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Page 5

1 and 15 minutes starting from now.

2 MR. BOURGON: Good morning, Mr. President. Good morning, Judges

3 from the Appeals Chamber. Good morning to my colleagues from the

4 Prosecution. I will be conducting the examination-in-chief of

5 Witness Panic this morning, and for this purpose I would like to have the

6 usher give to the witness a binder, which includes all the documents that

7 has been given to the Appeals Chamber, simply to make things easier.

8 JUDGE MERON: Please proceed.

9 MR. BOURGON: Thank you, Mr. President. This binder was shown to

10 the Prosecution this morning, and it includes nothing more than the

11 documents that we intend maybe to use.

12 Mr. President, if I may add before I begin, you have suggested

13 the possibility of re-allocating some of our examination-in-chief time --

14 JUDGE MERON: Registry, would you give us one more set? We have

15 only four sets. Oh, you have one. We're all right. Sorry.

16 I'm terribly sorry, Mr. Bourgon. Please continue.

17 MR. BOURGON: Thank you, Mr. President. I apologise.

18 You indicated earlier, Mr. President, the possibility of

19 re-allocating some of our examination-in-chief time to re-examination. I

20 will see if that will be necessary. I hope, Mr. President, to complete

21 my examination-in-chief within one hour, but of course we never know how

22 these things go.

23 WITNESS: MIODRAG PANIC

24 [Witness answered through interpreter]

25 Examination by Mr. Bourgon:

Page 6

1 Q. Good morning, General Panic.

2 A. Good morning.

3 Q. General, we have met this week, but allow me to introduce myself

4 for the record. My name is Stephane Bourgon and I am accompanied this

5 morning for your testimony by Mr. Novak Lukic, by Ms. Maja Dokmanovic,

6 and by Ms. Caroline Bouchard-Lauzon.

7 General, I will be asking you a series of questions this morning.

8 I would like to remind you that at any time, should there be any question

9 that you do not understand, please do not hesitate to interrupt me so

10 that I can say the questions over again. It is very important that you

11 understand each question that I will put to you.

12 General, when we met yesterday, I explained to you the purpose of

13 the hearing this morning, so we will go straight to the essence of your

14 testimony. However, before I do so, I would like to point out that

15 the -- even though the Judges from the Appeals Chamber are most likely

16 familiar with your testimony in the Sljivancanin case when it was at

17 trial, it is the first time that they see you this morning. So for the

18 benefit of the Judges, can you briefly summarise your military career.

19 A. I graduated from the military academy in 1972, when I became a

20 professional officer of the Yugoslav People's Army. During my

21 professional career, I held all command positions that exist, from

22 platoon commander to commander of the corps of the special units,

23 assistant Chief of General Staff for land forces, and I ended my career

24 as head of the inspectorate for combat-readiness in 2002, when I retired

25 with the rank of lieutenant-general. During my education and military

Page 7

1 service, I completed all military schools that existed, including the

2 school of national defence. I'm a retiree now and I live in Belgrade.

3 Q. Thank you, General. I will be asking my questions to you this

4 morning based on the series of topic, and my first topic this morning is

5 your testimony in the Mrksic, Sljivancanin, and Radic case. Do you

6 recall, General, when you testified before this Tribunal in this case?

7 A. Yes, I do recall. It was in 2006, in the first half of November.

8 Q. And, sir, did you have an opportunity to review your testimony

9 since then?

10 A. Yes.

11 Q. When was that and how did you do that?

12 A. I reviewed it about a month ago, and this is how I did it: I

13 received from Mr. Lukic's office, through Ms. Dokmanovic, the video

14 recording of that testimony.

15 Q. And what language was this recording in?

16 A. That video recording was in my mother tongue, in the Serbian

17 language.

18 Q. And, sir, having watched your testimony, are there any of your

19 answers that you gave at the time that you would like to modify today?

20 A. When I reviewed that testimony of mine, I decided that I stand by

21 what I said then when I testified, except that now I could clarify

22 certain events and certain minute details related to that testimony.

23 Perhaps I could clarify certain events with greater precision.

24 Q. And, General, is there any one issue that comes to your mind this

25 morning that you could perhaps provide further clarification on?

Page 8

1 A. Well, now, after everything, I could explain with greater

2 precision the place and role of Mr. Sljivancanin during the evacuation of

3 the hospital; more specifically, his role in the field of security -- or

4 rather, the security-related selection of paramilitary formations that

5 had sought shelter in the hospital. I could explain that part in greater

6 detail.

7 Q. Thank you, General. I will not be asking any questions about

8 this topic today. Maybe the Prosecution will in cross-examination, but

9 that's a different matter. I move to my next topic, which is the

10 judgement that was rendered in the trial of Mrksic, Sljivancanin, and

11 Radic. Sir, do you know when the trial judgement was rendered in that

12 case?

13 A. That judgement was rendered in 2007, sometime in the month of

14 September.

15 Q. Were you interested in the outcome of this trial; and if so, why?

16 A. Yes, I was. I was and our entire public was very interested in

17 that. I in particular, because I know the man concerned. I was with

18 them when certain things happened and this was in particular due to the

19 fact that I testified before this court as well. That is why I was

20 interested in the outcome.

21 Q. Thank you. Now, moving on to my next topic, which is the outcome

22 of the judgement. Do you recall what happened to Mr. Radic in that case

23 and what was your reaction?

24 A. Yes, I recall. Mr. Radic was acquitted of all the charges. I

25 found that acceptable. I was very pleased. I had never even known of

Page 9

1 Radic. I did not realise, as I said here when I testified, how come he

2 became part of all of that. So I'm glad that that is how things turned

3 out for him.

4 Q. And what about Sljivancanin, do you know what happened to him and

5 what was your reaction after the first-degree judgement?

6 A. Yes, I remember. Mr. Sljivancanin was sentenced to five years in

7 prison. That is a serious sentence, but my understanding was that that

8 was the price to be paid for where he was during the Vukovar operation

9 and the fact that he personally was more exposed.

10 Q. Can you elaborate on what you mean by "he ... was more exposed"?

11 A. Well, Mr. Sljivancanin, as you can see him here, he's a striking

12 person. He has personal courage. He was in many places. He was in many

13 places where things happened, and in particular towards the end of the

14 operations, he was in the places where civilians were supposed to be

15 protected physically; that is to say, those who had been taken prisoner

16 and those who were frail. I believe that this is a personal shortcoming

17 of his, that he liked to have his picture taken, he liked being exposed

18 in the media. For the public, he was a media personality. That's the

19 way it was.

20 Q. Thank you. And what about Mrksic, what happened to him and what

21 was your reaction to that judgement?

22 A. Mr. Mrksic, as the commander, was sentenced to 20 years. That is

23 a long sentence. It's serious punishment, and I took it to be the price

24 of the -- for the fact that he was the commander. Being commander

25 involves responsibility and glory. At that point in time, it was my

Page 10

1 understanding that that was the price to be paid for command

2 responsibility.

3 Q. I move to my next topic, which is the reason why Mrksic was

4 convicted. Did you come to learn, Mr. Panic, as to why Mrksic was

5 convicted?

6 A. I learned that Mrksic was convicted because he had ordered the

7 withdrawal of the security detail from Ovcara, where the prisoner had

8 been guarded.

9 Q. And was this a surprise to you, sir?

10 A. This was a major surprise for me.

11 Q. Why so?

12 A. I know Mrksic as commander pretty well. We worked together for a

13 number of years. I know that he is a stern but fair commander. I could

14 not believe that that was possible, that it was possible for him to have

15 ordered that, approved of that, or agreed with that kind of decision, to

16 withdraw the security detail. When I think about this, he never

17 communicated that to anyone. So that was my surprise first of all. How

18 come he was being convicted for something that we had not known about at

19 all? And again, as I think about this, he's the only one who could have

20 made that kind of decision as commander. It is only the commander who

21 can make that kind of decision, but I had never known of that decision

22 nor can I believe that and I cannot even be convinced now that he had

23 done something like that. That was a major surprise to me.

24 Q. Thank you, General. Let us move to the appeals judgement or the

25 second-degree judgement. Did you come to learn, Mr. Panic, that the

Page 11

1 judgement was under appeal?

2 A. Yes, yes, I did know. Yes.

3 Q. And how did you come to learn this?

4 A. Well, it was in the media and our public was greatly interested

5 in that, so was I and all my comrades too.

6 Q. Do you remember the date of the Appeals Chamber or the

7 second-degree judgement?

8 A. Yes, I remember. I remember that Mr. Sljivancanin was on

9 provisional release then, and he had to go back because the judgement was

10 supposed to be rendered. And that was in December -- sorry, no, that was

11 in May, about a year ago -- or actually to be more specific, while I was

12 preparing a bit here, I saw that it was in May 2009, yes.

13 Q. Thank you, General. What about the outcome of the second-degree

14 judgement, do you recall first of all what happened to Mrksic and what

15 was your reaction to that?

16 A. Yes. I know that Mrksic's sentence of 20 years in prison was

17 confirmed, and I had expected that, in view of the fact that he had been

18 commander and that was it.

19 Q. And what about Sljivancanin, what happened to him in this

20 second-degree judgement and what -- how did the people react in Belgrade

21 to this?

22 A. Well, as far as Mr. Sljivancanin's judgement was concerned, for

23 me this was a major shock, a major surprise, first of all for me

24 personally and also for the public in Belgrade.

25 Q. Now tell us, sir, why was this a major shock for you personally?

Page 12

1 A. For me personally this was a major shock. All of a sudden he got

2 12 years additionally. We thought that he had served his sentence and

3 that he was coming back and that he would be free. However, he got a

4 sentence that was more than three times higher. This is what he got at

5 this new trial. Then I was greatly surprised when I saw why it was that

6 he was given this sentence. That is what surprised me in particular. I

7 understand that it is for the Court to assess all the facts and to

8 compare them. However, at that point in time I did not see that

9 Sljivancanin had deserved that kind of punishment for what was stated

10 there.

11 Q. Sir, can you explain how this took place exactly. How did you

12 come to be shocked and when did that happen?

13 A. Well, you see, I followed the proceedings on the internet. So I

14 was watching and I couldn't believe my eyes and ears. I was watching,

15 reading, and it seemed less than normal to me, uncomprehensible, one

16 sentence or two sentences, namely, that Mr. Sljivancanin was -- got that

17 sentence because Mrksic as commander had ordered to withdraw the security

18 detail from Ovcara. If he had communicated that -- or rather, that he

19 communicated that to Sljivancanin and that he, as a security organ,

20 failed to protect the prisoners at Ovcara -- or rather, it says there

21 that he didn't exert influence on Mrksic to change his decision.

22 After that, I tried to see in the media whether that was really

23 so, whether it may have been a translation error or maybe I misheard.

24 Many people called me on that day and I spoke to many people, but things

25 remained as I had understood them in the first place. I couldn't wait

Page 13

1 for my daughter to come back from work on that afternoon. She speaks

2 excellent English because she studied at Cambridge, she got her doctoral

3 degree there. I wanted to consult her and see whether she could

4 translate to me from English and check whether I had understood things

5 correctly. And he really -- was able to find a summary that states the

6 same thing. If I can repeat -- or I don't know if I should repeat what

7 it said there.

8 Q. And, General, did your daughter and yourself find such

9 information; and if so, where?

10 A. Yes. My daughter was able to do so. It's an English version, a

11 summary in the English language, which she translated to me. It was on

12 the internet.

13 Q. And what was this the summary of?

14 A. It was a summary of the sentence, the judgement of the Appeals

15 Chamber.

16 Q. Sir, can you look in the binder that is in front of you at tab

17 number 8.

18 MR. BOURGON: For the Appeals Chamber, Mr. President, this is

19 Exhibit RD8.

20 THE WITNESS: [Interpretation] Yes, I can see it.

21 MR. BOURGON:

22 Q. Do you recognise this document?

23 A. Yes, I do. Yes, this is the summary of the judgement of the

24 Appeals Chamber.

25 Q. Is there any specific part of this document that was most

Page 14

1 important for you on that day; and if so, can you identify that for us,

2 please.

3 A. Yes. All of this was important to me. I read that all. But

4 what shocked me especially and which made me react as a human being is

5 this part, the summary. The Trial Chamber notes that the -- sorry, the

6 Appeals Chamber notes that the Trial Chamber -- et cetera --

7 Q. General, can you tell us where you are in the document, please,

8 what page, so that everybody can follow in the courtroom.

9 A. Well, as I turn the pages, I'm looking at the typed pages, page

10 2, page 3, 4, 5, and then we reach the sixth typed page.

11 Q. Now, the document you have before you is in what language, sir?

12 A. It's in my language, the Serbian language, and it's the second

13 paragraph.

14 Q. And is this the exact document that you saw that night?

15 A. Yes.

16 Q. In that language?

17 A. It was in English.

18 Q. Okay. Tell us -- please proceed to tell us what is the paragraph

19 that was most important to you.

20 A. To me this paragraph was the most important, the second paragraph

21 on page 6. It says here:

22 "However, the only reasonable conclusion that can be drawn is

23 that Mr. Mrksic, during their meeting after the return of

24 Mr. Sljivancanin to Negoslavci on that night, said to Mr. Sljivancanin

25 that he had withdrawn the members of the JNA who were protecting the

Page 15

1 prisoners of war at Ovcara."

2 Q. Now, sir, tell us why this paragraph was suddenly so important to

3 you.

4 A. This became important to me -- I testified here and I testified

5 to a series of facts, but this is completely new to me. That is why it

6 attracted my attention, because I know that I was at Negoslavci at the

7 time. I know that I was at the command post. I know when

8 Mr. Sljivancanin arrived. I know that he met Mr. Mrksic. And I know

9 that Mrksic then didn't say to him that he had withdrawn the security

10 detail. That is why this was a surprise to me --

11 JUDGE MERON: Would you be kind enough to by reference to the

12 English text direct us exactly to the paragraph that

13 [overlapping speakers] --

14 MR. BOURGON: I will, Mr. President. I'm looking for the

15 paragraph right now and it is on the sixth page, I believe.

16 MR. ROGERS: Your Honours, if it helps, it's on the sixth page of

17 the English under Prosecution Appeal, it's the third paragraph, and it's

18 in the middle of the third paragraph.

19 JUDGE MERON: "The Appeals Chamber notes ..." that's how it

20 starts; right?

21 MR. BOURGON: Yes, that is correct, Mr. President. I just found.

22 Thank you to my colleagues.

23 JUDGE MERON: Thank you, Mr. Rogers.

24 MR. ROGERS: I'm obliged, Your Honour.

25 MR. BOURGON:

Page 16

1 Q. So, sir, having seen this information on that summary, how did

2 you react to this?

3 A. Having seen this, I was upset. I couldn't sleep that night and I

4 could hardly wait for dawn to call up Mr. Lukic's office, which I did

5 first thing in the morning. And I was able to reach Mr. Lukic's office.

6 He wasn't there at the time. I suppose that he was here -- or rather, he

7 certainly was. Ms. Dokmanovic answered the phone. I asked whether I

8 could establish contact in any way with Attorney Lukic. She said she

9 would do all she could when she gets the chance to have Mr. Lukic call

10 me. And in the evening hours of the same day, Mr. Lukic contacted me

11 from The Hague.

12 Q. And when Mr. Lukic called you, can you tell us what you told him?

13 A. When he called me, I [as interpreted] immediately asked me,

14 without beating about the bush, what happened, Mr. Lukic? Where did this

15 sudden turn come from? Is this possible? Is it true that

16 Mr. Sljivancanin was convicted because Mr. Mrksic gave him the

17 information that he had withdrawn the security detail and

18 Mr. Sljivancanin failed to try to make him change his decision, as it

19 says? Mr. Lukic said to me, "Yes, indeed, this is true."

20 Q. Go on -- please go on. Explain what happened during that

21 conversation.

22 A. I said to him, "Mr. Lukic, that's wrong. I was there. I was

23 present during the conversation. It's impossible that Mrksic gave that

24 information to Sljivancanin without giving it to me, who was there, or

25 before that or at any time. That is simply wrong. And I really ask you

Page 17

1 that we do something." Well, this is a brief version.

2 Q. And what did Mr. Lukic say in response to this?

3 A. Mr. Lukic said, "Keep this information. When I come to Belgrade,

4 we'll speak about it some more, and you try to remember everything that

5 happened that evening at the command post, try to remember who else was

6 present who could corroborate that."

7 Q. Thank you, sir. And did -- Mr. Lukic did travel to Belgrade to

8 see you; and if so, when?

9 A. Mr. Lukic arrived in Belgrade a few days later and we spoke about

10 this matter.

11 Q. Can you tell us what happened during that meeting?

12 A. Mr. Lukic informed me of his arrival and we met at his office.

13 We then spoke some more about the matter.

14 Q. And did Mr. Lukic tell you anything about the information you

15 provided him with?

16 A. Well, we talked about it. I again asked him whether everything

17 was really like that, and he gave me a more detailed explanation. Then

18 we spoke about the information I had given to him. Mr. Lukic was then

19 interested to hear why I was reacting and what kind of information I

20 could relate to him, what kind of facts I could speak about. He asked me

21 whether I was present at the command post, who else was there, what they

22 spoke about, when Mr. Sljivancanin arrived at the command post, what

23 Mr. Mrksic and Mr. Sljivancanin spoke about. He asked me why I hadn't

24 disclosed that information to anybody earlier, why I was -- contacted him

25 about it now. And I simply said that I had testified on several

Page 18

1 occasions, I had given many statements, but nobody had ever asked me

2 about it. He also asked me whether I -- if a new testimony should become

3 necessary, whether I would be willing to testify, and I said, "Yes,

4 certainly, any time."

5 Q. Thank you. Let me move to --

6 A. If I may. He merely said that I should keep it to myself, this

7 information, and then we would see after a certain time.

8 Q. Well, maybe that brings another question from me. Did you sign a

9 statement on that occasion?

10 A. No.

11 Q. Okay. Now, at that time was this -- how much was this reported

12 in the media in Belgrade?

13 A. This was present in the media. They wrote a lot about the

14 judgement, but there was also a small article in the media about the

15 Sljivancanin Defence having received some new information.

16 Q. Sir, if you can turn at tab 14 in the binder in front of you.

17 MR. BOURGON: And for the Appeals Chamber, this is Exhibit RD14,

18 1-4. There is an unofficial translation in English, Mr. President, but

19 the original is in B/C/S.

20 THE WITNESS: [Interpretation] Yes, I can see it.

21 MR. BOURGON:

22 Q. And can you tell us if you were -- if you came to learn this

23 information at the time?

24 A. Yes, I saw this in the media.

25 Q. Now, it says here in the middle of the document -- now, of course

Page 19

1 I have the English version. It says:

2 "New information which we have received and which we have already

3 started to investigate ..."

4 Does that correspond in any way to the information you provided

5 Mr. Lukic with?

6 A. Yes, yes. This matches. I saw this. I -- concluding that from

7 reading between the lines that this was the information that originated

8 from me -- well, maybe somebody else too, but I certainly recognised

9 myself in it.

10 Q. Let me move then to our next topic, which is whether you had any

11 other meetings following this first meeting with members of the

12 Sljivancanin Defence team?

13 A. Yes.

14 Q. When was that?

15 A. It was a few months later in Belgrade. I met you, Mr. Lukic, and

16 there was also Ms. Dokmanovic.

17 Q. How long did this meeting last and what was discussed then?

18 A. It was a short meeting. It didn't last long. I understood that

19 it was all about meeting each other and my corroborating the information

20 I had, and I learned then that I might be called to testify and you asked

21 me whether I would be willing to do so.

22 Q. Thank you. Did you provide a statement on this occasion, sir?

23 A. No, no, I didn't.

24 Q. Now, it's a known fact in these proceedings that you did provide

25 a statement; when was that?

Page 20

1 MR. ROGERS: I'm happy for my learned friend to lead the date if

2 he wants to.

3 MR. BOURGON: So -- thank you.

4 Q. So the statement that we have on record is dated 8th October of

5 2009. Can you recall when and how you came about to provide this

6 statement?

7 A. Yes. That's the exact date of that statement. I wrote it by

8 hand on two pages, and I did so in the presence of Mr. Lukic at his

9 office. There were other people around, but they were doing their own

10 work. They were in their respective offices and I met Mr. Lukic in

11 private.

12 Q. And were you provided with any guide-lines as to what to put in

13 that statement?

14 A. I got brief guide-lines like bullet points. Apart from stating

15 my personal information, what I was and where I was, I was also

16 instructed to write down what I had heard, that is, the contents of the

17 conversation between Mrksic and Sljivancanin. Firstly, whether it was

18 correct that Mrksic had told Sljivancanin that he had withdrawn the

19 security detail, and Mr. Sljivancanin failing to try to make him change

20 his decision. Then stating the reason why I was volunteering this

21 information only then. And finally, why I had decided to testify.

22 Q. So tell us, physically how did you provide this statement to

23 Mr. Lukic?

24 A. Let me just add, Lukic suggested to me to add another sentence,

25 whether or not I sought protective measures, and I stated that I was

Page 21

1 willing to testify without any protective measures. I signed the

2 statement with my own hand and handed it to Mr. Lukic.

3 Q. Now, sir, between the time that you provided this statement in

4 October of 2009 and today, did you have any other meetings with members

5 of the Sljivancanin Defence team?

6 A. Yes. I met Ms. Dokmanovic in Belgrade and I also had a meeting

7 with the Defence team, that is, you and Mr. Lukic, when I came here to

8 testify.

9 Q. Now, I see that time is running out, General, so I'm going to

10 move straight to a different topic, and that is concerning the people

11 that you met before you testified in the first-degree judgement,

12 first-degree trial. I'd like you to recap very quickly all the people

13 you spoke to before your first testimony in The Hague.

14 MR. ROGERS: Your Honours, that does appear to be a rather broad

15 question --

16 MR. BOURGON: Well, I'm --

17 MR. ROGERS: It doesn't appear to be focused on any particular

18 issue. I expect he had a conversation with a lot of people over a --

19 about a lot of things, but perhaps my learned friend wants to try to be a

20 little bit more precise about what it was he spoke to and which people he

21 spoke to about. Then we'll see -- [overlapping speakers].

22 JUDGE MERON: Time is limited. Do you think it's --

23 [overlapping speakers].

24 MR. BOURGON: Yes. Yes, well, I would like -- well, you know, I

25 met with my colleague. I'm trying to -- not to lead the witness in any

Page 22

1 way and that is why I'm being so broad, but I will try to be more direct.

2 JUDGE MERON: It's your judgement call, but you'll note the

3 clock.

4 MR. BOURGON:

5 Q. Sir, did you meet with the Prosecution before you testified in

6 The Hague? Simply, whether you met with the Prosecution before your

7 testimony in The Hague?

8 A. Yes. I met representatives of the OTP. They have an office in

9 Belgrade, and I gave a statement to them. I spoke to them for two days,

10 and that's when I gave a statement. And about your earlier question, I

11 worked with the Mrksic Defence extensively. I was willing to testify in

12 favour of any of the accused or testify for the OTP. I don't mind whose

13 witness I am, because what I care about is that the truth is spoken here.

14 I have been willing to testify. It was that way before and it's the same

15 way now. That's why I'm here. I did work with the Prosecution.

16 Q. And, sir, it is established on the record that you testified on

17 two occasions in Belgrade. You recall that?

18 A. Yes. I testified before the special tribunal in Belgrade, where

19 proceedings are underway against persons accused of committing murders at

20 Ovcara, 16 of them. I testified two times before the Trial Chamber.

21 There I provided answers to some 15 lawyers there and even the accused

22 had the right to put questions to me.

23 Q. Now, sir, my next question is quite simple. While you met with

24 all of the persons you just spoke about, the Prosecution, the Mrksic

25 Defence, or proceedings in Belgrade, did anyone at any time ask you

Page 23

1 questions about the contents of the conversation between Mrksic and

2 Sljivancanin on the 20 November 1991?

3 A. Nobody has ever asked me anything about the conversation between

4 Commander Mrksic and Major Sljivancanin on the 20th of November at

5 8.00 p.m. at the command post.

6 Q. Let us move to 20 November 1991. Can you describe briefly what

7 were the activities that Operational Group South was involved on that

8 day, very briefly, please.

9 A. 20th of November, 1991, was day two after the fiercest fighting

10 had ceased in the town of Vukovar. We were facing a great number of

11 tasks and commitments at this time. The situation that some of the

12 people faced during the actual combat was actually easier than the one

13 they now found themselves facing when peace was back in town. All of a

14 sudden we were swamped by a huge number of civilians who had just left

15 their shelters and were now seeking our assistance. They wanted to go

16 back to Croatia, Serbia, or Bosnia and Herzegovina. There were a number

17 of tasks that had to do with the evacuation of the wounded. There were

18 tasks that had to do with the future activities of our unit. It was a

19 very dynamic situation.

20 The reason the 20th of November really sticks in my mind is the

21 evacuation of the hospital that took place as well as the government

22 meeting that occurred in Vukovar at the time. I do remember a number of

23 other details and any account that I may provide depends on how much time

24 we have.

25 Q. Sir, let me take you immediately to the evening of 20 November

Page 24

1 1991. I'd like to know if you were at the OG South command that night?

2 A. Yes.

3 Q. What time did you arrive at the command and what did you do then?

4 A. I arrived at about 1600 hours. I had visited Ovcara previously

5 before I met General -- or rather, Commander Mrksic. When I met

6 Commander Mrksic, I briefed him in the shortest possible terms on what I

7 had been doing that day and where I'd been to. I told him that I'd been

8 to the barracks, the government meeting, that I'd been to Ovcara to try

9 and take in the situation. I had briefed him on it in the shortest

10 possible terms, and then I stayed at the command post throughout.

11 Q. And, sir, was there a daily briefing that day; and if so, at what

12 time?

13 A. Indeed, there was a daily briefing on that day, as there had been

14 one on previous days. Normally it would start at 1800 hours, and this

15 day was no different.

16 Q. And who chaired the daily briefing and who was present, if you

17 recall?

18 A. Yes. Commander Mrksic chaired these briefings. Also in

19 attendance were most of the other commanders and his assistants. Some

20 were away because they had to deal with the evacuation of civilians, or

21 rather, trying to get the civilian convoy on buses out of the town and

22 towards destinations somewhere along the border or elsewhere.

23 Q. And, sir, do you recall --

24 JUDGE MERON: Excuse me, Mr. Bourgon, my colleague Judge Guney

25 would like to ask a question.

Page 25

1 Judge Guney.

2 JUDGE GUNEY: [Interpretation] Mr. Panic, what was your personal

3 interest at the time and what was your capacity and how can you remember

4 all the details of the conversation that occurred between Mr. Mrksic and

5 Mr. Sljivancanin? What's your interest in remembering all this? Could

6 you tell us what your personal interest in remembering all this can be?

7 THE WITNESS: [Interpretation] At the time I was Chief of Staff of

8 the Guards Brigade and also OG South in that particular area. I was

9 Commander Mrksic's deputy. I'd stand-in for him when he was away. I was

10 there for all the important tasks and for all the important briefings. I

11 always directly witnessed whatever was going on. The only interest I

12 have is the fact that I was, myself, carrying out a task.

13 JUDGE GUNEY: [Interpretation] Thank you.

14 JUDGE MERON: You may proceed, Mr. Bourgon.

15 MR. BOURGON: Thank you, Mr. President.

16 Q. General Panic, quickly, do you recall what was discussed at the

17 daily briefing that day?

18 A. Indeed I do. I've also been looking at documents in preparation

19 for this testimony. Several key tasks were discussed on that day. It

20 was about the --

21 MR. ROGERS: Your Honours, I'm sorry to interrupt. I'm not quite

22 sure what the relevance of the content of the daily briefing was. What

23 we're concerned about in this hearing is the content of the conversation

24 between Mr. Mrksic, Mr. Sljivancanin, and in the presence of Mr. Panic.

25 I don't see in the scope of the context of this hearing what relevance

Page 26

1 there is to the content of the daily briefing, which has been fully

2 litigated in the Tribunals below.

3 JUDGE MERON: I suppose you are getting there, aren't you?

4 MR. BOURGON: Well, Mr. President, I thank my colleague for that.

5 I hope he will remember the same when he does his cross-examination, but

6 I can move immediately after the briefing.

7 Q. What time does Mr. Sljivancanin arrive at the OG South that

8 night, sir?

9 A. Mr. Sljivancanin arrived at about 2000 hours.

10 Q. Who was present at the command when he arrived?

11 A. I was there, Lieutenant-Colonel Trifunovic was there, and two

12 signals officers were there too. I'm certain about these persons, but

13 there may have been other people there too, some people processing

14 documents, perhaps one of the operatives. And then occasionally other

15 people would drop in, warrant officers who would bring mail or take mail

16 away for delivery.

17 Q. Now, sir, describe what happened exactly to the best of your

18 recollection when Major Sljivancanin arrived at the OG South command.

19 A. What I remember is I was seated at my table at the time, and

20 Mr. Mrksic was there. He made a habit of pacing up and down the room

21 when he wasn't doing anything in particular. It was in the operations

22 room and he would walk from wall to wall, see what the signals men were

23 doing. Sljivancanin is a tall man and stalwart, too, so he stood across

24 the way from the commander somewhere near the door. He then spoke to

25 him, "Colonel, sir, I'm just back from the hospital. I have completed my

Page 27

1 mission. Please, sir, can you tell me what exactly happened. I only

2 know that a decision was taken in relation to the paramilitaries who were

3 at the hospital. Why were they taken to Mitrovica but to Ovcara

4 instead?"

5 Mrksic gave no more than a brief reply. He said, "This was the

6 government's call. There was a government meeting today and they took

7 that decision. Make sure you remember your tasks in relation to

8 tomorrow, and we can go back to discussing this later on."

9 MR. BOURGON: Mr. President, I note that there's a problem with

10 the translation in terms of what was said by the witness.

11 Q. Mr. Panic, I will just read you one sentence that was on the

12 transcript here, and you can tell me -- you can correct me if this is

13 what you said. It says -- the question was what Sljivancanin said and

14 then you said, "Colonel, sir, I'm just back from the hospital. I have

15 completed my mission. Please, sir, can you tell me what exactly

16 happened." And then that sentence here is the one I'm trying to get at.

17 "I only know that a decision was taken in relation to the paramilitaries

18 who were at the hospital. Why were they taken to Mitrovica but to Ovcara

19 instead?"

20 Is that what you said?

21 A. No, no. I'll repeat. The moment Mr. Sljivancanin briefed

22 General Mrksic to tell him that he was now back from the hospital, having

23 completed his mission there, without even pausing he asked him the

24 following question, "What happened, why was the decision changed so the

25 members of the paramilitary units at the hospital who were hiding there

Page 28

1 did not go to Mitrovica, but went to Ovcara instead?"

2 Mrksic then said, "This is a government decision. There was a

3 government meeting today and they took this decision. We'll talk about

4 that later."

5 Q. And, sir, what else was discussed in that conversation to the

6 best of your recollection?

7 A. Mrksic told him, "Listen, Sljivo," because that's what he used to

8 call him, "the 80th Brigade would be taking charge of the zone of

9 responsibility around these parts. The Guards Brigade would be on its

10 way back to the Belgrade garrison. Tomorrow morning there is a large

11 group of both domestic and foreign journalists arriving, about 120

12 journalists. Give Panic a hand just to make sure things go smoothly. I

13 will not be around because I will be on my way to Belgrade to see federal

14 secretary."

15 And if I may just make a remark here, he even said, "Please don't

16 push it in terms of how much you show your face before the journalists."

17 Q. Thank you, sir. Now, where exactly were Mrksic and Sljivancanin

18 in the room compared to where you were at the time?

19 A. It was all happening right next to me near the door to the room

20 in which the command was.

21 Q. And, sir, were you a party to that conversation?

22 A. No, I did not contribute myself. I was busy doing something and

23 I just happened to be there and listened to that conversation. I was

24 interested in hearing what they were talking about.

25 Q. Sir, did you hear that conversation?

Page 29

1 A. Yes.

2 Q. And on what basis can you say that you heard that conversation?

3 A. Well, because I was nearby. They were talking loud. Anyone who

4 knows Mrksic knows that he talks loud and Sljivancanin talks even louder.

5 Q. Sir, during that conversation, was the situation of prisoners of

6 war held at Ovcara discussed in any way?

7 A. No, there was no discussion of that.

8 Q. Sir, it's been a long time. How can you be so sure?

9 A. I'm sure. I just am. Had I not been sure about it, I would not

10 have gotten in touch with Mr. Lukic to begin with and I certainly would

11 not be sitting here today. I'm sure. Maybe I'm unable to remember every

12 single word of that exchange after all this time. I'm sure that I don't.

13 But I'm certain about one thing: What was not said. And that is what

14 moved me to take steps. I'm obeying my conscience in coming up just to

15 say this: It is simply not true that Mrksic told Sljivancanin at any

16 point in time that he had withdrawn or indeed issued approval for the

17 security detail to be withdrawn from Ovcara. I could keep telling you

18 the same thing any time of day or night and no matter who asks. Perhaps

19 I'm unable to remember every single word or detail. I'll grant you that.

20 I may have heard these things. I may not remember all of them right now,

21 but this is not the sort of thing that would slip your mind --

22 Q. Why not --

23 A. -- this is something that is essential and directly affects the

24 security of the people who were at Ovcara.

25 After I came back from Ovcara, I briefed Mrksic on what the

Page 30

1 situation was like there. I said, "Step-up the security." I said,

2 "Dispatch more people there to give Vojnovic a hand, in a technical

3 sense, if necessary," although he had sufficient men who were there

4 already and soldiers. Mrksic agreed and as far as I remember he

5 dispatched a contingent there. I think I testified about this the last

6 time around. Captain Bozic was also at Ovcara and someone else from the

7 security body. Following my briefing to Mrksic. That is why I'm saying

8 what I'm saying. At no point did he tell Sljivancanin anything like

9 that. If he had told Sljivancanin, he certainly would have told me in my

10 capacity as Chief of Staff. I was after all his deputy and I was there

11 with him throughout. That is the gist of it. I do apologise if perhaps

12 I've -- if I spoke a little louder and strictly necessary.

13 JUDGE MERON: Mr. Bourgon, I would like to ask a question of

14 clarification, if I may.

15 MR. BOURGON: By all means, Mr. President.

16 JUDGE MERON: A moment ago Mr. Panic said, and I'm quoting from

17 the transcript "I was busy doing something," he was busy during the

18 meeting between Mr. Mrksic and Mr. Sljivancanin. And my question to the

19 witness is whether you can remember any details of this conversation

20 between Mrksic and Sljivancanin, apart from the fact that Mrksic did not

21 inform Sljivancanin about the withdrawal, or is this the only item that

22 remained in your mind? Because to clarify, in your testimony during

23 trial and in your previous statements, you did not testify in an

24 affirmative manner on anything that was said or not said during the

25 conversation between Sljivancanin and Mrksic. So please tell us how you

Page 31

1 can suddenly remember so clearly that the withdrawal of JNA protection

2 was not mentioned.

3 THE WITNESS: [Interpretation] I was sitting there busy doing

4 something. Sljivancanin was to my right. I stopped working for a

5 moment. The two of them met in the room, standing across the way from

6 each other, and I was listening to their conversation. I do allow for

7 the possibility that I don't remember every single detail of that

8 conversation. I do know, however, what the general drift was. When

9 Sljivancanin came he said, "I'm back from the hospital. I've completed

10 my mission." And went on to ask Mrksic how the change had come about in

11 terms of the paramilitaries who were at the hospital and selected there

12 being sent to Sremska Mitrovica, but that was changed and they were now

13 to be sent to Ovcara. Why was that changed? Mrksic said, "The

14 government met today. It was a decision that they took. This is

15 something we'll be discussing in due course."

16 Why do I remember this? Simply because the following day

17 Sljivancanin was with me and we were supposed to carry out a specific

18 task, a regular task, to do with the transport of civilians and a number

19 of other routine steps. There was still sporadic fighting in some

20 places.

21 I also know for a fact that Mrksic gave him a number of specific

22 tasks. Now, this is very important. He had to know this. The zone of

23 responsibility was passing into the hands of the 80th Brigade and the

24 Guards Brigade will be on its way back. This is essential. It's not

25 something one would be likely to forget. It's always there in one's

Page 32

1 mind. They would be on their way back to the Belgrade garrison, and he

2 would be assisting me the next day when this large group of journalists

3 would be arriving, for those people to be welcomed and for the whole

4 thing to be organised in addition to all our routine tasks, as I said.

5 Had Mrksic told Sljivancanin something like this: I issued

6 approval or even ordered for the security detail from Ovcara to be

7 withdrawn, I would have been the first to react in my capacity as an

8 officer, Chief of Staff, his own deputy, and first and foremost as a

9 human being. I would have said something along these lines: Commander,

10 it wasn't like that, not until a minute ago. What has come up? And I'm

11 certain that Mr. Sljivancanin, as chief of security, would have done the

12 very same thing. I know because I was at Ovcara myself. I briefed that

13 commander; and no more than an hour before, he had agreed.

14 This kind of conversation would have stuck with me for the rest

15 of my life, just as I clearly remember that no such thing was ever

16 uttered. As I said, had something like this been uttered, I would have

17 been the first to react.

18 JUDGE MERON: Judge Vaz has a question.

19 JUDGE VAZ: [Interpretation] Thank you, Mr. President.

20 Mr. Panic, you told us earlier that you arrived at the command

21 post at 4.00 p.m. on November 20th and that you stayed until the end.

22 Could you tell us exactly what means "till the end." What time was it

23 when you left the command post, if you left it? Where was Sljivancanin

24 at that time when you left? And the future missions were also mentioned

25 and you just talked about it. Could you tell us exactly in the framework

Page 33

1 of this conversation between Mrksic and Sljivancanin regarding these

2 future missions, what exactly was Mrksic's answer when Sljivancanin asked

3 him what he was supposed to do the next days. I'm sorry, I'm a bit

4 hoarse at the moment, but I hope that you understood my question,

5 otherwise I can repeat, of course.

6 JUDGE MERON: Thank you, Judge Vaz.

7 Mr. Panic, the question was clear to you, right? Please.

8 THE WITNESS: [Interpretation] The question is clear. Just in

9 order to make sure we understand this, the mainstay of the activity at

10 the command post would take place in this room that we called the

11 operations room. There would be a number of officers who were there

12 throughout. I was there, the commander was there whenever we were not

13 touring the units. I arrived at 1600 hours that evening, having

14 completed all my daily tasks. I briefed the commander and sat down at my

15 own desk. I was there throughout, in that room at the command post.

16 Right across from there there was a recreation room that we had there,

17 and that was where I would spend my nights before we were off to new

18 missions.

19 But I do understand what you are after. At no point in time did

20 I actually physically leave during their conversation, simply because the

21 conversation was brief. As for the specific tasks that Mrksic handed out

22 to Sljivancanin, I'll repeat, one was that the 80th Brigade would be

23 taking charge of the zone of responsibility. He was telling him this

24 because Sljivancanin had not attended the daily briefing when this was

25 discussed and when the commander of the 80th Brigade assumed

Page 34

1 responsibility. It was very important for Sljivancanin, as chief of

2 security, to be aware of this, that he would have other commitments soon

3 probably now that this new brigade was taking over.

4 Secondly, the Guards Brigade would be on its way back to the

5 Belgrade garrison which was essential for him as security chief, because

6 that would enable him to plan his own security tasks and assignments in

7 this complex situation where we suddenly faced 12.000 civilians coming to

8 us, begging us to help them out, to give them something to eat and to

9 take them as far as the border or wherever they wanted to go. Another

10 task was in relation to the next day. As I said, Sljivancanin was very

11 much in the public eye, in the media. Nevertheless, he was the security

12 chief and he had to vouch for the safety of a large group of domestic and

13 foreign journalists in a situation that was as riotous as this one was.

14 They would be there the following morning and Sljivancanin was told to

15 give me a hand with this task, just to make sure that everything went

16 smoothly. These journalists eventually arrived, a press conference was

17 organised and held, and perhaps that is also something that we can bring

18 up if necessary. That's in the briefest of terms.

19 JUDGE VAZ: [Interpretation] Thank you, Mr. Panic. You told us

20 that this conversation on the question that we're interested in today was

21 very short, but could you give us some information as to the length of

22 this conversation. Was it possible to revisit the issue? You said that

23 you stayed there all the time and -- or most of the time, but could you

24 imagine that at one point in time maybe Mr. Mrksic could have told

25 Sljivancanin what we are interested about today, i.e., what -- about the

Page 35

1 security detail that was supposed to be withdrawn. Do you think that at

2 one point in time this could have been mentioned between the two without

3 you overhearing it?

4 THE WITNESS: [Interpretation] I'll say this again. I was right

5 there, in close physical proximity, and the conversation was short.

6 Maybe over a minute, but it certainly wasn't longer than five- to

7 ten-minutes, their encounter. It would not have been feasible for Mrksic

8 to tell him that without me hearing it. For the most part, I heard

9 everything they said. Granted, I may not be able to remember every

10 single word and it has been a long time. Nevertheless, what I'm telling

11 you is: I heard everything there and then. And I assert, had he ever

12 said anything about the security detail being withdrawn and had I heard

13 that, I would have been the first to react. This would have constituted

14 an important reversal in this whole situation as well as a violation of

15 something that the two of us had agreed on shortly before when I had

16 briefed him on the situation at Ovcara. It was clear that this would

17 have constituted a threat to the safety of the people at Ovcara, and I

18 wouldn't have glossed over it, no way. I don't think this possibly could

19 have happened. He couldn't possibly have told Sljivancanin because we

20 were all there at all times.

21 JUDGE MERON: Mr. Bourgon, sorry, just a short follow-up question

22 to the question asked by my distinguished colleague, Judge Vaz.

23 Do you remember, Mr. Panic, or don't you, when Mr. Sljivancanin

24 asked Mr. Mrksic about these future missions, is this among the things

25 that remained in your memory?

Page 36

1 THE WITNESS: [Interpretation] Mr. Sljivancanin was not seeking

2 missions. He listened to the tasks that Mrksic was giving to him. So I

3 repeat, Mr. Sljivancanin arrived, reported about what he had done and

4 where he had been, and Mrksic gives him tasks after that. If necessary,

5 I can repeat all the details.

6 JUDGE MERON: Do help us, Mr. Bourgon, didn't Mr. Sljivancanin

7 testify that he asked Mrksic about his future missions? And I'm trying

8 simply to identify whether the witness remembers that scrap of the

9 conversation.

10 MR. BOURGON: Mr. President --

11 JUDGE MERON: I think Mr. Lukic has also that recollection.

12 MR. BOURGON: Mr. President, of course it's on the record of what

13 Mr. Sljivancanin said during his testimony. What you have today is what

14 Mr. Panic remembers. If there are differences, there are differences,

15 and the Appeals Chamber will have to draw the consequences of any

16 differences. But it's been 19 years, Mr. President --

17 JUDGE MERON: No, no, I understand that.

18 Would you like to add to your answer to me, Mr. Panic? Because

19 if there is -- if there is this item of the conversation that you do not

20 remember, it could conceivably be true that there are other fragments

21 that you do not remember or have not heard. I would be grateful for any

22 help on that.

23 MR. BOURGON: Mr. President, I guess this will be covered in

24 detail in cross-examination, what the witness remembers from the

25 conversation he mentioned in detail to the Appeals Chamber. I think he

Page 37

1 will stick to his story, Mr. President.

2 MR. ROGERS: Your Honours, I'm not sure it's for Mr. Bourgon to

3 comment upon what the witness will say. Your Honours asked a question

4 and I think the Court's entitled -- and I would very much like to hear

5 the answer to the questions that Your Honours posed, even if my learned

6 friend does not wish to hear the answers that Your Honours have -- the

7 question -- the answer to the question, so perhaps we could hear from the

8 witness.

9 MR. BOURGON: I believe, Mr. President, it is indeed very

10 important. I can either ask the question or you can ask, Mr. President.

11 Q. General Panic, Mr. Sljivancanin said in his testimony that he

12 inquired about what his next duties would be. Is that how it took place?

13 A. That's possible. It's possible that that's what happened. It's

14 possible. I accept that it's possible.

15 JUDGE MERON: But you do not have a recollection of that or do

16 you?

17 THE WITNESS: [Interpretation] I remember -- I remember tasks. At

18 that moment, whether Sljivancanin had asked something, that's a detail

19 that -- well, it's possible that he asked him something that I missed.

20 It's possible after all these years that I'm missing something, but I did

21 hear the gist of the conversation -- or rather, I remember the gist of

22 the conversation.

23 MR. BOURGON: I just have two more questions, Mr. President. I

24 know I'm out of time, but I have two more questions.

25 Q. Mr. Panic, who was -- after that conversation, who was the first

Page 38

1 to leave the room?

2 A. After that conversation, the first to leave the room was

3 Mr. Sljivancanin.

4 Q. And where did he go, if you know?

5 A. Well, he went to that place, Negoslavci, he had his command -- or

6 rather, security organs in house number 9.

7 Q. And, sir, after that conversation that you just described, were

8 there any more exchange of words between Mrksic and Sljivancanin?

9 A. Well, I noted what it was that remained carved in my memory and

10 that I certainly could not forget. It's possible that they exchanged

11 another word or two. It's possible. But I doubt that I missed it. It

12 was a brief conversation.

13 Q. But after that conversation, did they speak again? That's my

14 simple question. Did they speak again after?

15 A. No, no, no. Mr. Sljivancanin left the room. Mr. Mrksic was

16 still with me there, and after a while Mr. Mrksic left too. I think that

17 he went to visit our wounded at the hospital in Negoslavci.

18 Q. And my last question: That press conference that you mentioned,

19 did that press conference take place the next day?

20 A. Yes, yes. That conference was held at the barracks in Vukovar.

21 At that conference, as I've already mentioned, there were 120 journalists

22 from home and abroad.

23 Q. Sir, can you just turn to your tab 7 in your binder. There's a

24 picture there. I'd like you to describe that picture for us.

25 Do you recognise this picture?

Page 39

1 A. Yes. Yes, I recognise this picture.

2 Q. What is it?

3 A. This is a room, or rather, a classroom, the biggest room in the

4 barracks where we received the journalists and where the press conference

5 was held on the 21st of November in the morning.

6 Q. Is Mr. Sljivancanin present on this picture?

7 A. Yes. Mr. Sljivancanin is present. He's right in front of the

8 microphone.

9 Q. Who was the centre of attention during that press conference?

10 A. At the press conference, regardless of the fact that it was

11 chaired by our organ for morale and political work, the journalists

12 expressed the greatest interest in Mr. Sljivancanin, and he was the media

13 personality on that day as well.

14 Q. And are you present in that picture, sir?

15 A. Yes, I am. I am in that picture. I'm in the second row and I'm

16 standing there.

17 Q. Thank you very much, sir.

18 MR. BOURGON: I have no further questions, Mr. President.

19 JUDGE MERON: Thank you very much. This concludes your

20 examination.

21 I am told by the technical department that changing the tapes

22 requires 20 rather than 15 minutes. So we will meet here at quarter to

23 11.00 sharp. The court will now rise.

24 --- Recess taken at 10.25 a.m.

25 --- On resuming at 10.48 a.m.

Page 40

1 JUDGE MERON: Please be seated.

2 Okay. We will now have cross-examination of Mr. Panic by the

3 Prosecution.

4 MR. ROGERS: Thank you, Your Honour.

5 JUDGE MERON: And you have one hour and 15 minutes, and do start.

6 MR. ROGERS: Thank you.

7 Cross-examination by Mr. Rogers:

8 Q. Good morning, General. My name's Paul Rogers. I'm appearing on

9 behalf of the Prosecution and I will be conducting the cross-examination.

10 A. Good morning.

11 Q. General, you told us in evidence that you became aware of the

12 appeals judgement and as a result of that you contacted Mr. Lukic the

13 same day or the next morning; is that right?

14 A. The next day.

15 Q. Having had, I think, a sleepless night, the way you've described

16 it?

17 A. Yes.

18 Q. And when you were able to speak with Mr. Lukic, he suggested that

19 it would be helpful for him to know a number of facts; is that right?

20 A. Yes.

21 Q. In particular, you told us that in that first conversation what

22 he wanted to know was whether you were present; do you agree?

23 A. Yes.

24 Q. Who else was there; correct?

25 A. Yes.

Page 41

1 Q. And what you spoke about; correct?

2 A. Yes.

3 Q. And in particular, what was said between Mr. Sljivancanin and

4 Mr. Mrksic; correct?

5 A. I asked Mr. Lukic to confirm to me whether what I had seen was

6 correct, what I learned from that judgement, that is.

7 Q. My question was: Mr. Lukic wanted to know from you what you

8 could say about the conversation between Mr. Mrksic and Mr. Sljivancanin;

9 that's correct, isn't it?

10 A. Mr. Lukic said to me or explained to me that that was correct,

11 that that is what the verdict was passed for. And then there was my

12 reaction, namely, that I was there and that I cannot accept that that was

13 correct. He told me to wait for his return.

14 Q. General, it was a very simple question. I'll put it to you one

15 more time. When you spoke with Mr. Lukic, he particularly wanted to know

16 what you could say about the conversation between Mr. Sljivancanin and

17 Mr. Mrksic; that's correct, isn't it?

18 A. Well, he was interested in -- well, he wanted me to think about

19 what it was that I remembered in relation to that conversation.

20 Q. Yes. Thank you. And you already said that in your evidence at

21 092949. I just wanted to make it clear that we were in agreement, that

22 he did want you to recollect your conversation. He told you, I

23 understand it, that you should keep it to yourself; is that right?

24 A. Yes.

25 Q. When you first met with Mr. Lukic and before you made your

Page 42

1 statement, when you went through your account did Mr. Lukic make any

2 notes of what you said that you recall?

3 A. Well, he didn't take any notes then.

4 Q. Okay. So you met again some months later or around the 8th of

5 October, 2009, to provide your actual statement; is that right?

6 A. We met once again.

7 Q. Yes. And you said you were provided -- forgive me.

8 A. I'm sorry. We met once again a few months later, and then our

9 third encounter was when I signed the statement.

10 Q. And you told us that you were provided with some guide-lines for

11 making your statement; that's right?

12 A. Yes, just some guide-lines so that I do not speak at too great a

13 length.

14 Q. And you told us that they were provided to you in a form of sort

15 of bullet points. Was this written down?

16 A. He said that to me. It was oral, rather, and I just jotted down

17 a few things for myself, this, that, and the other thing.

18 Q. Thank you. And you told us what he asked for. Now, my note of

19 your evidence this morning was this, he asked you: "What I was, where I

20 was, and to write down what I had heard in the contents, that is, the

21 contents of the conversation."

22 That's what he asked you to do, those were your instructions, is

23 that right, to write down the content of the conversation in your

24 statement?

25 A. Yes, that was it. Then, also why I did not speak about that

Page 43

1 earlier and why I decided to testify or why I accepted to testify.

2 Q. So you agree that one of the primary purposes of your statement

3 was to put your fullest recollection of the events outlined in that

4 conversation down on paper; you agree with that?

5 A. Yes, in the briefest possible terms.

6 Q. Yes. Brief, you say, but nevertheless you needed to deal with

7 the totality of the conversation that had happened between Mr. Mrksic and

8 Mr. Sljivancanin; you agree with that? That was the purpose of the

9 statement, after all.

10 A. My understanding was that the purpose of the statement was, in

11 addition to stating my own particulars and the fact that I already

12 testified, that I was supposed to say what the basic things were that had

13 been said by Mrksic and Sljivancanin when they met and that I was

14 prepared to testify in order to be able to clarify during the testimony.

15 So here I am and please go ahead.

16 Q. So the purpose was to try to recall as much as you possibly could

17 about that conversation and put it down in your statement?

18 A. No, no, no. That's not it. Had he said that to me, that

19 statement would have been very detailed and it would have been over 20

20 pages long. It was supposed to be short. The statement was supposed to

21 be short containing only the basic questions that I could testify about.

22 When you look at it, it was written up on two pages, handwritten.

23 Q. And the totality of what you recorded in your original

24 statement --

25 MR. ROGERS: I see Mr. Bourgon is on his feet. I wonder if he's

Page 44

1 got an objection or --

2 MR. BOURGON: Thank you, Mr. President. I'd just like to --

3 because we're going for more than one hour here, and if my colleague is

4 going to suggest something to the witness, that's one thing. But he

5 should not say something that the witness said that the witness did not

6 say. In this case, he said - not as a suggestion - but he said that it

7 was for you to remember -- he said -- I'm looking for the words here, the

8 exact words. "So the purpose was to try to recall as much as you

9 possibly could about the conversation."

10 Now, that's not what the witness had said earlier. So I just

11 want my colleague to stick to the answers or to make it as a suggestion.

12 Thank you, Mr. President.

13 JUDGE MERON: Thank you, Mr. Bourgon.

14 MR. ROGERS: Yes, thank you, Mr. Bourgon. It is a suggestion

15 when you read it. It's a proper cross-examination question to put a

16 suggestion as to what the purpose was and my learned friend perfectly

17 well knows that it is a proper question.

18 Q. Mr. Panic, you've told us that the purpose was to provide a more

19 broad outline, I think, and the outline you provided was this - and I'm

20 going to read to you -- that's Exhibit RD6, it's a Defence document.

21 There's no need for you to turn to it because I'm just going to read it

22 to you. It's the seventh paragraph on the page. You said this - and if

23 anyone wants to correct me, they can:

24 "During this conversation Mrksic informed Sljivancanin that the

25 Guards Brigade would be going back to brigade and that the 80th Motorised

Page 45

1 Brigade would assume responsibility in the area. Mrksic also told

2 Sljivancanin that he should assist me the next day by handling the large

3 number media who were expected in Vukovar, which was an important task

4 for all members of the command. At no time during this conversation did

5 Mrksic inform Sljivancanin that members of the military police of the

6 80th Motorised Brigade had been ordered to withdraw from that location,

7 i.e., Ovcara."

8 That's the totality of what you recorded about the conversation

9 on the 8th of October. Today, you have provided for the first time much

10 more detail about those events; that's right, isn't it?

11 A. Yes.

12 Q. And you've told us a number of things relating to what

13 Mr. Sljivancanin appeared to have said. For example, that he'd just come

14 back from the hospital, having completed his mission; correct?

15 A. Yes.

16 Q. That's not anywhere recorded in your written statement, is it?

17 A. It was not recorded in my written statement because I have the

18 possibility of stating that here, live.

19 Q. There's no reference in your written statement to the -- anything

20 to do with the hand-over of the prisoners, even to the government

21 session. There's no reference in there at all to the government session

22 and any orders that the government session may have given?

23 A. No, there is no reference to that in the statement. I testified

24 about that here today. I testified about that session, about the

25 decisions, at the previous testimony here, when I appeared here to

Page 46

1 testify earlier on, in 1996 [as interpreted].

2 Q. My understanding of your evidence is that the first time that you

3 were asked to recall anything about this conversation or to provide any

4 details about this conversation was when you first met with Mr. Lukic for

5 the purpose of this appeals process, for the -- is that right?

6 A. The first time I met with Mr. Lukic, I discussed that a bit more.

7 And I told him about certain details from that meeting between Mrksic and

8 Sljivancanin. And he said to me, "Let that be and in time we will see

9 whether we're going to do anything with that, anything further." It was

10 my understanding that he was supposed to carry out some investigations or

11 some kind of procedure -- well, not investigation, but to gather more

12 information. I mean, I'm not the only one who was there during those

13 events.

14 Q. When you spoke with the Office of the Prosecutor and provided

15 your statement on the -- or about the 1st of September, 2005, you were

16 asked about the evening briefing and you were asked about whether the

17 hospital evacuation was discussed. And you said:

18 "I do not recall whether Major Sljivancanin spoke about the

19 evacuation of the hospital at the briefing, but I assume he did inform

20 Mrksic."

21 And that's in your OTP statement, which is RP16 at page 24,

22 paragraph 88. Do you recall telling the OTP that in your statement, that

23 you assumed he did inform Mrksic? Do you recall that?

24 A. I worked with the OTP for two days. I made a statement and it is

25 noted in that statement that I do not recall that he spoke -- I mean, the

Page 47

1 reference is to the evening briefing at 1800 hours. As I prepared later

2 for that testimony in 2006 and for this testimony as well, as I was

3 leafing through the war diary and other documents, and as I was trying to

4 refresh my memory, of course things had been different. Sljivancanin was

5 not -- well, I mean, that's why I said that I did not remember that he

6 had said anything. I mean --

7 Q. No, but you see, General, you said that I assume he did inform

8 Mrksic about the hospital evacuation. But the fact is that you knew that

9 not only did you assume it, you knew he had done that because you were

10 present, you say, at the meeting subsequently where that very topic was

11 discussed, i.e., the subject of this hearing. So why did you say "I

12 assume he informed Mrksic," when in fact you knew, according to your

13 evidence, that he had informed Mrksic?

14 A. Yes, when he arrived and when they met he said, "I have

15 accomplished my task at the hospital." That's what is true, but it's not

16 in the statement for the following reason: I gave that statement

17 unprepared at the time. I made the statement when I personally had some

18 major psychological and physical trouble of my own. And I went to see

19 the Prosecution and talk to them when my wife was dying of cancer.

20 Unfortunately she died immediately after that. The situation was such

21 that at that point in time I could have missed some facts because I was

22 troubled by problems of my own at the time. It is possible that that was

23 an omission on my part. I accept that.

24 Q. General, you were cross-examined during the course of your

25 testimony in the trial, and you were asked about whether you remembered

Page 48

1 making your OTP statement. And at transcript 14485 to 90 you said that

2 you made changes to virtually every page of the OTP statement because

3 "there were both mistakes in terms of content, style, language,

4 typographical errors, and so on." That's 14485, lines 25 to 3 -- 485 or

5 6, 25 to 3.

6 This was something that should have been corrected, according to

7 you, in relation to its content, shouldn't it because it's wrong? You

8 didn't assume, you knew, and you had ample opportunity to change it but

9 you didn't.

10 A. For two days I was giving my statement and it was shown to me. I

11 corrected some things I thought had to be corrected. I'm telling you

12 what the situation was like. It is possible that I omitted some things,

13 that I didn't correct everything.

14 Q. General, your recollection of events would appear to be improving

15 over time rather than getting worse, wouldn't it? After 19 years, it

16 seems to be much better than it was when you were giving your OTP

17 statement. You're filling in more details today even than you had done

18 previously, aren't you?

19 A. Well, I apologise for saying this, but this is a bit sarcastic.

20 It is possible that with time and with age memory gets worse,

21 deteriorates. But it's a fact that after testifying in 2006 --

22 THE INTERPRETER: Interpreter's correction:

23 THE WITNESS: [Interpretation] That for my testimony in 2006 and

24 for this testimony, I devoted some time to preparation and I thought

25 about some particular matters. Here this is about the fate of people.

Page 49

1 That is something for which a sufficient amount of facts and evidence is

2 necessary, and I prepared for that. I leafed through some documents, the

3 war diary. I refreshed my memory. But I agree with you that as time

4 passes we don't get any younger.

5 MR. ROGERS:

6 Q. You were also given an opportunity during the course of your

7 evidence in chief at the trial to expand upon the conversation between

8 Mr. Mrksic and Mr. Sljivancanin. If I refer you to your evidence on the

9 9th of November, 2006, at trial transcript 14330, lines 1 to 7, you said

10 this when you were being asked about Sljivancanin:

11 "Of course Sljivancanin was given time to say something at all

12 meetings."

13 The context is that you were talking about the briefing.

14 "Of course, Sljivancanin was given time to say something at all

15 meetings, to say things, to ask things. I don't remember that he was

16 present," that is, at the briefing, "because I certainly would have

17 remembered what it was that he would have said about what he did at the

18 hospital. As far as I can remember, he came somewhat later to the

19 command post. It was dark. In all fairness, at 1800 hours, it's dark,

20 too." I think he came, "around 2000 hours, and I know that he talked to

21 the commander."

22 And there you stopped and nothing more was said about that

23 conversation.

24 You had an opportunity then, didn't you, to explain what you're

25 explaining now?

Page 50

1 A. Yes. And I would have been glad if someone had asked me then.

2 Maybe there would be no need for us to sit here today.

3 Q. Forgive me, my understanding of your evidence is that the first

4 time that anybody had raised this question of that conversation with you

5 was when these matters came to be dealt with on appeal; that's right,

6 isn't it?

7 JUDGE MERON: Judge Pocar has a question.

8 JUDGE POCAR: Mr. Rogers, you gave an answer given by the witness

9 at the hearing in 2006.

10 MR. ROGERS: Yes, Your Honour.

11 JUDGE POCAR: Which was exactly the question that was put to the

12 witness on that occasion.

13 MR. ROGERS: Your Honour, I can find that.

14 The question was:

15 "Do you remember specifically whether Sljivancanin attended that

16 meeting," that is, the briefing, "whether he said something, whether he

17 reported, do you have any memory of that and did you see him that evening

18 at all?"

19 And then came the answer:

20 "Of course Sljivancanin was given time to say something at

21 meetings ..." et cetera.

22 JUDGE POCAR: Thank you.

23 MR. ROGERS:

24 Q. So, Mr. Panic, my question was: My understanding of your

25 evidence is that you told us the first time that you were given an

Page 51

1 opportunity to speak about these events, the first time it became

2 necessary to speak about these events or tell anyone about it, was at the

3 appeals stage; is that right?

4 A. Yes, that's right. But allow me to explain why. Giving evidence

5 here and before the special tribunal and making a series of statements,

6 nobody ever asked me about the content of the conversation between Mrksic

7 and Sljivancanin -- or, in other words, at the -- that Mrksic withdrew

8 the security detail from Ovcara and that he gave that information to

9 Sljivancanin was never asked or stated before. That's why I'm saying --

10 THE INTERPRETER: Could the witness please repeat his last

11 sentence.

12 MR. ROGERS: Okay. I think the witness was asked to repeat the

13 last sentence.

14 THE WITNESS: [Interpretation] So as nobody ever asked me, as I

15 said, on how many occasions giving evidence or making statements, I never

16 spoke about that until the moment when I saw something impossible: My

17 commander making the decision to withdraw the security detail, informs me

18 about that decision, and I react [as interpreted].

19 MR. ROGERS:

20 Q. I understand. And I'm curious, did you ever mention the

21 conversation of the meeting to Mr. Lukic or to the team defending

22 Mr. Sljivancanin during the course of the trial?

23 A. Well, no. I repeat, that conversation was the consequence of

24 this verdict -- or rather, I came forward because Mr. Sljivancanin was

25 sentenced.

Page 52

1 JUDGE MERON: [Microphone not activated]

2 MR. BOURGON: Thank you, Mr. President. It's an important

3 correction on the transcript. At page 51, lines 6 and 7, it says here on

4 the transcript: "Informs me about that decision and I react." And what

5 the witness really said is "did not inform me about that decision." So I

6 think we need to correct that before we move on.

7 MR. ROGERS: Yes.

8 JUDGE MERON: Thank you.

9 MR. ROGERS:

10 Q. My question, Mr. Panic, is this, and I wonder whether you can

11 help - maybe you can't - but the Prosecution was provided with a proofing

12 note of what evidence you could give prior to your testimony at the

13 trial. That's at RP17. And in that proofing note on the second page,

14 the penultimate paragraph, says this:

15 "The witness was present at the regular reporting at Colonel

16 Mrksic's on 20 November 1991 at 1800 hours. Sljivancanin was not present

17 at the meeting, but later, after the meeting, he was present when

18 Sljivancanin and Mrksic were having the conversation."

19 It would seem, Mr. Panic, that you had previously mentioned the

20 content of the conversation or the fact at least of the conversation

21 between Mr. Sljivancanin and Mrksic at an earlier stage and that this

22 very question as to what was in that statement -- as to what you could

23 say was dealt with. Would you agree?

24 A. I'm sorry, but I don't understand the question.

25 Q. There's a note that was provided as to your potential evidence --

Page 53

1 JUDGE MERON: Do you want to -- when you complete the point that

2 you're continuing, Judge Guney will have a question.

3 MR. ROGERS: Oh.

4 JUDGE MERON: So I will just let you finish this point.

5 MR. ROGERS: Yes, I just want to explain it to the witness.

6 Q. Mr. Panic, so you understand, there is a note provided as to what

7 you may have testified about at trial, was given to the lawyers in

8 advance of your testimony at trial. In that note, there is a reference

9 to what you could say about a meeting at which Sljivancanin and Mrksic

10 were present, "having the conversation" is what it says, all right? So

11 you understand. So my point is for you to comment upon: This would seem

12 to suggest that you had in fact discussed the content of that

13 conversation before your testimony and it wasn't the first time you dealt

14 with it. A matter for you to comment.

15 A. Yes. Before putting down my statement on paper, I did speak to

16 Mr. Lukic about the content of the conversation between Mr. Mrksic and

17 Mr. Sljivancanin.

18 MR. ROGERS: Your Honours, I think it's a question for comment at

19 the end of the day. I've given the witness an opportunity to comment

20 upon it. It may be he can't make a remark about what other people might

21 have written, but it's there. He's had an opportunity. That's the only

22 reason for putting it to him.

23 JUDGE MERON: We interrupt you, Mr. Rogers. Now Judge Guney then

24 Judge Pocar -- yes, before the question of Judge Guney or --

25 MR. BOURGON: Well, if --

Page 54

1 JUDGE MERON: Or if you want to --

2 MR. BOURGON: Mr. President, it is directly related to the last

3 question that was asked by my colleague.

4 JUDGE MERON: Then by all means do it now and then --

5 MR. BOURGON: I apologise to Judge Guney.

6 It's just that my colleague, when he read from the proofing note,

7 he mentioned -- and I will quote the exact line. I just have to stop the

8 transcript here. And he said that "you were given an opportunity." I

9 quote from page 52 at line 22 where it says:

10 "What you may have testified about at trial was given to the

11 lawyers in advance of your testimony at trial."

12 Then it says:

13 "In that note there is a reference to what you could say about a

14 meeting ..." and this is not what is in the proofing note. What the

15 proofing note says - and Your Honours have this in the tab before

16 you - it simply says that after the meeting he was present when

17 Sljivancanin and Mrksic were having the conversation.

18 So we should not try to lead the witness into answering a

19 question on something that was not in the proofing note. Thank you,

20 Mr. President.

21 JUDGE MERON: Do you want quickly to respond to that before --

22 MR. ROGERS: Yes, Your Honour. The implication --

23 JUDGE MERON: -- we move to Judge Guney?

24 MR. ROGERS: The implication of the proofing note is that -- and

25 this is why it may be more a matter for comment than for the witness, but

Page 55

1 the implication in the proofing note is that the witness was in a

2 position to explain the content of that conversation because it's

3 referred to within the proofing note. So that was the point. And as I

4 say, it may be more a matter for comment, but I felt it was fair to the

5 witness to give him an opportunity himself to comment upon that but there

6 it is. I think we can leave it.

7 JUDGE MERON: Judge Guney, I appreciate your patience.

8 JUDGE GUNEY: [No interpretation]

9 MR. ROGERS: We're not having any French.

10 JUDGE GUNEY: [Interpretation] Should I repeat my question?

11 JUDGE MERON: Do we have interpretation now, or no?

12 MR. ROGERS: We have it now.

13 JUDGE MERON: So do kindly repeat the question, Judge Guney, just

14 to play it safe.

15 JUDGE GUNEY: [Interpretation] Why did Mrksic not mention the

16 order to withdraw the troops during this conversation with Sljivancanin?

17 THE WITNESS: [Interpretation] Well, that's the crucial matter.

18 At my previous testimony, and now too, I can say that I know Mrksic very

19 well. He's a good commander. And if he made that decision, to withdraw

20 the security detail from Ovcara, he should have informed me, being his

21 Chief of Staff and being involved in the carrying out of his orders. He

22 should have informed the other members of the command if he made that

23 decision. Mrksic simply didn't inform anybody about it. Whether he made

24 that decision or not, I don't know, but I repeat, that's a decision that

25 only the commander can make. It's the commander's authority to withdraw

Page 56

1 an order that he gave before. I never heard of such a decision. I

2 didn't hear him saying that to Sljivancanin, and that's why I'm here in

3 front of you to speak about that fact in the presence of God.

4 JUDGE GUNEY: [Interpretation] Thank you.

5 JUDGE MERON: Mr. Panic, let me follow this up. We do know --

6 you do know that the security detail was withdrawn, wasn't it?

7 THE WITNESS: [Interpretation] I learned that rather late, that

8 the security detail had been withdrawn or that they were under some

9 pressure or that they -- that they had gone due to the action of some

10 strange forces. But I only heard about that after returning to Belgrade,

11 which is what I said before this Tribunal. I didn't hear and couldn't

12 believe that Mrksic on that evening issued that order to anyone. He

13 didn't order it to me or in my presence.

14 JUDGE MERON: Thank you. The military -- the security detail

15 was, of course, withdrawn, and we are talking of movement of military

16 forces. You were the Chief of Staff of General Mrksic -- of

17 Colonel Mrksic at that time, and you have no theory to offer? It was not

18 an act of God the troops were withdrawn. How do you explain that

19 withdrawal?

20 THE WITNESS: [Interpretation] Well, you see, when I testified

21 here in 2006 I remember well that I said, "Whoever answers the question

22 who ordered the withdrawal of the security detail or who withdrew them on

23 his own initiative and jeopardised the security of those people at

24 Ovcara, that is the crux of the matter when it comes to the fate of the

25 people at Ovcara."

Page 57

1 I repeat, I did not know about such a decision.

2 JUDGE MERON: Thank you.

3 MR. ROGERS:

4 Q. Mr. Panic, you said that you gave additional details today

5 relating to the content of that conversation, but you accept that your

6 recollection may not be complete to all of the details of the

7 conversation between Mrksic and Sljivancanin; you agree?

8 A. I accept that I may have omitted something and that the passage

9 of time has left some traces.

10 Q. See, when Mr. Sljivancanin testified about this meeting, one of

11 the things that he mentioned was that the commander had told him that the

12 government had taken charge of a group of suspects from the hospital that

13 had been taken to the barracks in order for them to be later exchanged

14 for captured Serbs. That's in the transcript 13655 to 6.

15 You haven't made any mention in your evidence today relating to

16 the reference to suspects from the hospital being taken to the barracks

17 for exchange. Can you comment on that, please. Was it said?

18 A. Yes. I mentioned that in my testimony. You may have omitted it.

19 Mr. Sljivancanin, when he met with Mrksic, said, "I'm coming from the

20 hospital. I accomplished my mission. Commander, what happened that

21 brought about the change of the decision? The members of the

22 paramilitary units," and I mentioned to them -- referred to them as

23 prisoners, when their unit surrendered at Mitnica, the people who

24 surrendered knew that they hadn't committed any crimes and they were also

25 at Ovcara. It was the night from between the 18th and the 19th. They

Page 58

1 spent the night there, and the security detail was the same, the same

2 units of the 80th Brigade. On the following day they were taken to

3 Sremska Mitrovica by buses.

4 The other part of that unit, knowing that they were guilty of

5 crimes, escaped in the direction of the hospital. They found refuge at

6 the hospital. They lay in hospital beds. Some of them put plaster-casts

7 on their arms, legs, or heads, and they were waiting to be evacuated as

8 wounded soldiers under the auspices of the Red Cross and the

9 international observers. And these people I call members of paramilitary

10 units --

11 Q. General, that wasn't what I asked you. What I asked you was

12 relating to what Mr. Sljivancanin testified about, that Mrksic had told

13 him that the government had taken charge of a group of suspects from the

14 hospital brought to the barracks in order to be later exchanged for

15 captured Serbs. And you haven't made any mention at all in your

16 testimony so far relating to that, asking you why. Was it said or wasn't

17 it said?

18 A. It was said. Let me continue. Sljivancanin asks Mrksic, "What

19 happened that you changed your decision about these people not going to

20 Mitrovica, but to Ovcara instead?" And Mrksic said, "Today there was a

21 government session and this was a government decision, and we'll see

22 about this later." This is what I stated.

23 Q. Yes, that's what you stated, but what Mr. Sljivancanin suggested

24 is that they were to be later exchanged for captured Serbs. That was his

25 evidence before the Chamber, and I'm asking you whether you heard that,

Page 59

1 that these prisoners were allegedly going to be exchanged for captured

2 Serbs?

3 A. With your leave, the first group I was speaking about went to

4 Sremska Mitrovica and there was an all-for-all exchange, and they are

5 alive even today, thank God. The other group, in line with the same

6 methodology should have been exchanged, but the government insisted that

7 they would be tried. That was the only difference. And Mr. Sljivancanin

8 maybe spoke about it at more length than I. The difference may be in the

9 length of the answer, but not in the essence. In essence, we're saying

10 the same. They were also supposed to be exchanged.

11 Q. But your evidence at trial, which was rejected by the

12 Trial Chamber on this point, but your evidence at trial was that they

13 were to be tried, not exchanged, to be tried. And here apparently Mrksic

14 is telling Sljivancanin that they're to be exchanged, in complete

15 contradiction to what you understood the position to be. What do you say

16 about that?

17 A. Well, I can speak about that if the Trial Chamber has enough

18 time. I can speak about this extensively because I was present at the

19 government session. The -- on the 20th of November, there was a

20 government session, I was present, and I heard their conclusion. I

21 related them to Mrksic, Mrksic accepted --

22 Q. General, General, it's a very simple question and it relates

23 directly to what was said in the meeting, and you are avoiding answering

24 the question, I suggest to you. There's no reference made by you in your

25 testimony to exchange for Serbs until recently, until I've just put it to

Page 60

1 you. Now, I'm suggesting that in your original account, in the account

2 that you gave today, you haven't referred to any reference to exchange

3 for captured Serbs. That's right? And that would be in contradiction to

4 what you understood was to be happening to them, namely, that they were

5 to be tried; correct?

6 A. Yes. The decision was made at the government session that they

7 would be tried, and I can go into the details regarding that government

8 session and the conclusions made there. And Mrksic accepted their

9 decision.

10 Q. That account that you gave, that there was to be trials, was

11 rejected by the Trial Chamber as untrue, wasn't it?

12 A. Yes.

13 Q. And you're repeating it again now, you still stand by that?

14 A. Well, allow me to explain --

15 Q. No, you just have to say is --

16 A. -- how this came about.

17 Q. All you have to do is say whether you stand by your original

18 trial testimony or not on this point, that they were to be tried.

19 A. I stand by what I said, that this was a government decision which

20 was also accepted by Mrksic that they would be tried, brought to justice.

21 The prime minister on that day after the government session made a public

22 statement on TV and said, "Today a government session was held, at which

23 it was decided that these persons from the hospital should be tried.

24 Whoever has blood on his hands will be convicted; who is innocent will be

25 set free." And he stated that publicly on television. The then-prime

Page 61

1 minister of a country which was recognised at the time.

2 Q. Do you agree that --

3 MR. ROGERS: Does Mr. Bourgon --

4 JUDGE MERON: Is there a problem, Mr. Bourgon?

5 MR. BOURGON: Well, I'd just like to have a reference. My

6 colleague said that the Trial Chamber had rejected, and he said exactly

7 these words:

8 "That account that you gave, that there was to be trials, was

9 rejected by the Trial Chamber as untrue ..."

10 I would just like to have a reference because that's not what I

11 recall from the judgement, Mr. President.

12 JUDGE MERON: Could we have the chapter and verse on that,

13 please.

14 MR. ROGERS: Trial judgement, paragraph 307 said:

15 "While the Chamber accepts that Panic arrived at Ovcara shortly

16 after the arrival of the buses from the JNA barracks, it is unable to

17 accept his explanation as to why he was at Ovcara. It is entirely

18 lacking in credibility that he believed that trials of prisoners could be

19 in progress at Ovcara. There was manifestly no time for this to be

20 implemented, even had there been the necessary skilled investigators ..."

21 MR. BOURGON: Mr. President, we're talking at that time as the

22 reason why he went to Ovcara, not whether they were tried or not, that

23 the intent was to try them or not.

24 MR. ROGERS: Well, Your Honours, that was the -- that's the -- my

25 learned friend can say as he wishes. That was my understanding of that

Page 62

1 passage. If it's wrong, it's wrong. But certainly his explanation as to

2 why they were at Ovcara, that is, that they were to be tried -- that

3 trials could even begin to be in progress, given against the background

4 of the fact that the Chamber did not accept that there could be a

5 functioning government at the time, would be -- would appear to be

6 consistent, that this whole question of trials was simply not honest.

7 But there we are. Perhaps again it's a matter for comment.

8 JUDGE MERON: Thank you. Let's continue.

9 MR. ROGERS:

10 Q. Mr. Panic, you were telling us about the -- your account of what

11 happened, and you told us that you were busy doing something. What was

12 it that you were busy doing when Mr. Sljivancanin and Mr. Mrksic began to

13 have their conversation?

14 A. The daily briefing was through and the tasks had been handed out.

15 The Chief of Staff and the staff - and this applies to all the armies

16 throughout the world, it certainly applied to us - were elaborating on

17 the commander's order and rephrasing it as an order for the units. They

18 were making proposals to the commander for how the tasks -- on how the

19 tasks would be carried out. Each of us were also working on our own

20 personal preparation. Specifically, the tasks for that day were quite

21 comprehensive --

22 Q. So --

23 A. -- there were large numbers of civilians who needed to be taken

24 care of --

25 Q. I understand --

Page 63

1 A. -- there was a different unit assuming responsibility. This had

2 to be phrased in the form of an order. We had to prepare this unit for

3 going back to the garrison, and I personally had to prepare for the press

4 conference because my commander would not be there on the following day.

5 Q. So the impression I'm getting is that this was a busy period of

6 time in the operations room?

7 A. Yes.

8 Q. There was a lot going on?

9 A. Yes, yes.

10 Q. And you told us that the conversation between Mr. Sljivancanin

11 and Mr. Mrksic may have lasted certainly longer than a minute -- longer

12 than a minute but not longer than five or ten minutes. So it could have

13 been as long as five or ten minutes that these two individuals were

14 conversing?

15 A. Yes.

16 Q. Mr. Panic, I suggest to you that in the busy environment of the

17 operations room, given the length of time that it appears these two were

18 talking, there may well have been parts of the conversation that you

19 simply missed, you didn't hear accurately or at all what was being said?

20 A. At this point in time, I mean the briefing occurred at 1800

21 hours. The commanders and those who were involved in the briefing then

22 left the room. Staying at the command post were me, the commander,

23 Lieutenant-Colonel Trifunovic, and the signals men who were busy doing

24 their own work. The tasks had already been handed out and were now under

25 way. I wasn't the only person there performing all of these tasks. I

Page 64

1 divided out the tasks and I was working at this point in time on my own

2 personal preparation in case the need arose for someone to consult me or

3 submit anything to me for signature or, for example, if I was required to

4 approve of a plan.

5 I was sitting there at one point in time the door opens and

6 Mrksic is pacing up and down. Do you want me to go into the physical

7 detail of the situation? Between the window and the wall and they met,

8 they came together, right next to my table and started talking.

9 Sljivancanin is a man of monumental stature. I couldn't possibly have

10 missed him, so I heard the conversation. I may have missed the

11 occasional detail. Had I known what might later happen, I would have

12 resorted to actually recording the conversation; but I didn't know at the

13 time.

14 Q. Why would you have resorted to recording the conversation?

15 A. So that today we would no longer be discussing whether I heard or

16 indeed did not hear something. We would then have proof. I'll say this

17 a thousand times over if that's what it takes: I cannot fathom that

18 Mrksic produced an order like that, and I'll say this a million times.

19 He never told that to anybody. He didn't tell me and he didn't tell

20 Sljivancanin in my presence, and they were right next to me.

21 Q. You said that if you had heard such a thing, you would have been

22 the first to react. Is that because you would have appreciated that the

23 prisoners would have been in danger and you needed to act to protect

24 them?

25 A. Thank you for that question. As I said, I would have been the

Page 65

1 first to react. I would have sprung to my feet and ask him, "Commander,

2 what's wrong with you? Why are you going back on your decision? Do you

3 know that I was at Ovcara? Did I not brief you on that, on the situation

4 there? Had we not agreed for security to be stepped-up? Had I not made

5 my proposal to you that someone should be dispatched there to provide

6 technical assistance" --

7 Q. General, General, I asked you: Would you have acted because you

8 appreciated that the prisoners were in danger and you would have needed

9 to act to protect them? As Chief of Staff, as an officer, you needed to

10 act to protect them in the face of such an order, do you agree?

11 A. Well, absolutely. That's what I've been telling you all the

12 time.

13 Q. And that's why --

14 A. The withdrawal of the security detail would have put the people

15 in that prison in harm's way directly. There were criminals among those

16 people there. And secondly, perhaps there were people around who might

17 have wanted to take matters into their own hands and take revenge,

18 retaliation.

19 Q. If you failed to act, you yourself could have been at risk of

20 punishment under the regulations under Articles 20 and 21 of your own

21 military regulations; do you agree?

22 A. Yes, certainly. If there was something that I didn't do --

23 Q. Yes, which is why, General, you simply could never admit to

24 hearing about the order for withdrawal during the course of that

25 conversation. You could never come and give an account which involved

Page 66

1 that happening because it implicates you?

2 A. Yes. From where you stand, that is correct; from where I

3 stand -- had I been afraid for my own responsibility, I would never have

4 gotten in touch with Mr. Lukic. Quite the contrary, I am doing my best

5 for truth to emerge before this Trial Chamber. The best thing for us

6 would be for Mr. Mrksic to say: I ordered this or I ordered something

7 else, and I ordered this and that to such and such a person, so that the

8 facts are established --

9 Q. Or is it the case, General, that you want to come here today to

10 try to set the record straight, as you call it, to ensure that there can

11 be no implication on you?

12 A. No. During my testimony I said I was with those people, I was

13 there. I was Chief of Staff. I know what went on. Please try to

14 recognise the fact that Mrksic never ordered that to any of us. I failed

15 to understand how he could possibly have ordered that to anyone at all,

16 knowing Mrksic, knowing his position.

17 Q. The Trial Chamber, when it was considering your evidence in the

18 quote below, rejected it on occasions when it appeared to them to be

19 self-serving and in situations where you yourself were implicated in

20 possible criminal behaviour, that's what they found. And they found in

21 relation to one particular matter this at trial judgement paragraph 585,

22 this is referring again to the government session planned to put war

23 criminals on trial. And perhaps this is a better quote from the

24 judgement than the one I referred Your Honours to earlier when I was

25 making my submissions as to what was said. It said this:

Page 67

1 "In his evidence about the meeting," that's the SAO government

2 meeting, "Lieutenant-Colonel Panic sought to say that from the debate at

3 the meeting it appeared that the SAO government planned to put the war

4 criminals on trial. While he indicated he believed this to be their

5 intention when he conveyed Mile Mrksic's position, the Chamber is quite

6 unable to accept the honesty of this aspect of his evidence. It was

7 obviously self-serving, and also an attempt to put the JNA and

8 Mile Mrksic in a more favourable light."

9 In addition, they also said at trial judgement paragraph 297:

10 "Regrettably, the Chamber also finds that in his evidence

11 Lieutenant Colonel Panic sought to present aspects of his own role in a

12 more favourable light and to avoid disclosing matters which could be

13 construed as implicating Panic himself in criminal conduct."

14 Isn't that precisely what you're doing now, avoiding disclosing

15 matters that would implicate you?

16 A. Do I strike you as that kind of person after everything we've

17 done, after all the trials, all my evidence, the fact that I got in touch

18 and appeared here today ?

19 Q. General, it's not for me to make any decisions about how you

20 strike me. I'm simply putting to you how you struck the Trial Chamber.

21 You see, General, it makes no sense at all that you as Chief of Staff --

22 [Microphone not activated]

23 THE INTERPRETER: Microphone, please.

24 Microphone, please.

25 MR. ROGERS: I have got the microphone. It's on.

Page 68

1 Q. General, it makes simply no sense that you as Chief of Staff

2 would have had no knowledge about the withdrawal of troops within your

3 zone of responsibility, particularly as you were taking over as commander

4 the next day when Mrksic left. You must have known about what was going

5 on, General, didn't you?

6 A. The next day at about 8.00, Mr. Mrksic left for Belgrade with a

7 group of officers to see the federal secretary for National Defence. I

8 went to the Vukovar barracks again with a group of officers. Soon after,

9 this large group of journalists arrived, 120 of them. So in a formal

10 sense, yes, I was standing-in that day for Commander Mrksic, but Mrksic

11 was still alive. He was right there. He had communications equipment

12 and was soon back from Belgrade. I'm not trying to defend myself. I am

13 Mrksic's deputy --

14 Q. But, General, General, you appear to be suggesting that what was

15 more important that day was your press conference, compared with the

16 safety of nearly 200 prisoners of war that you yourself had raised

17 concerns about their security the day before. Are you really suggesting

18 you had made no inquiries as to what had happened to them?

19 A. You see, the day before at the briefing Commander Mrksic gives an

20 order for the 80th Brigade to be taking charge of the zone of

21 responsibility. The 80th Brigade is a brigade whose zone of

22 responsibility includes Ovcara, then as before. The Guards Brigade is

23 now preparing to go back to Belgrade; that was one of the tasks. The

24 other task was care of the civilians and their transport, and there was

25 also the press conference. That was the task that I got from Mrksic. He

Page 69

1 said, "Welcome those people, greet them on my behalf, allow them to ask

2 any questions they like, and allow them to go anywhere they like." That

3 was the gist of it.

4 Q. Wasn't part of the responsibility of Chief of Staff to ensure

5 that the commander's orders were implemented on the ground; that's right,

6 isn't it?

7 A. Yes. Chief of Staff and everyone else was there to implement his

8 orders at ground level.

9 Q. And part of his orders, according to you, was that the prisoners

10 should be handed over to the government in order that trials should

11 begin, according to you. So what steps did you take to ensure that was

12 actually happening the next day, if that's what happened?

13 A. On the 20th of November the hospital was evacuated. There was a

14 selection procedure underway at the hospital. Some people were busy

15 doing that. In parallel, there was a government meeting in progress on

16 that day. You're asking me what I was doing. After the government

17 meeting, I went back to the barracks --

18 Q. No, just pause --

19 A. -- I briefed Mrksic.

20 Q. No, just pause because I think you're not understanding my

21 question. I'm referring to the 21st, the next day, forgive me if I

22 didn't make that clear. The next day, on the 21st. Now, having had an

23 order that these were to be tried, as you say, to be handed over, what

24 steps did you take to make sure that had actually happened? Because that

25 would have told you what was going on with these prisoners, wouldn't it?

Page 70

1 A. Well, if you allow, that's exactly what I'm trying to say. The

2 government decision was implemented on the 20th. As early as the

3 afternoon hours of the 20th these people were put up in the hangar at

4 Ovcara. I left the government meeting, I went to the barracks, I briefed

5 Mrksic. Having completed my business at the barracks, on my way back to

6 the command post I took a turn and went to Ovcara. I was there outside

7 the hangar at Ovcara. I saw the people there. I saw the commander of

8 the unit providing their security. I saw the security detail deployed

9 there.

10 Upon my return, I spent no more than 15 minutes there, by the

11 way, and then I went back to my command post. As soon as I was there, I

12 briefed Commander Mrksic on everything I had been doing that day. I also

13 told him, just to keep this brief, about the situation at Ovcara. So

14 that was what I did and that was the 20th. On the 20th they were under

15 the security regime of the 80th Brigade, just like the previous group who

16 had left for Mitrovica.

17 Q. Were there any meetings with the 80th Motorised Brigade on the

18 morning of the 21st of November? Did you have contact with their

19 commanders on the morning of the 21st of November?

20 A. The 21st, I repeat, Mrksic and the delegation were getting ready

21 to leave for Belgrade. Mr. Sljivancanin, Lieutenant-Colonel Maric,

22 assistant for morale, and myself --

23 Q. General --

24 A. -- were on our way to the barracks --

25 Q. General --

Page 71

1 A. -- there was no morning briefing on that day.

2 Q. It was a very simple question. Did you have contact with

3 commanders of the 80th Motorised Brigade on the morning of the 21st of

4 November?

5 A. No, I didn't and I don't know whether Mrksic did. Perhaps by

6 phone.

7 Q. So you say that you remained completely ignorant that an entire

8 group of soldiers had been removed and been withdrawn from the Ovcara

9 farm? You had absolutely no idea that day or for several days later that

10 the MPs had gone and they were no longer protecting the prisoners?

11 That's your account, despite being deputy commander in charge of the zone

12 of responsibility for that next day. Is that what you're saying?

13 A. Yes. That day and generally speaking, I didn't go to Ovcara, nor

14 did I contact the commander of the 80th Brigade on that day. He had been

15 ordered to take charge of the entire responsibility zone of the

16 Guards Brigade.

17 Q. So you're also suggesting by your answer --

18 THE INTERPRETER: Can the witness please repeat the last portion

19 of his answer. Thank you.

20 MR. ROGERS:

21 Q. There's a request to repeat the last portion --

22 JUDGE MERON: Yes, Mr. Panic, please repeat.

23 THE WITNESS: [Interpretation] On the 21st I was at the barracks.

24 I did not meet the commander of the 80th Brigade. The commander of the

25 80th Brigade had taken charge of the area or taken over command of the

Page 72

1 area. The Guards Brigade was preparing to go back to the Belgrade

2 garrison. We did not have any responsibility over that area anymore.

3 MR. ROGERS:

4 Q. Well, in the light of the finding of the Trial Chamber that it

5 was indeed Mile Mrksic that ordered the withdrawal of the troops from

6 Ovcara, what you're suggesting is that Mile Mrksic deliberately misled

7 you and everyone else about issuing an order to withdraw. He

8 deliberately failed to tell you an important fact relating to the command

9 and the operation at the zone of responsibility over Operational Group

10 South. Is that what you're suggesting in reality?

11 A. No, that is not what I'm suggesting. What I'm suggesting is I've

12 known Mrksic for a very long time and quite well. I cannot bring myself

13 to believe that he could possibly have issued an order like that to

14 anyone at all. An order like that could only possibly have come from the

15 commander, but he certainly issued no such order in my presence. I was

16 certainly not aware of that order, nor was anything like that ever

17 mentioned in my presence or indeed during the conversation with

18 Sljivancanin. Now, that is what I am suggesting.

19 JUDGE MERON: Mr. Rogers, I think your time is drawing closed.

20 Do you have a new point to make? It seems that we are sort of repeating

21 ourselves now?

22 MR. ROGERS: Well, Your Honour, I think it's just fair to put to

23 him that the -- because I'm not sure that he's following this point, that

24 the effect of what he's saying is that the commander, given the finding

25 that it was him who made the order, given that, the commander was in fact

Page 73

1 deliberately misleading him, the Chief of Staff, about something that was

2 important in his zone of responsibility. And he couldn't hope for that

3 not to be discovered because the command had gone to Vojnovic at the

4 80th. There was no hope that that could not be discovered. That's the

5 point. And therefore there was no point in him doing it.

6 JUDGE MERON: Judge Vaz, please.

7 JUDGE VAZ: [Interpretation] Thank you, Mr. President.

8 I don't know if we can move forward, but I have a question for

9 the witness. In the military line of command as it operated in your

10 country, was it possible that Mr. Mrksic make a decision without

11 consulting you, without consulting Mr. Sljivancanin, given an order that

12 could be executed without your being told about it?

13 THE WITNESS: [Interpretation] When I looked at the Mrksic

14 judgement, it said he had been convicted because he had ordered the

15 withdrawal of the security detail from Ovcara. That was new to me. It

16 seemed impossible to me. I know him as a commander, and he never told

17 anyone that. Nevertheless, if you look at the command system in our army

18 or any other army that works and operates based on the principles of

19 subordination and singleness of command, no commander is duty-bound to

20 inform all of his subordinates of all the orders that he issues. There

21 is a certain honour that attaches to the role of commander and this is

22 the price the commander pays.

23 If the Trial Chamber established that this was something that he

24 had done, he must have done this at his own initiative and perhaps with

25 the knowledge of the last person in this chain executing the order, that

Page 74

1 means the security detail. An order like this could only have come from

2 the commander and no one else but the commander within the chain of

3 command. No subordinates would have been required to execute an order

4 like that since executing it would have amounted to criminal

5 responsibility.

6 By way of conclusion, Mrksic could have taken that decision,

7 could have issued that order without necessarily informing anyone, as you

8 see. Did he actually do it? I don't know but I can't bring myself to

9 believe that he did; however, it's possible.

10 If I may, at Ovcara the commander of the 80th Brigade was

11 directly subordinated to him. There are no mediators between the two, so

12 that too would have been possible.

13 JUDGE MERON: So you are saying that it is not impossible that

14 Mrksic issued the command and he would have issued this command directed

15 to the 80th Brigade without any inkling to the Chief of Staff, his own

16 Chief of Staff, which would be yourself?

17 THE WITNESS: [Interpretation] Yes.

18 JUDGE MERON: Thank you.

19 I think that you have finished, Mr. Rogers, haven't you?

20 MR. ROGERS: Your Honours, it would appear that I have, as

21 Your Honours are telling me I have. It appears that I have. May I make

22 one other point? I have one question related --

23 JUDGE MERON: Briefly.

24 MR. ROGERS: -- to the 1st Military District.

25 Q. Simply this, General: What you're suggesting relating to the

Page 75

1 treatment of these prisoners was not only the -- relating to their

2 hand-over, there was an order from the 1st Military District which was

3 received in your command post in the early hours of the 20th of November

4 at which -- required all the prisoners to be dealt with on an all-for-all

5 exchange. Do you recall that order coming in? It's RP - forgive me - I

6 think it's RP5.

7 MR. ROGERS: Your Honours, forgive me, I can't put my finger on

8 it right now. Forgive me, it's RP11, sorry.

9 Q. It was an order of the 19th of November in which said this, I

10 don't think you dispute this:

11 "Competent organs shall continue working intensely on the

12 implementation of the agreement on exchange of the arrested members of

13 the SFRY OS and the captured members of the Ministry of the Interior and

14 Croatian National Guards according to the all-for-all principle."

15 And on the second page of that the date is the 20th of November

16 and the time is 0045 hours in the morning.

17 JUDGE MERON: Mr. Bourgon, you have problems in finding the

18 place?

19 MR. BOURGON: No, I'd just like the witness to have the document

20 because --

21 MR. ROGERS: Yeah, it's --

22 MR. BOURGON: It would be fair to him to at least know what

23 document we're dealing with.

24 MR. ROGERS: It's RP --

25 JUDGE MERON: Indeed.

Page 76

1 MR. ROGERS: It's RP11.

2 JUDGE MERON: Indeed.

3 MR. ROGERS: He has a binder. It's in Sanction as well at the

4 moment.

5 Q. I think you have the original order. And you'll see the first

6 paragraph dealing with the all-for-all principle.

7 A. Yes.

8 Q. And the second page you see the stamp, if you turn it over you'll

9 see the stamp, which shows when it was received --

10 A. Yes.

11 Q. -- in the early hours of the morning of the 20th of November.

12 A. Yes.

13 Q. Having received that, was that an order you were aware of on the

14 20th of November, the all-for-all principle order from the 1st Military

15 District?

16 A. Yes, precisely. That's the way things were done. And that first

17 group had gone to Mitrovica on the basis of that principle. As for the

18 second group, what followed was the government decision because they had

19 already started functioning as the authority there. They had decided

20 that they would try them.

21 Q. So there was already a breach of the order of the 1st Military

22 District that you were tolerating; is that right? These prisoners were

23 supposed to be exchanged all-for-all, not tried.

24 A. Well, that's the way things were supposed to happen up until

25 then, and then it was on the 20th that an exception was made. A

Page 77

1 government decision was made and accepted by Commander Mrksic, but

2 according to the same methods, they were put up at the hangar in Ovcara

3 and they were secured by the same unit like the previous group that had

4 been taken to Sremska Mitrovica.

5 Q. So you agree that the way these prisoners were handled was in

6 breach of the order of the 1st Military District and you knew about that

7 at the time?

8 A. As I went to the government session, I had the position of my

9 commander, and that is the position that I appeared with at that meeting.

10 They passed certain conclusions and I made my commander aware of them.

11 He accepted that. And I was just one of the persons implementing this.

12 I was not the creator of that decision and it was not my idea.

13 Q. Final question: So you were implementing the order in direct

14 contravention of the order of the 1st Military District; is that what

15 you're saying?

16 MR. ROGERS: That's my last question.

17 THE WITNESS: [Interpretation] No, no. There was no contravention

18 as far as my execution of tasks was concerned. It was -- it's not the

19 commander of the 1st District that issues tasks to me; it is my

20 commander, Colonel Mrksic, who gives me tasks and issues orders to me.

21 Now, whether he had violated something or whether someone had approved of

22 the decision that he had made, well I can assume that he had to ask

23 someone about that decision because that is a major decision, it is a big

24 decision. It is a government decision, the commander accepts it, and

25 they are probably in contact, Mrksic with his superiors. But at that

Page 91

1 beyond a reasonable doubt for our review application to be successful.

2 Honestly, I haven't found anything on the record that says what is the

3 applicable burden of proof. But we say - and it is our submission - that

4 all that is required is that we prove the fact sufficiently to raise a

5 doubt regarding the inference which was adopted by the Appeals Chamber at

6 paragraph 62, in which case we say the judgement cannot stand. But

7 nonetheless, even if you put -- brush aside completely our arguments and

8 if you don't accept our arguments, it doesn't matter. If the Appeals

9 Chamber was to hold that the new fact must be proved beyond a reasonable

10 doubt, it is our submission that we have achieved this standard through

11 the testimony of General Panic this morning.

12 And that is why, Mr. President, we submit that Mrksic did not

13 tell Sljivancanin in the evening of 20 November 1991 when they met at

14 that OG South command during a very specific conversation which forms the

15 basis of the judgement, Mrksic never said to Sljivancanin that he had

16 withdrawn the MPs guarding the prisoners at Ovcara. This is what stems

17 from the testimony of Witness Panic.

18 Thank you, Mr. President.

19 JUDGE MERON: Thank you, Mr. Bourgon.

20 Mr. Rogers, 15 minutes.

21 MR. ROGERS: Your Honours, in our respectful submission, the

22 evidential value of this witness's testimony in this particular case and

23 these particular circumstances is of no value in our submission, and that

24 is because he is not reasonably capable of belief in relation to these

25 matters. The knowledge of the order to withdraw does on his own

Page 92

1 admission implicate him, implicate him in probable criminal or, in this

2 case, actual criminal activity. He cannot admit, as he said, to it being

3 said because, in our submission, it would fix him with knowledge and

4 therefore would have required him, as he accepted, to act. And indeed

5 Your Honours will recall he was really rather forthright about what he

6 said he would have had to have done if he had been made aware of those

7 materials and those facts relating to the withdrawal.

8 Whenever he is implicated in the consequences or in relation to

9 criminal activity, he has minimised his role, as was found by the

10 Trial Chamber, he has lied, and he has misled. We stand by the

11 Trial Chamber's credibility findings because they were nuanced, they were

12 sensible, and they were sensitive to the particular demands of the case,

13 and they had the opportunity over four days to hear General Panic give

14 evidence, and they very carefully identified the areas of his testimony

15 that were not reliable. Those areas of his testimony that were not

16 reliable were those areas in which he was implicated himself.

17 The Chamber made a number of really very nuanced findings

18 relating to him. They found him to be a liar. They didn't use the word

19 "liar," but in our submission that is what they held. At trial judgement

20 paragraph 307 they found that the Chamber was unable to accept his

21 explanation as to why he was at Ovcara.

22 "It is entirely lacking in credibility that he believed that

23 trials of prisoners could be in progress at Ovcara. There was manifestly

24 no time for this to have been implemented, even if there had been the

25 necessary skilled investigators ..." et cetera. And they went on to make

Page 93

1 a finding as to why he was there.

2 "In the Chamber's finding his presence at Ovcara was to assess

3 the position and to report to Mile Mrksic."

4 Finding someone to be entirely lacking in credibility on a point

5 that they testified about is clearly to hold them to have told lies about

6 it.

7 Furthermore, they held at paragraph 585 of the judgement:

8 "In his evidence about the meeting, Lieutenant-Colonel Panic

9 sought to say that from the debate at the meeting it appeared that the

10 SAO 'government' planned to put the war criminals on trial. While he

11 indicated he believed this to be their intention, when he conveyed

12 Mile Mrksic's position, the Chamber is quite unable to accept the honesty

13 of this aspect of his evidence. It was obviously self-serving, and also

14 an attempt to put the JNA and Mile Mrksic in a more favourable light."

15 In the same way, in our submission, his distancing himself from

16 this conversation to the extent that he has to say nothing was said about

17 the order to withdraw is obviously self-serving and an attempt to put

18 Sljivancanin in a more favourable light. And clearly it's something that

19 he has done before and would be prepared to do again.

20 The Chamber went on at trial judgement 297:

21 "Regrettably, the Chamber also finds that in his evidence

22 Lieutenant-Colonel Panic sought to present aspects of his own role in a

23 more favourable light and to avoid disclosing matters which could be

24 construed as implicating Panic himself in criminal conduct."

25 Precisely the point here.

Page 94

1 The Chamber found him in addition at -- to be less than frank

2 about his role, as it was once famously suggested in the Spycatcher trial

3 in the United Kingdom in 1986, the phrase "he was economical with the

4 truth" was used. At paragraph 297 the Chamber said this:

5 "The Chamber is persuaded that the evidence of Lieutenant-Colonel

6 Panic underplays the full extent of his knowledge of the situation at the

7 barracks that morning."

8 It went on:

9 "When questioned about this aspect, it was the evidence of

10 Lieutenant-Colonel Panic that there was no threat to the prisoners on the

11 bus as all security measures had been taken, and he appeared to deny

12 seeing any mistreatment of prisoners at the barracks that day. In the

13 Chamber's finding, the role of Lieutenant-Colonel Panic in conveying the

14 instructions from Mile Mrksic for the meeting and his own role at the

15 meeting," note that, I underscore that, and his own role at the meeting,

16 "provide reason for Lieutenant-Colonel Panic not to be fully frank and

17 honest about the events he saw at the barracks concerning the convoy of

18 prisoners of war."

19 It went on at trial judgement 308:

20 "... while the Chamber had the clear impression of

21 Lieutenant-Colonel Panic as he gave his evidence, that the witness was

22 not being frank when speaking of his own knowledge of the mistreatment of

23 the prisoners of war that day, so as to minimise the truth in that

24 respect ...," trial judgement 308.

25 And at trial judgement 262:

Page 95

1 "The Chamber also recognises that Lieutenant-Colonel Panic may

2 have seen more of the mistreatment of the prisoners of war outside the

3 hangar than he acknowledged in his evidence in which event his evidence

4 in this respect would not have been entirely frank, no doubt out of self

5 interest."

6 And if that wasn't enough to dispose of him in relation to these

7 areas in relation to his credibility, they went on to deal with other

8 ways in which the witness was prepared to amend or alter or be influenced

9 in his testimony. They said this:

10 "In" -- this is at trial judgement 396 and it related to a

11 conflict between what Colonel Panic had said in his OTP witness statement

12 relating to the role of Veselin Sljivancanin and what he subsequently

13 testified about. And they said this:

14 "In this respect, the Chamber accepts the honesty and correctness

15 of the account of Mile Mrksic's statement to the briefing, given by

16 Lieutenant-Colonel Panic in a written statement he gave to the

17 Prosecution investigators. The Chamber does so after careful

18 consideration of the course of evidence of Lieutenant-Colonel Panic,"

19 evidence of course given under oath, "in which he sought to qualify the

20 effect of his prior statement. When this was more fully explored with

21 Lieutenant-Colonel Panic, however, it became clear in the view of the

22 Chamber that his evidence sought to accommodate what he described as

23 documents, with which he had been familiarised, and which he said helped

24 him realise that in his statement he had ascribed to Veselin Sljivancanin

25 certain powers which he did not have at the relevant time."

Page 96

1 Your Honours, I pause there to recall the -- a number of times

2 during testimony today in which Colonel Panic -- General Panic as he

3 now -- he's retired, referred to his recollection and refreshing his

4 memory from other documents and materials that he was provided with. And

5 I remind the Chamber that he was provided with the statements of

6 Sljivancanin prior to testimony -- prior to this testimony. So relevant

7 parts of that testimony were read to him to assist him.

8 "From his evidence," they went on, "as with a number of other JNA

9 former JNA witnesses, it appears that attempts were made to persuade

10 Lieutenant-Colonel Panic that, in the light of the military rules

11 applicable at the time, his recollection of the words of Mile Mrksic

12 about Veselin Sljivancanin was erroneous."

13 So again he's been influenced. Further they held at trial

14 judgement 261:

15 "The evidence of Lieutenant-Colonel Panic and some others, such

16 as P014, as to the timing of events that afternoon, appeared to the

17 Chamber to be based substantially on genuine attempts to rationalise the

18 events of the afternoon rather than precise recollection."

19 Your Honours, in our submission, all of those factors may well be

20 and in our submission are at play in the evidence given by General Panic

21 today. He appears to be one of the few individuals capable of improving

22 his memory over 19 years, as opposed for it to be degenerating over 19

23 years. Each time he comes to recall these events or at least record

24 them, it appears they improve rather than get worse. More memories come

25 forward than one might otherwise expect. Is that because he is genuinely

Page 97

1 attempting to rationalise events that were going on? Is it because they

2 implicate him and he has to distance himself from them? Is it that the

3 true passage of time may well be taking its toll and that he now

4 misremembers, does not accurately recall what was said? And Your Honours

5 will have in mind the number of points that were made during the course

6 of the hearing relating to the content of what he said when he was making

7 his statement, the content of what he said in evidence, and the fact that

8 new material was put to him during the course of the hearing which he

9 then accommodated into his evidence.

10 At the end of the day, is he reasonably capable of belief in the

11 background that you have relating to the findings about credibility made

12 by him and your own impressions having heard him today? That's before

13 one even takes into account the absurdity of a situation in our

14 submission where the Chief of Staff of an operational group appears to be

15 wholly in the dark about what was going on with 200 prisoners that he,

16 the very day before, had twice reported on to Mrksic relating to their

17 care, custody, and safety. Was he really so consumed with the press

18 conference the next day that all thought of the 200 prisoners, for which

19 he had legitimate, he says, security concerns - and bearing in mind he's

20 underplayed his role according to the Chamber, so his actual knowledge

21 may be much greater - is it really realistic that he would have done

22 nothing and that the first ever knew about what had happened was days

23 later? It's simply inconceivable. It's inconceivable that he did not

24 hear, as Your Honours found to be the case, that during the course of

25 that conversation the order to withdraw was communicated to Sljivancanin,

Page 98

1 especially when we know that the purpose of Sljivancanin's attendance

2 that day at the barracks -- sorry, at the command post was to report, in

3 our submission, was to inform his commander about what he'd done, receive

4 instructions, is it really realistic given that the Chamber found he was

5 in charge of the evacuation that that conversation would not have been

6 had and that information not imparted to Mr. Sljivancanin in the presence

7 of Mr. Panic? It's inconceivable in a functioning chain of command, in a

8 disciplined organisation such as the Guards Brigade, and Your Honours

9 will recall Panic's evidence about that, about how they were an elite

10 unit, that this chain of command would so catastrophically break down in

11 the way that it did.

12 For all those reasons, Your Honours, the evidence of

13 General Panic in relation to these matters is not credible, it is not

14 reasonably capable of belief, and we invite you to disregard it and

15 dismiss this application.

16 JUDGE MERON: Thank you, Mr. Rogers, for your argument.

17 We will now have a one-hour break. So we will meet here at 2.25.

18 And this afternoon we will hear testimony -- we will hear arguments on

19 whether Panic's testimony constitutes a new fact. So we will now stand

20 adjourned for one hour.

21 --- Luncheon recess taken at 1.25 p.m.

22 --- On resuming at 2.27 p.m.

23 JUDGE MERON: Thank you. Please be seated.

24 Before we start this afternoon's programme, let me note that all

25 documents referred to during the hearing today and not already part of

Page 99

1 the record will be considered annexes to the party's motion, that will

2 make it simple. I take it no objection to that.

3 Now, we will turn to the final stage of our proceedings today,

4 arguments on whether Panic testimony constitutes a new fact.

5 Mr. Bourgon, you will be arguing now or Mr. Lukic? Mr. Bourgon, you will

6 have 45 minutes, then Mr. Rogers -- or I see Ms. Brady there, Ms. Brady,

7 45 minutes. And then, Mr. Bourgon, you will have the final 15 minutes

8 reply.

9 Okay, so please.

10 MR. BOURGON: Good afternoon, Mr. President. And thank you very

11 much. Good afternoon to the Judges. And good afternoon to my colleagues

12 from the Prosecution.

13 Pursuant to the Scheduling Order, Mr. President, on behalf of

14 Mr. Sljivancanin I have the honour of addressing the Appeals Chamber for

15 the next 45 minutes on one single issue, and that is whether the

16 testimony of Witness Panic heard this morning constitutes a new fact.

17 Our legal arguments stricto sensu on this issue are included, as you

18 know, Mr. President, in our application for review and even more so in

19 our reply to the Prosecution's response. I do not intend to repeat these

20 arguments one by one. I'm sure you've had the chance to read those and I

21 will focus on some specific issues.

22 What I really want to do this afternoon is to convince you that

23 the new information provided by Witness Panic, first in his statement

24 provided to us in October 2009, that was at the time, Mr. President, you

25 will recall that we filed our motion for reconsideration in which we

Page 100

1 referred to Panic and that's why we had chosen that date for him to make

2 his statement; but also during his testimony this morning. That this

3 information constitutes a new fact pursuant to the applicable law and the

4 jurisprudence of the Appeals Chamber on this issue. I intend to do so by

5 drawing your attention on four different aspects or ways of considering

6 the new evidence provided by Witness Panic which all lead to the same

7 conclusion.

8 The fact that Miodrag Panic heard the conversation between

9 Sljivancanin and his commander, that is, in the evening of 20 November

10 1991, that is, the conversation when Sljivancanin returned to the

11 Operational Group South sometimes after 8.00, or 8.00 p.m. for those of

12 us who are not military, is a new fact which makes it necessary for the

13 Appeals Chamber to review its judgement and to reinstate the acquittal of

14 Mr. Sljivancanin which was pronounced at trial after hearing all the

15 evidence in this case, that is, more than 90 witnesses over a period of

16 more than 18 months. In other words, Mr. President, the issue this

17 afternoon is strictly limited to the first of four criteria which must be

18 fulfilled for the Appeals Chamber to review its own judgement. And of

19 course our position is clear. There can be no doubt that the testimony

20 of Witness Panic fully meets the requirements of this criteria.

21 My arguments this afternoon will be divided into four distinct

22 topics. I will first address the new fact pursuant to the plain meaning

23 of the words found in Article 26 of the Statute and Rules 119, 120;

24 secondly, I will demonstrate how and for what reasons the testimony of

25 Panic meets the new fact test developed in the jurisprudence of the

Page 101

1 Appeals Chamber; thirdly, I will expose why the new information provided

2 by Witness Panic, which of course can clearly be distinguished from the

3 alleged new facts which form the basis of previous applications for

4 review, and that's another reason why it does constitute a new fact;

5 fourthly, and finally, I will address the testimony of Witness Panic

6 pursuant to what I call the forest test. In other words, I will make it

7 obvious to you, Mr. President, that although the Prosecution may ask you

8 to look at all the trees in the world, they cannot prevent you from

9 seeing the forest.

10 Before I move to my first argument, there's of course an

11 additional issue which was raised in the Scheduling Order which I must

12 address as a preliminary matter, namely, the exceptional circumstances --

13 JUDGE MERON: [Microphone not activated]

14 MR. BOURGON: I apologise to the interpreters. It's been a while

15 since I was in court and I'm trying to meet my 45-minute dead-line.

16 So before I move on, that's one issue I wish to raise which was

17 in the Scheduling Order, and that is the exceptional circumstances of

18 this case because we believe that this is directly related to the issue

19 whether it does constitute a new fact or not. The exceptional

20 circumstances of this case were described in our application for review

21 at paragraphs 30 to 38, but let me summarise briefly.

22 The reversal of Sljivancanin's acquittal for murder and his

23 conviction on appeal rest on a single inference because the

24 Appeals Chamber confirmed that there is no direct evidence that

25 Sljivancanin was informed of the withdrawal in the course of his meeting

Page 102

1 with Mrksic. And the Appeals Chamber added Mrksic and Panic, and that

2 was at paragraph 62.

3 Now, of course we now know, Mr. President, that Sljivancanin had

4 a meeting with Mrksic in the presence of Panic and not with Mrksic and

5 Panic, but I will return to this later because this is all together

6 different.

7 As we heard this morning Witness Panic, he said he heard the

8 conversation between Sljivancanin and his commander, during which Mrksic

9 did not inform Sljivancanin of the withdrawal. Thus, Mr. President, if

10 you attach probative value to the witness -- to the testimony of

11 Witness Panic, quite simply the inference drawn by the Appeals Chamber is

12 nullified, considering that it can no longer be said that Mrksic must

13 have told Sljivancanin about the withdrawal. Consequently, without this

14 watershed inference which brought everything else thereafter, the

15 Sljivancanin's conviction for murder on appeal cannot stand. No new fact

16 could be more decisive, Mr. President.

17 To make myself clear let me use an example. Suppose Sljivancanin

18 had been found guilty of aiding and abetting the murder of Mr. Smith, and

19 the following week it was established that Mr. Smith was never murdered

20 and that he is well alive. Could Sljivancanin's conviction stand? Now,

21 I'm not referring, Mr. President, to the exact same scenario which you

22 raised in your separate opinion in the Niyitegeka decision on request for

23 review of 6 March, 2007, but I will come to that topic later. What we

24 say, Mr. President, is that the present case falls in the exact same

25 category, which is why it is exceptional. Panic said -- as established

Page 103

1 by Panic, Mrksic did not inform Sljivancanin of the withdrawal, therefore

2 the Appeals Chamber inference is nullified by his testimony, which is

3 something that was not known before. Accordingly, the conviction for

4 murder cannot stand.

5 In our respectful opinion, Mr. President, there is a direct

6 relationship between the decisive character of the evidence provided by

7 General Panic and whether it constitutes a new fact. Just as

8 Sljivancanin could not have been convicted for the murder of Mr. Smith if

9 there was evidence that he was alive, his conviction in the present case

10 would not have been possible if the evidence of the new fact provided by

11 Panic, that is, of course, that Mrksic did not inform Sljivancanin of the

12 withdrawal, had been available. But that information was not available

13 to the Appeals Chamber. In both instances, the example of Mr. Smith or

14 the present case, the information which came to light must constitute a

15 new fact pursuant to Article 26 of the Statute which was designed

16 specifically to address such cases.

17 This brings me to the first of my four arguments, namely, the

18 plain meaning of the word "new" in Article 26 of the Statute and Rules

19 119 and 120. Pursuant to the new oxford American dictionary:

20 "Something new is nothing more than something not existing

21 before, something discovered now for the first time."

22 Applying this definition to Article 26 of the Statute and Rules

23 119 and 120, it follows that a new fact is no more than a fact which did

24 not exist or was not established at the time of the proceedings before a

25 Trial Chamber or the Appeals Chamber and which has been discovered for

Page 104

1 the first time thereafter. Clearly, Mr. President, a tough word for a

2 frenchman, this teleological interpretation of the word "new" applies to

3 the evidence provided by Witness Panic this morning.

4 Once again, the acquittal of Sljivancanin for murder was reversed

5 on appeal, as we know, without any possibility of a further appeal. But

6 the Appeals Chamber confirmed there was no direct evidence that

7 Sljivancanin was informed of the withdrawal in the course of his meeting

8 with Mrksic.

9 Bearing in mind that the evidence provided by General Panic this

10 morning constitutes a source of direct evidence as to what was said

11 during this conversation, it is thus evident that this information did

12 not exist or, in other words, was not known or was not established at the

13 time of the proceedings before the Appeals Chamber. It therefore

14 constitutes a new fact.

15 Another way to look at this is to consider that the dissenting

16 opinion of Judge Vaz appended to the Appeals Chamber judgement.

17 Judge Vaz said the following at page 172, paragraph 4, I quote:

18 "There is no clear evidence cited in support of the Appeals

19 Chamber's conclusion that Mrksic must have told Sljivancanin that he had

20 withdrawn the JNA protection. To the contrary, this crucial conclusion,

21 which must be the only reasonable one, appears to be solely based on

22 Sljivancanin's testimony that he inquired about further tasks and duties,

23 although there is no evidence as to what Mrksic actually responded to

24 that inquiry."

25 Taking into account that the evidence offered by Panic

Page 105

1 establishes what was said during the Mrksic/Sljivancanin conversation,

2 the only reasonable conclusion is that his evidence did not exist, this

3 new information did not exist at the time of the proceedings before the

4 Appeals Chamber and that it does constitute a new fact.

5 Moving on to my second argument this afternoon. It is our

6 submission, Mr. President, that applying the definition of new fact as

7 developed in the case law of the Appeals Chamber yields the same

8 conclusion; that is, the evidence offered by Miodrag Panic indeed

9 constitutes a new fact. Pursuant to the jurisprudence of the Appeals

10 Chamber, the key question before a Chamber in determining whether a fact

11 proffered in a review proceeding is actually new is whether the fact

12 raised by the new evidentiary information was at issue during the trial

13 or appeal proceedings, that was at Blaskic review applications decision

14 paragraphs 15 and 40.

15 Moreover, the Appeals Chamber has further interpreted this

16 requirement, holding that this means - that's the fact of being an

17 issue - this means that it must not have been amongst the factors that

18 the deciding body could have taken into account in reaching its verdict.

19 That was Tadic, paragraph 25; Blaskic, paragraph 14; Rutaganda,

20 paragraph 9. These are all, of course, review application decisions.

21 In other words, what is relevant is whether the deciding body,

22 the Appeals Chamber in this case, knew about the fact or not in arriving

23 at the decision, Tadic, paragraph 25; Rutaganda, paragraph 9.

24 Applying this test to the new information provided by

25 General Panic in his testimony this morning, we can only conclude that

Page 106

1 his evidence constitutes a new fact. How so? Well, firstly the Panic

2 new fact was clearly identified in our application for review as well as

3 in our reply to the Prosecution response. And we have explained why the

4 Panic new fact was not in issue both at trial and on appeal. I will not

5 repeat these arguments.

6 Secondly, the crux of the matter pursuant to the test developed

7 by the Appeals Chamber is, and I quote, "the requirement for the moving

8 party," that is us, "to show that the Chamber did not know about the fact

9 in reaching its decision."

10 In the present case, what was known to the Appeals Chamber?

11 Well, it was known, inter alia, that Sljivancanin did not attend the

12 daily briefing in the evening of 20 November. It was known that

13 Sljivancanin was not involved in the transmission of the withdrawal

14 order. It was known that Sljivancanin returned to the Operational Group

15 South command shortly after 2000 hours on 20 November. It was also known

16 to the Appeals Chamber that upon arriving at the command, Sljivancanin

17 had a short conversation with his commander. And it was also known to

18 the Appeals Chamber that Panic was present during this conversation.

19 However, what is most significant here is that the Appeals Chamber did

20 not know that Panic heard the conversation and, even more importantly,

21 that Mrksic did not tell Sljivancanin during this conversation anything

22 about the withdrawal.

23 On what basis can we affirm this, Mr. President? Well, on the

24 following. Firstly, when Sljivancanin testified and mentioned the

25 presence of Panic during his conversation with Mrksic, he's the one who

Page 107

1 brought it up, he was testifying in his own defence and he brought it up.

2 When that took place, no one asked him whether Panic was a party to the

3 conversation; if Panic was a party to the conversation, what did Panic

4 say during this conversation; and if Panic was not a party to the

5 conversation, whether Panic could hear the conversation. None of this

6 was asked to Sljivancanin.

7 Secondly, on the basis that when Panic took the stand after the

8 testimony of Sljivancanin and confirmed that he was present at the

9 Operational Group South command when Sljivancanin returned in the evening

10 of 20 November and had a conversation with his commander, you had Panic

11 right there on the stand. Nobody asked him: Were you a party to that

12 conversation, General? That was not asked. If you were a party, what

13 did you say during the conversation? Not a question about that. If he

14 was not a party, could you hear the conversation, General? Not a word

15 about that.

16 I make a short pause here, Mr. President, just to say that it is

17 very significant that this morning the Prosecution asked the Appeals

18 Chamber to apply specific findings on credibility drawn by the

19 Trial Chamber, whereas to apply this to questions that were never put to

20 Panic. Now, that's quite incredible, but I move on.

21 Thirdly, also on the basis that a number of other witnesses

22 appeared which could have been asked if Panic heard and what Panic heard

23 or what was said. No questions were asked to any other witness.

24 Now, this conclusion is supported by the Trial Chamber's finding

25 at paragraph 389. The Trial Chamber found Lieutenant-Colonel Panic was

Page 108

1 there. No comments were made by the Trial Chamber, no information was

2 provided regarding what Panic could have said, could have heard or said

3 during this conversation. Of course, the Trial Chamber was not as

4 surprised, because as mentioned by the Trial Chamber in footnote 1553, it

5 is based solely on the testimony of Sljivancanin and nothing else.

6 Now, even though the Appeals Chamber stated at paragraph 61 that

7 there is no evidence that Sljivancanin was informed of the withdrawal in

8 the course of his meeting with Mrksic and Panic, which appears to be a

9 different finding on its face, we now know based on the accurate

10 interpretation in English of Sljivancanin's testimony in B/C/S, that

11 Sljivancanin really had a conversation with his commander in the presence

12 of Panic, exactly as the Trial Chamber found.

13 I take this, Mr. President, from the fact that during his

14 testimony Sljivancanin really said: I wanted to tell, and not: I wanted

15 to tell them. That is transcript 13987, lines 5 to 7.

16 And also because he really said "I called in to Colonel Mrksic ,"

17 pause, and "I briefly informed him" and not "I informed them ."

18 Transcript 13665, lines 14 to 18.

19 Considering, Mr. President, that the Appeals Chamber quoted the

20 exact same transcript references as the Trial Chamber did in support of

21 this statement and that no new evidence was proffered by the Prosecution

22 on appeal concerning this event, we respectfully submit that this is not

23 a contentious issue. It follows, Mr. President, that the Appeals Chamber

24 indeed did not know that Panic heard the conversation, that Mrksic did

25 not, during this conversation, tell Sljivancanin about the withdrawal.

Page 109

1 Now, that's only the first step. There's a second step to this analysis.

2 Quite simply, if you look at the inference adopted by the Appeals Chamber

3 at paragraph 62, and I read the inference: The only reasonable

4 conclusion that can be drawn is that Mrksic must have told Sljivancanin

5 that he had withdrawn the JNA protection from the prisoners of war out of

6 Ovcara and thus also Sljivancanin's responsibility for the prisoners of

7 war.

8 In drawing this far-reaching inference, it is of the utmost

9 importance to recall, Mr. President, that the Appeals Chamber neither

10 referred to the role of Miodrag Panic during and/or in respect of the

11 Mrksic/Sljivancanin conversation, nor to what he heard of this

12 conversation. We must recall in Celebici the Appeals Chamber found at

13 paragraph 458 that:

14 "If in a case of circumstantial evidence there is a conclusion

15 which is reasonably open from the evidence and which is consistent with

16 the innocence of the accused, he must be acquitted."

17 The Appeals Chamber recently reiterated this finding or this

18 holding in the Boskoski appeals judgement at paragraph 271.

19 It follows, Mr. President, that an inference such as the one that

20 was drawn at paragraph 62 of the appeals judgement can only be drawn if

21 it is the only reasonable conclusion available on the basis of the

22 evidence on the record. The Appeals Chamber knows its own case law and

23 there's no doubt, this is not an appeal. We don't doubt that the

24 Appeals Chamber applied its own case law, but obviously if the

25 Appeals Chamber had known of the new information proffered by Panic

Page 110

1 during his testimony this morning, that he heard the conversation, and

2 that Mrksic did not tell Sljivancanin about the withdrawal, then the

3 Appeals Chamber would have done one of two things. Either the Appeals

4 Chamber would simply not have drawn the inference that Mrksic must have

5 told Sljivancanin about the order; or, if the Appeals Chamber still

6 decided to draw this inference, while before drawing such a far-reaching

7 inference, I have no doubt that the Appeals Chamber would have explained

8 why the fact that Panic said that he heard the conversation and that

9 Mrksic did not tell Sljivancanin that this was not an obstacle to the

10 Appeals Chamber drawing that inference.

11 So what I'm saying in a nutshell, the fact that the

12 Appeals Chamber neither referred to the role of Panic during the

13 conversation or in respect of the Mrksic/Sljivancanin conversation, nor

14 even to the fact that he heard the conversation, that makes it clear that

15 the evidence proffered this morning by Miodrag Panic was not known to the

16 Appeals Chamber and indeed constitutes a new fact.

17 In this regard, Mr. President, it is interesting to note the

18 Prosecution argument raised at paragraphs 13 and 14 of its response, that

19 the evidence proffered by Panic is not new because Panic said during his

20 testimony that he did not know who issued the order. Now, that's very

21 interesting because it actually supports what I'm telling you today.

22 Now, bearing in mind the testimony of Panic at trial. Firstly, he says I

23 know Sljivancanin spoke to the commander upon his return to the command.

24 That's 14330, line 7. Secondly, Panic says that he did not know who

25 ordered the withdrawal of the MPs from Ovcara.

Page 111

1 JUDGE MERON: Excuse me, Mr. Bourgon, as a very talented lawyer

2 for Mr. Sljivancanin, how come during the trial you did not try to

3 question Mr. Panic more closely about the content of the conversation?

4 MR. BOURGON: Because at the time, Mr. President, it was not a

5 relevant issue. At the time what was of interest to counsel representing

6 Sljivancanin -- now, of course, I was not there but I'm perfectly

7 familiar with the record and able to answer. What was relevant at the

8 time, Mr. President, was whether Sljivancanin was actually present for

9 the daily briefing. And why was this important? Because of the

10 Prosecution's case. The Prosecution's case - and this morning it looked

11 like they were going back to their initial case of a joint criminal

12 enterprise. So it was very important for counsel for the Defence of

13 Sljivancanin to establish that he was not present at the briefing. Why?

14 Because there was evidence coming in because -- during the Prosecution's

15 case that this is where and around the time that the order was given. So

16 to show that he was not part of that joint criminal enterprise, the focus

17 of the Defence case was exactly to show that he was not at the briefing.

18 When Mr. Panic answered that he was not at the briefing, there

19 was no reason to question him further. Had the Prosecution put the case

20 to Sljivancanin when he testified, of course the Defence would have asked

21 Panic, of course it would; but it didn't. Had the Prosecution put the

22 question to Panic: What did you hear? Of course the Defence would have

23 done something about that, but it didn't.

24 JUDGE MERON: But what about the 8.00 p.m. meeting?

25 MR. BOURGON: Well, the 8.00 p.m. was exactly this,

Page 112

1 Mr. President, it was Sljivancanin arriving at the command, arriving late

2 at the command. And when he arrived, the briefing was over. That was

3 it. That was the issue that was of importance to the Defence, and the

4 Defence moved on. When Panic testified, Mr. --

5 JUDGE MERON: But the meeting went on and things could have been

6 said during that meeting. Wasn't it natural that you would ask Panic

7 questions about it? Did you hear anything about the order? Didn't you

8 hear anything about the order?

9 MR. BOURGON: Well, Mr. President, we're on the Defence side. If

10 somebody must establish something, it's the Prosecution. If the

11 Prosecution had put questions, they have the burden of proof. The

12 Defence does not have any obligation or any need and it would be stupid

13 for the Defence to go into events that it doesn't have the answer. It's

14 a basic line that you never ask a question to which you don't know the

15 answer. I'm sure Mr. Lukic wished that he had asked Mr. Panic about that

16 conversation when he met with him before his testimony. I wish -- I'm

17 sure Mr. Lukic would dream that during the trial that issue would have

18 come out because we wouldn't be here today, but it didn't and we can't be

19 blamed for that. The Defence cannot be blamed for this at all,

20 Mr. President.

21 Thank you. Now, I move on to the thing that -- my argument which

22 was that Panic said: I know Sljivancanin talked to the commander, but I

23 don't know who issued the order for the withdrawal -- I don't know -- no,

24 sorry. He knows that Sljivancanin talked to the commander upon his

25 return to the command. That's 14330, line 7. And secondly, he said that

Page 113

1 he did not know who ordered the withdrawal of the MPs from Ovcara.

2 Now, if you take these two things together, it follows that if

3 the Appeals Chamber had known or if it had been established that Panic

4 either was a party to the conversation or that he heard the conversation,

5 then the Appeals Chamber could not have drawn the inference without first

6 distancing its from what Panic said, or else the inference could not be

7 the only reasonable conclusion.

8 Consequently, the fact that the Appeals Chamber - now we're

9 looking at what is existing today and not maybes - the Appeals Chamber

10 did not enter into such details. It demonstrates that the Appeals

11 Chamber did not know that Panic heard the conversation and that the

12 Appeals Chamber did not -- certainly did not know that Panic heard that

13 Mrksic did not tell Sljivancanin about the withdrawal. Hence, the

14 argument put forward by the Prosecution actually confirms that the

15 evidence proffered by Panic this morning is indeed a new fact.

16 I have 15 more minutes to go, Mr. President. I move to my third

17 argument, and that is that our submission that another way to consider

18 this, the evidence of Panic, is to look at all previous decisions

19 rendered by the Appeals Chamber of both the ICTY and the ICTR in respect

20 of applications for review. To this day, some 18 applications for review

21 have been filed before the Appeals Chamber. I say some 18 because we --

22 you well know, Mr. President, there were some mixed applications for

23 review and reconsideration. Some 18 applications. One such application

24 was granted, while all others were denied.

25 I hesitate in saying this, but I have to, Mr. President. I know

Page 114

1 how difficult these applications are for the Appeals Chamber. I know how

2 important the finality of judgements is. I know that. It's been a long

3 time when I was chef de cabinet in this place, but I do remember, just as

4 Judge Guney, I'm sure, remembers the secretary I gave him when I was chef

5 de cabinet. I remember sitting with the Judges when the Barayagwiza

6 application was granted. I know the debates. I know how it took place.

7 I know how it was done. I know how difficult it is. But when we have

8 exceptional circumstances, it is important, Mr. President, that we take

9 them into consideration.

10 Now, looking at this application, the Barayagwiza application,

11 which was granted, it reads the following:

12 The Appeals Chamber held "a relevant new fact emerges from this"

13 application. "In its Decision, the Chamber determined from the basis of

14 the evidence adduced at the time that 'Cameroon was willing to transfer

15 the accused' as there was no proof to the contrary. The above

16 information, however," the new fact, "goes to show that Cameroon had not

17 been prepared to effect its transfer before 24 October 1997. This fact

18 is new."

19 That's what the Appeals Chamber said at paragraph 57. It is

20 evident that applying this finding to the ICTR Appeals Chamber to the

21 present case, that the evidence of Witness Panic heard this morning is

22 indeed a new fact. The Appeals Chamber adopted the inference at

23 paragraph 62 on the basis that there was no direct evidence that Mrksic

24 told Sljivancanin that he had withdrawn the MPs from Ovcara. The

25 evidence of Witness Panic not only provides direct evidence as to what

Page 115

1 was said, it also provides evidence that Mrksic did not tell Sljivancanin

2 about the withdrawal during this conversation.

3 Other examples where the Appeals Chamber concluded that the

4 evidence proffered did constitute new facts, even though these

5 applications were later denied for other reasons, can be found in Tadic

6 motion for review, 30 July 2002. The Appeals Chamber said:

7 "Findings of the Appeals Chamber made after the final judgements

8 were considered as new facts."

9 In Josipovic, first motion for review, 7 March 2003, where the

10 discovery of a policeman who resembles Josipovic and who could have been

11 involved in the attack on Ahmici was considered to be a new fact because

12 it was not litigated at trial.

13 In the Rutaganda application for review, 9 December 2006, where

14 findings were made in another case on the general lack of credibility and

15 about the fact that statements given to Rwandan authorities prior to the

16 testimony of some witnesses -- of two material witnesses were considered

17 new facts because they were not in issue at trial.

18 Comparing these three instances to the evidence provided by Panic

19 this morning, which was neither known by the Appeals Chamber nor

20 litigated and/or in issue at trial or on appeal because no questions were

21 put to the relevant witnesses, inter alia, that's one of the reasons,

22 reveals the same conclusion. The information provided by Panic is indeed

23 a new fact.

24 As for the other decisions rendered by the Appeals Chamber, the

25 nine applications for review, the rationale appears to have been quite

Page 116

1 constant that the proposed evidence constituted additional evidence of

2 the fact in issue, and therefore were not new facts.

3 If we consider the testimony of Witness Panic, we -- it is our

4 respectful submission that it cannot be considered to be additional

5 evidence of a fact in issue. This rationale simply does not apply in the

6 present case. That is why this case not only raises some exceptional

7 circumstances but can be distinguished from all other applications which

8 have been denied.

9 I can move into explaining why the fact was not in issue, but the

10 Trial Chamber's conclusion was that Sljivancanin does not possess the

11 requisite mens rea for aiding and abetting murder as long as he was under

12 the understanding that the JNA troops remained at Ovcara. That's the

13 finding, that's the part that was in issue at trial.

14 Whether Sljivancanin learned that the JNA troops guarding the

15 prisoners at Ovcara were removed, a far-reaching interpretation would say

16 it probably became an issue when the Appeals Chamber put the question to

17 the parties at the end of the appeal, when all briefs were in, and then

18 there were oral arguments. However, considering the findings of the

19 Trial Chamber that Mrksic issued the order to withdraw the MPs from

20 Ovcara, that Sljivancanin was not involved in the transmission of this

21 order, and while it may also be considered on that basis that whether

22 Sljivancanin learned that Mrksic had withdrawn the MPs from Ovcara and if

23 so when, whether that was an issue on appeal because of the question put

24 by the Appeals Chamber, it is significant that this was not the

25 Prosecution's theory and has never been until final oral arguments.

Page 117

1 Quite to the contrary. The Prosecution's second ground of appeal was the

2 following:

3 "It was unreasonable for the Trial Chamber to find that it was

4 unable to conclude that at the time of its visit to Ovcara Sljivancanin

5 was aware that the prisoners of war would probably be murdered."

6 More importantly, if we look at the evidence adduced by the

7 parties at trial, especially by the Prosecution, it is evident that the

8 issue whether Sljivancanin learned that Mrksic had withdrawn the MPs from

9 Ovcara was not litigated and certainly not disputed by the parties. The

10 only witnesses who said anything about that conversation between Mrksic

11 and Sljivancanin is Sljivancanin himself. And the Prosecution never put

12 the question to him: Did Mrksic inform you or didn't Mrksic tell you,

13 Mr. Sljivancanin? Nothing like that. He was questioned, but not on that

14 issue.

15 All other witnesses who testified at trial and who could have

16 offered any evidence in relation to the issue whether Sljivancanin

17 learned that Mrksic had ordered the withdrawal of the MPs from Ovcara

18 were meant -- never put to any witnesses in this regard. Now, this

19 includes Trifunovic, Gluscevic, Vukasinovic, Sljivancanin, Vojnovic, and

20 Lesanovic, and of course Witness Panic whom we've heard this morning.

21 Consequently, Mr. President, whether and when Sljivancanin

22 learned that Mrksic had withdrawn the MPs from Ovcara were certainly not

23 disputed by the parties at trial and was not disputed on appeal and no

24 new evidence was submitted by the Prosecution on appeal, even though the

25 burden of proof rests on the Prosecution. In these circumstances, the

Page 118

1 direct evidence by Panic that Mrksic did not inform Sljivancanin that he

2 had withdrawn the MPs from Ovcara can in no way considered to be

3 additional evidence.

4 I move on quickly. I have I think three minutes left. My fourth

5 and last argument, Mr. President.

6 It is our respectful submission that the arguments put forward by

7 the Prosecution in arguing that the evidence by Panic is not a new fact

8 focuses on details, just as my colleague did this morning when

9 cross-examining Witness Panic, but that they missed the most obvious

10 conclusion, which stems from the testimony of Witness Panic and on which

11 the present review application rests. In other words, the Prosecution is

12 asking you to look at the trees while at the same time it is telling you

13 to ignore the forest. On the one hand the acquittal of Sljivancanin was

14 reversed on appeal on the basis of a single watershed inference made in

15 the absence of direct evidence that Mrksic told Sljivancanin about the

16 withdrawal. On the other hand, the evidence proffered by Witness Panic

17 provides a source of direct evidence, while establishing that Mrksic did

18 not tell Sljivancanin about the withdrawal during that conversation.

19 Mr. President, if that doesn't qualify as new fact, then nothing

20 ever well. The purpose of Article 26 applications is precisely to

21 prevent a miscarriage of justice in situations where new information

22 unknown to the deciding body at the time the decision was rendered makes

23 it clear that the decision was erroneous. It is obvious that the

24 evidence offered by Witness Panic is one such situation. Yes, that is

25 the -- the Prosecution is asking you to ignore, the forest. We, on the

Page 119

1 other hand, take this opportunity to recall the holding of the ICTR

2 Appeals Chamber in the Barayagwiza case which is directly applicable

3 because to reject the fact by Panic in the light of the impact on the

4 decision would indeed be to close one's eyes to reality.

5 A quick, Mr. President, conclusion, simply to say - I had more

6 but I will stop here - simply to say that I raise today four different

7 ways to look at new fact: A case law, the jurisprudence, the plain

8 meaning of the words, and the forest test. You look at any way you want

9 at -- if you try to find that the thing that -- this was an issue at

10 trial, it was not. Any way you look at it, we find that what Panic said

11 this morning is indeed something that is new and that was unknown to the

12 deciding body.

13 I close with one quick sentence, and very quickly because it's

14 not the gist of our application today. But should there be any doubt

15 that it's not a new fact, that it's not a new fact, then we say as two

16 learned Judges have put in separate opinion - yourself, Mr. President,

17 and Judge Shahabuddeen - you still have the power as the Appeals Chamber

18 to make things right. Of course, that's not what we're asking today.

19 But if it's not a new fact - and we are certain that it is a new

20 fact - but even if that is not, you still have the power to make things

21 right and that is very important because you heard the man this morning

22 and that was not told to Sljivancanin in the night of 20 November 1991

23 and his conviction cannot stand.

24 Thank you, Mr. President.

25 JUDGE MERON: Thank you, Mr. Bourgon, for your argument.

Page 120

1 And, Ms. Brady, you're taking over. You have 45 minutes.

2 MS. BRADY: Thank you, Your Honour.

3 Good afternoon, Your Honours. Panic's evidence, even if it were

4 to be accepted - which for all the reasons given by my colleague

5 Mr. Rogers this morning it should not be - but even if it were to be

6 accepted by you, it still doesn't meet the test for a new fact which is

7 required to trigger a review by the Appeals Chamber of its judgement.

8 And for this reason, Sljivancanin's application must be dismissed.

9 Based on consistent ICTY and ICTR Appeals Chamber jurisprudence,

10 his testimony that we heard today does not amount to a new fact. During

11 both the trial and the appeal, the issue of what Sljivancanin -- excuse

12 me, whether Sljivancanin learnt of the withdrawal of the 80th Motorised

13 Brigade from Ovcara; who he learnt it from, that is, Mrksic; when he

14 learnt it, that is, at 2000 hours on the 20th of November; where he

15 learnt it, that is, at the command post; and how he learnt it, that is,

16 in that meeting, was litigated and considered. Sljivancanin testified

17 about these matters, and we disagree with Mr. Bourgon's point about this

18 in the -- that he's just made. We disagree with him when he says it's

19 not additional evidence of those facts; in fact, Panic's testimony that

20 we've heard today is simply additional evidence of the facts that were

21 previously litigated and considered. And on the case law, this is

22 insufficient to trigger a review.

23 Your Honours, in the case law on review proceedings, the Appeals

24 Chamber has carefully distinguished between on the one hand a fact -- a

25 new fact, and on the other hand what is additional evidence of a fact

Page 121

1 which has already been litigated or considered by the original deciding

2 Chamber. And the Appeals Chamber has defined a new fact as this, and I'm

3 quoting:

4 "Information of an evidentiary nature supporting a fact that was

5 not in issue during the trial or appeal proceedings. The requirement

6 that the fact was not in issue during the proceedings means that it must

7 not have been among the factors that the deciding body could have taken

8 into account in reaching its verdict."

9 And as we know, only a showing of a new fact will open the door

10 to review proceedings. As you've emphasized, this Chamber's emphasized

11 in the Delic review decision, where the additional material proffered

12 consists of a new fact, that is, a fact which was not in issue or

13 considered in the original proceedings, a review pursuant to Rule 119 is

14 the appropriate procedure which must be taken before the Chamber which

15 gave the final judgement upon the relevant issue.

16 "If the material proffered consists of additional evidence

17 relating to a fact which was in issue or considered in the original

18 proceedings, this does not constitute a new fact within the meaning of

19 Rule 119 and the review procedure is not available."

20 And as I'll develop during the course of my submissions this

21 afternoon, the Appeals Chamber's approach that it has taken to defining a

22 new fact reflects the exceptional nature of the review proceeding, and in

23 particular the interest in finality and certainty of judgements.

24 Now, coming right to the point of what is the new fact. The

25 applicant, Mr. Sljivancanin, says that this new fact coming -- emanating

Page 122

1 from Panic's testimony is that Panic, who was present during the

2 conversation between Mrksic and Sljivancanin on the night of the 20th of

3 November, that he heard the conversation, but he did not hear Mrksic tell

4 Sljivancanin that he had ordered the withdrawal of the 80th Motorised

5 Brigade from Ovcara.

6 Having framed the alleged new fact in this very specific way,

7 this very narrow way, he then looks back at the trial and the appeal

8 proceedings and he argues that this specific piece of evidence -- in

9 fact, we heard in his submissions a number of times, he's always

10 referring -- most frequently referring it as evidence. This specific

11 piece of evidence was not considered or taken into account by the

12 Trial Chamber or the Appeals Chamber in reaching its decision. In our

13 submission, this approach is flawed. If you look at the 20 or so review

14 cases that have previously been considered by this Chamber, what is

15 necessary is to first identify correctly the facts that were in issue in

16 the original proceedings. And having done this, the new information has

17 to be then assessed to see if it can be deemed indeed a new fact or

18 whether it's simply additional evidence of a fact already litigated or

19 considered by the deciding Chamber.

20 And in our submission, applying the proper approach to this case,

21 what Sljivancanin learnt once he returned to the command post at

22 Negoslavci at 2000 hours on the relevant evening, in particular whether

23 he learnt that Mile Mrksic had withdrawn the remaining JNA troops from

24 Ovcara was a fact in issue in both the trial and the appeal proceedings.

25 And I'll start first with the appeal proceedings, since that's the stage

Page 123

1 in which the factual finding was made.

2 It's not correct -- it's not true to say, as Mr. Bourgon has,

3 that the issue didn't crystallise until the questions were put by the

4 Appeals Chamber. In fact, the Prosecution first raised the issue on

5 appeal in a substantive way in its Prosecution appeal brief filed in

6 January 2008. And, Your Honours, I'll briefly read just two paragraphs

7 from that brief to remind yourselves of our position on this. Paragraph

8 76 of the Prosecution appeal brief we argued this:

9 "Later that night at approximately 2000 hours Sljivancanin

10 learned more about the events at Ovcara, including that Mrksic had

11 ordered the JNA to withdraw."

12 Then at paragraph 102 we elaborated further:

13 "Sljivancanin returned to Negoslavci at approximately 2000 hours

14 on the 20th of November, 1991, and was briefed on events at Ovcara by

15 Major Vukasinovic. He then reported to Mrksic. The only inference

16 available on this evidence was that Sljivancanin was informed of Mrksic's

17 order upon his return to Negoslavci. Sljivancanin admitted that he had a

18 conversation about the transfer of the prisoners when he returned to

19 Negoslavci that night."

20 And the footnote for that is a reference to Sljivancanin's

21 testimony about this meeting that he had with Mrksic when he returned to

22 the command post.

23 Now, the Trial Chamber hadn't made an affirmative finding on this

24 issue of whether he learnt and how he learnt it. If you look at the

25 trial judgement paragraph 389 and 661, they didn't make an affirmative or

Page 124

1 positive finding in favour of the Prosecution on that point. So it was

2 an important point to establish, a finding on this issue had to be made

3 by the Appeals Chamber in order to trigger Sljivancanin's duty to protect

4 the prisoners. And the factual finding at issue -- it's clear from what

5 I've read, the factual finding at issue concerned Sljivancanin's

6 conversation with Mrksic that evening at the command post.

7 And the Defence answered in some detail in his response brief

8 several paragraphs were dedicated to this issue, paragraphs 178 to 179

9 and 208 to 216. Sljivancanin not only denied being aware that Mrksic had

10 issued an order to withdraw the JNA from Ovcara, but he specifically

11 argued that:

12 "The evidence as well as the conclusions of the Trial Chamber do

13 not show that Mrksic informed Sljivancanin that he had ordered the JNA

14 security to be withdrawn from Ovcara on 20 November 1991."

15 So this issue, what Sljivancanin learned that evening, and his

16 conversation with Mrksic in particular, was a factual issue for

17 determination in the appeal. And the parties clearly saw it that way.

18 The Appeals Chamber recognised this in its addendum to the Scheduling

19 Order, which came out a couple of weeks I think before the appeals

20 hearing. It focused on -- the Chamber focused on Sljivancanin's claim

21 that he didn't know that Mrksic ordered the withdrawal, and the parties

22 were asked to elaborate on this issue, this very factual issue, when

23 Sljivancanin learned of Mrksic's order to withdraw the JNA troops.

24 And the parties gave extensive answers on this issue at the

25 appeals hearing. That's at transcripts pages 219 to 224 for the

Page 125

1 Prosecution's submissions on this point and 283 to 287 for the Defence

2 submissions.

3 And we advocated that the only reasonable conclusion was that

4 when he returned to the command post that night at that time, 2000 hours,

5 that he must have learnt of the withdrawal order and pointing in

6 particular to his conversation with Mrksic and its content. And I recall

7 reading large chunks -- quotes of Sljivancanin's testimony, direct

8 evidence about this conversation. And the Appeals Chamber itself then

9 devoted the majority -- devoted two lengthy paragraphs on this issue to

10 what Sljivancanin found out when he returned to the command post. It

11 looked at -- the Chamber must have looked at the totality of the evidence

12 in the trial record, including Sljivancanin's testimony about his

13 conversation with Mrksic, amongst which topics they discussed with the

14 facts that the prisoners were at Ovcara and were now under the authority

15 of the SAO government. The relevant parts of Sljivancanin's testimony

16 being 13665 and 13983 to 13988. And from this, the Appeals Chamber made

17 its critical finding in paragraph 62 that Mrksic must have told

18 Sljivancanin he had withdrawn the troops from Ovcara.

19 Now, before I move on to speak about the issue -- this factual

20 issue being litigated at trial, I do want to make one comment about

21 Mr. Bourgon's submissions on the changes in the translation from B/C/S

22 into English.

23 In our submission, none of the changes that were made that were

24 approved by the CLSS from the B/C/S into English about that conversation

25 affect the import of the conversation. But there is one point I do wish

Page 126

1 to correct because Mr. Bourgon indicated that the testimony of

2 Sljivancanin had been corrected -- this is Sljivancanin's testimony at

3 13665. He said that it had been corrected in -- if I understand

4 correctly in two points. And we agree with the first point but not with

5 the second. It's true that the translation has been corrected so that it

6 now says that Sljivancanin called in on Colonel Mrksic instead of using

7 the word I think "reported." But Mr. Bourgon also mentioned that the

8 change was made by CLSS so that it now reads "I briefly informed him on

9 what was basically happening with the hospital."

10 But in fact, Your Honours, that change was not accepted by CLSS.

11 CLSS in fact kept the original wording "I briefly informed them," and

12 relevant as well to this point is that if you take a look at a further

13 part of Sljivancanin's evidence - and this is when he's under

14 cross-examination at 13983 - in fact, under cross-examination

15 Sljivancanin again gives his version of the conversation or part of it

16 and he says at paragraph -- at page 13983, line -- well, I'll start at

17 line 18, Sljivancanin answers:

18 "I went to see Mrksic to tell him what I'd seen at the hospital

19 and what happened at the hospital that day and to see what would be

20 further tasks and duties."

21 And then dropping down to line 22 he says this:

22 "And since the Chief of Staff, Mr. Panic, was there, I believed

23 them to be in the know, in the sense of knowing exactly what was going

24 on, why those people had gone there."

25 Which does tend to support the version of CLSS, that he

Page 127

1 originally briefed them.

2 Your Honours, the issue of Sljivancanin's knowledge that night

3 when he returned to the command post and his conversation with Mrksic was

4 also a factual issue at trial. I've spoken already about the appeal

5 stage, but the Appeals Chamber clearly made its findings on the basis of

6 evidence and factual findings of the Trial Chamber.

7 Now, the fact that the Prosecution's case at trial was more

8 extensive -- because at trial the Prosecution alleged that Sljivancanin

9 was part of a joint criminal enterprise to harm and to kill the

10 prisoners, and also we alleged that he had himself been involved in the

11 transmittal of the order, of the withdrawal order, but that fact does not

12 mean, as he argues or he argued today, that what he learnt, what

13 Sljivancanin learnt when he returned to Negoslavci and his conversation

14 with Mrksic were not facts in issue. And allow me to explain what I

15 mean.

16 To the contrary, what Sljivancanin did and what he knew in the

17 evening when he got back were relevant, both to a proper consideration of

18 his earlier conduct, whether it was part of the Prosecution's theory on

19 joint criminal enterprise or not, what he found out later was still

20 relevant to a proper consideration of his earlier conduct and to his

21 Defence of those matters. And no doubt that's part of the reason -- one

22 of the reasons why Sljivancanin's counsel actually asked Sljivancanin

23 about his meeting with Mrksic. Let's -- we recall that the conversation

24 that Sljivancanin had with Mrksic was first raised by a question in

25 examination-in-chief. And the tenor of the question and the answer shows

Page 128

1 that it was being done to show that Sljivancanin when he got back to the

2 command post that night, it was more or less business as usual, he was

3 asking for his next tasks and duties, and he didn't get any information.

4 He continued to remain uninformed about the fate of the prisoners. That

5 is more or less the purpose of this line of questioning.

6 Indeed, his evidence -- his state of mind after the events has

7 always -- has been an even more longer-term issue. His evidence at trial

8 was that he remained ignorant of the fate of the prisoners until many

9 years later, something like 1998 when he actually found out, he says, for

10 sure about what happened to the prisoners. He heard rumours swirling

11 around, but he says he didn't know for sure until he called to the

12 military proceedings in Belgrade in 1998.

13 So what he knew and what he found out always was a very relevant

14 issue for him both in meeting the Prosecution's case and in running his

15 defence.

16 What's also interesting to note is that at trial Sljivancanin

17 also had to deal with or meet Mrksic's defence. Now, Mrksic's defence --

18 now, Mrksic's defence was not accepted by the Trial Chamber or the

19 Appeals Chamber, but it's relevant to an understanding of what were the

20 facts in issue at the trial. Because Mrksic's defence was that sometime

21 between 7.00 to 8.00 that night he left Negoslavci on a helicopter and

22 went to Belgrade and leaving his Chief of Staff, deputy commander Panic,

23 in charge. And Mrksic's argument - again, it wasn't accepted - but his

24 argument was that the order to withdraw happened on Panic's watch, and he

25 pointed to the security administration as the likely source.

Page 129

1 So again, what Sljivancanin knew, his interactions and his

2 discussions with Mrksic that evening, were facts in issue -- facts in

3 issue, given this attempt by Mrksic to shift the blame to Panic and the

4 security administration, and thereby also by implication to Sljivancanin.

5 In fact, when cross-examined by Mrksic's counsel about the timing of his

6 conversation with Mrksic that evening, and in particular Sljivancanin's

7 claim that Mrksic had told him that the government had taken over the --

8 a group of suspects, Sljivancanin said this under cross-examination by

9 Mr. Vasic, this is at transcript 13724 to 725:

10 "... I know not 100 per cent, but with 1 million per cent

11 certainty that I was at the commander's on the 20th, in the evening. As

12 for the government session, before hearing about it from the commander, I

13 heard it from my security officer, Srecko Borisavljevic."

14 So for Sljivancanin to now say that the issue of what he found

15 out that evening about the prisoners and in particular their loss of

16 protection, the withdrawal of the security detail, was not a live issue

17 during the trial proceedings is baseless.

18 The Trial Chamber didn't make an affirmative finding as to

19 whether Sljivancanin learnt about the withdrawal order that evening,

20 didn't make a positive finding on that issue, but this doesn't mean as

21 Sljivancanin alleges that somehow it didn't consider the matter. If you

22 look at the clear wording of paragraphs 389 and 661, it shows that the

23 Trial Chamber did consider the issue but they weren't sufficiently

24 persuaded by the evidence to make a finding. And that's exactly why we

25 asked Your Honours on appeal to make this finding because the

Page 130

1 Trial Chamber had not made a finding in favour of the Prosecution.

2 So in a nutshell, Your Honours, those are the previously

3 litigated facts: What he learnt, the withdrawal of the 80th from Ovcara;

4 who he learnt it from, Mrksic; when he learnt it, at 2000 hours on the

5 20th of November, 1991; where he learnt it, at the command post; and how

6 he learnt it, in that meeting.

7 If we now turn to examine Panic's recent evidence, recent

8 testimony that we heard this morning and compare it to these facts which

9 were already litigated and considered, it is simply additional evidence

10 pertaining to these already-litigated facts. And in fact several times

11 in his written submissions the applicant has said it's evidence

12 corroborating Sljivancanin's evidence at trial.

13 Now, the gist of his argument today is that neither the Appeals

14 Chamber or the Trial Chamber had before it this specific piece of

15 evidence that Panic now provides, that Panic did not hear Mrksic tell

16 Sljivancanin that he had ordered the security detail to be withdrawn.

17 There are two answers to this. Firstly, even if you were to take a more

18 elastic approach to the concept of a new fact in this case, even if you

19 were to adopt the approach being advocated by Mr. -- by Mr. Sljivancanin

20 and his team, this evidence was already before the Trial Chamber and the

21 Appeals Chamber. You have to consider two different factors in this:

22 Firstly, both Sljivancanin and Panic testified at trial that Panic was

23 present when Sljivancanin met with Mrksic that evening. Mr. Rogers this

24 morning read to you Panic's evidence at transcript 14330, just to remind

25 you what he said. Panic's -- Panic was asked whether Sljivancanin

Page 131

1 attended the 6.00 p.m. briefing: "Do you have any memory of that" and

2 "did you see him that evening at all."

3 And after going through the -- that he doesn't remember seeing

4 him at the briefing, Panic then says that:

5 "I think he came," he being Sljivancanin, "I think he came, say,

6 around 2000 hours and I know that he talked to the commander."

7 So there's no issue; he's there.

8 Now, Panic testified at trial that he never knew who ordered the

9 withdrawal. His position is he never knew who ordered the withdrawal,

10 but basically over time he has some to accept or to conclude, reluctantly

11 or otherwise, that it must have come from Mrksic. And I invite Your

12 Honours to read carefully Panic's testimony at pages 14409 to 10 and

13 14498 to 502. I will briefly go into this testimony to make this point.

14 At transcript page 14409 Mr. Panic was asked this:

15 "Q. Well, who was tasked with handing over those people to the

16 civilian authorities?

17 "A. Well, that's the problem, that's the issue that has to be

18 proved.

19 "Q. Do you know this?

20 "A. No, I don't. But when this becomes evident, then the truth

21 will be known about these events. There was supposed to be no hand-over

22 to anyone by our command. They were supposed to be screened, selected.

23 The combatants were supposed to be separated off from the non-combatants,

24 the patients, and the wounded, and they were to be transported to Sremska

25 Mitrovica. Nowhere was anything said by anyone in anyone's presence at

Page 132

1 the command post, in the barracks, or anywhere else in the area at that

2 time about their handing over to the civilian authorities. The problem

3 of who handed them over is something that has to be proved, and when this

4 is proved it will be easier to arrive at the truth about this case."

5 So here he is saying no one ever said anything, including at the

6 command post. And he knows -- at trial, he knows this is the crux of the

7 issue in the case. He in fact again this morning referred to this as the

8 crux of the matter.

9 I also take you to his -- a later part of his evidence at

10 14498 [sic] to -- this is Panic under cross-examination by the

11 Prosecution, where he reluctantly concludes that the order must have come

12 from Mrksic. It was a bit surprising today to hear his submissions that

13 he was so surprised when he read the appeal judgement because, in fact,

14 at trial he had more or less reached the conclusion that Mrksic must have

15 ordered it. But nevertheless, you can make that -- make of that what you

16 will. But at page 14498, the Prosecution is putting to Panic his

17 previous OTP statement and in particular paragraph 92 of that OTP

18 statement. And he reads it to -- Mr. Weiner, the Prosecution trial

19 attorney reads it to Panic. Question -- he quotes from paragraph 92 of

20 the OTP statement:

21 "Q. 'In my opinion, the two central issues concerning Ovcara

22 are: One, how long the JNA can secure the hangar. Two, why did the JNA

23 leave the area. The order for the withdrawal of the military police

24 could have been issued only by the commander of the military police of

25 either the Guards Motorised Brigade or the 80th Motorised Brigade. As

Page 133

1 the commander of OG South, Colonel Mile Mrksic was the highest-ranking

2 commander in the area. This means the order of the JNA withdrawal must

3 have been issued or at least authorised by him. I know Mrksic very well

4 and cannot imagine he would have issued such an order. However, the

5 order for withdrawal of military police could have only come from him.

6 The military police of the 80th Motorised Brigade withdrew on JNA orders.

7 They were not forced out by the local Serbian TO.

8 Lieutenant-Colonel Vojnovic could have issued the order for the

9 withdrawal of the military police but not without consulting Mrksic. It

10 is possible that someone carried out the withdrawal of the military

11 police of the 80th Motorised Brigade without'" his "'authorisation, but

12 that would represent a violation of the regulations.'"

13 He's asked:

14 "Is that what you said, sir?"

15 And he answers:

16 "Yes."

17 And then for the next four or so pages Panic agrees with each of

18 the propositions in greater detail in that statement.

19 So from these facts, the facts that he was present and the facts

20 that he never knew that Mrksic had given the order to withdraw. These in

21 fact established at trial Panic's denial of having heard Mrksic tell

22 Sljivancanin on the evening or, indeed, ever that he had ordered the

23 withdrawal of the 80th from Ovcara. Now, it's true that Panic never

24 affirmatively said at trial the words -- he never said in his testimony:

25 I did not hear Mrksic tell Sljivancanin he had ordered the withdrawal of

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1 the security detail at Ovcara. But in fact it's the only logical

2 implication of his and Sljivancanin's trial evidence. So that's

3 addressing the evidence put forward in the interpretation of new facts

4 that Mr. Bourgon would give to it. We say that that is actually too

5 narrow, but even if you take that narrow approach this matter was already

6 before you and before the Trial Chamber.

7 But secondly, and the more correct approach, is that Panic adds

8 nothing more to what Sljivancanin already testified about at trial. What

9 he offers is simply additional evidence of a fact which has been

10 previously litigated and considered. This fact, which I've stressed

11 throughout the submissions, what Sljivancanin learned, when he learnt it,

12 where he learnt it, who he learnt it from, and how he learnt it. The

13 who, what, when, where, how that I've been speaking about this afternoon.

14 And this testimony that we heard today from Mr. Panic is no

15 different from the additional evidence which this Appeals Chamber has

16 rejected as a new fact in a host of previous review cases. And I think

17 we take quite a different view of the case law from that which has been

18 put forward by the applicant this afternoon. In fact, the overwhelming

19 majority of cases on this new fact support the Prosecution position. I

20 won't go through all those cases, but, for example, the Appeals Chamber

21 has rejected as a new fact new evidence which was put forward to

22 establish an alibi which had already been -- which had been presented at

23 trial. This is in the Josipovic 7 March 2003 case, the Niyitegeka case

24 or cases. And the reason that the Appeals Chamber gave is that because

25 the issue of alibi was previously litigated and considered at trial.

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1 The Appeals Chamber has also rejected as a new fact new evidence

2 which tended to show that a witness relied upon by the Trial Chamber for

3 a factual -- for a conviction was not credible. This is in the Naletilic

4 decision 19 March 2009 and the Niyitegeka case 12 March 2007. Why? Why

5 did it reject it? Because the issue of the credibility of the witness

6 had already been considered at trial.

7 Likewise, Your Honours have rejected as a new fact or rejected

8 classifying as a new fact evidence which was put forward which tended to

9 undermine the identity of the accused as the assailant of the crime.

10 This is in the Delic case, 25 April 2002. Again, if you look at the

11 reasoning, why was this? The Appeals Chamber said this is because the

12 identity of the accused as the person who took the victim out and beat

13 him had already been discussed and considered at trial.

14 Likewise, in the Radic case, 31 October 2006, this Chamber

15 rejected as a new fact new evidence which showed the accused had no

16 access to a room in which he had been found to have raped a victim. And

17 the reasoning was that the issue of accessibility and use of the room by

18 the accused had already been considered at trial.

19 And finally, Your Honours, you've rejected as a new fact in a

20 Prosecution application in the Blaskic case 23 November 2006, where you

21 rejected as a new fact new evidence showing that oral orders may have

22 been given by the accused, again, on the basis of the issue of whether

23 the accused ordered the crimes in Ahmici had already been considered at

24 trial, albeit in the form of written orders.

25 Panic's evidence is no different from any of these cases in which

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1 the Appeals Chamber rejected classifying the new information as a new

2 fact. And, in our submission, following these precedents, you should

3 likewise reject his testimony today as being a new fact sufficient to

4 trigger a review.

5 Your Honours, I won't address the other criteria for review, the

6 second and third criteria have been amply dealt with in our response

7 brief, as has the fourth criteria for review. We stand by our

8 submissions in the response brief.

9 In my conclusion, I would like to reiterate a couple of points

10 made by Mr. Rogers this morning about Panic's evidence. Panic's evidence

11 is not credible, it's not reasonably capable of belief; in our

12 submission, it's manufactured as a memory. It's offered 18 years after

13 the events to continue to try and distance himself and Sljivancanin from

14 any responsibility whatsoever for what happened to the prisoners at

15 Ovcara.

16 I also just will briefly respond to a point made by Mr. Bourgon

17 this afternoon, where he said he was surprised that the Prosecution had

18 asked this Chamber to apply specific findings on credibility by the

19 Trial Chamber and to apply this question -- apply this reasoning to

20 questions which were never put to Panic. Perhaps I have missed his

21 point, but he seems to miss ours. Our point is that the same fundamental

22 credibility analysis applied by the Trial Chamber should apply here

23 today. I mean, firstly, Your Honours, you have upheld the

24 Trial Chamber's credibility findings about Panic. But secondly, it --

25 the same reasoning applied by the Trial Chamber applies to your