Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20716

 1                           Monday, 17 March 2014

 2                           [Rule 98 bis Hearing]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.31 a.m.

 6             JUDGE ORIE:  Good morning to everyone in and around this

 7     courtroom.

 8             Madam Registrar, would you please call the case.

 9             THE REGISTRAR:  Good morning, Your Honours.  This is case

10     IT-09-92-T, the Prosecutor versus Ratko Mladic.

11             JUDGE ORIE:  Thank you, Madam Registrar.

12             Today we'll hear submissions under Rule 98 bis.  Rule 98 bis

13     reads:

14             "At the close of the Prosecutor's case, the Trial Chamber shall,

15     by oral decision and after hearing the oral submissions of the parties,

16     enter a judgement of acquittal on any count if there's no evidence

17     capable of supporting a conviction."

18             The Defence has announced that it wishes to make submissions,

19     oral submissions, under Rule 98 bis and has an opportunity to do so now.

20             Mr. Ivetic, it will be you who will make those submissions?

21             MR. IVETIC:  That is correct, Your Honour.

22             JUDGE ORIE:  Then you may proceed and I put hereby on the record

23     that Mr. Stojanovic as co-counsel is present in court.  Please proceed.

24             MR. IVETIC:  Thank you, Your Honour.

25             Good morning, Your Honours.  The duty falls upon me to present

Page 20717

 1     the Rule 98 bis arguments on behalf of the defence of

 2     General Ratko Mladic.

 3             At the outset, I want to clarify that nothing in our presentation

 4     today or in our choice of topics to be discussed should be interpreted in

 5     any way as a concession or admission of any part of the Prosecution's

 6     case against General Mladic.  Just because I may not address every part

 7     of the Prosecution's case does not mean to imply that we believe the

 8     evidence they have presented on the same.  In fact, we oppose and reject

 9     the Prosecution's allegations and the case they have brought in total.

10             Both General Mladic and his Defence team look forward to

11     presenting witnesses and evidence during the Defence case to rebut each

12     untruth and misinterpretation presented during the Prosecution case.

13     General Mladic believes in the truth and that we will be able to present

14     that truth, and that once presented it will demonstrate his innocence.

15     While both he and the Defence are mindful of and respect that during the

16     war regrettable events and even crimes occurred on all warring sides,

17     causing losses, impacting those involved in and touched by the conflict,

18     and our thoughts go out to all those aggrieved.  We want to be clear,

19     General Mladic never intended nor ordered any crimes and at all times

20     acted honourably to defend his country and to defend his people.

21             Your Honours, your task at the 98 bis stage is to purge the

22     indictment of allegations that are not supported by evidence upon which

23     you could convict General Mladic.  The Defence's submissions are focused

24     accordingly and will be divided into four substantive sections:  First, I

25     will address the interpretation and application of Rule 98 bis and

Page 20718

 1     advocate that a charge-based approach upholds the object and purpose of

 2     the provision; secondly, I will assess the Prosecution's evidence in

 3     relation to Jadar River, Sirokaca, and Schedule D of the indictment,

 4     destruction of religious sites, and demonstrate that the Prosecution has

 5     not proffered any evidence capable of sustaining a conviction on these

 6     charges; next I will address third party actors; and finally, genocide.

 7             Thus, the Defence will respectfully invite Your Honours to duly

 8     acquit General Mladic of these allegations and allow the Defence to focus

 9     its resources elsewhere.

10             Rule 98 bis states that:

11             "At the close of the Prosecutor's case, the Trial Chamber shall,

12     by oral decision and after hearing the oral submissions of the parties,

13     enter a judgement of acquittal on any count if there is no evidence

14     capable of supporting a conviction."

15             It is the use of the word "count" that has been latched on to by

16     Trial Chambers to conclude that judgements for acquittals can only be

17     entered in respect of entire counts and not individual charges.  A

18     textual interpretation of the rule has been utilised by Trial Chambers to

19     confine itself to this when answering Defence submissions requesting

20     acquittals on individual charges within counts.  The application of the

21     rule turns on the interpretation of not only the text, but also the

22     object and purpose of Rule 98 bis in the context of the trial as a whole.

23             In Tadic it was held that even though the Statute is not a

24     treaty, the rules of treaty interpretation contained in the

25     Vienna Convention are relevant to determine its interpretation and

Page 20719

 1     application.  This is the Tadic decision on Defence motion on

 2     jurisdiction, 10 August 1995, paragraph 18.  Although the Tribunal Judges

 3     do not always mention the Vienna Convention explicitly, the interpretive

 4     framework of the convention is used.

 5             The Trial Chamber in Delalic confirmed that by having recourse to

 6     the approach advocated in this framework "the true purpose and intent of

 7     the Statute and the Rules of Procedure and Evidence are discovered."  It

 8     noted that "it is well settled that an interpretation of the articles of

 9     the Statute and provisions of the Rules should begin with resort to the

10     general principles of interpretation codified in Article 31 of the

11     Vienna Convention of the Law of Treaties" and cited a multitude of cases

12     that confirmed this.  And this would be the Delalic trial judgement,

13     paragraph 1161.  Article 31(1) states that:

14             "A treaty shall be interpreted in good faith in accordance with

15     the ordinary meaning to be given to the terms of the treaty in their

16     context in the light of its object and purpose."

17             A textual interpretation, namely one of strict construction,

18     limits the Chamber to determining whether a case is within the bounds of

19     the intention of the Statute and Rule by the construction of the express

20     language only.  Following this, unless the Defence is able to show that

21     the Prosecutor has failed to provide evidence capable of sustaining a

22     conviction in relation to the entire count, then an acquittal will not be

23     entered by the Chamber.

24             However, as the Delalic Trial Chamber emphasised, "the rule of

25     strict construction is not violated by giving the expression its full

Page 20720

 1     meaning or the alternative meaning which is more consonant with the

 2     legislative intent and best effectuates such intent."  This encapsulates

 3     the dual-pronged interpretive approach advocated by the

 4     Vienna Convention.

 5             Article 31(1) of the Vienna Convention emphasises that the

 6     textual and purposive approaches are not mutually exclusive interpretive

 7     methods, rather interdependent.  The textual and the purposive approach

 8     are reliant on and responsible for the interpretation of each other.

 9     Thus, the word "count" in the 98 bis provision can and should be

10     ascertained with recourse to the intention of the drafters and the

11     purpose of the provision in the context of the trial as a whole without

12     violating the textual interpretation that the present jurisprudence is

13     anchored to.

14             Before the amendments to the rule in 2004, the provision

15     expressly provided for a Trial Chamber to enter a judgement of acquittal

16     where the Chamber found insufficient evidence to sustain a conviction on

17     challenged charges, a point which the Hadzic Trial Chamber acknowledged

18     the other month.  The text read as follows:

19             "An accused may file a motion for the entry of judgement of

20     acquittal on one or more offences charged in the indictment."

21             Neither the word "count" or "charge" was used, rather that of

22     "offence."  It is accepted that in the 2004 amendment the word "count"

23     was inserted into the Statute and that goes some way to implying that the

24     drafters sought to restrict the application of 98 bis to counts as a

25     whole.  However, as the Dragomir Milosevic Chamber highlighted, this

Page 20721

 1     interpretation has the potential to render the process "virtually devoid

 2     of any practical application at the Tribunal," as it fails to appreciate

 3     the multi-layered nature of the indictments and restricts itself to a

 4     purely domestic approach of the rule, that would be in the Milosevic --

 5     Dragomir Milosevic trial, 3rd May 2007, transcript pages 5641 through

 6     5643.

 7             The purpose of the rule is two-fold:  Firstly, to remove any

 8     allegations that cannot be sustained at the earliest opportunity to

 9     ensure that the trial is expedited and that the Defence's resources are

10     not squandered; and secondly, to adhere to due process and acquit the

11     accused of allegations that are not supported by evidence.

12             This purpose does not change because the rule has been assumed

13     from domestic law into international law; rather, it should be applied in

14     a manner that acknowledges the complexity of the indictment while

15     adhering to its function at this stage in the proceedings.  Anything that

16     remains in the indictment requires the Defence to call evidence and

17     respond to the allegations, while the Chamber must dedicate time to

18     hearing and pronouncing on the evidence.

19             It is simply a waste of precious resources and time to allow

20     charges that do not have a real prospect of success, by virtue of there

21     being no evidence capable of supporting a conviction, to remain in the

22     indictment at this stage.  Furthermore, the interests of justice do not

23     limit themselves to victims' justice, but also to the rights of the

24     accused.  The Tribunal's slogan may be "bringing war criminals to justice

25     and justice to victims," but the accused is innocent until proven guilty

Page 20722

 1     and it follows that if guilt cannot be proved then the accused must be

 2     acquitted.  This is the premise of Rule 98 bis.  The rule is a safety

 3     valve that protects the accused and the Defence from unfounded

 4     allegations progressing and being the subject of the final judgement.

 5             If Trial Chamber's take the count-based approach and restrict the

 6     application of Rule 98 bis, then the utility of this valve is lost and

 7     with it the protection afforded to the accused that was deliberately

 8     incorporated from domestic law and written into the Rules.

 9             The Defence recognises that there are many cases that have

10     applied the count-based approach following the amendment on the basis of

11     a textual interpretation of Rule 98 bis.  However, just because the

12     jurisprudence has moved in one direction does not mean that it is the one

13     intended by the drafters that adheres to the object and purpose of the

14     rule.  It is the textual interpretation of the rule, not the rule itself,

15     that has restricted it to a count-based approach.  It is self-evident

16     that the Rule's function is to remove allegations from the indictment

17     that, at the close of the Prosecutor's case, are incapable of sustaining

18     a conviction.

19             The word "offence" in the pre-2004 98 bis provision was

20     interpreted in the jurisprudence as encompassing both counts and charges

21     precisely for this reason.  The object and purpose of the rule did not

22     change when the text was amended.  Had the drafters used the word

23     "charge" instead of "count," Trial Chambers would undoubtedly have taken

24     a purposive interpretation to the text to ensure that acquittals could be

25     entered on entire counts, as this would conform to the object and purpose

Page 20723

 1     the rule seeks to achieve, notwithstanding the literal textual

 2     interpretation.

 3             The fact that the jurisprudence was deemed to be settled by the

 4     Hadzic Trial Chamber does not redefine the object and purpose of the

 5     provision.  That Trial Chambers have previously taken a textual

 6     interpretation does not mean that taking a purposive interpretation to

 7     the word "count," so as to interpret it as including the possibility of

 8     an acquittal on individual charges within a count is not tantamount to

 9     judicial law making.  This approach is not gap-filling, nor is it

10     exceeding the competence of the Trial Chamber.  Rather, it is giving

11     effect to the object and purpose of Rule 98 bis in accordance with the

12     rules of interpretation outlined in the Vienna Convention.

13             Should Your Honours conclude that the parameters of the rule

14     remain ambiguous even after it has been interpreted in light of its text

15     and the object and purpose of the provision, then the Defence submits

16     that the interpretation most favourable to the accused should be

17     followed.  To this end, Your Honours are urged to have due regard for the

18     principle of in dubio pro reo.  The Appeals Chamber in Tadic deferred to

19     this when assessing the ambit of the provisions in the Statute and the

20     Rules and emphasised that "any doubt should be resolved in accordance

21     with the principle in dubio pro reo."  This is the decision on

22     appellant's motion for extension of time and admission of additional

23     evidence of 15 October 1998, paragraph 73.

24             Therefore, to take a textual interpretation alone is to create a

25     judicial bulwark against acquittals on individual charges, which is a

Page 20724

 1     consequence that is self-evident from the jurisprudence.  Not only does

 2     this offend the object and purpose of Rule 98 bis, but also the principle

 3     of in dubio pro reo, as any doubt as to the ambit of the provision should

 4     accord to an interpretation that favours the accused.  In relation to the

 5     rule, the Defence submits interpretation that favours the accused is the

 6     one that allows the ambit of the rule to provide for acquittals on

 7     individual charges as distinct from the count as a whole.

 8             Your Honours, the count-based approach is one that shrouds

 9     individual charges in a legal veil that prevents them from being

10     separated from the count as a whole and, as such, the Defence from

11     challenging charges that are not substantiated by evidence.

12             The imposition of a legal veil is not dissimilar to that taken in

13     company/corporate law, where companies are treated as independent legal

14     entities to prevent litigants from going behind it and recovering from

15     the individuals within it.  The corporate veil cloaks the individual and

16     prevents them from being challenged separately in the same way that the

17     count-based approach prevents individual charges from being addressed in

18     isolation of the purposes of 98 bis.

19             What the Defence is advocating is not that this veil be lifted

20     entirely, but that the Chamber, on a case-by-case basis, determine

21     whether there are circumstances that justify the piercing of this veil in

22     accordance with the object and purpose of the provision.  To take a

23     blanket approach and reject every challenge made by the Defence to

24     individual charges is not only -- would not only offend the object and

25     purpose of Rule 98 bis, but allows the Prosecution to hide individual

Page 20725

 1     charges behind a veil that makes all the charges in a count infallible,

 2     even if there is no evidence capable of supporting a conviction.  It is

 3     for this reason that there are exceptions to the presumption of the

 4     inviolability of the corporate veil, to prevent individuals from

 5     exploiting the veil to remain outside the reach of the law.

 6             The Defence implores the Chamber to acknowledge that exceptions

 7     to the count-based approach are essential to uphold the object and

 8     purpose of Rule 98 bis.  Having a presumption against acquitting an

 9     accused of individual charges within a count is one thing, but to remove

10     any opportunity for this to occur goes beyond what is necessary to

11     prevent the danger of an incident-based or piece-meal application of

12     Rule 98 bis.

13             THE INTERPRETER:  Interpreter's note:  Could the speaker kindly

14     slow down.  Thank you.

15             MR. IVETIC:  A blanket approach by the Chamber offends the

16     fundamental aspect of the rule's purpose:  To give effect to and ensure

17     the accused is tried expeditiously and to uphold the requirements of due

18     process and allows the Prosecution to exploit the count-based approach to

19     disguise the evidentiary defects in their individual allegations.  To

20     adjudge and declare that the count-based approach should be applied to

21     the present case in accordance with the jurisprudence is to confirm that

22     98 bis is nothing more than a paper tiger, devoid of any practical

23     application for the Defence by virtue of the fact that Trial Chambers

24     apply an overly-restrictive interpretation of it.

25             Furthermore, we have seen from the medical records proffered in

Page 20726

 1     conjunction with this Trial Chamber's order made pursuant to Rule 74 bis

 2     that ensuring that the trial is not unduly prolonged is of paramount

 3     importance, given General Mladic's health.  The latest consolidated

 4     report of Dr. Hollander and Dr. Cras noted that "delaying or protracting

 5     the course of the trial would be disadvantageous to General Mladic

 6     because of advancing age."  Your Honours, maintaining charges that have

 7     no prospect of success extends the conclusion of the trial and increases

 8     the strain on General Mladic unnecessary.  If there is no evidence

 9     capable of supporting a conviction at this stage, then it follows that

10     the Chamber has a responsibility to the accused to ensure that he is

11     tried expeditiously, particularly in the present circumstances where

12     General Mladic's health is a pivotal concern.

13             Turning to the Defence's submissions in relation to specific

14     charges, we recall that Your Honours are both the triers of law and fact

15     and that issues pertaining to the reliability and credibility of the

16     witnesses are not normally dealt with under Rule 98 bis.  However, the

17     Trial Chamber in Kordic and Cerkez emphasised that:

18             "There is one situation in which the Chamber is obliged to

19     consider such matters; it is where the Prosecution's case has completely

20     broken down, either in its own presentation or as a result of such

21     fundamental questions being raised through cross-examination as to the

22     reliability and credibility of witnesses that the Prosecution is left

23     without a case."  This is the 6 April 2000 decision on Defence motions

24     for judgement of acquittal, paragraph 28.

25             This represents an exception that draws a distinction between

Page 20727

 1     merely weak evidence and that which would render a conviction unsafe if

 2     the Chamber were to rely upon it as affirmative evidence of guilt.  In

 3     this case, the Defence submits that the Prosecutor's case in relation to

 4     the incidents at Jadar River and Sirokaca, issues pertaining to the

 5     reliability and credibility of witnesses, have left the Prosecutor

 6     without a case.  In relation to Schedule D of the indictment, destruction

 7     of religious sites, the Defence asserts that the evidence presented is so

 8     incapable of belief that the Prosecution is, once again, left without a

 9     case.

10             Turning first to the Jadar River.

11             Following the case advanced on Count 2, the evidence tendered in

12     relation to the indictment at the Jadar River, which is Schedule E(1) 1.1

13     of the indictment, taken at its highest cannot support the conclusion

14     that these deaths were the start of the organised summary executions of

15     prisoners by gun-shots in the hands of the VRS, let alone acting under

16     orders of General Mladic.  The Prosecutor alleges in the indictment that

17     15 Bosnian men were executed on the bank of the Jadar River as part of an

18     organised killing within Srebrenica.

19             As the Defence will show, the Prosecutor's evidence does not

20     support criminal liability on the part of General Mladic as the only

21     witness's evidence that attests to the Prosecutor's case collapsed under

22     cross-examination.

23             The Prosecution have relied on the witness testimony of protected

24     Witness RM314, who is held out by the Prosecution to be a survivor of the

25     massacre, to prove not only did the executions occur, but that the VRS

Page 20728

 1     was responsible for the executions.  While the Prosecution cited six

 2     witnesses in the pre-trial brief to support this incident, only RM314

 3     provided evidence of the events that occurred at Jadar River and provided

 4     oral testimony on the 8th and 9th of May 2013.

 5             The Prosecutor's case relies solely on RM314 being a survivor of

 6     this event and thus an eye-witness that can attest to the ethnicity of

 7     the other prisoners, the identity of the perpetrators, and the manner in

 8     which the prisoners were executed.  However, when subject to

 9     cross-examination by the Defence it became apparent that his account was

10     inconsistent, was contradicted by documentary evidence and, as such, his

11     testimony was incapable of belief.

12             RM314's evidence collapsed under cross-examination in key areas

13     and is so unreliable that the Prosecution has failed to provide any

14     evidence capable of supporting a conviction.  RM314's oral testimony,

15     firstly, raised doubts as to whether his injuries were sustained and as a

16     result of an attempted execution at the Jadar River, and thus whether he

17     was actually present at the time; secondly, undermined the reliability of

18     his identification of someone who was alleged to be a VRS shooter at the

19     incident; and finally, proved inconsistent on the issue of his status as

20     a civilian at the material point in time.

21             The witness claimed in his written statements given to the

22     Prosecutor and under oath that he sustained gun-shot wounds on the

23     River Jadar as the result of an unsuccessful execution attempt by members

24     of the VRS.  He stated that a bullet entered his hip as a result of a

25     gun-shot wound which entered from the right side to the left with the

Page 20729

 1     left side of his body being where he sustained the injury.  This is at

 2     the trial record transcript pages 10861 through 10862.  He describes in

 3     his statement that he floated in the river to escape.

 4             Despite RM314's account of the severity of his injuries, he

 5     conceded in his statement that the medical personnel at Tuzla did not

 6     consider his wounds to be serious; this is P1435, page 7.  Additionally,

 7     the medical examination conducted on the free Bosnian Muslim territory on

 8     16th July 1995 concluded that his injuries were sustained as a result of

 9     an explosive injury, which is evidenced at transcript page 10899 and also

10     Exhibit D282.  And therefore, not a gun-shot wound as he stated in his

11     statement and under oath.  This diagnosis was proffered by the medical

12     staff that attended to his injuries and the documents contain their

13     expert medical opinion on the cause.  That the medical experts who

14     examined and treated RM314 came to this conclusion undermines his account

15     that he was shot at, thereby compromising the Prosecution's case that

16     RM314 was injured as a result of an attempted summary execution at the

17     Jadar River.

18             As the medical evidence is inconsistent with RM314's account of

19     being a survivor of the executions, substantial doubt has been raised as

20     to whether he was even there at the time the incident occurred.  RM314

21     revealed that he had provided a statement about how he sustained his

22     injuries to a man that told him he worked with journalists and was

23     wearing a black T-shirt with BH Army insignia; this is at transcript page

24     10879.  After questions from Judge Fluegge, RM314 stated that it was

25     because he was forced to do so by the security officer of the infirmary

Page 20730

 1     that wore the BH Army insignia.  However, no evidence of physical

 2     coercion was provided to confirm this account, nor did RM314 provide any

 3     statements to the Prosecution about this allegation prior to his

 4     testimony.

 5             JUDGE MOLOTO:  May I interrupt, Mr. Ivetic?

 6             MR. IVETIC:  Yes.

 7             JUDGE MOLOTO:  When you say he was forced to do so, to do what?

 8             MR. IVETIC:  Forced to give a different account of how he had

 9     been shot in the prior statement, Your Honours.

10             JUDGE ORIE:  Since you are interrupted anyhow, Mr. Ivetic, at

11     this moment, you referred to D282 as confirming that the injuries were

12     sustained as a result of an explosive injury.

13             MR. IVETIC:  That's correct.

14             JUDGE ORIE:  I am just wondering where exactly to find that in

15     this document.

16             MR. IVETIC:  That should be the medical records, the Latin

17     diagnosis of the wound or of the injuries contains, I believe, the Latin

18     term "explosivus" --

19             JUDGE ORIE:  Let me just have a look because in English

20     translation it says several times "illegible," but perhaps the original

21     then could --

22             MR. IVETIC:  I believe it's in the original and it's in Latin.  I

23     could have that checked at the break, Your Honours.

24             JUDGE ORIE:  I'll check it right away whether the Latin gives us

25     any -- please proceed.

Page 20731

 1             MR. IVETIC:  Thank you.

 2             JUDGE MOLOTO:  Just a further clarification.  You said he was

 3     forced to give a different account of how he was shot -- how he was shot

 4     or how he was injured.  Your contention is that he was not shot?

 5             MR. IVETIC:  That is correct.  Injured is what I would say.  I

 6     dont remember what the witness actually said in the transcript section.

 7     Could --

 8             JUDGE MOLOTO:  Could you ascertain what he said?

 9             MR. IVETIC:  At this point I cannot.

10             JUDGE MOLOTO:  Later?

11             MR. IVETIC:  Later, yes.

12             At transcript page 10880 through 10882, after questions from

13     Judge Fluegge, it transpired that in the handwritten statement he gave to

14     the journalists and signed to confirm the truthfulness of, was in fact

15     false testimony, as conceded by RM314.

16             When pressed as to why he had written that he was shot in

17     Karakaj, RM314 stated that it was because he was forced to do so by the

18     security officer of the infirmary that wore the BH Army insignia.

19     Furthermore, RM314 also conceded at transcript page 10887 that his

20     statement submitted in Popovic which detailed RM314's account of the

21     incident at Jadar River is riddled with mistakes, despite signing it to

22     confirm its truth and accuracy.  The Defence again notes that RM314 is

23     the only witness that can attest to the events that occurred and he has

24     shown a propensity for providing untruthful and inaccurate testimony

25     which in conjunction with the inconsistencies between his recollection of

Page 20732

 1     the events that occurred and contradictory medical evidence, discredits

 2     the Prosecutor's case and renders his evidence incapable of supporting a

 3     conviction.

 4             Significantly, doubt raised as to his presence at the Jadar River

 5     also impacts on his identification of a certain individual perpetrator

 6     whose identity was provided in closed session, and in an amended

 7     statement in 1999 after being triggered by a vague description made by a

 8     third party in 1995.  You can find this at transcript page 10901.  As

 9     RM314's description of the perpetrators was originally limited to them

10     being dressed in camouflage but without any insignia being identified,

11     this identification is the only connection the Prosecution has to link

12     members of the VRS with the commission of these executions.  And I urge

13     Your Honours to look at transcript page 10889, lines 1 through 11.

14             The Prosecution noted during the proofing of RM314 that the

15     witness was asked about why he failed to mention this individual in his

16     earlier interviews and statements.  The witness indicated that he was not

17     completely sure of his identity at the execution site until well after

18     the events based upon information he received both at the time he was

19     held captive and thereafter, which is detailed at transcript page 10914.

20     The witness confirmed his previous testimony in Popovic which revealed

21     further inconsistencies about the witness's recollection of this person's

22     height, of this person's hair type; that's at transcript page 10915

23     through 10916.

24             It is significant that in this testimony he stated that he knew

25     this individual alleged to be a perpetrator well.  But despite this,

Page 20733

 1     RM314 was unable to identify him at the material time or even provide an

 2     accurate nor consistent description of him.  In the absence of this

 3     identification evidence, there is nothing to suggest that the VRS was

 4     responsible for the shootings, as RM314 states only that the men

 5     responsible wore camouflage.

 6             Taken at its highest, RM314's identification does not come up to

 7     proof as it is not only so incapable of belief that he would not remember

 8     someone he knows being there, but also that this evidence only came to

 9     mind four years after the incident after hearsay triggered RM314's

10     memory.

11             Both the Prosecution and RM314 rely on his civilian status at the

12     material times to confirm the illegality of the acts that occurred on the

13     Jadar River.  RM314's status is relevant in two ways:  Firstly, to the

14     Prosecution's case that Bosnian Muslim civilians were unlawfully killed;

15     and secondly, that they were targeted because of their ethnicity, as

16     opposed to them posing a military threat as soldiers.

17             The medical document dated the 16th of July, 1995, D282, from one

18     of RM314's medical examinations lists his profession as being a soldier

19     and performed messenger or courier duties at the Srebrenica PS.  The

20     abbreviation OS Srebrenica was used on the document and is taken to stand

21     for the armed forces Srebrenica, which RM314 agreed to; that's transcript

22     page 10896, lines 12 to 22.  After receiving medical attention, an

23     official document signed by the medical staff states that he was a part

24     of a military unit and after being discharged from the medical

25     institution, the patient should immediately report to the doctor attached

Page 20734

 1     to his military unit, thereby suggesting that the infirmary held the

 2     opinion that he was a soldier.  You can find this at transcript page

 3     10900 to 10901.

 4             Despite evidence to the contrary, RM314 insisted he was a courier

 5     for the civilian protection, this is transcript page 10896, yet conceded

 6     that he failed to correct the infirmary.  Although he states that he was

 7     simply a courier, when RM314 surrendered he was found with a standard

 8     hand-grenade in his possession, the same used by the arsenal of the

 9     former JNA with which he served.  This is at transcript page 10905,

10     lines 16 through 20.  His explanation that he was given it by an

11     acquaintance, not provided with instructions, and had no experience of

12     using is dubious, particularly in light of the fact that he conceded that

13     he served with the JNA and the medical evidence suggesting that he was,

14     in fact, a soldier at the material times.  This provides a more

15     believable explanation as to why he was armed with JNA weaponry and in

16     the absence of instructions for its use.  The fact that RM314's evidence

17     is so inconsistent on the point undermines not only his reliability and

18     credibility in relation to this, but also in relation to the overall

19     statement.

20             RM314 was the sole witness that supports the Prosecution's case

21     in relation to the Jadar River incident and his evidence does not come to

22     proof.  Taken together, the witness's propensity for providing false

23     statements, failure to correct inaccurate statements until pressured

24     under cross-examination, and the existence of official medical evidence

25     that contradicts his case demonstrates that his evidence is incapable of

Page 20735

 1     belief.  There has been no forensic evidence recovered from the site of

 2     the alleged shooting which would support the story of RM314, despite the

 3     efforts of the Prosecution investigators.  Thus, the Prosecutor is left

 4     without a case and an acquittal should be entered.  As such, the Defence

 5     requests the Jadar River incident be stricken from the indictment to

 6     preserve judicial economy and the Defence resources.

 7             Turning now to Sirokaca --

 8             JUDGE ORIE:  Mr. Ivetic, I'm looking at the clock.  We would have

 9     a break in approximately 3 minutes.  Would it be --

10             MR. IVETIC:  We can have it now, Your Honours.

11             JUDGE ORIE:  Yes, before we take the break, perhaps -- I noticed

12     that on D282 where some quite critical questions were asked to the

13     witness, that nevertheless the English translation, still especially on

14     the vital points, states that it was all illegible.  If the Defence or

15     Prosecution could try to seek an agreement on what was legible,

16     especially where the explosive wound is mentioned, because I see the word

17     "explosiva" on the original, where it does not appear on the English

18     translation, that certainly would assist the Chamber in enabling it to

19     better understand the argument made.  So if that would be resolved, that

20     would be appreciated.

21             We take a break and we will resume at ten minutes to 11.00.

22                           --- Recess taken at 10.29 a.m.

23                           --- On resuming at 10.54 a.m.

24             JUDGE ORIE:  Mr. Ivetic, you may proceed.

25             MR. IVETIC:  Thank you, Your Honours.  Before I return to my

Page 20736

 1     submission, I would like to address the question by Judge Moloto to get

 2     the precise words used by the witness in court, and this is at transcript

 3     page 10880, lines 15 through 23:

 4             "Judge Fluegge:  And you were asked by this person about an event

 5     which happened in Karakaj; is that correct?

 6             "The witness:  [Interpretation] Yes, he asked me where it

 7     happened.  I wanted to avoid that and I said in Karakaj.

 8             "Judge Fluegge:  You said 'in Karakaj.'  What did you say in

 9     Karakaj?

10             "The witness:  [Interpretation] He asked me where I was shot and

11     I replied 'in Karakaj' and it is dated 31st of July.  I was already in

12     such a psychological state that some things may not be quite correct."

13             JUDGE MOLOTO:  Is Karakaj -- what is Karakaj, please?

14             MR. IVETIC:  Karakaj is a place, Your Honours.  It's another

15     geographic location.

16             JUDGE MOLOTO:  That doesn't explain whether he was shot or was

17     injured, whether he was shot or it was an explosion.  The question to you

18     was:  Was he -- your contention is that he was not shot?

19             MR. IVETIC:  Correct.

20             JUDGE MOLOTO:  And you said go and find out the correct word that

21     he used about his wounds.

22             MR. IVETIC:  And in this section the witness said, "he asked me

23     where I was shot" --

24             JUDGE MOLOTO:  Sure.

25             MR. IVETIC:  -- "and I replied 'in Karakaj.'"  So that is -- in

Page 20737

 1     relation to this incident, that is what the witness said in his testimony

 2     in this case.

 3             JUDGE MOLOTO:  Okay.  So he contends he was shot.  The medical

 4     records say it was an explosion?

 5             MR. IVETIC:  That's the Defence position, yes, Your Honour.

 6             JUDGE MOLOTO:  Thank you.

 7             MR. IVETIC:  Turning now to Sirokaca.  It is the Prosecution's

 8     case that the city of Sarajevo was heavily shelled, damaging and

 9     destroying civilian targets, causing the deaths of several civilians and

10     injuring others from on or about 28 May 1992, which forms Schedule G(1)

11     of the indictment.  The Prosecution cite supporting evidence from three

12     witnesses who address the shelling of different parts of Sarajevo,

13     including the neighbourhood of Sirokaca.  This is annex B, Roman lower

14     case numeral xx, with the contention that Serbian forces were

15     responsible.

16             The evidence presented by the Prosecution to this extent is not

17     capable of supporting a conviction, as it fails to prove that the Serbian

18     military strategy was responsible for and had the intention to spread

19     terror amongst the civilian population.  It is for the Prosecution to

20     prove:  (A) by which side this military action has been authorised

21     against unlawful targets; (B) that within those illegitimate actions

22     there was the intent to target the civilian population in order to

23     terrorise; (C) that the intent to kill civilians existed; (D) that the

24     intent to inflict injuries other than murder existed.  Your Honours, that

25     is the requirements as set forth in the Galic case on the motion for

Page 20738

 1     judgement of acquittal under Rule 98 bis on behalf of the defendant

 2     General Stanislav Galic, 2 September 2002, section 7.

 3             In the Prosecution pre-trial brief in public annex B, page lower

 4     case Roman numeral xx, the Prosecution has down that there are three

 5     witness testimonies which support General Mladic's guilt in relation to

 6     Schedule G(1) of the indictment.  These witnesses are RM115, RM120, and

 7     RM168.  Both RM115 and RM120 are protected witnesses that gave evidence

 8     before the Chamber on 27 August 2012 and 29 through 30 January 2013

 9     respectively.

10             However, the sole eye-witness to support the Prosecution's case

11     in relation to Sirokaca is the remaining witness, Fadila Tarcin.  While

12     the other two witnesses testify about other areas in Sarajevo, this

13     witness gave evidence about the incident in Sirokaca on 28/29 May 1992

14     via a 92 ter statement and addendum and oral testimony on 2 October 2012.

15     The Prosecution has not called any other survivors who could provide an

16     eye-witness account of the events, any military insiders who could attest

17     to the military strategy and intent of the armies, nor any expert or

18     expert reports that support the Prosecution's contention that the Serb

19     forces were responsible for the attacks in Sirokaca specifically.

20     Recourse to Tarcin's evidence demonstrates that there is a total collapse

21     of the Prosecutor's case and therefore that an acquittal should be

22     entered.

23             The witness's 92 ter evidence does not explicitly attribute the

24     shelling to any particular force.  Her written evidence notes a

25     subsequently broadcasted intercepted conversation allegedly featuring

Page 20739

 1     General Mladic, but states that she "never linked it to what happened to

 2     her," which is page 3, paragraph 12, of her witness statement, which is

 3     Exhibit P00281.  In the Rule 92 ter addendum, P00282, she states at

 4     page 2, paragraph 3, that she heard from locals that the shell that

 5     wounded her was fired from Borije, due east of Sirokaca, and that she was

 6     able to see where the shell had impacted on her neighbour's house.

 7             When subject to cross-examination, Tarcin explained that the

 8     impact of the shell on her neighbour's house "was facing downhill, that

 9     is to say facing town."  That's transcript page 3347 [sic], lines 20

10     through 21.  When asked by the Chamber if this meant that the impact was

11     from the direction of the river, from the valley, rather than from

12     uphill, the witness answered in the affirmative at 33 -- transcript

13     page 3347, lines 22 through 25.  This evidence stands in direct

14     contradiction to the Prosecution's case that the Serbian forces were

15     responsible for the shelling, as she indicated the directionality of the

16     shelling to have come from within the city, thus indirectly attributing

17     it to the Muslim forces.  On this basis, the Prosecution's case in

18     relation to Sirokaca has collapsed, as there is simply no evidence that

19     supports their case and is capable of sustaining a conviction against

20     General Mladic for causing and authorising this shelling that injured

21     Witness Tarcin.

22             With regards to intent, if on the basis of Tarcin's evidence the

23     Prosecutor is unable to prove that Serb forces were responsible for the

24     shelling of Sirokaca, then it cannot show that military action to the end

25     was authorised by the Serbs with the intention of targeting the civilian

Page 20740

 1     population.  Thus, on the basis of Tarcin's evidence, the Prosecution's

 2     case has collapsed in relation to the shelling of Sirokaca and judgement

 3     of acquittal should be entered.

 4             Your Honours, I will now address the Defence's submission

 5     challenging the veracity of the Prosecution's individual charges as to

 6     religious sites under the ambit of Rule 98 bis.  Under Counts 7 and 8 of

 7     the indictment, the Prosecution alleges that destruction of cultural

 8     monuments and religious sites is a part of their case against

 9     General Mladic --

10             JUDGE ORIE:  Mr. Ivetic, in order to avoid any confusion, you

11     were quoting transcript page 3347, unless that's a mistake, the downhill

12     passage, which according to my system should be 3447, so as to avoid

13     anyone later not finding it.

14             MR. IVETIC:  Thank you, Your Honour.  Your records are much more

15     reliable than mine as I stand here.

16             JUDGE ORIE:  Well, we have the same records on our computer.

17             MR. IVETIC:  Schedule D of the indictment contains the various

18     municipalities and site locations which are alleged to comprise the

19     Prosecutor's allegations as to destruction of religious sites.

20             We respectfully assert that the Prosecution's case presented at

21     trial has been deficient and has failed to meet even the reduced burden

22     of proof to survive the Rule 98 bis stage.  For this reason, the Defence

23     invites the Chamber to throw out this segment of the Prosecution's case

24     at this stage, because its case has completely broken down to the extent

25     that the Prosecution is left without a case.  To maintain the charges

Page 20741

 1     would be to force the Defence to dedicate precious resources to counter

 2     charges that are indefensible on the basis of the evidence proffered.

 3             Once again, the Defence reiterates that the purpose of the

 4     Rule 98 bis proceedings is to strike out allegations that the Prosecution

 5     has failed to adduce any evidence capable of supporting a conviction to

 6     ensure due process and expeditiousness and urges Your Honours to keep

 7     this at the forefront of your thoughts during the next submission.  Of

 8     specific relevance to the objections raised by the Defence is the

 9     Appeals Chamber judgement in Hadzihasanovic and Kubura at paragraph 51.

10     It was held that the accused's right to a fair trial may be infringed if

11     he is erroneously required to answer the Prosecution's case.

12             I urge Your Honours to take into account that if the goal of

13     these proceedings has been the ascertainment of the truth, the evidence

14     adduced by the Prosecution must be assessed as to the truth it has

15     revealed, and if it is wholly inconsistent with the allegations of guilt

16     in the indictment and the Prosecution pre-trial brief, the relevant

17     charges against General Mladic must be stricken and dismissed at this

18     stage.  As such we submit it would be an infringement of General Mladic's

19     fair trial rights if forced to expend resources to defend against the

20     allegations relating to destruction of cultural monuments and sacred

21     sites.

22             I note from the outset that there has been no proof that

23     General Mladic ordered or is criminally liable for the crimes of others

24     as to destruction of sacred and religious sites under any mode of

25     liability.  There are a total of 11 municipalities that remain a part of

Page 20742

 1     this case.  I will focus on the three most glaring examples of how the

 2     Prosecution's case has failed to support these allegations.  I will

 3     address Bijeljina, Kalinovik, and Pale municipalities.

 4             Schedule D(1) relates to three locations in Bijeljina

 5     municipality, consisting of three mosques.  The Prosecution pre-trial

 6     brief at annex B, Schedule D, page lowercase Roman xi specifies that for

 7     these three mosques the Prosecution's best case cannot even identify any

 8     known perpetrators for their destruction.  The pre-trial brief identifies

 9     two witnesses, RM618 and RM513, and two documents, 65 ter number 03431

10     and 65 ter number 13410, that are meant to support and prove the

11     allegations as to these three sacred sites in Bijeljina.

12             Your Honours, neither of these two documents have been admitted

13     into evidence and thus cannot be relied upon to support this allegation

14     at this stage.

15             RM618, that is the expert report of Andras Riedlmayer.  During

16     his in-court examination, Mr. Riedlmayer did not offer any testimony as

17     to these three mosques in Bijeljina.  P2513 is the expert report produced

18     by Mr. Riedlmayer.  There is an annex to the report which purports to

19     give information about perpetrators of the destruction of sacred sites.

20     There are four entries for Bijeljina, none of them are identified as the

21     three sites that are set forth in the indictment.  Incidentally, for the

22     four sites that are referenced, the sole source relied upon by

23     Mr. Riedlmayer is informants' statements and news reports, although only

24     one informant is identified for each.

25             P2503, another expert report of Professor Riedlmayer, likewise

Page 20743

 1     has no mention of these three locations in Bijeljina.  P2511 is the

 2     database offered by Mr. Riedlmayer into evidence.  At record number 13 of

 3     the same, the Atmacici mosque in Bijeljina, there is no information on

 4     the alleged perpetrators of the destruction, nor any particulars as to

 5     the date or the manner of the damage being inflicted.  The sole source is

 6     anonymous hearsay information in the medzlis of the Islamic community.

 7             JUDGE MOLOTO:  Is the Atmacici mosque one of the three?

 8             MR. IVETIC:  Yes, it is, Your Honour.  To be clear, the three

 9     that are listed in the indictment are Atmacici, Janjari and

10     Srednja Trnova.

11             As to the Janjari mosque, this is record 14 of P2511, and again

12     it gives no information as to alleged perpetrators, the manner, and the

13     date of the damage.  Indeed, there are two equally anonymous hearsay

14     sources relied on by Riedlmayer, one which states that the mosque was

15     destroyed, whereas the other states that the mosque was in an unfinished

16     state of construction when the war began and was never finished.

17             As to the third location in the indictment for Bijeljina,

18     Srednja Trnova mosque, this is record 15 of P2511, and again there is not

19     sufficient information as to perpetrators or the manner of destruction.

20     In fact, the information is that residents say it was intact when they

21     left and found destroyed when they returned.  Again, the source of the

22     information is unknown hearsay declarants as reported by another hearsay

23     source.

24             In each of these cases, the evidence at best provides not a

25     single eye-witness account that could identify the perpetrators or manner

Page 20744

 1     of destruction to prove the allegations in the indictment.

 2             The other records pertaining to Bijeljina in Riedlmayer's report

 3     cannot be relied upon or reviewed by the Chamber, as they are not

 4     specified in either the indictment or the pre-trial brief.

 5             RM513 is a protected witness who testified about a wholly

 6     different subject, and in their in-court testimony made no reference of

 7     these sacred sites or of what happened to them.  P1054 under seal is the

 8     statement of this individual.  Following the guidance of your Chamber and

 9     I think it's important for the public to hear, I will talk about what is

10     in the statement without revealing the identity of this witness, so that

11     the public can see what type of evidence is being presented by the

12     Prosecution on this score.

13             Paragraph 77 of this statement makes no specific mention of these

14     particular religious sites set forth in the indictment, but rather states

15     that unnamed sites were destroyed and as to the source says:

16             "This information was spoken about in Bijeljina."

17             Rumour and unknown hearsay, Your Honours, that is the best case

18     this Prosecution has been able to offer as to these three sites from

19     Schedule D(1), bolstered by unsubstantiated accounts of other sites that

20     are not even in the indictment.  Is it fair to force an accused to answer

21     such allegations?

22             In the Mrksic Rule 98 bis decision at transcript page 11311

23     through 11312, the Court, relying on the Jelisic Appeals Chamber, stated

24     in essence that the Chamber is required at this stage to assume that the

25     Prosecution's evidence is, and I quote, "entitled to credence unless

Page 20745

 1     incapable of belief."

 2             "In essence, a Rule 98 bis motion will succeed if there is no

 3     evidence supporting a particular count or if the only relevant evidence

 4     is so incapable of belief that it could not properly sustain a

 5     conviction, even when the evidence is taken at its highest for the

 6     Prosecution."

 7             Your Honours, I submit the foregoing can be regarded as either

 8     not being any evidence or evidence that is incapable of belief.

 9             Just the other week the ICC had a judgement issued by the

10     Appeals Chamber in the Bosco Ntaganda case, and I would like to discuss

11     with you the dissenting opinion of Judge Christine Van den Wyngaert, who

12     Your Honours know as she was a former colleague of the Bench of the ICTY.

13     Judge Van den Wyngaert stated:

14             "I am also of the opinion that Pre-Trial Chamber II (hereinafter:

15     'Pre-Trial Chamber') erred in its sole reliance on anonymous hearsay

16     evidence contained in press releases, blog articles, and two UN group of

17     expert reports.  Such evidence must be treated with utmost caution in the

18     context of a criminal trial and without considerably more independently

19     verified information cannot, in my view, be safely relied upon to justify

20     the continued detention of Mr. Bosco Ntaganda."

21             Judge Van den Wyngaert continues:

22             "The Internal Criminal Court (hereinafter: 'ICC') and ad hoc

23     tribunals have traditionally employed a flexible approach to the

24     admissibility of evidence, ostensibly a civil law influence within a

25     broadly adversarial system.  Rather than systematically rejecting the

Page 20746

 1     admissibility of any particular category of evidence, Judges have been

 2     afforded broad discretion to balance probative value with prejudicial

 3     effect.  However, the fact that certain types of evidence, such as

 4     anonymous hearsay, are not automatically excluded from the proceedings

 5     does not mean that they are therefore safe to rely on.  Whether they are

 6     or not can only be determined on a case-by-case basis, which, in the case

 7     of anonymous hearsay is a difficult task, considering the sources of the

 8     information are unknown ... at the ICC too, Pre-Trial and Trial Judges

 9     are more and more relegating anonymous hearsay evidence to something

10     which can, at best, potentially corroborate other evidence, rather than

11     as stand-alone source of information that possesses significant probative

12     value per se."

13             Judge Van den Wyngaert concludes:

14             "What I think warrants emphasis, however, is that this more

15     cautious approach to anonymous hearsay evidence is not something that

16     derives from the whim of a number of Judges.  Instead, it brings us

17     closer to the standard that always should have been applied when

18     assessing such evidence.  Indeed, I'm not aware of any other system of

19     criminal justice, be it national or international, where anonymous

20     hearsay is given any serious probative value, if it is

21     considered/admitted at all.  I can think of no good reason why this Court

22     should take a different approach, let alone what could justify basing

23     judicial decisions pertaining to the freedom of individuals on evidence

24     that is inherently fragile and against which the suspect has no

25     meaningful opportunity to defend him or herself."

Page 20747

 1             Your Honours, we respectfully submit that the logic behind

 2     Judge Van den Wyngaert's words applies equally here to the ICTY, and

 3     especially at this stage, and to allegations in the indictment that are

 4     not supported by any other evidence save for anonymous or unknown

 5     hearsay.

 6             I would now direct Your Honours to Kalinovik.  The indictment

 7     identifies at Schedule D(6) four mosques in Kalinovik for which the

 8     criminal responsibility of General Mladic is asserted.

 9             The Prosecution pre-trial brief again is unable to identify any

10     alleged perpetrators, let alone any persons that General Mladic would be

11     responsible for.  As to Kalinovik, no documents were identified as

12     supporting this allegation and there are three witnesses:

13     Mr. Riedlmayer, RM035, and RM034.  Again, Professor Riedlmayer in court

14     offered no evidence as to these four locations in Kalinovik.  P2513, his

15     expert report, as to Kalinovik only has an entry for the Ulog mosque and

16     not the other three.  As to the Ulog mosque, it is not specific as to who

17     blew up the mosque, when, or for what purpose, except to say it was done

18     by Serbs and is based according to the information from the

19     Centre for Islamic Studies, again unknown, anonymous hearsay.

20             Looking to P2511, entry 168 is the Ulog mosque and this offers no

21     support for who destroyed it.  Entry 169 is the Hotovlje mosque in

22     Kalinovik, and again there is no information contained as to the

23     perpetrators or the manner of destruction that suggests criminal

24     liability.  The only sources listed for the scant information are the

25     Muslim community centre archives and an unknown anonymous informant

Page 20748

 1     interviewed by the OTP who wanted to remain anonymous for security

 2     purposes.

 3             What is significant, Your Honours, is that this same expert

 4     report of Mr. Riedlmayer concludes for entry 169 based on multiple

 5     independent sources that there never was any mosque in Kutina village.

 6     This is significant because the fourth mosque cited in the indictment for

 7     Kalinovik is precisely this non-existent mosque in Kutina.  Lest I be

 8     accused of getting ahead of myself, the third site in the indictment for

 9     Kalinovik is Jesalica mosque, which is not even to be found in the

10     database of Mr. Riedlmayer.

11             So after many years of investigating, the best case the

12     Prosecution can put forth as to Kalinovik is expert evidence which

13     confirms there is no mosque in Kutina at all, damage can be confirmed

14     only to two out of the four mosques as a result of unknown perpetrators,

15     unknown cause, et cetera.

16             Let's now turn to the witnesses.  RM034 testified in court on a

17     wholly different topic but was asked in passing about mosques, again very

18     unspecifically.  Ms. Bibles at transcript page 1838 through 1839 asks as

19     follows:

20             "Q.  Could you tell us whether you're aware of who destroyed the

21     four mosques in Kalinovik?

22             "A.  All four mosques in Kalinovik were used before the war

23     except for one of them, the one in Velisi [phoen].  From 1991 to 1995 all

24     three mosques on the territory of the municipality of Kalinovik were

25     torched.  The minaret was blown up and the one in the village --

Page 20749

 1             "THE INTERPRETER:  The interpreter did not catch the village.

 2     The name of the village --

 3             "The witness:  [Interpretation] -- and the one in the

 4     neighbouring village was also destroyed.

 5             "Judge Orie:  One minute, Mr. Hadzic.  The question and I would

 6     like you to focus your answers on what is asked is:  Who destroyed the

 7     four mosques.  Not about how they were destroyed, but who did it.

 8     Whether you have any knowledge about it.

 9             "Can you answer that question?

10             "The witness:  [Interpretation] I do have an answer.  It was done

11     by the Serb army."

12             First of all, there is absolutely no identification of any of the

13     mosques that would tie them to those four listed in the indictment.  From

14     expert Riedlmayer we know that one of the four never existed, only two of

15     the four were damaged.  The testimony of RM034 is thus incapable of

16     belief on this matter.  We have nothing that one would expect to

17     establish the prerequisites for a crime.  Again, rumour and anonymous

18     hearsay, evidence incapable of belief.

19             RM035 did not testify in these proceedings, but rather a written

20     statement was presented under Rule 92 bis.  His statement contains no

21     mention of mosques, as that has been redacted pursuant to adjudicated

22     fact 746.

23             This adjudicated fact taken from the Krajisnik trial judgement

24     merely states that "the mosques of Kalinovik, namely in Ulog, Hotovlje,

25     Kutina, and Jesalica were destroyed during the war."  This adjudicated

Page 20750

 1     fact is rebutted by the expert report of Riedlmayer because Kutina mosque

 2     didn't ever exist.

 3             Surely we have not come to a point where the Defence must mount a

 4     defence against a Prosecution case that is based solely on an adjudicated

 5     fact, which says nothing specific about the manner of damage or

 6     destruction or the perpetrators, and which has been refuted as partly

 7     untrue by the only expert to testify thus far.  Is that within the spirit

 8     and meaning of Rule 98 bis to remove such charges at this time?  I would

 9     argue that the Chamber should remove the same in accord with the purpose

10     and function of the provision.

11             Let's look at Pale, which in the indictment is Schedule D(10) and

12     for which three mosques are to be charged, Praca, Podvitez, and Bogovici.

13     The Prosecution's pre-trial brief, again at page Roman numeral xi of

14     annex B, Schedule D, is unable to provide any identification of alleged

15     perpetrators.  One document, 65 ter number 13410, and three witnesses are

16     identified for the supporting evidence on this charge.  Your Honours will

17     not be surprised, since I'm bringing it up, the document in question also

18     was not introduced into evidence in this case.  One of the witnesses

19     listed is Professor Riedlmayer.  Professor Riedlmayer did not offer

20     substantive testimony in court on these three locations in Pale.

21             P2513, his expert report, likewise does not make reference to any

22     of these three locations.  Turning to P2511, the database of

23     Professor Riedlmayer, entry 172 is the Praca mosque.  Again, the only

24     source is "according to the records of the Islamic community centre ..."

25     and there is not any information about who caused the damage or for what

Page 20751

 1     end or purpose.

 2             Podvitez mosque is record 173 in P2511, and again the only source

 3     is according to the records of the Islamic community centre, and there is

 4     not any information about who caused the damage or for what end or

 5     purpose.

 6             Bogovici mosque is record number 174 in P2511.  Again, the only

 7     source is the records of the Islamic community centre, and there is not

 8     any information about who caused the damage or for what end or purpose.

 9     All this is unknown, anonymous hearsay information that does not itself

10     meet the bare minimum to assess criminal liability.

11             Let's look at the witnesses.  RM111 who testified at trial was

12     asked in direct examination at transcript page 3148 through 3149 as

13     follows:

14             "Q.  And you say in your statement, sir, that you heard after you

15     left the mosques in Pale were destroyed.  You referred to the period

16     between July and September 1992.  Who controlled Pale at that time?

17             "A.  At that time, Pale was under the control of the

18     Serbian Democratic Party."

19             Once again, anonymous hearsay information.  This is confirmed in

20     cross-examination at transcript page 3155 that the witness learned all

21     this after the war from unknown others.  Again, there is no specification

22     of the perpetrators apart from labelling them as Serb forces.

23             The witness's 92 ter statement P260 at paragraph 79 claims that

24     these mosques were destroyed after the witness left Pale and that the

25     information is "common knowledge" in Pale.  Again, rumour and unknown

Page 20752

 1     anonymous hearsay.

 2             The other witness listed in the Prosecution pre-trial brief for

 3     Pale is RM619.  Your Honours, RM619 was Ewa Tabeau, the demography expert

 4     who offered no evidence as to mosques.  So we are left with the evidence

 5     that I've already discussed, can barely be called evidence, and surely is

 6     not evidence that is capable of belief.  Surely it is not the type of

 7     case that this Chamber would force the Defence to expend resources to

 8     defend against.

 9             Your Honours, as our time is limited, I have gone through three

10     of the 11 municipalities in Schedule D and demonstrated the Prosecution

11     case to be deficient as to each.  I would ask that you scrutinise the

12     evidence as to each remaining charge and dismiss same if found to be

13     similarly lacking.

14             The Defence has not taken a scatter-gun approach to the charges

15     that it seeks acquittals on simply for the sake of it, rather challenges

16     those that it can show that no evidence capable of supporting a

17     conviction has been proffered by the Prosecution.  It is for these types

18     of isolated instances that the charge-based approach is appropriate and

19     the legal veil should be pierced as an exception to the rule, as this

20     approach adheres to the object and purpose of the rule.  With this in

21     mind, as the Defence has shown that the Prosecutor has failed to adduce

22     evidence capable of supporting a conviction in relation to the incidents

23     at Jadar River and Sirokaca and Schedule D, it urges the Chamber to enter

24     a judgement of acquittal on these charges to make a clear statement that

25     the allegations that are incapable of sustaining a conviction at this

Page 20753

 1     stage will be purged from the indictment to ensure that Defence resources

 2     are not squandered, that due process is upheld, and that the Prosecution

 3     cannot hide behind a legal veil to surreptitiously push through those

 4     allegations for which it has no evidence capable of sustaining a

 5     conviction.

 6             Following the jurisprudence and adhering to the count-based

 7     approach renders the provision worthless and the right of the accused to

 8     an acquittal at this stage on charges that the Prosecution has failed to

 9     substantiate unobtainable.  Today Your Honours have the opportunity to

10     make a clear statement that the provision is more than just one that

11     adheres to the rhetoric of a fair trial.  To truly bring war criminals to

12     justice, the trial process must be conducted in a manner that preserves

13     and protects the accused's rights.  You have the opportunity to

14     demonstrate that the fight against impunity will not be exploited as a

15     slogan to justify interpreting provisions in a manner that curtails the

16     rights of the accused and a crusade for the Prosecution to hide behind

17     when there is simply no evidence.

18             The indictment at paragraph 34 asserts both Article 7(1) JCE and

19     7(3) command superior liability against General Mladic for failing to

20     take necessary and reasonable measures to prevent and punish crimes

21     alleged to have been committed by VRS forces and so-called Serb forces

22     under his effective control.  The indictment at paragraph 12 identifies

23     Serb forces as comprised by members of the Bosnian Serb political and

24     governmental organs, and members of the MUP, VRS, JNA, VJ, TO, the

25     Serbian MUP, Serbian and Bosnian Serb paramilitary forces and volunteer

Page 20754

 1     units, and local Bosnian Serbs.  In essence, this indictment is not

 2     levelled merely at General Mladic, but at every single Serb, an objection

 3     that the Defence raised at the preliminary stage as to the lack of

 4     specificity and notice compliance under the jurisprudence, resulting from

 5     the Prosecution's construction.

 6             We would remind of the jurisprudence of the ICTR, the Bagambiki

 7     case in 2004, which set a high standard of specificity for JCE in

 8     indictments.  That Chamber made clear that the Prosecutor must specify in

 9     the indictment which form of JCE she argues, the purpose of the

10     enterprise, the identity of the co-perpetrators, and how the accused

11     participated in the enterprise; this was in paragraph 34 of the

12     judgement.

13             Nevertheless, we are still left with this broad definition.  We

14     should now look to the evidence that has been presented to try to whittle

15     down this broad allegation to fit the evidence that has been presented

16     for which a case may go -- for which a case may go forward --

17             JUDGE ORIE:  Mr. Ivetic, could I just interrupt you for one

18     second.  You referred to paragraph 34 of the indictment, assert --

19             MR. IVETIC:  The Bagambiki judgement in 2004, Your Honour, that's

20     ICTR-99-46-T, 25 February 2004.

21             JUDGE ORIE:  No, the paragraph before that, the indictment at

22     paragraph 34 asserts both Article 7(1) JCE and 7(3) command superior

23     liability against General Mladic.

24             MR. IVETIC:  Yes.

25             JUDGE ORIE:  That's the one.  I'm wondering, how should we in

Page 20755

 1     your view read paragraph 34.  Should we read that he failed to take the

 2     necessary and reasonable measures to prevent the commission of crimes,

 3     which would mean the commission by others, the others committing the

 4     crime either under 7(1) or 7(3); or do you read it that paragraph 34 also

 5     includes to charge General Mladic with having committed the crimes under

 6     7(1) himself, any of the modes of liability of 7(1)?

 7             And I'm also looking at Mr. Groome perhaps to see whether he has

 8     any explanation in this respect.

 9             MR. GROOME:  Your Honour, I think the answer is found in the

10     heading of that section, it's clearly limited to 7(3) of the Statute.

11     7(1) liability is discussed throughout the entirety of the indictment.

12             JUDGE ORIE:  Yes.  So in paragraph 34 the reference to 7(1) is

13     primarily to 7(1) liability of those under the command of General Mladic?

14     Or is it just in addition to repeat in every respect that if it's not

15     7(3) then it certainly is 7(1).

16             MR. GROOME:  That's the more correct interpretation, Your Honour.

17     Just so that the record is clear, the 7(1) liability also applies to all

18     of the parties -- I think it was paragraph 12 that Mr. Ivetic referred

19     to, where we defined members of the joint criminal enterprise and the

20     people that he implemented their criminal objectives through.

21             JUDGE ORIE:  Okay.  That clarifies the matter.

22             MR. IVETIC:  And that's how I understood it, Your Honours.

23             JUDGE ORIE:  Yes, please proceed.

24             MR. IVETIC:  The Office of the Prosecutor -- actually,

25     Your Honours, I think it's time for the break.  Is that --

Page 20756

 1             JUDGE ORIE:  Yes.  It is time for the break.  We'll take that

 2     break.

 3             Mr. Ivetic, could you update us on where you are in terms of

 4     time.  I do understand that out of the four items you would like to bring

 5     to our attention -- have we finished the third and are we now --

 6             MR. IVETIC:  We're starting on the third right now.

 7             JUDGE ORIE:  On the third?

 8             MR. IVETIC:  Yes.

 9             JUDGE ORIE:  Okay.  And do you think you would finish today,

10     which is the --

11             MR. IVETIC:  Yes.

12             JUDGE ORIE:  As scheduled?  That's appreciated.

13             We take the break and we resume at ten minutes past 12.00.

14                           --- Recess taken at 11.53 a.m.

15                           --- On resuming at 12.11 p.m.

16             JUDGE ORIE:  Mr. Ivetic, you may proceed.

17             MR. IVETIC:  Thank you, Your Honours.

18             The Office of the Prosecutor has failed to meet its burden in the

19     indictment or during the course of the trial to specifically identify the

20     subordinates over whom it is alleged that General Mladic had effective

21     de jure or de facto control for whom it is alleged they performed

22     criminal acts for which he is supposed to be responsible.

23             In reference to Srebrenica, paragraphs 21 through 22 of the

24     indictment, the so-called Skorpions unit are added to this laundry list

25     of alleged perpetrator actors over whom General Mladic is alleged to have

Page 20757

 1     had effective control or for whose acts he is said to incur liability but

 2     limited to their involvement in Trnovo.

 3             Paragraph 34(A) of the indictment sets forth that General Mladic

 4     failed to initiate investigations into credible allegations of crimes by

 5     Serb forces under his effective control.

 6             But an accused's position of authority cannot lead to an

 7     automatic presumption that he or she knew or had reason to know of the

 8     crimes for which a conviction is sought.  This is from paragraph 313 of

 9     the Delalic appeals judgement.  The mental element "had reason to know,"

10     as articulated in the Statute, does not automatically imply a duty to

11     obtain information, responsibility can be imposed for deliberately

12     refraining from finding out but not for negligently failing to find out.

13     This is from the Blaskic appeals judgement, paragraph 406.  Essentially

14     the Office of the Prosecutor has neither properly pled a sustainable case

15     for the command responsibility element "had reason to know," nor has the

16     evidence established a sustainable case for the same, especially as to

17     non-VRS actors and perpetrators.  In this section I ask you at the

18     Rule 98 bis stage to remove the Article 7(1) and 7(3) mode of liability

19     as to charges where the evidence cannot sustain that mode of liability

20     for specific perpetrators.

21             As a preliminary matter, we would point out that there does not

22     appear to have been credible evidence presented by the Prosecution of the

23     involvement of any specified VJ personnel in any of the crimes alleged,

24     let alone evidence of how VJ personnel would be subordinated to

25     General Mladic.  As for the other alleged perpetrators, we believe that

Page 20758

 1     the Chamber should look at the actual evidence that was presented and

 2     appraise whether there is evidence to sustain the burden under

 3     Rule 98 bis, demonstrating that actual units of the VRS or under the

 4     effective command and control of General Mladic were alleged to have

 5     committed crimes for which he is charged or if the evidence is such that

 6     other persons, known or unknown, over whom General Mladic did not have

 7     effective control are alleged to have committed these crimes according to

 8     the evidence.

 9             The Prosecution has not adduced any proper evidence that

10     General Mladic issued any criminal orders to individuals who are alleged

11     to have been the perpetrators of the crimes set forth in the indictment.

12     Indeed, as to Srebrenica, Prosecution expert witness Richard Butler

13     confirmed that with respect to July 1995 his research had not come across

14     any document or order from General Mladic specifically ordering the

15     execution of prisoners.  This is transcript page 16573 through 16574.

16             It should be recalled that there was only one witness who claimed

17     General Mladic personally participated at one of the sites in Srebrenica,

18     providing cloth to tie the hands of prisoners; that was RM255 at

19     transcript page 1177 through 1178.  This is purported to be the

20     16th of July and was evidence that had not been previously stated by the

21     witness.

22             Your Honours, there has been evidence presented in relation to

23     General Mladic's absence from Bosnia from the 14th to the 16th when he

24     was, among other things, participating in meetings with international

25     negotiators and attending a wedding in Belgrade.  Indeed the Prosecution

Page 20759

 1     has stipulated as to most of that period of time that General Mladic was

 2     far from Srebrenica.  And indeed during the testimony of RM255 the

 3     Prosecution, Mr. McCloskey in fact, said:

 4             "Perhaps one thing that may help.  I just wanted to be able to

 5     tell the Court that it is not the Prosecution's intention to rely on this

 6     most recent evidence related to General Mladic or Karadzic.  I wanted to

 7     bring that out so that you could see that.  I think we've asked him --

 8     perhaps too much of this witness, but we will not be relying upon that."

 9             This was transcript page 1179 through 80, right after the witness

10     testified about this alleged personal involvement of General Mladic.  So

11     clearly, Your Honours, this type of evidence is not capable of belief.

12             As to the municipalities there has not been evidence capable of

13     belief that indicates General Mladic ever ordered crimes to be committed.

14             I wish to focus on crimes committed by paramilitaries and others

15     that are not in the VRS.  First, I will demonstrate that the evidence

16     supports that General Mladic did not have effective control over them,

17     specifically in relation to Arkan's Tigers and the MUP.

18             In several incidents, either the perpetrators were never

19     identified or were identified as paramilitary or police members.  The

20     record demonstrates that General Mladic, early on, 28 July 1992, issued

21     an order, P501 in evidence, calling for the disarmament of

22     paramilitaries.

23             This order is critical to show General Mladic's lack of criminal

24     motive and efforts undertaken to try and curb and punish crimes by

25     paramilitaries.  This order directs that if intentions of paramilitaries

Page 20760

 1     are truly honourable, they should submit themselves to become VRS

 2     soldiers subject to control and discipline.  For those that have

 3     committed crimes, it is said they cannot be taken into the army, but

 4     should be disarmed, arrested, and criminal prosecutions started against

 5     them.  Those that refuse to turn over to army discipline and command but

 6     that have not committed crimes are to be arrested and escorted out of the

 7     country.  It is clear that General Mladic had no hand in the prior

 8     actions of these various paramilitaries.  Problems effectuating this

 9     order are apparent from P5116 dated 17 August 1992, where General Mladic

10     again asks subordinate units why they have not reported on the disarming

11     of paramilitaries pursuant to the aforesaid order.

12             That these groups continued to plague the territory of

13     Republika Srpska beyond the command and control of General Mladic is

14     evidenced by P3095, dated 23 September 1995 with General Mladic

15     complaining to the RS president and the RS police about Arkan's Tigers,

16     considering them a paramilitary that has been operating outside the

17     command of the army and committing crimes, including against loyal

18     Muslims, and asking that the president and police undertake to take

19     action against that group, since it is operating apparently as a member

20     of the MUP police and pursuant to a directive from President Karadzic.

21             Also in evidence we have P5133, dated 26 September 1995, where

22     assistant MUP Minister Kovac and another high-ranking police official

23     seek to meet with General Mladic to resolve "certain problems with regard

24     to the commanding of troops currently under the MUP."  Again, from the

25     timing of this document, it is clear who is being talked about.

Page 20761

 1             Thereafter we have P5065 dated 19 October 1995, another order

 2     coming directly from General Mladic to remove paramilitaries reading as

 3     follows:

 4             "All paramilitary formations and individuals who refuse

 5     subordination in the VRS are to be removed from the territory of the RS

 6     by 20 October 1995 at 1200 the latest.

 7             "All illegally obtained military technical devices, combat

 8     equipment, military and other equipment is to be seized from them and the

 9     proper receipts issued to them.

10             "Investigations are to be launched and the proper proceedings

11     initiated for all illegal offences committed, all disciplinary

12     misdemeanours and criminal offences."

13             Again it is clear, not just for Arkan's Tigers but for all

14     paramilitaries, they are not operating with the blessing of

15     General Mladic, nor under his command and control, nor are they

16     undertaking acts intended by General Mladic.

17             Prosecution military expert Theunens testified under oath that

18     Arkan's unit was subordinated to the state security or the DB of the

19     Republic of Serbia.  You can find this at transcript page 20683 to 20684.

20     This is corroborated by P3095 which we have just discussed.  There has

21     been no evidence suggesting nor establishing by requisite means that

22     General Mladic is the command superior of the Serbian State Security

23     Service of the MUP of Serbia.  Accordingly, all charges that have been

24     alleged to be the responsibility of Arkan's Tigers should be dropped from

25     the case at this time as that charge cannot stand.

Page 20762

 1             As to other non-VRS actors, it should be recalled that we have in

 2     evidence P5052, an order from General Mladic dated 2 July 1992,

 3     expressing concern of unauthorised armed persons in uniforms masquerading

 4     and operating as if they were officials of the army and police while

 5     conducting crimes.  This order makes clear the Main Staff only issues

 6     written orders, not verbal ones, and that all suspicious units should be

 7     checked, while regular units should wear proper uniforms, and that units

 8     should prevent such impersonators from engaging in combat unless they

 9     pass security checks and submit to be incorporated into the army as

10     regular soldiers.

11             Let's talk about MUP forces themselves.  In relation to the

12     events in Srebrenica and indeed municipalities, there has been some

13     evidence presented by the Prosecution that the members of the MUP had

14     been responsible for crimes that are alleged against General Mladic.

15     Some instances that come to mind are the killings in Kravica and the

16     killings at Trnovo.

17             From the foregoing documentation as to paramilitaries, we see

18     that General Mladic did not have effective command and control over these

19     units when the same were operating under the auspices of the MUP.  The

20     same result is true for civilian MUP police, once they have finished

21     operating in combat operations.

22             Returning to expert Theunens, this Prosecution expert explained

23     the concept in the SFRY military of "Sadejestvo," or "co-ordinated"

24     action during operations, where two forces operated alongside one another

25     without actual subordination.  This is transcript page 20616 through

Page 20763

 1     20617.

 2             Mr. Theunens further explained the concept of resubordination or

 3     reattachment of the MUP to VRS army units for limited purposes;

 4     transcript page 20621.  Mr. Theunens described that once combat

 5     operations are done, the police returns to their police function and

 6     their police superiors, and thereafter the VRS army commanders in the

 7     region can only thereafter report MUP wrongdoing to the police

 8     authorities and the MUP superiors have the responsibility of any further

 9     disciplinary or other actions.  This is transcript page 20622 through

10     20625.

11             Your Honours, we have seen General Mladic do precisely that in

12     relation to Arkan's unit.  He did all that a military leader can do with

13     relation to police personnel not under his authority.

14             We think that under these circumstances the crimes alleged to be

15     committed by MUP members alone, such as Kravica warehouse, must be

16     dismissed from the case as to General Mladic.  Indeed, OTP investigator

17     Blaszczyk confirmed the Petrovic video which follows the actions of

18     police units around Srebrenica and part of the scene at Kravica.

19     Mr. Blaszczyk confirmed that General Mladic is not seen anywhere in

20     relation to that video.  This is at transcript page 12373.

21             One further thing I would like to point out, the so-called

22     Skorpions group at Trnovo, the infamous video of their killing of six

23     individuals; P2581 is that video.  It was played numerous times by the

24     Prosecution.

25             However gruesome the video and however repulsive and

Page 20764

 1     reprehensible the actions of these Skorpions, they have nothing to do

 2     with General Mladic.

 3             OTP investigator Janc testified that Mladic is neither present in

 4     any part of the Skorpion video nor is he mentioned by the perpetrators

 5     therein as having any role in the killings.  This is transcript

 6     page 15378.

 7             The best testimony before this Chamber that is suited to

 8     illuminate the events in Trnovo was very explicit and resounding in

 9     clearing General Mladic of any involvement in this crime.  The evidence

10     is clear the Skorpion perpetrators never mentioned General Mladic, but

11     rather always were clear their superiors were the Serbian DB and the MUP

12     assistant minister for Serb Krajina.  This can be found at transcript

13     reference 18710 through 18711.  The evidence as to Trnovo is also clear.

14     The Skorpion unit itself was operating in co-ordinated action as

15     described by Mr. Theunens rather than being resubordinated to the VRS.

16     This is at transcript page 18715 through 18717.

17             The perpetrators from the Skorpions themselves were not engaged

18     in co-ordinated action with the VRS at the time of the crime, but rather

19     were described as body-guards, a driver, a mechanic, and a member of the

20     kitchen staff engaged in personal acts.  This is at transcript page 18729

21     through 18730.  The evidence is clear these perpetrators have been tried

22     and are serving sentences in Serbia.

23             There is no role of General Mladic in ordering or taking part in

24     these killings in any way.  The perpetrators were not subordinated to

25     him, thus he could not discipline them.  There has been no evidence of

Page 20765

 1     how General Mladic ought to have known of the crimes.  Accordingly, this

 2     charge should be dismissed.

 3             Another topic that I wish to raise at this point is Tomasica,

 4     which we have heard the Prosecution claim is a mass grave that Mladic's

 5     own notebooks confess culpability in.  Respectfully, P358, page 154 in

 6     e-court, the notebook cited by the Prosecution in question, does not

 7     support the Prosecution's case.  In it, Mladic is being told of a police

 8     official's comments as to Tomasica.  General Mladic makes clear the VRS

 9     knows nothing about those bodies, that the police may be trying to pass

10     their own misdeeds to them.  General Mladic directs that investigations

11     be carried out as to those bodies.  Again, for crimes committed by

12     persons from the police, outside of his effective control, this evidence

13     cannot lead to criminal responsibility for Mladic as the VRS Main Staff

14     commander.

15             Turning to the incident at Schedule A(7.5) of the indictment,

16     Skrljevita, spelled S-k-r-l-j-e-v-i-t-a, one witness was called in

17     relation to the same, Grgo Stojic.  Your Honours will recall that during

18     the testimony of this witness, it was revealed that the perpetrators of

19     this crime never once mentioned General Mladic; this is transcript

20     page 4125 through 4126.  Further, it was demonstrated by the witness

21     himself that the principal perpetrators of the same were aged 15 and 17

22     years respectively at the time of the commission, which leads to the

23     conclusion they were not VRS soldiers.  And that the other alleged

24     perpetrator arrested and prosecuted by the authorities in

25     Republika Srpska could not in fact be identified by this witness.  This

Page 20766

 1     is at transcript page 4112 through 4120.

 2             Indeed, at transcript page 4109 through 4110, the witness

 3     confirmed the Banja Luka military court already in November 1992 ordered

 4     that all alleged perpetrators be taken into custody for the murder and

 5     investigations launched -- for the murder and that investigations be

 6     launched, all this shortly after the crime occurred.

 7             At transcript page 4110 through -11, the witness confirmed that

 8     the military police of the VRS identified the perpetrators, including

 9     minors who were outside the army, and conducted an on-site investigation.

10     Exhibit P369 is the indictment that was raised by the military court

11     against the perpetrators, condemning the crime.

12             Your Honours, there is thus no credible evidence of belief that

13     persons subordinated to and under the effective command and control of

14     General Mladic could be said to have committed this crime or that

15     military organs under his control failed to investigate and prosecute the

16     perpetrators.  Accordingly, this charge should be dismissed.

17             I have highlighted concrete and clear examples.  For the record,

18     the Prosecution case as presented involved paramilitaries or MUP

19     personnel as perpetrators as to the following Schedule A incidents:  3.3,

20     Kljuc; 6.7 and 6.8, Prijedor; 9.1, Vlasenica.

21             The Prosecution evidence fails to particularly identify the

22     perpetrators or differentiate amongst them as to the following incidents

23     from Schedule A:  6.1, Prijedor; 6.5 to 6.6, Prijedor; 6.9, Prijedor;

24     7.3, Sanski Most.

25             The Prosecution case as presented involves paramilitaries or MUP

Page 20767

 1     personnel as perpetrators, as to the following Schedule B incidents:

 2     1.1, Sanski Most; 1.2, Sanski Most; 10.1 and 10.2, Novi Grad; 13.1 to

 3     13.4, Prijedor; 16.2, Vlasenica.

 4             Meanwhile, the evidence fails to particularly identify the

 5     perpetrators or differentiate them as to the following from Schedule B,

 6     2.1, Bijeljina.

 7             As to detention centres, the Defence points out that Omarska and

 8     Keraterm were police facilities.

 9             Based on the evidence presented, the Prosecution case cannot

10     stand as to these charges.

11             General Mladic is reputed to be a key member and/or principal

12     perpetrator in an overarching joint criminal enterprise lasting from

13     October 1991 until 30 November 1995, with the objective to permanently

14     remove Bosnian Muslims and Bosnian Croats from Bosnian Serb acclaimed

15     territory.  This is paragraph 5 of the indictment.  The indictment sets

16     out an additional but related joint criminal enterprise aimed at

17     eliminating the Bosnian Muslims in Srebrenica and spreading terror among

18     civilians in Sarajevo; this is paragraph 6 of the indictment.

19     General Mladic is alleged to share the intent for the commission of

20     genocide, persecution, extermination, murder, deportations, and forcible

21     transfer with other members of this joint criminal enterprise; this is

22     paragraph 8 of the indictment.  Alternatively, General Mladic purportedly

23     could foresee that the crime of genocide might be perpetrated by one or

24     more members of this joint criminal enterprise and willingly took this

25     risk; that's paragraph 9 of the indictment.

Page 20768

 1             The Defence challenges the evidentiary base presented by the

 2     Prosecution in relation to the mode of liability, a third category of

 3     joint criminal enterprise, for purpose of a no-case submission under

 4     Rule 98 bis of the Rules of Procedure and Evidence.  Our position is that

 5     the Prosecution has not presented sufficient evidence to render a

 6     conviction supporting the charge that General Mladic shared or intended

 7     to further the common purpose of the JCE.

 8             The Defence would like to remind Your Honours of the separate and

 9     dissenting opinions of Judges Hunt and Bennouna in the Celebici case:

10             "The fundamental function of the criminal law is to punish the

11     accused for his criminal conduct, and only for his criminal conduct.  We

12     believe that taking into account abstract elements creates the danger the

13     accused will also be convicted of additional crimes which have a distinct

14     existence only as a purely legal and abstract manner, effectively through

15     the historical accidents of the way in which humanitarian law has

16     developed in streams having distinct contextual requirements.  The fact

17     that the articles of the Statute encompass different, although frequently

18     overlapping, crimes is a result mainly of the history of international

19     humanitarian law rather than any indication that they are intended to

20     describe genuinely distinct bodies of criminal law in contemporary

21     international humanitarian law."

22             Before this Tribunal, the Tadic Appeals Chamber stipulated that

23     it is only appropriate to apply the notion of common purpose in relation

24     to a joint criminal enterprise where the following requirements

25     concerning mens rea are fulfilled by the accused:  One, the intention to

Page 20769

 1     take part in a JCE and to further, individually and jointly, the criminal

 2     purpose of this enterprise; and two, the foreseeability of the possible

 3     commission by other members of the group of offences that do not

 4     constitute the object of the common criminal purpose.  That's paragraph

 5     220 of the Tadic appeals judgement.

 6             With your leave, Your Honours, I will address evidence relating

 7     to the requirement that General Mladic willingly entered into the

 8     joint criminal enterprise and supposedly shared and furthered the common

 9     purpose of the same.  Subsequently I will address evidence relating to

10     the requirement that General Mladic could foresee the crime of genocide

11     being committed.

12             We submit that the Prosecution has not shown that the accused

13     willingly entered into the joint criminal enterprise.  The mere position

14     General Mladic held within the VRS cannot be used as primary evidence to

15     infer his criminal responsibility, doing so would militate against the

16     principle of personal guilt.  Rather than distinguishing between the

17     accused and the specific crimes for which he stands trial, this concept

18     degenerates into a smoke-screen which obscures the frail connection

19     between General Mladic and the acts for which he stands trial.  An

20     accused's position of authority cannot lead to an automatic presumption

21     that he or she knew or had reason to know of the crimes for which a

22     conviction is sought.  That is again from the Delalic appeals judgement,

23     paragraph 313 and again from Blaskic appeals paragraph 406, the mental

24     element "had reason to know" does not automatically imply a duty to

25     obtain information.  Responsibility can be imposed for deliberately

Page 20770

 1     refraining from finding out but not for negligently failing to find out.

 2     Essentially the OTP has neither properly pled a sustainable case nor has

 3     the evidence established a sustainable case for the same.

 4             We submit that the Prosecution has not proven that General Mladic

 5     agreed or supported the common purpose of the third category of JCE in

 6     relation to the crime of genocide.  The Defence recognises that the

 7     proper scope of JCE III is not completely settled in international

 8     criminal law.  This is supported by Judge Shahabuddeen's conclusion to

 9     his separate opinion in the Brdjanin appeals judgement:

10             "...  a physical perpetrator has to be a member of the JCE for a

11     member of the latter to be criminally responsible for a crime perpetrated

12     by the physical perpetrator within the common purpose of the JCE.  By

13     predicating the need for an agreement expressive of the intention of the

14     parties, that position respect the essentials of the principle that

15     criminal responsibility is only assigned for one's own conduct ..."

16             An agreement expressive of the intention of the parties, as

17     referenced to by Judge Shahabuddeen, requires the Prosecution to prove

18     that the accused by his acts or acquiescence is part of such a JCE

19     agreement.  This is paragraph 4 of Judge Shahabuddeen's dissenting

20     opinion.  The Krajisnik Trial Chamber held that persons in a criminal

21     enterprise must have engaged in concerted action; this is the

22     Krajisnik Trial Chamber judgement in paragraph 884 and is also referenced

23     in the Krajisnik Appeals Chamber judgement at paragraph 192 through 194.

24             The Defence recognises that it is established case law before

25     this Tribunal to render convictions under the third category of

Page 20771

 1     joint criminal enterprise for specific intent crimes such as genocide.

 2     Nevertheless, we would like to give notice to Judge Liu's recent

 3     partially dissenting opinion and declaration to the Sainovic appeals

 4     judgement.  Judge Liu recognised that genocide requires that the

 5     perpetrator's intent goes beyond the mere prohibited and that as a

 6     consequence the mens rea required for specific intent crimes is

 7     incompatible with the standard of advertent recklessness applied to a

 8     third category joint criminal enterprise.  In the absence of evidence of

 9     specific genocidal intent, no conviction of genocide may be entered.

10     Furthermore, Judge Liu finds the words of Antonio Cassese persuasive:

11             "Whoever is liable under the third category of JCE has a distinct

12     mens rea from that of the 'primary offender.'  Nevertheless, as the

13     'secondary offender' bears responsibility for the same crime as the

14     primary offender, the 'distance' between the subjective element of the

15     two offenders must not be so dramatic as in the case of crimes requiring

16     specific intent.  Otherwise, the crucial notions of 'personal

17     culpability' and 'causation' would be torn to shreds."

18             And indeed a further discussion of this can be found in Cassese's

19     book:  "Limits of Individual Criminal Responsibility under the Doctrine

20     of JCE," pages 121 to 122.

21             The Defence submits that in light of Judge Liu's dissenting

22     decision, the Prosecution has not provided enough evidence to point out

23     General Mladic's specific intent and therefore he's entitled to a

24     dismissal of the related charge.

25             Evidence shows General Mladic did not share intent related to any

Page 20772

 1     common purpose that has been identified by the Prosecution.  Prosecution

 2     witness Manojlo Milovanovic in his testimony on 19 September 2013

 3     attested to that fact.  His testimony pertained to directive 7, a

 4     directive issued and signed by the supreme commander, Mr. Karadzic.

 5     General Milovanovic explains that unit commanders should not take any

 6     measures based on directives from Karadzic which should have been sent to

 7     General Mladic instead.  In this particular instance, directive 7 was

 8     sent to all the corps commands.  This was an instance of duality or

 9     double lines in the chain of command.  Corps commanders should not have

10     reacted to Karadzic's directive before receiving Mladic's orders as a

11     result of the directive.

12             The task assignment to the Drina Corps by General Mladic in

13     directive 7.1 was not taken over from directive 7.  The general left two

14     things out in directive 7:  The first is the controversial sentence that

15     unbearable conditions have to be created for the civilian population of

16     Zepa and Srebrenica; the second element left out is the sentence

17     referring to the separation of Srebrenica and Zepa by force.

18     General Milovanovic states that the accused exercised personal

19     responsibility when he decided not to pressure the civilian population,

20     and thereby not adopt every element from Karadzic's directive 7.  This

21     clearly shows that General Mladic did not share in any nefarious intent

22     that could be attributed as arising out of directive 7.

23             In addition, Exhibit P3095 relating to General Mladic's demand to

24     withdraw Karadzic's authorisation to the paramilitary formation

25     Arkan's Tigers, this evidence shows that the accused did not share any

Page 20773

 1     nefarious intent that could be attributed to Karadzic or other alleged

 2     JCE members.  The demand specifically mentions the arrest and abuse of

 3     non-Serbs and requests the MUP to take measures for the crimes they

 4     committed and to disarm this formation, which was operating pursuant to

 5     authorisation issued by Supreme Commander Karadzic.

 6             Your Honours, evidence shows that the accused did not share the

 7     intent and common purpose of the joint criminal enterprise to permanently

 8     remove Bosnian Muslims and Bosnian Croats from Bosnian Serb acclaimed

 9     territory and our position is that the Prosecution has not presented

10     sufficient evidence to the contrary.

11             Furthermore, the Defence would like to remind Your Honours of the

12     difference between commander responsibility liability and liability under

13     the head of a third category JCE, as clarified in the

14     Brdjanin Appeals Chamber and to keep that in mind when deliberating over

15     this evidence.

16             As outlined before, the Defence will now address evidence

17     relating to the requirement that General Mladic could foresee the crime

18     of genocide being committed by other alleged members of the JCE.  The

19     Tadic Appeals Chamber stated that everyone in the

20     joint criminal enterprise must have been able to predict this result.  It

21     notes that more than negligence is required.  The standard applied to the

22     third category of a JCE is that of dolus eventualis.  Lack of agreement

23     between the members of the JCE risks that one or more of the perpetrators

24     goes outside of the purview of the common purpose of the enterprise.  A

25     JCE warrants a common understanding and mutual attribution of the conduct

Page 20774

 1     of the participants and our position is that the JCE doctrine is not the

 2     appropriate instrument to sustain a conviction of General Mladic's

 3     alleged genocidal intent nor has the Prosecution presented sufficient

 4     evidence in this matter.  We believe this position to be in line with the

 5     reasoning of the Kvocka Appeals Chamber judgement at paragraphs 91

 6     through 92.

 7             The indictment alleges that General Mladic was aware or could

 8     foresee a genocide happening.  The Tadic Appeals Chamber dealt with the

 9     same matter and stated that "uncertainty in the mind went to the question

10     whether genocide would in fact be committed not to acceptance by him of

11     it (if and when it was committed) as something which he could 'predict'

12     as the 'natural and foreseeable consequence' of the activities of the

13     joint criminal enterprise to which he was a party."

14             It is important for purposes of our 98 bis submission in relation

15     to foreseeability that General Mladic's intent to commit the crime of

16     genocide must be shown to include the specific intent to commit genocide

17     even when he did not know whether or not genocide would be committed.  I

18     would like to remind Your Honours that Tadic was not convicted of the

19     crime of genocide.  Furthermore, the Tadic appeals judgement stated that

20     it is still necessary to show intent and that this was shown by the

21     particular circumstances surrounding the JCE.

22             Former Judge Cassese shared his view on foreseeability.  He was

23     of the opinion that the foreseeability standard is neither precise nor

24     reliable.  It almost introduces a form of strict liability, as it will be

25     for the Prosecution to prove that the participant had knowledge and

Page 20775

 1     willing took that risk of a specific fact or circumstance, evincing the

 2     likelihood that the other participant might commit a unconcerted crime.

 3     Furthermore he stated that:

 4             "Clearly, if the Prosecution fails to prove all this, the charge

 5     must be dismissed.  It would be contrary to the principles of a fair

 6     trial to shift the burden of proof and to require the Defence to prove

 7     that the accused did not know the relevant facts nor foresee the crime

 8     and willingly took risk that it be committed."  Again, this is from

 9     page 117 of "Proper Limits of Individual Criminal Liability under the

10     Doctrine of JCE," a publication by former Judge Cassese.

11             In his dissenting opinion to the Brdjanin interlocutory appeal

12     decision, it is said:

13             "...  the third category of joint criminal enterprise does not

14     dispense with the need to prove intent:  What it does is that it provides

15     a mode of proving intent in particular circumstances, namely, by proof of

16     foresight in those circumstances."

17             And again we're talking about Judge Shahabuddeen, paragraphs 4

18     through 5 of his separate opinion.

19             In light of the common understanding and mutual attribution of

20     the conduct of the participants and the particular circumstances

21     surrounding the JCE, the Defence would like to draw Your Honours'

22     attention to Exhibit P4283, a decision by Supreme Commander Karadzic.

23     The decision pertains to Karadzic's attempt to reassign Mladic to a

24     position outside of the Main Staff.  This attempt is corroborated by

25     Prosecution Witness General Milovanovic.  Your Honours, I would like to

Page 20776

 1     quote page 17106 of the transcript, where Milovanovic says:

 2             "Karadzic started about speaking renaming the Main Staff into the

 3     General Staff.  I asked him -- actually, I asked him whether all of those

 4     present should be listening, and he said that everybody else should leave

 5     except for Krajisnik, and then he said to me, General, we are renaming

 6     the Main Staff into the General Staff.  General Mladic will be replaced

 7     and he will be the special adviser for defence for Republika Srpska and

 8     the Republic of Serb Krajina.  And I shot back by way of a response

 9     saying that I would not be head of that General Staff.  Krajisnik added,

10     Radovan, let him be now.  This is an initial action on the

11     spur-of-the-moment.  As a soldier, he will have to receive his orders.

12     The order did arrive the next day.  Again, I refused it even in writing;

13     that is to say, all generals of Republika Srpska refused and signed a

14     petition to the Assembly of Republika Srpska.  It was the Assembly that

15     appointed Ratko Mladic as head of the Main Staff, so it is only the

16     Assembly that can relieve him of that duty, not the president."

17             Based on the foregoing, the most reasonable conclusion on the

18     evidence is that there was no common understanding of the type alleged by

19     the Prosecution and the attempt of President Karadzic to reassign Mladic

20     is highly indicative in the circumstances of the alleged JCE that tried

21     to exclude the accused.  Our position is that the Prosecution has not

22     proven sufficient evidence to prove otherwise.

23             I think we're at the time for a break.  We could take one now

24     before moving to my last comments.

25             JUDGE ORIE:  If this would be a suitable moment for you, we'll

Page 20777

 1     take the break now.

 2             We take a break and we'll resume at 25 minutes past 1.00.

 3                           --- Recess taken at 1.07 p.m.

 4                           --- On resuming at 1.26 p.m.

 5             JUDGE ORIE:  Mr. Ivetic, if you're ready to proceed, please do

 6     so.

 7             MR. IVETIC:  I am, Your Honours, thank you.

 8             I would like to point out to Your Honours other evidence that

 9     speaks against any specific genocidal intent on the part of

10     General Mladic.  I would direct your attention to the transcript of the

11     16th Assembly Session held on 12 May 1992 in which supreme commander and

12     President Karadzic formulated six strategic goals for the Serbian people.

13     The Prosecution has presented its view that President Karadzic formulated

14     and promoted the development and implementation of SDS and Bosnian Serb

15     governmental policies intended to advance the objective of the joint

16     criminal enterprise and that the six strategic objectives are proof of

17     concerted action within the JCE.

18             Our position is the same as that of the Chamber in the Sikirica

19     case.  The Trial Chamber of the Sikirica case found that general

20     political doctrine of the Serb leadership, including the six strategic

21     goals, propagated persecutions in Prijedor directed against the non-Serb

22     community, but found no evidence the general political doctrine carried

23     any genocidal intent.  The Stakic and Krajisnik Chambers came to the same

24     conclusion.  We argue that the Prosecution has not presented any new

25     evidence to overrule such a conclusion.

Page 20778

 1             In addition, per the evidence on the record, General Mladic

 2     specifically was opposed to the adoption of the six strategic goals at

 3     the Assembly and said:

 4             "We have to call upon any man who has bowed his forehead to the

 5     ground to embrace these areas and the territory of the state we plan to

 6     make.  He too has his place with us and next to us ..."

 7             And he goes on further to say:

 8             "...  but that does not mean that Muslims have to be expelled or

 9     drowned ..."

10             This fragment clearly shows that he does not share the intent nor

11     common purpose of this alleged third category of joint criminal

12     enterprise.

13             In this Assembly dated 12 May 1992 in Banja Luka, Mladic clearly

14     states his intent to live together with Bosnian Muslims and repudiates

15     the concept that Muslims have to be expelled or drowned.  The absence of

16     his intent, which the Defence would like to stress, is separate from that

17     of other members implicated in the JCE is corroborated by Witness Donia's

18     testimony.  During his testimony, Donia emphasised Mladic issued harsh

19     warnings against taking actions stipulated by the Serb political

20     leadership in the 16th Assembly session.

21             JUDGE ORIE:  Would you please slow down a bit, Mr. Ivetic.

22             MR. IVETIC:  Furthermore, he acknowledged that Mladic made a

23     number of statements expressing his concern that the political leadership

24     was formulating goals that entailed Serbs ruling over areas where no

25     Serbs lived.  This is the 22nd August 2013 testimony of Mr. Donia.

Page 20779

 1             P2141 dated 25 October 1995, in which the VRS Main Staff security

 2     department authorised subordinate units to engage in exchange of Muslim

 3     prisoners with the Muslim side for Serb prisoners clearly negates any

 4     possibility that Mladic's intent was to destroy the protected group of

 5     Bosnian Muslims and Bosnian Croats.  Similarly, P2142, dated 16 June 1994

 6     and P2143 dated 21 January 1995 also demonstrate that the VRS Main Staff

 7     security department authorised negotiations for exchange of Muslim

 8     prisoners for Serb prisoners.

 9             Furthermore, we have in evidence P8167, dated 20 July 1995,

10     which -- in which it records a meeting between the UN and General Mladic,

11     who clearly conveys his intention to exchange all prisoners in custody of

12     the VRS with the Muslim side for all their prisoners.

13             Your Honours, we have several exhibits pertaining to the fact

14     General Mladic was in favour of a complete cessation of hostilities

15     agreement and a peace agreement.  There is Exhibit P2198 dated

16     17 June 1995 which accounts the meeting between General Mladic and

17     General Janvier in which General Mladic says he's in favour of completing

18     the agreement and is willing to do a cease-fire across the whole

19     territory.  Similarly, P2050 dated 14 March 1995 records a meeting

20     between Akashi, Mladic, and talks of the other side breaching the

21     cessation of hostilities agreement while the Serb side has adhered to it.

22             In addition, P332, dated 30 May 1992, pertaining to

23     General Mladic's meeting with Colonel Wilson with a purpose of getting

24     the UN to organise a meeting with the BH side to discuss a cease-fire in

25     Sarajevo as the BH side has been refuting such attempts.  And lastly, P18

Page 20780

 1     dated 12 January 1995, where Mladic specifically agrees to complete the

 2     cessation of hostilities agreement with the other two sides.

 3             Your Honours, I would like to proceed with addressing the crime

 4     of genocide under Count 1 and subsequently under Count 2.  We

 5     respectfully seek to challenge the Prosecution's evidentiary basis and

 6     submit that it has been deficient in meeting the reduced burden of proof

 7     set by Rule 98 bis --

 8             JUDGE ORIE:  Mr. Ivetic, if by any chance you would have the

 9     source of the quote of the Banja Luka Assembly Session, then it would

10     assist me.  If not, then I would not be surprised if you don't have all

11     the --

12             MR. IVETIC:  I'm sure --

13             JUDGE ORIE:  -- sources.

14             MR. IVETIC:  -- we can get that before we finish today,

15     Your Honour.

16             JUDGE ORIE:  Yes.

17             MR. IVETIC:  Genocide is punishable under Article 4 of the

18     ICTY Statute and is a well-established part of customary international

19     law.  As underlined in many international trials, genocide is distinct

20     from other crimes inasmuch as it embodies a special intent or

21     dolus specialis.  This is from the Kayishema judgement, paragraph 498.

22             To sustain a count of genocide, the perpetrator has to possess

23     the required mens rea.  Genocidal intent requires an extra element

24     besides the mental element, mirroring the genocidal acts allegedly

25     committed by the accused.  The additional required specific genocidal

Page 20781

 1     intent consists of three elements:  Namely, the intent to destroy the

 2     protected group; the intent to destroy the group in whole or in part; and

 3     this protected group is either defined by nationality, ethnicity,

 4     religion, or race.  Previous Trial Chambers have emphasised that intent

 5     is a mental factor which is difficult, even impossible, to determine.

 6     These presumptions are formed on a case-by-case basis and rely on the

 7     evidence put forward during trial.  The Akayesu trial judgement paragraph

 8     523 through 524.

 9             Absent a finding of specific genocidal intent, the acts cannot be

10     tried as genocide but inevitably fall within a different category of

11     international crimes, for instance, a crime against humanity.

12             Absent a confession or direct evidence attesting to the accused's

13     intent, presumptions on intent are formed on a case-by-case basis and are

14     inferred from the material evidence submitted to the Chamber.  This is

15     from the Musema trial judgement, paragraph 167.  The Defence submits, in

16     line with the arguments regarding the actus reus, that the Prosecution

17     evidence currently supporting inferences of intent of the accused is not

18     sufficient to meet the Rule 98 bis standard.

19             With your leave, Your Honours, I will first turn to the

20     actus reus element that General Mladic is charged with under Count 1 and

21     then turn to the mental elements.  Count 1 alleges the commission of

22     genocide in the municipalities of Foca, Kljuc, Kotor Varos, Prijedor,

23     Sanski Most, and Vlasenica; this is in paragraph 37 in the indictment.

24     The indictment holds that a campaign of persecutions included or

25     escalated to conduct manifesting intent to destroy in part the national,

Page 20782

 1     ethnical and/or religious groups of Bosnian Muslims and Bosnian Croats.

 2     In these seven municipalities, the intent to partially destroy the groups

 3     was manifested through the targeting of significant sections of the

 4     leadership and a substantial number of its members.  This is also

 5     paragraph 37.

 6             The genocidal acts subsumed in Count 1 are:

 7             (A) the killing of Bosnian Muslims and Bosnian Croats; (B) the

 8     causing of serious bodily or mental harm to Bosnian Muslims and

 9     Bosnian Croats during their confinement in detention facilities; and (C)

10     the detention of Bosnian Muslims and Bosnian Croats under conditions of

11     life calculated to bring about their physical destruction.

12             Your Honours, no evidence has been presented to substantiate a

13     general factual finding of genocide in the municipalities.  Demographer

14     and Prosecution expert Tabeau presented evidence which shows that

15     2.6 per cent of Muslims were killed in Bosnia.  Tabeau's testimony on

16     18 November 2013 stated that the Bosnian Serbs lost the highest

17     percentage of their population, some -- as opposed to the Bosnian Muslim

18     and Bosnian Croat population and Ms. Tabeau testified that there was in

19     fact only a small difference in losses among the ethnic groups.

20             The Defence is aware that a determination of genocide does not

21     exclusively involve a numerical assessment, but that it is of guidance.

22     We would like to respectfully bring to Your Honours' mind the ICJ

23     judgement concerning the application of the convention on the prevention

24     and punishment of the crime of genocide in the case of

25     Bosnia and Herzegovina versus Serbia and Montenegro, 26 February 2007,

Page 20783

 1     which was not satisfied beyond reasonable doubt that the killings of

 2     members of the protected group in 1992 were carried out with genocidal

 3     intent.  ICJ judgements are not binding on the Trial Chamber but are of

 4     an authoritative nature.

 5             Your Honours, before this Tribunal several cases have examined

 6     the occurrence of genocide as alleged in the municipalities; none of them

 7     have established it.  The Trial Chamber in Stakic found no special

 8     genocidal intent to destroy the protected group of Bosnian Muslims or

 9     Bosnian Croats.  The Trial Chamber in Stakic was not satisfied that

10     anyone had the special intent to destroy the Muslims or Croats as a group

11     and they specifically discussed the strategic goals and found that they

12     called for separation, not destruction.  The Stakic Appeals Chamber

13     upheld the acquittal of genocide and ascertained that there was

14     insufficient evidence supporting the proposition the Serb leadership

15     developed a genocidal campaign.  The Trial Chamber of the Sikirica case

16     found that general political doctrine of the Serb leadership propagated

17     persecutions, but found no evidence that general political doctrine

18     carried any genocidal intent.  The Defence again likes to state our

19     position that the Prosecution has not presented any new evidence in this

20     case that would result in any different conclusion than prior cases.

21             Furthermore, the Chamber recognised in Stakic that the Serbs had

22     the structures in place to commit genocide if they intended to do so.

23     The Stakic Trial Chamber acknowledged that while approximately 23.000

24     people were registered as having passed through Trnopolje camp, the total

25     number of killings in Prijedor probably did not exceed 3.000.

Page 20784

 1             Similarly, Your Honours, the Tribunal had before it the case of

 2     Krajisnik, who was accused of committing genocide on a national level and

 3     included the seven municipalities contained in Count 1.  The

 4     Krajisnik Chamber found that no genocide occurred and could not establish

 5     the presence of genocidal intent.  The Appeals Chamber of Brdjanin upheld

 6     their acquittal of genocide as the Chamber found no evidence of the

 7     intent to destroy the protected group.  Furthermore, the Brdjanin Chamber

 8     specifically mentioned the absence of an escalation to genocide in the

 9     ARK after examining the killings at Koricanske Stijene, killings and

10     treatment of prisoners at Keraterm, Omarska, Trnopolje, and Prijedor,

11     Kljuc, and Sanski Most.

12             Your Honours, before I continue, I can report that the

13     16th Assembly Session is in evidence at P431.  The quote of

14     General Mladic is to be found at page 39 of the English translation as

15     the document is uploaded in e-court.

16             JUDGE ORIE:  Thank you, Mr. Ivetic.

17             MR. IVETIC:  If Your Honours would allow me to make reference to

18     the genocide in Rwanda, where after repetitively inquiring into the

19     existence of genocide in Rwanda, the events were referred to as common

20     knowledge in further trials after 2006.  The Karemera case confirmed that

21     the societal context in which the accused operated has direct bearing on

22     the charges brought against him.  This is paragraph 36 of the decision on

23     the Prosecutor's interlocutory appeal on the decision of judicial notice,

24     June 16th, 2006.

25             Notwithstanding that sole reference on a general finding of

Page 20785

 1     genocide would go contrary to individual criminal responsibility and

 2     would lead to adjudicating guilt by association.  Instead, evidence is

 3     viewed in light of the larger societal context in which the alleged

 4     actions took place.  The position of the Defence is that there has not

 5     been proven genocide occurred in the municipalities between 31 March 1992

 6     and 31 December 1992 and that the Prosecution has not submitted evidence

 7     to the contrary.  The evidence should be viewed in light of the larger

 8     societal context in which the alleged actions took place.  In absence of

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

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

11     genocidal intent, the Chamber can infer intent.  While the Chamber has

12     heard evidence of culpable acts directed against Bosnian Muslims and

13     Bosnian Croats in the municipalities and the repetition of derogatory

14     language; however, the nature, scale, and context of these acts, be it

15     all -- be it in all the municipalities covered by the indictment or the

16     seven municipalities in which genocide is alleged, do not reach the level

17     from which a reasonable trier of fact can infer that they were committed

18     with genocidal intent.

19             The Karadzic Appeals Chamber remarked that forcible transfer does

20     not constitute a genocidal act in and of itself, but where attended by

21     such circumstances as to lead to the death of the whole or part of the

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

23     causes serious bodily or mental harm.  This is also emphasised by the

24     Krstic and Popovic Chambers.

25             Your Honours, I would like to remind you that bodily harm or

Page 20786

 1     mental harm imposed to fall within the crime of genocide must be

 2     committed with the intent to destroy the protected group as such.  The

 3     Trial Chamber in the Kayishema case established that an accused cannot be

 4     held liable for the mental injury inflicted upon victims if it is not

 5     inflicted whilst harbouring specific genocidal intent to destroy the

 6     protected group, that's paragraph 112 of the Kayishema trial judgement.

 7             By deciding so, the ICTR set precedent that restricts the crime

 8     of genocide and consequently puts an elevated burden of proof on the

 9     Prosecution.  We submit the Prosecution has not presented sufficient

10     evidence to prove that General Mladic harboured specific genocidal intent

11     and therefore he is entitled to a dismissal of the charge in relation to

12     inflicting mental harm.

13             The Prosecution asserts that the common purpose of the JCE was

14     implemented through the various VRS directives.  Again, we would like to

15     stress the testimony of General Milovanovic pertaining to directive 7, in

16     which General Mladic left two things out that were authorised by

17     President Karadzic in his own directive 7.1.  The first is the

18     controversial sentence about unbearable conditions needing to be created

19     for the civilian population of Zepa and Srebrenica.  The second referring

20     to the separation of Srebrenica and Zepa or from Zepa by force.

21     Therefore, General Mladic could not have been said to share the same

22     common purpose, let alone the common purpose to commit genocide.

23             The indictment charges General Mladic with crimes committed

24     against the Bosnian Muslims in Srebrenica commencing the days preceding

25     11 July 1995 and continuing until 1 November 1995.  General Mladic is

Page 20787

 1     alleged to have participated in a joint criminal enterprise to eliminate

 2     the Bosnian Muslims in Srebrenica by killing the men and boys of

 3     Srebrenica and forcibly removing the women, young children, and elderly,

 4     amounting to the commission of the crime of genocide.  The key proof that

 5     the Prosecution relies upon as to General Mladic's intent pertaining to

 6     the events in Srebrenica is witness Kingori.  However, this evidence is

 7     incapable of belief, due to the fact that Kingori's other evidence as to

 8     the Srebrenica enclave is entirely at odds with members of UNPROFOR.

 9     Whereas Kingori testified that the evacuation of civilians was staged by

10     the VRS, General Nicolai confirmed - of the United Nations and the

11     Dutch Ministry of Defence - agreed the evacuation was a humanitarian

12     necessity and instructed Colonel Karremans to ask Mladic to permit it

13     during his first meeting at Hotel Fontana.  This is transcript page 10653

14     through 10654.  Thus, the actions relating to deportation cannot be

15     attributed to General Mladic, not unless the United Nations and

16     Dutch Ministry of Defence themselves are the co-perpetrators of the same.

17     Furthermore, it should be recalled that whereas Kingori claimed that the

18     Bosnian Muslims in Srebrenica were completely demilitarised, this account

19     is at odds with DutchBat witnesses who testified, including Eelco Koster

20     at transcript page 1266 through 1267 and 1278 to 1279 and also to

21     evidence of armed Bosnian Muslims taking UN members hostages,

22     Witness van Duijn at transcript page 6281 and Witness Koster at

23     transcript page 1240.

24             This evidence shows that the Bosnian Muslims in Srebrenica were

25     not demilitarised and even threatened DutchBat themselves.  Thus,

Page 20788

 1     Kingori's testimony is not one that is capable of belief.

 2             Prosecution expert, Richard Butler, confirmed, as we said

 3     earlier, that with respect to July 1995 in Srebrenica, his research had

 4     not come across any document or order from General Mladic specifically

 5     ordering the execution of prisoners; this is transcript page 16573 to

 6     16574.  Your Honours, the Defence would like to remind that the

 7     Prosecution in its opening statement confirmed and conceded that the

 8     military action of the VRS against Srebrenica to stop Armija BiH raids

 9     constituted a legitimate military action.  This can be found at

10     transcript page 486.  Later Prosecution expert witness Richard Butler

11     confirmed this assessment.  Likewise, Butler confirmed that VRS combat

12     operations against the Bosnian Muslim column leaving Susnjari was

13     likewise legitimate combat.  This can be found at transcript page 16653.

14     Butler states that:

15             "I don't see any particular conflict with respect to the column

16     retreating from Srebrenica and fighting its way to friendly lines."

17             He goes on to state:

18             "As I've testified many times before, the column as constituted,

19     despite the fact that the mixed character of the column, in my view the

20     column constituted a legitimate military target which meant it was

21     subject to attack by ambush."

22             In addition, we would like to submit that there is no evidence of

23     General Mladic's presence at any of the alleged execution sites, save for

24     the testimony of RM255, which we have already addressed and which even

25     the Prosecution has said they do not intend for us to rely upon.  And

Page 20789

 1     again that's at transcript page 1179.

 2             Further, the evidence is clear and the Prosecution stipulated to

 3     the fact that General Mladic has left the Srebrenica area and left the

 4     VRS zone of operations as of 14 July 1995.  Although the precise time of

 5     his return is still in dispute between the parties, it -- from the

 6     evidence it is clear the killings that took place took place while

 7     General Mladic was not present.  The Prosecution has not presented

 8     evidence that General Mladic had any capabilities of secure

 9     communications during this time-period, either with the VRS units or

10     other alleged JCE members, so as to permit his knowledge of or

11     participation in the killings.

12             The Karadzic Appeals Chamber in its 98 bis decision in

13     reinstating the genocide count for the municipalities focused on the

14     detention facilities being used to subject conditions of life meant to

15     bring about physical destruction.  In the Srebrenica context, we do not

16     have such evidence.  To the contrary, we have presented evidence that

17     prisoner exchanges were planned.  We elaborated on Exhibit P2141, dated

18     25 October 1995, in which the VRS Main Staff security department

19     authorises subordinates to engage in exchange of Muslim prisoners.

20     Similarly, Exhibit P2142, dated 16 June 1994, and Exhibit P2143,

21     dated 21 January 1995, which also demonstrate the intent to exchange

22     Muslim prisoners for Serb prisoners.  And then again the 20 July 1995,

23     P816, where General Mladic conveys his intention to exchange all

24     prisoners for all prisoners.

25             I would like to remind Your Honours also in relation to the

Page 20790

 1     standard set forth in the Kayishema case that an accused cannot be held

 2     liable for mental injury inflicted upon victims if it is not inflicted

 3     whilst harbouring specific genocidal intent to destroy the protected

 4     group, that on 14 July 1995 General Mladic's meeting with General Smith

 5     of UNPROFOR and agrees to permit the International Red Cross to come

 6     examine prisoners from Srebrenica to assure they are kept in accord with

 7     the Geneva Conventions.  This is D410.  This evidence flies in the face

 8     of the assumption that General Mladic's alleged intent was to inflict

 9     bodily and mental harm to the detainees with the genocidal intent.

10             Further, as early as April 1994 we have evidence of

11     General Mladic meeting with General Wahlgren of the UN and offering the

12     following three proposals for Srebrenica, this is P2469:

13             "(A) the UN could send as many empty trucks as it wanted into

14     Srebrenica to take out Muslims or.

15             "(B) if the Muslim commander in Srebrenica (Naser Oric) does not

16     allow his people to leave in this manner, the Serb side could open a

17     corridor allowing civilians to cross into Serb-held territory (on foot)

18     to a place where they can board buses; or.

19             "(C) as civilians were not the target of the BH Serb army, the

20     Muslims could lay down their arms and let their people stay in

21     Srebrenica.  The Muslims in Srebrenica, he said, should 'surrender to my

22     forces or yours.  However, according to international law they should

23     surrender to ours.'

24             "He asked that this proposal be transmitted to the other side."

25             The Defence would like to also turn to statements made by

Page 20791

 1     General Mladic at Hotel Fontana which must be taken in the context of his

 2     statements a year prior as we just evidenced in the meeting with

 3     General Wahlgren.

 4             Taken in context with these prior statements, it is clear that

 5     General Mladic's focus is the armed 5.000 or so fighters of Naser Oric

 6     that he thinks are still with the civilians and that if disarmed no one

 7     has to leave Srebrenica.  Such a benign interpretation of his words is in

 8     line with his statements to the crowd at Potocari, which can be seen at

 9     P1147, page 55 through 56, and this is General Mladic talking:

10             "Well, I have received the representatives of this population

11     here, today, and they have asked me to enable the civilians who want to

12     leave this territory to pass on the territory controlled by Muslims and

13     Croats.  Our army wasn't aiming to fight the civilians or the UNPROFOR

14     forces.  We have organised the transport for them, the food, the water,

15     the medicine.  In the first round today, we will evacuate women,

16     children, and the old, as well as other people who want to leave this

17     combat area on their own free will, without any kind of force.

18             "Yes, Srebrenica is free, but as I said to their representatives

19     they should all ... there are still groups ... which are fighting, there

20     is still resistance.  I also ordered that their soldiers could join us

21     freely and surrender their weapons and they accepted it.  I hope at least

22     this part of the problem can be solved by us without civilians being hurt

23     and these women and children and the old ... it's not their fault if

24     Alija and his policy seduced them."

25             Furthermore, we would like to bring to Your Honours' attention

Page 20792

 1     the testimony of RM253 regarding another speech attributed to

 2     General Mladic at Sandici.  The speech clearly shows that

 3     General Mladic's intent is not geared towards the destruction of the

 4     protected group of Bosnian Muslims and Bosnian Croats, but rather is

 5     aimed towards prisoner exchanges because he says everyone will be

 6     exchanged; this is P1547 under seal at paragraph 20.

 7             Further, key Prosecution witness Erdemovic testified at

 8     transcript page 13779 that he never heard any talk or any indicators that

 9     the objective of the VRS was to destroy the protected group of Bosniak

10     people.  We submit that the Prosecution has not proven sufficient

11     evidence to the contrary.

12             On the matter of genocidal intent for purposes of this 98 bis

13     hearing, the Defence would like to conclude that it is aware that the

14     Courts entertain freedom of assessment of evidence.  And we would like to

15     recall the Jelisic case in which the accused publicly displayed his

16     intent to destroy the Muslim group in whole or in part through making

17     statements as feeling the need to kill 20 to 30 persons before being able

18     to drink his coffee each morning.  However, he also granted Muslim

19     detainees amnesty, a notorious example being a Muslim man who was forced

20     to engage in Russian roulette with Mr. Jelisic and who was subsequently

21     released.  In weighing the evidence the Court put significant emphasis on

22     the latter exculpatory evidence which lead to finding that due to the

23     uncertainty surrounding his intent to destroy the group in whole or in

24     part, Mr. Jelesic's killings were found to be arbitrary.  In that

25     instance the Court abided by in dubio pro reo.

Page 20793

 1             In our instant case, there has not been any proof of any such

 2     nefarious activities by General Mladic.

 3             Furthermore, from the Perisic Appeals Chamber, it can be deduced

 4     that when the evidentiary base comprises one or more contradictory

 5     testimonies, or other forms of inconsistent evidence, it is not

 6     satisfactory that the Chamber merely acknowledges its existence.  An

 7     analysis of such evidence together with a reckoning as to why it was or

 8     was not relied upon must be given as well.  In light of all the arguments

 9     presented, the Defence submits that General Ratko Mladic is entitled to a

10     dismissal of the charge relating to him entertaining genocidal intent for

11     the reason that the Prosecution has not submitted sufficient evidence to

12     support the charges.

13             Your Honours, that concludes my presentation.  On behalf of

14     General Mladic and the rest of the Defence team, I thank you for

15     listening to our submissions.

16             JUDGE ORIE:  Thank you, Mr. Ivetic.

17             Mr. Groome, you were scheduled to start tomorrow.  I think it

18     would be wiser to wait until tomorrow so that you have an opportunity to

19     better prepare.

20             MR. GROOME:  Thank you, Your Honour, yes.

21             JUDGE ORIE:  Then before we adjourn, Mr. Ivetic, I asked for the

22     source of the quote which was then given to me page 39 of the

23     Assembly Session in Banja Luka.  Perhaps -- you quoted as follows,

24     referring to General Mladic specifically opposing the adoption of the six

25     strategic goals at the Assembly.  And then you quoted him as saying:

Page 20794

 1             "We have to call upon any man who has bowed his forehead to the

 2     ground to embrace these areas and the territory of the state we plan to

 3     make.  He too has his place with us and next to us."

 4             What I found on page 39 is a quote, and I'm focusing on

 5     "forehead" because ...

 6             "We invite anyone whose forehead has touched this here, but first

 7     a Serb, I will not assign anyone else to a command duty.  But I will

 8     assign someone no matter who he is."

 9             That is the quote I found on page 39 of the English translation.

10             You then continued saying:

11             "And he goes on further to say:

12             'But that does not mean Muslims have to be expelled or drowned.'"

13             First of all, I had some difficulties in combining the first few

14     lines with this then follow-up, which seems to be a bit inconsistent.

15     And therefore I wondered -- first of all, I did not find anything on

16     page 39 in the -- in close connection to the first quote, saying that it

17     does not mean that Muslims have to be expelled or drowned.  But I was

18     wondering whether you were working from a different English translation

19     and perhaps it would be wise, since you draw our attention to the fact

20     what this fragment shows, that you would verify whether there was any

21     issue about the English version of the Banja Luka Assembly Session.

22             MR. IVETIC:  I will do that, Your Honour.  I was working off a

23     snap-shot of a portion of the PDF of a translation.  I don't know -- I'll

24     have to check to see if that's the one that was in e-court.  I thought it

25     was and I will report back so that Mr. Groome knows before he begins

Page 20795

 1     tomorrow --

 2             JUDGE ORIE:  Yes.

 3             MR. IVETIC:  -- what the particular -- what exactly is the

 4     reference if it is something that is in the --

 5             JUDGE ORIE:  Well, at least it's a page where the word "forehead"

 6     appears, and from what I tried to search I find it nowhere in the

 7     transcript.  But it seems that Mr. Mladic would like to consult.

 8             MR. IVETIC:  If I may consult.

 9             JUDGE ORIE:  Yes, please do so.

10                           [Defence counsel and accused confer]

11             JUDGE ORIE:  Mr. Ivetic.

12             MR. IVETIC:  Yes.  My client also remembers the words in -- says

13     it's in relation to the SFRY.  I will of course check the official

14     exhibit as it is entered into the record and will report back informally

15     to the Chamber and the other side via e-mail so they have time to

16     prepare.  And then I'm prepared tomorrow to on the record set forth what

17     the results are of my inquiry.

18             JUDGE ORIE:  Yes, because if there's any translation issue, we

19     would rather know now --

20             MR. IVETIC:  Absolutely, absolutely.

21             JUDGE ORIE:  -- then at any later point in time.

22             Nothing else at this moment.  We adjourn for the day and we'll

23     hear the Prosecution's submissions tomorrow, the 18th of March, at 9.30

24     in the morning in this same courtroom, I.

25                           --- Whereupon the hearing adjourned at 2.12 p.m.,

Page 20796

 1                           to be reconvened on Tuesday, the 18th day of

 2                           March, 2014, at 9.30 a.m.