Bratunac; Sead Hodzic from

21     Vlasenica; KDZ610 from Zvornik; KDZ239 from Foca; KDZ075 from Kljuc; and

22     KDZ048 as well as Ivo Atlija from Prijedor.  This and other evidence

23     indicates that a large number of Bosnian Muslims and/or Bosnian Croats

24     were killed by Bosnian Serb forces in the municipalities during and after

25     their alleged take-over and while in detention.  As described earlier

Page 28765

 1     this evidence is capable of supporting a conclusion that Bosnian Muslims

 2     and/or Bosnian Croats were killed on a large scale with the intent to

 3     kill with persecutory intent in relation to Counts 3 to 6 of the

 4     indictment.  The Chamber notes that the determination of whether there is

 5     evidence capable of supporting a conviction for genocide does not involve

 6     a numerical assessment of the number of people killed and does not have a

 7     numeric threshold.  However, the evidence the Chamber received in

 8     relation to the municipalities, even if taken at its highest, does not

 9     reach the level from which a reasonable trier of fact could infer that a

10     significant section of the Bosnian Muslim and/or Bosnian Croat groups and

11     a substantial number of members of these groups were targeted for

12     destruction so as to have an impact on the existence of the

13     Bosnian Muslims and/or Bosnian Croats as such.

14             As noted earlier, the Chamber recalls that the actus reus for

15     genocide can also manifest itself by (1) causing serious bodily or mental

16     harm to members of the group; or by (2) deliberately inflicting on the

17     group conditions of life calculated to bring about its physical

18     destruction in whole or in part.

19             The Chamber recalls that serious bodily harm must go beyond

20     temporary unhappiness, embarrassment or humiliation, and result in a

21     grave and long-term disadvantage to a person's ability to lead a normal

22     and constructive life, but it need not be permanent and irremediable.

23             The Chamber has received evidence from witnesses including KDZ239

24     from Foca; KDZ050 and KDZ048 from Prijedor; KDZ605 from Bratunac; KDZ603

25     from Vlasenica; Jusuf Avdispahic from Zvornik; KDZ490 from Sanski Most,

Page 28766

 1     which indicates that Bosnian Serb forces caused serious bodily or mental

 2     harm to many Bosnian Muslims and/or Bosnian Croats during their detention

 3     in multiple detention facilities.  However, in order to support a

 4     conviction for genocide, the bodily or mental harm inflicted on members

 5     of a group must be of such a serious nature as to threaten its

 6     destruction in whole or in part.  In that regard, the Chamber has not

 7     heard evidence, even taken at its highest, which could support a

 8     conclusion by a reasonable trier of fact that the harm caused reached a

 9     level where it contributed to or tended to contribute to the destruction

10     of the Bosnian Muslims and/or Bosnian Croats in whole or in part or that

11     it was committed with the intent to destroy those groups.

12             The Tribunal's jurisprudence establishes that forcible transfer

13     does not constitute in and of itself a genocidal act, but where attended

14     by such circumstances as to lead to the death of the whole or part of the

15     displaced population, it may be considered an underlying offence that

16     causes serious bodily or mental harm.  The Chamber refers here to the

17     Appeals Chamber's judgement in Krstic and the Trial Chamber's judgement

18     in Popovic et al.  The evidence heard by the Chamber indicates that the

19     circumstances in which the Bosnian Muslims and/or Bosnian Croats in the

20     municipalities were forcibly transferred or displaced from their homes

21     were attended by conditions of great hardship and suffering and that some

22     of those displaced may have suffered serious bodily or mental harm during

23     this process.  However, the Chamber has not heard evidence which rises to

24     the level which could sustain a conclusion that the serious bodily or

25     mental harm suffered by those forcibly transferred in the municipalities

Page 28767

 1     was attended by such circumstances as to lead to the death of the whole

 2     or part of the displaced population for the purposes of the actus reus

 3     for genocide under Article 4(b) of the Statute.

 4             The evidence of the witnesses referred to earlier is also

 5     illustrative of the conditions of detention, including cruel and inhumane

 6     treatment, torture, physical and psychological abuse, rape and sexual

 7     violence, inhumane living conditions, forced labour, failure to provide

 8     adequate accommodation, shelter, food, water, medical care or hygienic

 9     facilities, in relation to which the Chamber already found there was

10     sufficient evidence for the purpose of Count 3.  However, in determining

11     whether conditions of life imposed on the targeted group were calculated

12     to bring about its physical destruction, the Chamber has to focus on the

13     objective probability of these conditions leading to the physical

14     destruction of the group in part and must assess factors like the nature

15     of the conditions imposed, the length of time that members of the group

16     were subjected to that, and characteristics of the targeted group such as

17     vulnerability.  When reviewing evidence going to Count 1 for the purpose

18     of this ruling, the Chamber has indeed focussed on and assessed those

19     factors.  In addition, while doing so, the Chamber also reminded itself

20     that the charge of deliberately inflicting on the group conditions of

21     life calculated to bring about its physical destruction in whole or in

22     part, does not require proof that the result was actually achieved.

23     Having completed this review and analysis, the Chamber came to the

24     conclusion that, for the purposes of Count 1, the evidence before it,

25     even taken at its highest, cannot support the conclusion that the

Page 28768

 1     conditions of detention in the scheduled detention facilities reached a

 2     level which could support an inference that Bosnian Muslims and/or

 3     Bosnian Croats were detained in conditions of life calculated to bring

 4     about their physical destruction.

 5             As mentioned earlier, the Chamber notes that in the absence of

 6     direct evidence that the physical perpetrators of the crimes alleged to

 7     have been committed in the municipalities carried out these crimes with

 8     genocidal intent, the Chamber can infer specific intent from a number of

 9     factors and circumstances, including the general context of the case, the

10     means available to the perpetrator, the surrounding circumstances, the

11     perpetration of other culpable acts systematically directed against the

12     same group, the numerical scale of atrocities committed, the repetition

13     of destructive and discriminatory acts, the derogatory language targeting

14     the protected group, or the existence of a plan or policy to commit the

15     underlying offence.  As stated earlier, the Chamber has heard evidence of

16     culpable acts systematically directed against Bosnian Muslims and/or

17     Bosnian Croats in the municipalities and of the repetition of

18     discriminatory acts and derogatory language.  However, the nature, scale,

19     and context of these culpable acts, be it in all the municipalities

20     covered by the indictment or the seven municipalities in which genocide

21     is specifically alleged, do not reach the level from which a reasonable

22     trier of fact could infer that they were committed with genocidal intent.

23             Finally, having reviewed the totality of the evidence which the

24     Chamber has received with respect to the killing, of serious bodily or

25     mental harm to, the forcible displacement of, and conditions of life

Page 28769

 1     inflicted on Bosnian Muslims and/or Bosnian Croats in detention

 2     facilities in the municipalities, the Chamber finds that there is no

 3     evidence that these actions reached a level from which a reasonable trier

 4     of fact could draw an inference that they were committed with an intent

 5     to destroy in whole or in part the Bosnian Muslims and/or Bosnian Croats

 6     as such.

 7             As stated earlier, the Prosecution in its response to the accused

 8     also refers to evidence of statements and speeches made by him and other

 9     members of the Bosnian Serb leadership which, according to the

10     Prosecution, contained rhetorical warning of the disappearance,

11     elimination, annihilation or extinction of Bosnian Muslims in the event

12     that war broke out.  The Chamber has considered these examples as well as

13     the other evidence received in relation to the accused in light of the

14     scale and the context of the alleged crimes in the municipalities in

15     1992, and the inability to infer genocidal intent from other factors.

16     Following this review, the Chamber finds that notwithstanding the

17     statements of the accused, there is no evidence upon which, if accepted,

18     a reasonable trier of fact could find that the acts of killing, serious

19     bodily or mental harm, and conditions of life inflicted on the

20     Bosnian Muslims and/or Bosnian Croats were perpetrated with the dolus

21     specialis required for genocide.

22             Having reviewed the evidence admitted in this case with respect

23     to Count 1, the Chamber finds that there is no evidence, even taken at

24     its highest, which could be capable of supporting a conviction for

25     genocide in the municipalities as charged under Article 4(3) of the

Page 28770

 1     Statute.

 2             In relation to his responsibility with regard to the

 3     municipalities component of the case, the accused submits that there is

 4     no evidence that Bosnian Serb leadership intended to permanently remove

 5     the Bosnian Muslims and Bosnian Croats from the territories in BiH

 6     referred to in the indictment.  He also submits that there is no evidence

 7     that there was a take-over of power in the municipalities or that

 8     incident happened at the initiative of the Serbs or there was a

 9     systematic approach to the question of minorities in the Republika Srpska

10     from which the crimes charged in the indictment would result.  Finally,

11     in relation to the detention facilities in the municipalities, he submits

12     that it was difficult as president to influence what was happening on the

13     ground because he had neither communication nor access.  The Prosecution,

14     inter alia, responds that there is evidence that the accused sought an

15     ethnically clean state and that the redistribution of the population was

16     to take place over a vast amount of territory.  The Prosecution also

17     contends that the accused was receiving information on the mistreatment

18     in the detention facilities and undertook efforts to distance himself

19     from them.

20             First, the Chamber notes that there is evidence that throughout

21     the period of the indictment, members of the Bosnian Serb leadership met

22     often, co-ordinated, and exchanged information as well as ideas.  The

23     Chamber has received in evidence the records of hundreds of regular

24     meetings attended by the Bosnian Serb leadership between 1991 and 1995,

25     sometimes with municipal or regional leaders and members of the

Page 28771

 1     VRS Main Staff, during which the participants discussed strategy and

 2     policies and often espoused the same goals and shared similar rhetoric.

 3     The Chamber also refers to the hundreds of intercepted conversations

 4     admitted into evidence, as well as to the testimony of Wilson.  Second,

 5     contrary to what the accused asserts, there is evidence of a planned

 6     take-over of power in the municipalities which sought to establish

 7     separate Bosnian Serb institutions and to create a Bosnian Serb

 8     homogeneous state for which the Bosnian Serbs were actively preparing.

 9     The Chamber refers to P960, P2548, P2552, P2581, and P3337.  The Chamber

10     received ample evidence that throughout the conflict the objective of an

11     ethnically homogeneous territory was reiterated by Bosnian Serb

12     leadership.  The Chamber refers, for example, to P1385, P2556, D86, and

13     D90.  Finally, the Chamber heard evidence that throughout the

14     municipalities, the policy of the Bosnian Serb leadership did result in

15     what Harland described as huge-scale violent expulsion of non-Serb

16     population.

17             Accordingly, there is evidence upon which, if accepted, a

18     reasonable trier of fact could be satisfied beyond reasonable doubt that

19     during the period relevant to the indictment there existed a

20     joint criminal enterprise composed of, inter alia, members of the Bosnian

21     Serb leadership, including the accused the purpose of which was to

22     permanently remove the Bosnian Muslims and/or Bosnian Croats from

23     Bosnian-Serb claimed territories in BiH.

24             In relation to his responsibility for the municipalities

25     component of the case, the accused does not make a specific challenge

Page 28772

 1     since he is challenging the very existence of a joint criminal

 2     enterprise.  First, there is evidence that as charged in paragraph 14 of

 3     the indictment, the accused as president of the SDS and later

 4     Republika Srpska president formulated and promoted the development and

 5     implementation of SDS and Bosnian Serb governmental policies intended to

 6     advance the objective of the joint criminal enterprise.  The Chamber

 7     refers in particular to the evidence in relation to the promulgation of

 8     the six strategic goals and their implementation on the ground through a

 9     number of VRS directives for military operations.  This is in P161, P976,

10     P3036, and D325.

11             The Chamber also received evidence that the accused disseminated

12     and encouraged the dissemination of propaganda to Bosnian Serbs intended

13     to engender fear and hatred of Bosnian Muslims and Bosnian Croats in

14     Bosnian Serbs.  The Chamber received evidence that within its unit the

15     Main Staff accentuated the message that the Bosnian Serbs were threatened

16     by aggression and genocide and instructed units to "take care to achieve

17     the desired information and propaganda effects."  The Chamber refers, for

18     example, to P962, D270, and D325.  Okun testified that in negotiations

19     with international representatives, the accused "never denied Serb

20     ambitions for a separate republic in Bosnia nor that his forces had

21     conducted 'ethnic cleansing' or military operations again the other

22     Bosnian nationalities.  Rather, he attempted to justify the actions of

23     the people he claimed to represent," namely that "they the Serb people

24     had to be protected from the aggressiveness of the Muslims or the Turks."

25             There is also evidence that the accused directed and encouraged

Page 28773

 1     Bosnian Serb political and governmental organs and Bosnian Serb forces to

 2     carry out acts in furtherance of the objective of the joint criminal

 3     enterprise.  The Chamber refers to the evidence that the accused

 4     encouraged municipal leaders to undertake actions to create a homogeneous

 5     territory.  This is in P3405 and D92.

 6             Contrary to the accused's submission in relation to his lack of

 7     influence on and information as to the events on the ground, the Chamber

 8     received evidence that the accused failed, while under a duty to do so,

 9     to take adequate steps to ensure that Bosnian Serb political and

10     governmental organs and Bosnian Serb forces would act to protect

11     Bosnian Muslims and Bosnian Croats residing in areas under their control.

12     For instance, there is evidence that as early as 1992, there were working

13     communications systems from the Supreme Commander to the lower levels,

14     and therefore that there were mechanisms through which the accused was

15     informed regularly and in detail of the situation on the ground.  The

16     Chamber refers to D325.  Of relevance to the accused's knowledge of

17     existence of detention facilities in Prijedor, the Chamber refers to the

18     testimony of Wilson and of Edward Vulliamy.  Vulliamy testified that the

19     accused told him that he could order that the Omarska detention facility

20     be closed down in two days and that he knew the prisoners at Omarska did

21     not have enough food.  The Chamber also heard evidence that

22     Milorad Davidovic attended a meeting with the accused and Mladic, during

23     which the accused assured Davidovic that measures to prevent looting were

24     already taken and that further attempts to prevent looting would be made,

25     but instructed that no arrests of Serbs should be made to avoid conflicts

Page 28774

 1     between Serbs.  The accused said "that it was very important for Serbs

 2     not to fight one another as it had been the case in some other conflicts,

 3     such as during the Second World War, even if it is done at the expenses

 4     of not punishing perpetrators of crimes."

 5             Accordingly, the Chamber is satisfied that there is evidence upon

 6     which, if accepted, a reasonable trier of fact could be satisfied beyond

 7     reasonable doubt that during the period relevant to the indictment,

 8     through his acts and omissions, the accused voluntarily participated in a

 9     joint criminal enterprise composed of, inter alia, members of the

10     Bosnian Serb leadership, the purpose of which was to permanently remove

11     the Bosnian Muslims and Bosnian Croats from Bosnian-Serb claimed

12     territory in BiH, that he shared the intent of the other members of this

13     joint criminal enterprise to carry out its objective through the

14     commission of the crimes of persecutions, extermination, murder,

15     deportation and forcible transfer as inhumane acts, and that he

16     contributed to it through his acts and omissions.

17             For the foregoing reasons, the Chamber partially grants the

18     accused's motion under Rule 98 bis of the Rules, enters a judgement of

19     acquittal on Count 1 of the indictment, and dismisses the remainder of

20     the motion.

21             That was the ruling, and I'd like to deal with, in private

22     session briefly, a couple of matters.

23             Could the Chamber move into private session.

24                           [Private session]

25   (redacted)

Page 28775

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15                           [Open session]

16             JUDGE KWON:  Very well.  The hearing is now adjourned until the

17     3rd of September, 2012, when we will have a Status Conference.

18                           --- Whereupon the hearing adjourned at 1.07 p.m.,

19                           to be reconvened on Monday, the 3rd day

20                           of September, 2012.

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