1 Wednesday, 5 April 2006

2 [Defence Closing Statement]

3 [Open session]

4 --- Upon commencing at 9.03 a.m.

5 [The accused entered court]

6 JUDGE AGIUS: Madam Registrar, good morning to you. Could you

7 please call the case.

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

9 IT-03-68-T, the Prosecutor versus Naser Oric.

10 JUDGE AGIUS: I thank you, Madam.

11 Mr. Oric, can you follow the proceedings in a language that you

12 can understand or that you understand?

13 THE ACCUSED: [Interpretation] Good morning, Your Honours, ladies

14 and gentlemen. I can follow the proceedings in my own language.

15 JUDGE AGIUS: Okay. I thank you and good morning to you too.

16 THE ACCUSED: [Interpretation] Thank you.

17 JUDGE AGIUS: Appearances for the Prosecution.

18 MS. SELLERS: Good morning, Your Honours. I'm Patricia Sellers

19 for the Office of the Prosecution. With me today are co-counsel

20 Ms. Joanne Richardson, Mr. Gramsci di Fazio, and Mr. Jose Doria. Our case

21 manager is Donnica Henry-Frijlink.

22 JUDGE AGIUS: I thank you, Ms. Sellers, and good morning to you --

23 MS. SELLERS: Good morning to the Defence also.

24 JUDGE AGIUS: Thank you.

25 Appearances for Naser Oric.

1 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. My name

2 is Vasvija Vidovic, and together with Mr. John Jones I appear for

3 Mr. Naser Oric. We have with us this morning our legal assistant,

4 Ms. Adisa Mehic, as well as Ms. Jasmina Cosic, and our CaseMap manager,

5 Mr. Geoff Roberts.

6 JUDGE AGIUS: Thank you, Ms. Vidovic, and good morning to you and

7 your team.

8 I'm still wondering and this keeps haunting me. Each Defence team

9 has basically four members, no? It's lead counsel, co-counsel, legal

10 assistant and case manager. I'm just wondering how this courtroom can

11 take -- can take six teams. There are some sections which can take four

12 persons but I still don't understand. The same with -- and where will be

13 the case manager and the co-counsel and the legal assistant?

14 [Trial Chamber and usher confer]

15 JUDGE AGIUS: It troubles me.

16 So any preliminaries before I give the floor to Madam Vidovic?

17 MS. SELLERS: Your Honour, no preliminaries from us.

18 JUDGE AGIUS: Any preliminaries from your side, Ms. Vidovic?

19 MS. VIDOVIC: [Interpretation] No, Your Honour.

20 JUDGE AGIUS: So you don't have to ask us, "Lend me your ears,"

21 because we are all ears already. Yes, Ms. Vidovic.

22 MS. VIDOVIC: [Interpretation] It is a great responsibility to

23 address the Honourable Chamber with closing arguments after a 16-month

24 trial. There is so much at stake.

25 At the start of the trial, we asked the Honourable Chamber to

1 examine the facts only and to distinguish between the myth and reality,

2 and at the end of the trial, to render a just judgement.

3 We are now at the stage when the Honourable Chamber will withdraw

4 for deliberations. Again, we seek only justice from you. The Defence is

5 not seeking for an acquittal under the influence of factors that are

6 beyond this case file. The facts of the case speak clearly enough in the

7 favour of such a judgement, of such a verdict.

8 The Honourable Chambers knows, is aware, that the judgement in

9 this case will not be rendered on the basis of whether the people in

10 Srebrenica suffered or not. Instead, you will subject the evidence to

11 close scrutiny in order to arrive at the answers to the following

12 questions: Where it is proved that some crimes alleged in the indictment

13 were indeed committed, were some of the perpetrators subordinated to the

14 accused? Did the accused know of the crimes committed by his

15 subordinates? Did the accused fail to take the necessary and reasonable

16 measures in order to deal with these crimes? And, in connection with

17 Article 7(1) of the charge for wanton destruction, did the accused

18 deliberately apply the policy of torching, as a means of warfare, as the

19 Prosecutor indeed asserted?

20 You will find that all these questions have only one answer: No.

21 At different stages of the trial, the Honourable Chamber announced

22 that they will emotionally disassociate themselves in approaching this

23 case and that they will approach it with surgical precision. We are glad

24 that this is the case because we did not expect anything else. The

25 metaphor of surgical precision is indeed appropriate for this case. If

1 the scalpel of justice is well handled, justice will have been satisfied.

2 If it is used wrongly, it will make irreparable damage. The approach of

3 the Prosecution in this case was all but surgical. It was generalised,

4 vague, ambiguous and contradictory from the very start, the reason being

5 that the case was misconceived. The case is unfounded. It is only with

6 the assistance of ploys, mistaken meanings, misunderstood words,

7 misinterpretation of documents, that only an appearance of a genuine case

8 can be made. Their case is, as we said at the start, a hall of mirrors.

9 It is a house of cards made out of different decks.

10 Since the Honourable Chamber will approach the facts of the case

11 with surgical precision, you will not confuse testimonies as did the

12 Prosecution in their final brief, as we have stressed several times in our

13 reply to this brief. You will not confuse time periods as they did. You

14 will not conceal considerable differences, as the Prosecution did,

15 differences between fighters and civilians, between fighters and those who

16 torched houses, between perpetrators of crimes and prison guards, between

17 the War Presidency and staff, between the TO structure and the corps

18 structure. These, Your Honours, are only some of the examples of such

19 differences that the Prosecution was not willing to clarify.

20 Moreover, the Honourable Chamber will not apply the legal theory

21 whereby the accused is held responsible for every evil that befell anyone

22 in Srebrenica in the course of 1992 and 1993. My colleague will address

23 you on legal matters tomorrow, and I shall say only the following of this

24 topic. The Honourable Chamber will not convict the accused for cruel

25 treatment or murder because people were killed or because they were

1 cruelly treated in Srebrenica, if the Honourable Chamber finds that this

2 was indeed the case. Only if a direct and specific nexus is found with

3 the accused and through his subordinates, as well as his specific

4 knowledge of their crimes, the Honourable Chamber will be able to do that.

5 The evidence of the case does not support such findings at any rate.

6 At the very start of this case, of this trial, we described the

7 hell in Srebrenica in the course of 1992 and 1993 in using four words:

8 Genocide, siege, starvation, and disease.

9 We believe that the Honourable Chamber realised the situation even

10 if the Prosecution did not. At the end of the Prosecution case, you

11 announced that you accepted the fact that Srebrenica was under siege and

12 that it was confronted with starvation during the relevant time period.

13 It faced not only starvation, Your Honours, but the daily threat of

14 terrible massacres by Serbs were the defence lines to fall. What happened

15 in July 1995 might have happened also in December 1992, in January 1993,

16 in February 1993, at any point in time. The people living there were with

17 their backs to the wall and the only possibility they had was to flee

18 below the ground. These people were aware of that.

19 The greatest mistake one can make in describing the situation is

20 to consider it to be merely a background, as if starvation, a refugee

21 crisis and disease are only scenery, scenery behind the stage, immovable,

22 whilst actors tread the stage. Were this the case, the scenery might well

23 be ignored. The facts of the case could be analysed individually and the

24 siege and death from shells would merely be pale scenery and would

25 ultimately be considered irrelevant for the case. This is not even

1 remotely the truth.

2 Since this is command responsibility that is relevant here, the

3 military and humanitarian situation are closely related with every single

4 fact in this case. In order to understand this, the appropriate analogy

5 would be that of a football match which is brought to a stop by a mob of

6 football supporters who run up into the football field. No one would

7 pretend that this football match can be analysed by simply ignoring the

8 fact that hundreds of people ran up to the football field in the middle of

9 a match. One could hardly find fault with the players for playing badly

10 or for being an off-side when the match itself turned into mayhem, into

11 torching of tear gas with enraged people. In total chaos.

12 But change the scenery of this particular scene. Imagine this

13 football match being that of fighters with scarce weaponry. Take their

14 uniforms off. Imagine that they are exposed to deadly shells. Imagine

15 that they are starved and that they have been under siege for weeks.

16 Imagine that they are running uphill and trying to confront a well-trained

17 and armed enemy. Imagine thousands of distraught civilians among them.

18 Now you will have the picture of what the fighting in Srebrenica in 1992

19 was like.

20 Out of this metaphor, you were able to see that it will be

21 ridiculous to take these facts merely as a background. The background is

22 a moving picture which has form and movement. It has to be regarded as a

23 phenomenon. Appropriate questions must be asked. Why did the mob occupy

24 the football team -- the football field? And in our case, why did

25 thousands of civilians go into action to get hold of food? Because they

1 were dying of hunger. And why were they dying of hunger? Because the

2 Serbs chased them away from their homes and then held them under siege.

3 Who held them under siege? Serbs from the surrounding villages. Which

4 villages? The ones that were attacked, the ones that were mentioned and

5 alleged in the indictment. Which Serbs? The villagers of Rakovica,

6 Jezestica, Fakovici, Bjelovac and Kravica. Many of the witnesses in this

7 case. Why didn't the fighters have uniforms? Because it wasn't an army.

8 These were citizens responding to an attack. Why did they have so few

9 weapons, mostly hunting rifles? Because that was all that they had at the

10 time the Serb army attacked them in their homes.

11 Your Honours, every fact in this case is directly and specifically

12 connected with the ethnic cleansing by Serbs and the humanitarian

13 catastrophe that was the result of the ethnic cleansing. The phenomenon

14 of a soldier/citizen or levee en masse, lack of communications. Where the

15 accused was depended on where a deathly threat had to be confronted.

16 These facts cannot be separated from the ethnic cleansing of eastern

17 Bosnia. Every single fact in this case is a result of that.

18 Your Honour, this also applies to the credibility of Serb

19 witnesses. The Honourable Chamber understood the situation in Srebrenica

20 describing it as hell on earth in its decision dated 4th of July, 2005,

21 the findings case -- decision. You referred to the siege of Srebrenica

22 and the enormous military predominance of Serbs. What, then, of the

23 credibility of Serb witnesses who came here and denied all that? It has

24 to be and is disrupted by the fact that they refused to acknowledge the

25 reality. In our final brief we spoke about the invisible arm which, in

1 the submission of the Prosecution, must have held Srebrenica under siege.

2 Truth be told, they call it the so-called siege of Srebrenica. Your

3 Honours, you accepted that Srebrenica was under siege but not so the

4 Prosecution.

5 This tells a lot of their realism and of their approach to the

6 people of Srebrenica, whose suffering under siege they don't even wish to

7 mention. You remember the words from the book of Larry Hollingworth,

8 D218. In this book he described how the Serb army, and I

9 quote: "Persecuted innocent women and children from village to village

10 until they were finally chased away to Srebrenica, a place where one had

11 no where to flee from, and where their destiny was to be transported as

12 cattle and slaughtered as lambs."

13 Echoing this situation was their own witness, Colonel Tucker, who

14 they referred to frequently in their final -- in their closing arguments,

15 and I quote: "The issue for the refugees in Srebrenica, for those who

16 surrounded us, was that they believed that they would die. The question

17 was not whether they would die. The question was only when they would

18 die."

19 And that's his testimony on the 15th of March 2005, transcript

20 pages 5959 to 5960.

21 The ambassador, Diego Arria, described the situation in Srebrenica

22 that he experienced as the slow-motion genocide. That is the way UN

23 documents described it. I refer you to D956.

24 For the Prosecution, the ethnic cleansing of eastern Bosnia and

25 the military predominance of Serbs seemed to have existed in a parallel

1 dimension, as if in some other parallel dimension there existed camps set

2 up pursuant to the order of the Serbian government of Birac on the moving

3 out of the Muslim population. As you know, the area of Srebrenica was

4 part of Birac. As you know, Your Honours, you saw this order in D731 and

5 you know that this was organised and ordered.

6 Edina Karic told a touching story about this in her testimony on

7 the 14th of September, 2005, transcript pages 11037, 11039. On these

8 camps and persecutions, their own witness, Ibrahim Becirevic, spoke in

9 detail, and I refer to the transcript dated 25 April 2005, page 7617.

10 Many others spoke of this.

11 The reality, in essence, is very simple and the procedure of

12 placing an area under siege is easily understandable. The Serbs first

13 chased away all the Muslims from the surrounding areas. The areas can be

14 seen on the map. You can see the map now; it's D705. We are well

15 familiar with their names now. The Muslims were chased away from Podrinje

16 along the Drina east of Srebrenica, from the north of the Bratunac area to

17 the west of Srebrenica, from Vlasenica, Milici, Han Pijesak and to the

18 south from the area of Skelani. Srebrenica was surrounded and cut off

19 from the rest of the world.

20 After that, food supplies were interdicted in order to starve the

21 population. They achieved this easily by controlling the main roads. It

22 was only the American food packages in the air drops in February 1993 that

23 somewhat hindered Serbs in their intentions. The fact that it was

24 necessary to drop packages from the air perfectly illustrates that the

25 only way to reach Srebrenica was vertically, from the air. Unfortunately

1 the residents of Srebrenica did not have wings. Luckily for them the

2 Americans did.

3 In the course of 1992, the people in Srebrenica were completely

4 cut off and desperately hungry. They ate berries and grounded acorns --

5 and ground acorns in order to make bread. They lived like animals under

6 open air in woods, and the Serbs shelled and fired upon them, as if they

7 had been beasts.

8 In what way was the siege maintained? Around every single Serb

9 village, including Ratkovici, Fakovici, Bjelovac, Jezestica and Kravica

10 minefields were laid. There was patrolling and shells were fired upon the

11 places where there were Muslims, be it villages or woods. In this way,

12 Muslims were held like sheep in a fold.

13 JUDGE AGIUS: One moment, I am not receiving interpretation,

14 unless there is a delay. I notice I think that -- yes. There has been a

15 switch between interpreters.

16 Would you mind, Ms. Vidovic, repeating your last two sentences?

17 Basically that's what we have missed. I'm sorry to have interrupted

18 you like this.

19 MS. VIDOVIC: [Interpretation] Thank you, Your Honour. It will be

20 my pleasure.

21 The Prosecution claims that the local Serbs were peace-loving and

22 that they were only defending themselves. In a way, Your Honours, they

23 were indeed defending themselves. The Serbs were in their villages,

24 surrounded by their minefields, with their guns and artillery, and they

25 really could believe that they were only defending themselves. But if one

1 besieges a people, cutting off their food supply, and on top of that you

2 keep shelling them, you're doing something incredibly violent, threatening

3 their very lives. Whilst those who lay the siege wait for the enemy to

4 starve to death, they indeed have this attitude of defending themselves

5 but nonetheless a lethal one. Those besieged, starving, have to attack in

6 order to get some food, ammunition, and medication to call [Realtime

7 transcript read in error "kill"] those who were besieged to be attackers

8 and to call them who lay the siege the defenders [call not kill] Shouldn't

9 fool anyone apart from a person who is completely wrong about the

10 situation.

11 I will correct for the transcript, Your Honour. To call those who

12 were besieged attackers and to call those who lay the siege defenders

13 shouldn't fool anyone apart from those people who are blatantly wrong.

14 The localities in the indictment were of no marginal importance

15 for the siege of Srebrenica and the Muslim villages of the area. They

16 were the siege. Mr. Ramic, in his testimony of the 28th of August, 2005,

17 on page 9915 of the transcript, described the suffering of the expelled

18 Muslim population in a forest called Poljana, in the area of Poznanovici.

19 The suffering of thousands of people in the open, including women,

20 children and the elderly. He described that they were attacked by the

21 Serb forces from Ratkovici. He described the daily shelling of the Muslim

22 villages of Mocevici, Dedici, Podkorjen, from Ratkovici, during June of

23 1992.

24 Witness Tiro described the very same. On the 5th of September,

25 2005, he described the attack on Orlica, and he identified the attackers

1 as people being from Grabovacka Rijeka and Fakovici. When they left, they

2 left the wasteland and death. They killed every captured Muslim.

3 The testimonies and other evidence mentioning the killings by the

4 people from Fakovici are distressing. Please recall the story of the Serb

5 soldier Slobodan Misic and his statement to a journalist. It was D832.

6 He described the murders of Muslims around Fakovici, specifically in the

7 village of Tegare. And you should also recall that Misic received his

8 salary for August 1992 as a fighter from the Fakovici unit.

9 You should also bear in mind the document of the Drina Corps which

10 is the report of the 14th of September, 1992, confirming that Tegare were

11 liberated in entirety. That was D966.

12 Could we please see slide number 3 now?

13 Suad Smajlovic testified on the horrific scenes of murders in

14 Tegare that he learned of. He testified on the 6th of December, 2005,

15 page 14483 of the transcript.

16 Ibro Alic testified on the same topic as well on the 17th of

17 October, 2005, transcript page 12542. Both these witnesses confirmed that

18 the killers came from Fakovici.

19 An eyewitness n his testimony on the 3rd of October, 2005,

20 transcript page 11800, described that the Serb soldiers from Jezestica and

21 Kravica set on fire a house in Velika Glogova in which there was a little

22 boy, and on the same day they killed 12 elderly people and women who were

23 unable to flee the Muslim village of Adzici in June 1992. He identified

24 Nedjo Nikolic, aka Djedura from Jezestica as one of the key figures in the

25 attack on Glogova on the 9th of May, 1992. He identified commander Najdan

1 Mladjenovic from the nearby Serb village of Hranca who issued orders to

2 kill. He identified many of his neighbours from Kravica and Jezestica who

3 brutally killed around 65 people in a single day.

4 And Najdan Mladjenovic, Your Honours, the very same Najdan

5 Mladjenovic who, on Prosecution's behalf in this case, identified the

6 allegedly torched Serb houses of that area, and one can find that in P487.

7 We also heard a distressing testimony of Edina Karic, the then

8 15-year-old girl. She was raped, inter alia, by the Serb soldiers from

9 Bjelovac. She had identified them many years before this case, when

10 she --

11 JUDGE AGIUS: Let's go to private session for a while.

12 [Private session]

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 [Open session]

23 JUDGE AGIUS: And please proceed, and my apologies to you.

24 MS. VIDOVIC: [Interpretation] She had identified them many years

25 prior to this trial, when she provided the first statement you saw. She

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1 had identified them on the payroll lists of the Territorial Defence of

2 Bjelovac in D83. She identified many local Serbs from Bjelovac, Sase and

3 Pobrdje who ran the camp of Gradina where they killed and tortured people

4 as well as raped little girls. She testified on the 14th of September,

5 2005, transcript page 11037 to 11042.

6 The siege of Srebrenica and the Muslim villages of the area was

7 not put in place by an invisible hand. It was put in place by the local

8 Serbs. Closely knit and well organised units of the Serb army. And many

9 Prosecution witnesses in this case were also participants of the siege.

10 Mladen Simic, Dragan Djuric, Slavisa Eric, Stanisa and Milenko Stevanovic,

11 Milo Rankovic, Slavoljub Rankic, Slavoljub Filipovic, Nikola Petrovic,

12 Nikola Popovic, Slavoljub Zikic, Dragomir Miladinovic. Evidence shows

13 that they were members of the local Serb army units who lay the siege of

14 Srebrenica. This is important as to their credibility, and it is also

15 important for the issue of military necessity.

16 Your Honours, I wanted to talk about the military necessity

17 itself.

18 At the end of the Prosecution case, Your Honours accepted that the

19 actions mentioned in the indictment had to be undertaken in order to gain

20 food, ammunition and medication. Both Prosecution and Defence may agree

21 on only one thing in this case, and that is precisely this: Additional

22 Protocol I sets out the criteria for what a military target indeed is, or

23 a military objective. In Article 52(2) of Additional Protocol I, we can

24 read the following: "Attacks shall be limited strictly to military

25 objectives. In so far as objects are concerned, military objectives are

1 limited to those objects which, by their nature, location, purpose or use

2 make an effective contribution to military action and whose total or

3 partial destruction capture or neutralisation in the circumstances ruling

4 at the time offers a definite military advantage."

5 Your Honours, by going to the localities mentioned in the

6 indictment and capturing them resulted in clear military advantage. The

7 seizure of food, ammunition, weapons, and medication helped those besieged

8 to survive for another couple of days. The Serbs shelled Muslims from the

9 places mentioned in the indictment, thus killing and mutilating.

10 Therefore, to neutralise such objectives resulted in a clear military

11 advantage.

12 By not allowing the enemy to use those locations, key for the

13 siege of Srebrenica and its villages, indeed represented a clear military

14 advantage, as well as to neutralise the trenches and positions of the

15 artillery.

16 Evidence confirms that the soldiers lived in the houses of the

17 Serb villages and locations. Even in the houses where women and children

18 stayed, there were shells and guns.

19 I will remind you of a Drina Corps document, D723. It is a combat

20 report stating that on the 4th of November, 1992, a five-year-old boy, in

21 the village of Brezovica, was killed during his play with an anti-aircraft

22 gun. The safety was off and it fired accidentally.

23 Your Honours, in the Serb villages around Srebrenica, even little

24 children played with such weaponry. There was a boy playing with an

25 anti-aircraft gun.

1 Your Honours, a correction for the transcript. We provided the

2 speech to the interpreters. I said that in the houses where there were

3 women and children, there were shells, grenades and guns.

4 During those actions, the soldiers used the houses to fire from.

5 Whether Prosecution likes it or not, the absolute military reality is that

6 if a soldier is firing from a house trying to kill you, you are entitled

7 to return fire, and should the fire be -- should the house be set on fire

8 due to the activity of the weapon, for example, a grenade or a hand-held

9 rocket launcher, that's the reality of war. It would be insane to claim

10 that a fighter who -- should try in any which way possible to cause any

11 damage to property when fighting for his life.

12 Your Honours, please recall the Drina Corps document ordering

13 that, from the territories of the Serb villages, Srebrenica was to be

14 attacked. To put forth such silly assertions that -- such as ones that no

15 army in the world wouldn't and couldn't abide by is not in the interests

16 of international humanitarian law. The only consequence of such

17 assertions is the loss of reputation enjoyed by international law in

18 general. In our final brief, we cited in detail and explained why each of

19 the actions undertaken was directed against the legitimate military

20 objectives.

21 The next question is whether during those attacks there was damage

22 caused and -- that wasn't collateral. This is the area in which the Trial

23 Chamber should exercise great care, because if the Chamber wouldn't be

24 careful, it will inadvertently transfer the burden of proof to Defence.

25 Prosecution claims that in each of the attacks, there was damage

1 of property and in a widespread manner. If this is indeed so, the Chamber

2 will have to make their own conclusion but not using this general approach

3 as Prosecution would want you to. You will have to go into a detailed

4 analysis of evidence. You will have to determine what the Prosecutor

5 indeed managed to prove was damaged by fire on the day of the action and

6 by whom. This Chamber knows that it was impossible for Defence to put

7 forth details for each house, whether there were grenades or guns in those

8 houses, or whether those were simply houses that represent collateral

9 damage during legitimate attacks. It would be unjust by the Chamber to --

10 not to ask Prosecution to prove that each of the houses was wantonly

11 destroyed, but to demand from Defence to prove the opposite, that indeed,

12 it wasn't destroyed wantonly. Defence managed to show that each of the

13 actions pertained in the villages where there was lots of weaponry in a

14 small locality, that there was fierce fighting, that the Serbs went in

15 counter-attacks with the support of their artillery as well as subsequent

16 counter-attacks in order to regain control over those villages with their

17 artillery support. In certain cases, you will recall, I believe, even

18 Serb planes were used.

19 It was on Prosecution to prove that such damage to property wasn't

20 accidental during legitimate attacks because of the fierce fighting,

21 because of the Serb counter-attacks with the artillery backing, and bombs

22 from planes. It was on Prosecution to prove that the houses were

23 destroyed wantonly and that this cannot be considered collateral damage.

24 It is not up to Defence to prove that. When studying the evidence about

25 how property was damaged during those actions, you will have to bear in

1 mind countless ways to cause damage to property during wartime.

2 Let us pause here for a moment to go back to reality.

3 If one is to look at the photographs from the Second World War,

4 you will see what the consequences of warfare were and what sort of damage

5 they caused. To suppose that any property damage caused wantonly, is

6 caused wantonly is not only shifting the burden of proof to Defence but

7 also it means to ignore the horrific reality of war and the reality of the

8 damage that can be caused by heavy artillery and fire-power, particularly

9 in small settlements in which houses were built of inflammable material

10 such as wood.

11 Your Honours, I will now move on to say something about torching

12 by "torbari," the bag people or baggers. In the allegations relating to

13 wanton destruction, the Prosecution alleges not only that every damage to

14 property that resulted from fierce fighting was certainly unnecessary.

15 They also assume that all this unnecessary damage to property was caused

16 by subordinates of the accused rather than by some of the hundreds or

17 thousands civilians carrying bags who, as the Prosecution itself proves,

18 were present in every action and entered houses searching for food.

19 How does this assumption work? We invite the Chamber to go back a

20 step and consider how the Prosecution can ask Your Honours to assume such

21 a thing, to assume that it was precisely the subordinates of the accused

22 who caused the damage. There is simply no evidence to show this.

23 The Prosecution case looks like this: They allege that there is

24 evidence showing that certain units participated in every action. This

25 evidence must be studied thoroughly. I will later explain why. The

1 Prosecution claims, for example, that the Srebrenica TO, the Potocari TO,

2 Suceska TO, Kragljivoda TO, Osmace TO, Skenderovici and Birac TO

3 participated in the action in Fakovici. They allege that these TO units

4 were under the effective control of the accused during the action.

5 According to the allegations of the Prosecution, it must have been them

6 who caused all the wanton damage caused during this action.

7 The fatal flaw in these allegations is that even if these TO units

8 did participate in the action in Fakovici, for example, they were not the

9 only ones. There were thousands of civilians who flocked among the

10 fighters like ants.

11 You will recall the testimony of Prosecution witness Slavoljub

12 Zikic about this, and Your Honours can see the slide now. He describes

13 the fighting on the 5th of October, 1992 in Fakovici.

14 "Question: Is it not true that on that day, there were hundreds

15 of civilians in your village, men, women and children, running around

16 grabbing food and so on?

17 "Answer: It's true. The number was even larger, judging by

18 everything that was taken away from the village on that day. I think it

19 would be difficult for a civilised nation to understand what I'm telling

20 you. In addition to shooting, people are banging on some cans and they

21 were killing dogs. It was seething from all sides, all over the place.

22 There was a lot of noise, and God knows what was being done. I don't

23 think this is something you would find easy to understand, coming from a

24 civilised nation as you do.

25 "Question: Mr. Zikic, isn't it true that with all these people

1 and all this going on, these people were completely out of control?

2 "Answer: It's my opinion that it was indeed out of control.

3 "Question: You told us that they took livestock. You mentioned

4 wheat was taken from your brother. Isn't it right that these people were

5 desperate for food?

6 "Answer: Yes. I understand that fully. There was not a single

7 chicken left in any of the villages. They had all been released. If they

8 had been pent up, well, okay, but there was not a chicken to be seen

9 anywhere around for miles. Therefore, there were many people doing that.

10 "Question: In this scene of absolute pandemonium, the scene of

11 people running around grabbing chickens, no one, no army, could have

12 stopped them from doing what they wanted to do, from getting food. Is

13 that what you accept?

14 "Answer: Yes."

15 Mr. Zikic, a Serb, whose house was burned down and who testified

16 about how he was beaten had no reason to exaggerate when he described the

17 chaos he had seen on that day. He was describing a scene which a

18 civilised people would find difficult to understand.

19 Another Prosecution witness, Dr. Mujkanovic, also wanted to say

20 that we, sitting here in The Hague, in the year 2006, would find it very

21 hard to understand thousands of civilians risking their lives, running

22 where there was shooting and shelling in order to try to obtain food for

23 themselves and their starving children.

24 There is a slide, Your Honour, Dr. Mujkanovic. His response was:

25 "It is a phenomenon that nobody who hasn't experienced it can understand,

1 and it's very hard to explain. Sometimes civilians would enter these

2 villages even before the troops, and sometimes many of them were wounded,

3 many of them were killed, many of them did not accomplish their mission.

4 They didn't get hold of the food, although it was food they came for in

5 the first place."

6 But you must understand this, Your Honours. I invite you to

7 imagine a scene out of hell, thousands of civilians, men, women and

8 children, banging pots and pans, making a terrible noise and running into

9 every house searching for food. Had you been observing this from a

10 hilltop, would you have been able to say, "This house was set on fire by a

11 civilian. That one by a fighter, that one by a 14-year-old boy, this one

12 was damaged by a hand-held rocket launcher, the other one was set fire to

13 by a shell"? Of course, you couldn't have done that. No eyewitness even

14 attempted to make such a list.

15 In view of the fact that uniforms meant nothing in Srebrenica, as

16 Prosecution witness Dr. Mujkanovic stated, no one would have been able to

17 tell whether it was a fighter or somebody else who set fire to a house.

18 Furthermore, not a single witness provided evidence that it was

19 fighters who set fire to houses in any action, especially no one testified

20 that members of, for example, the Skenderovici TO torched a house during

21 an action, or members of the Osmace TO, or of any other TO. In fact, the

22 evidence shows the very opposite. Mujkanovic testified that it was

23 civilians, not fighters, who torched houses.

24 This is the Prosecution evidence on which the Defence relied when

25 deciding what evidence to present during the Defence case. We reminded

1 Your Honours, more than once, on the fantasies of the Office of the

2 Prosecutor who imagined they could call a witness and then ask the Chamber

3 not to believe that witness. That is not a serious approach to a criminal

4 trial. That is a Kafkaesque idea, and we know that Your Honours will not

5 tolerate it for a single second.

6 According to the alternative Prosecution case, allegedly armbands

7 were used to distinguish fighters from civilians. The Prosecution alleges

8 that fighters wore armbands, but has a single Prosecution witness stated

9 that someone wearing an arm band torched his house? No. There is no

10 evidence that a single fighter torched a single house during the actions,

11 not to mention any of the members of any of the Territorial Defence

12 witnesses -- Defence -- Territorial Defence units.

13 This is a fatal flaw in the Prosecution case. If Your Honours

14 establish that there was burning of Serbian villages but that this was

15 done by civilians, then Your Honours will have to find that the accused is

16 not guilty. What is at stake here is not allowing the accused to avoid

17 justice; what is at stake here is the application of law. Perhaps

18 civilians did irresponsibly torch houses because they were furious since

19 they themselves had been expelled from their homes and had lost their

20 homes. In some cases we heard the reasons for this. They were sometimes

21 very painful. They did this because they wanted the war to end. A female

22 witness, a mother, testifying about the reasons why her 12-year-old boy

23 set fire to a house in Kravica said, "I, as a mother, did not want, nobody

24 wanted, to set fire to somebody else's home. The people of Srebrenica,

25 and I think everyone thought the same, we wanted to make our situation

1 easier, to make our life easier. It would have been better when the Serbs

2 left for the refugees to move in there. Even my son did not really want

3 to set fire to the house. He said he torched it because he wanted the

4 evil to end. He wanted the war to end."

5 You heard this testimony on the 31st of August, 2005, transcript

6 pages 10104 to 10105.

7 Unfortunately, Your Honours, such things happened. But to

8 consider the accused responsible for the irresponsible actions of others

9 with which he has nothing to do will not assist to put such actions right.

10 It would only increase the injustice and the misery and the overall human

11 suffering.

12 In its closing speech, the Prosecution claimed that soldiers aided

13 and abetted the torching by civilians. However, this has not been proved

14 by any means. Once again, what the Prosecutor should have proved is that

15 it was Oric's subordinates who caused wanton destruction. However, this

16 has not been proved. On the contrary, what has been proved is that the

17 fighters tried to stop the civilians from going to places where there was

18 fighting.

19 We heard testimony about this from witness Tiro Hamed on the 6th

20 of September, 2005, transcript page 10362. We heard detailed testimony

21 about this from Suad Smajlovic on the 7th of December, 2005, transcript

22 page 14570. And he, Your Honours, was wounded while trying to prevent

23 civilians from entering the battlefield in the Kunjerac area. He

24 described the death of a brave fighter who also attempted to prevent the

25 entry of civilians into the dangerous battlefield.

1 The existence of an understanding between fighters and civilians

2 to destroy villages as mentioned in the indictment is a fiction fabricated

3 by the Office of the Prosecutor without any grounds whatsoever.

4 The only evidence about the attitude of the accused toward the

5 torching of property is what we heard during these proceedings. The only

6 piece of evidence we heard about the accused's attitude to the burning

7 shows that he opposed it vehemently. And this was heard from an OTP

8 witness, Dr. Nedret Mujkanovic.

9 You have a slide, Your Honours --

10 JUDGE AGIUS: One moment.

11 Addressing the technicians, please, each time there is a new slide

12 coming up on the -- on our monitor, could -- is it possible to have it

13 also shown to the public? I have -- one of the monitors in the public

14 gallery section is visible from here, and it is on now. That's what I

15 would like. Each time there is a reference to the monitor, please make

16 sure that the -- make sure that the public can follow. Thank you.

17 Sorry to have interrupted you, Ms. Vidovic. Go ahead, please.

18 MS. VIDOVIC: [Interpretation] Thank you, Your Honour.

19 The testimony of Prosecution witness Dr. Nedret Mujkanovic:

20 "Question: And what was the opinion of Naser Oric in that regard?

21 "Answer: He had had the same opinion. He was against people

22 burning houses but there was simply nothing that he could do. He did not

23 have a way of stopping them. It's not that he simply didn't approve. He

24 fiercely opposed this, but you must know that there were between 80.000

25 and 100.000 people living in the area. You couldn't keep all these people

1 at bay. It's that simple."

2 Could we now see slide number 8, please? Dr. Mujkanovic again,

3 the 16th of February, 2005.

4 "Question: Finally, as far as you're aware, with your contacts

5 with Naser Oric, he never encouraged these practices? Never encouraged

6 burning or looting?

7 "Answer: I've already confirmed that in my testimony. I said

8 that not only did he not encourage, he saw it as a problem that was a

9 constant subject of discussion at the War Presidency. Naser Oric's

10 position was that there shouldn't be any fires set to property, but nobody

11 could prevent that."

12 Your Honours, many times during the trial, and in its closing

13 arguments, and its final brief, the Prosecution referred to the interview

14 with the accused in order to try to prove certain issues when it suited

15 them. They did not draw your attention to what did not suit their case.

16 They usually said that he was evading the truth; for example, in

17 connection with the protection of property.

18 In the part of his interview, P329, on tape 20, page 21 in the

19 English version, he describes the scene of battle as follows: "While we

20 are fighting here in these trenches which were full, you see it was like

21 this. There was a slope and, down there, there would be a plain, and we

22 wouldn't have taken half of it. The rest would still remain. I would

23 already see the civilians swarming into the village. Explain to me how

24 could I have control over what was happening among the houses? If there

25 is an expert anywhere in the world who can explain to me how I could do

1 it, let him explain it to me at once."

2 And then he goes on to say: "Take into consideration the

3 configuration of the terrain and the area that was supposed to be

4 attacked. The Chetnik firing lines. You now have to consider how many

5 troops I would need with weapons. To stand there without weapons, to link

6 up into a cordon and to tell the civilians, Don't go there, but there is

7 war here at the line, bullets fly here and there. You can't fire every

8 bullet into the air. What fool would stand in a cordon holding his hands

9 like there with bullets flying behind his back and whizzing by? No one.

10 But bear in mind that there was cannibalism there. Elderly people were

11 dying. They were starving to death. There was no machinery that could

12 help somebody carry this out. If there is anyone in this world who can

13 tell me that, how it can be done, then let them lock me up at once for 300

14 years. Let them shoot me. It was impossible. It was chaos."

15 This is what Naser Oric said to the OTP.

16 Your Honours, the law does not impose on anyone to do the

17 impossible. The Prosecution never advanced a serious suggestion as to how

18 property could be protected from the civilians in this mountainous area,

19 the civilians who risked their lives to get hold of the property. Was the

20 accused supposed to kill civilians to prevent them from coming close to

21 the Serb property? Was property more valuable than human lives? The

22 Prosecution did not find it enough to merely accuse the accused of not

23 having prevented torching. They had to say what he could have done. They

24 had to show that what they think he could have done was feasible. They

25 were supposed to show that. But they didn't.

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1 Now, as for the other requirement of command responsibility,

2 knowledge, there is no evidence indicating that the accused knew of wanton

3 destruction of property by his subordinates. Now, Your Honours, the fact

4 of the matter here is whether the accused had information about wanton

5 destruction by his own subordinates, not civilians, and not just anyone.

6 In the Prosecution reply to our final brief, for instance, in

7 paragraph 63, the OTP refers to interview P329, tape 20, page 18, that

8 Oric had received reports about the attack on Jezestica and that he

9 extensively discussed that. Actually, it is quite unfortunate that the

10 Prosecution should use precisely this part of the interview. Your Honour,

11 this part of the interview in fact demonstrates the entire lack of

12 professionalism on the part of the investigators and it shows their

13 aggressiveness, which is evident throughout the interview and which went

14 too far in certain places. This is what his reply on the allegedly

15 received report about Jezestica is like.

16 Could we have slide number 9, please, P329, tape 20, page 17.

17 "He was improvising this attack to relieve the pressure on Nurif;

18 what happened in Jezestica as a result of these combat operations, I don't

19 know.

20 "Later, later they told me, they told me that what happened, that

21 they had taken the line very easily and they had taken the attack line

22 very easily and captured quite a lot of weapons."

23 The question by the investigator: "Was this report done orally or

24 on paper?"

25 Naser Oric: "This was not a report; you're immediately trying to

1 tie this up with this and say that it was a report."

2 Investigator: "I'm asking if it was a report."

3 Naser Oric's answer: "No, it wasn't."

4 Investigator's question: "The question was did you receive it

5 orally or in writing?"

6 Your Honours, it is quite clear that the accused is telling the

7 investigators that he had not received a report, and they are asking him,

8 imagine, please, whether he received the report orally or in writing. Far

9 from it. Oric never said that he received a report on the destruction of

10 property. This fraction of the interview demonstrates the way in which

11 the Prosecution arrived at answers to their questions. Such a method of

12 interrogation violates the fundamental principles of criminal procedure.

13 In interviewing an accused, one must not depart from an assumption that

14 the accused admitted to something that he did not admit to, nor can one

15 put questions to him which already contain the answer the accused is

16 supposed to give. That's deception in order to reach his statement or

17 confession.

18 This has been regulated in the criminal legislation of numerous

19 European countries, and I would like, for instance, the law on the

20 criminal procedure of Germany in division 10, Article 136(A), paragraph 2.

21 And the law on criminal procedure of Austria, which is very precise in

22 this regard. This is chapter 15, interrogation of the accused,

23 Article 200, paragraph 2, which reads: "Questions attaching

24 responsibility to the accused for the circumstances of the criminal

25 offence which are only to be established in his answers and that contain

1 easily recognisable suggestions that indicate his participation in the

2 criminal offence which only has to be explored may be put to the accused

3 only once the accused has accepted them. Otherwise, the evidence adduced

4 in this manner shall be excluded."

5 Your Honours shall keep in mind these facts whilst evaluating the

6 probative value of the interview. It will keep in mind the fact that they

7 used impermissible means in order to arrive at Oric's confession. They

8 wished to accuse him at any cost. The longer you read the interview, the

9 more convinced you will be that this is indeed the case.

10 I will now take an example to illustrate the way the Prosecution

11 has been using the interview and how in fact some sections of the

12 interview were placed into the time context that assisted the Prosecution

13 and which was incorrect, in order to show that Oric received reports, in

14 other words, that he knew of crimes committed, and the way the interview

15 is placed in the context of other evidence and what sort of evidence this

16 is indeed.

17 They are referring to P329, tape 8, page 10, paragraph 73 of the

18 Prosecution reply to our final brief.

19 Can we have slide number 10, please?

20 Naser Oric: "The next attack was entrance into Glogova."

21 Investigator: "So you're going to be speaking of Glogova now?"

22 Oric: "Yes."

23 "Which is between the Bjelovac attack and the next attack on

24 Kravica. How many weeks passed between this attack and Kravica?"

25 Naser Oric: "Between Glogova and Kravica?"

1 Investigator: "Yes."

2 Oric: "Let me tell you. First there was the entry, that's to say

3 the Muslim village of Glogova."

4 This was merely the introduction to show you the context which

5 Oric is talking about. And then page 14 of the same part of the

6 interview, in view of the fact that this action was not of a large scale,

7 only people from TO Potocari took part in it and so only a team of Senad

8 Golubovic who was commander of TO Pale went to Magasici. Senad Golubovic,

9 yes, he went to Magasici.

10 Your Honours, you will notice that Oric said "people from TO

11 Potocari," and they interpreted it as "fighters from TO Potocari."

12 For the Prosecution, it was crucial to confirm that the Pale

13 company was part of the Potocari brigade at the time of the attack on

14 Jezestica on the 8th of August, 1992, and at the time when, as they put

15 it, Kemo killed and tortured prisoners. They are placing Kemo in the

16 context of the events in the prison in the period between the 24th of

17 September, 1992 and the 16th of October, 1992. According to the

18 Prosecution, Kemo was a member of the Pale company, although their own

19 witnesses testified otherwise. For instance, Dr. Mujkanovic. His

20 testimony on the 14th of February, 2005, transcript pages 5041 to 5042;

21 testimony on the 17th of February, 2005, transcript page 5253; and

22 testimony on the 23rd of February, 2005, page 5440.

23 Although they themselves used P590, whereby this same Kemo was in

24 a completely different unit at the same time, and they wish to say that

25 this confirm -- that Oric confirmed this in the mentioned part of the

1 interview about Senad Golubovic. They wished to say that Oric had reports

2 on the torching of houses and reported Kemo's criminal -- crimes.

3 If you analyse the part of the interview they are referring to,

4 you will find that Oric talks of events dating from late December 1992

5 concerning Glogova and Kravica. They are not talking about

6 September/October 1992 or August 1992 as the Prosecution would wish you to

7 believe and as the Prosecution seems to be using the interview for.

8 There is no mention of the time frame in which the Prosecution

9 wishes to place the subordination of the Pale company, Senad Golubovic and

10 Kemo, to the Potocari Territorial Defence. In this context, Oric

11 mentioned that Senad Golubovic had led the action on Magasici and that he

12 was commander of the Pale TO. Therefore, he spoke of December 1992.

13 Your Honours, Oric had repeatedly told the Prosecutor during the

14 interview that his memory did not serve him well, and it is true that his

15 memory didn't serve him well when he was giving the interview, because not

16 even then, in December 1992, was Senad Golubovic able to be commander of

17 the Pale TO for the simple reason that, according to the Prosecution,

18 Exhibit P596, which the Prosecution also drew upon in order to demonstrate

19 his subordination to Oric, because Senad Golubovic got killed on the

20 9th of October, 1992.

21 You will see that on slide number 11 that Senad Golubovic got

22 killed on the 9th of October, 1992, and here Oric spoke of him as being

23 commander in December 1992.

24 This is why Oric's memory is questionable, but also questionable

25 are the intentions of the Prosecution in this case. They are simply

1 stacking up evidence which one gets the impression they had never seemed

2 to have analysed in the first place. The Prosecution is using them

3 completely arbitrarily, regardless of the fact that the accuracy of that

4 same evidence was called into question by their own witnesses.

5 In their address on Monday, the Prosecution told us that the

6 Defence witnesses simply refused to confirm the accuracy of their

7 otherwise accurate evidence.

8 Your Honours, I would like to break at this point by your leave

9 because I am moving into a section where I would not like to have to stop.

10 JUDGE AGIUS: By all means, Ms. Vidovic.

11 We'll have a 30-minute -- would that be sufficient for you?

12 MS. VIDOVIC: [Interpretation] Yes, it is.

13 JUDGE AGIUS: 30-minute break starting from now. Thank you.

14 --- Recess taken at 10.26 a.m.

15 --- On resuming at 11.02 a.m.

16 JUDGE AGIUS: Yes, Madam Vidovic.

17 MS. VIDOVIC: [Interpretation] The last thing I said was that the

18 Prosecutor stated that Defence witnesses denied the truthfulness of their

19 otherwise correct evidence. In order to illustrate that such evidence is

20 mutually supportive, yesterday the Prosecutor used the example of P84,

21 page 10 of the war diary, dated the 14th of October; that is page 10 in

22 the English. This is the decision to form brigades, allegedly to be

23 formed in Srebrenica. They compare that with P9, the alleged staff order

24 dated the 15th of October, 1992 ordering the formation of the brigades.

25 But doing so, they said there is a small, almost unimportant difference

1 between the two documents, because in P84, there is no mention of the

2 Kragljivoda Brigade, whereas -- but Karacici, the brigade of Karacici,

3 whereas in P9 it is mentioned.

4 Your Honours, it is no insignificant distinction but a very

5 significant ploy because, according to the Prosecutor, the Kragljivoda

6 Brigade was included in almost all of the attacks cited in the indictment.

7 Therefore, the moment of its formation is very important for this case.

8 When you are to analyse their correct document, P9, in which one can read

9 in item 3 that a mortar company is to be formed as well as an armoured

10 platoon, an engineering platoon, and communications platoon in Srebrenica,

11 you should also bear in mind their own witnesses' testimonies. You have

12 to recall what Dr. Nedret Mujkanovic said on P9, testifying on the 16th of

13 February, 2005, transcript page 5173 to 5179; and Ibrahim Becirovic on the

14 21st of April, 2005, page 7512 to 7515 of the transcript, and they said

15 that such a thing did not exist in Srebrenica.

16 In the same paragraph, 73, I mentioned of the reply of the

17 Prosecutor to our final brief, they will use the same infamous P80 to

18 confirm the subordination of Senad Golubovic as the Pale company commander

19 being one of Naser Oric's subordinates. The Prosecutor used P80 a number

20 of times to confirm their positions in their final brief as well as in

21 their closing arguments.

22 Your Honours, it is the very same exhibit for which their witness,

23 Hakija Meholjic, on the 8th of April, 2005, on page 6963 of the transcript

24 said: "This looks like a good piece of homework, given to someone to put

25 together, and he did so quite well. Still," as Mr. Meholjic said, "this

1 document has got nothing to do with the reality and the situation at the

2 time."

3 Your Honours, their documents do not corroborate the key facts in

4 this case. They actually work against each other, creating confusion as

5 regards who was subordinated to whom at what time, in what way, and where.

6 Could we please have slide number 12 now?

7 JUDGE AGIUS: Before we proceed with the next document or exhibit

8 that you've just referred to now, a few moments ago, page 32, line 17, you

9 say "in the same paragraph, 73, I mentioned," but actually earlier on, you

10 had mentioned paragraph 63 of the Prosecution's response and not

11 paragraph 73. So which one is the correct one?

12 MS. VIDOVIC: [Interpretation] My apologies, Your Honour. 73 is

13 the correct number.

14 JUDGE AGIUS: Okay. Thank you so much. Please proceed.

15 MS. VIDOVIC: [Interpretation] As you can see on the slide being a

16 part of P80, and if you are to take a look at that -- at the text, this is

17 the formation structure during the relevant period between the 17th of

18 April, 1992 up until mid-October 1992. You will see that according to

19 that document, Senad Golubovic was not the commander of the Pale company.

20 It was Smajo Mandzic. This is at the bottom.

21 In their documents, they tried to convince us that during the same

22 time period, Senad Golubovic was the commander of the aforementioned

23 company, and as such, Naser Oric's subordinate commanding the attack on

24 Jezestica. This was their document stating the contrary, that it was

25 Smajo Mandzic. There goes their house of cards.

1 In many parts of the Prosecutor's final brief, as well as in their

2 reply to the Defence final brief and in their closing arguments, the

3 Prosecution invoked the testimony of the accused. As to how it was

4 procured you just saw a moment ago. It wasn't like the accused testified

5 and under oath at that. Rather, he spoke with the representatives of the

6 OTP as the Chamber itself put it yesterday.

7 The probative value of the interview is something to be considered

8 by the Chamber. In that consideration, you will have to bear in mind the

9 fact that the law on criminal procedure of the former SFRY in its

10 Article 218, as well as the law of the country of the accused, distinguish

11 between examining an accused and testifying of a witness. According to

12 those laws, the accused is not obliged to state his defence or to speak

13 truthfully. According to the law, the accused is under -- is not under

14 any obligation to speak the truth. That's why his statements -- statement

15 cannot be given the same weight given to the Prosecutors. It was not

16 given under oath and it cannot be ascribed, the same way ascribed to it by

17 the Prosecutor. For all those reasons and the reasons I had already

18 mentioned, this cannot be considered including the reasons stated in their

19 application to exclude the interview with the accused.

20 In their submissions, the Prosecutor stated that they do not

21 believe certain portions of the interview but they do take them seriously

22 when they seem fit. Such an example was the use of the book, "Srebrenica

23 Testifies and Accuses," which was P90, used to prove that Oric knew of the

24 attacks mentioned in the indictment. First of all, it is of no importance

25 whether the accused knew whether such attacks occurred, but, rather,

1 whether he knew that his subordinates committed crimes during those

2 attacks. As to whether he had sufficient knowledge and information

3 regarding that is what the true matter under consideration in this case

4 is.

5 In a part of his interview, on page 11 of tape 3 of P328, Oric

6 clearly states that not only that he hadn't written the book but he didn't

7 read it either. No witness confirmed the accuracy of many parts of that

8 book that they were shown.

9 The Prosecutor invoked other evidence as well to demonstrate that

10 Oric knew of the crimes committed by his subordinates. In our reply to

11 the Prosecutor's final brief, we wrote about the document P11 -- P111,

12 allegedly demonstrating that the accused had specific information as to

13 the torching, and this was in our reply in paragraphs 132, 133 and 134.

14 In short, the Prosecutor created an elaborate construction to show that

15 the accused indeed had knowledge of the torchings. Such construction is

16 incorrect, and the document doesn't show anything stated by the

17 Prosecutor.

18 A few words about P161, they used for the same purpose. It is an

19 unsigned document by an unknown author that hasn't been shown to any

20 witness. Nothing on the face of the document shows that anyone at any

21 time and anywhere received that document or that it had been sent to

22 anyone. This is an alleged report to subregion commander dated the

23 29th of December, 1992, describing the attacks on Siljkovici, Banjavici

24 and another four Serb villages. The document says that those villages

25 were burned down but that Marici had not been torched completely.

1 I will put this document in the context of the other Drina Corps

2 documents pertaining to December 1992 and other Prosecution evidence

3 portraying the situation in December of 1992, and the real situation in

4 the aforementioned Serb villages.

5 D18 [as interpreted], which is a document of the Bratunac Brigade

6 command, dated the 3rd of December 1992, is a decision to attack, ordering

7 the destruction of the Muslim villages. You can see a portion of that

8 document before you. On page 3 of the document, in item 9, we see the

9 description of --

10 Your Honours, I believe the number of the exhibit was recorded

11 incorrectly. This was D819.

12 JUDGE AGIUS: In the transcript we have D18, actually, and I was

13 going to point out to you that there is this discrepancy between what

14 appears in the transcript and what I see on the monitor here. So the

15 correct one is 819? Okay. Thank you.

16 MS. VIDOVIC: [Interpretation] On page 3 of the document, item 9,

17 we see a description of the position of the artillery tactical group of

18 the Bratunac Brigade. The description concerns the firing positions in

19 the area of Siljkovici with a ZIS self-propelled gun and the firing

20 positions of 82- and 120-millimetre mortars in the area of Banjavici,

21 tasked with attacking the Muslim villages. It is true that Oric could

22 have gained information about those villages of Siljkovici, Banjavici and

23 the surrounding Serb villages, and such information could have only

24 been -- this is where the artillery weapons are and this is where death is

25 coming from.

1 Ejub Dedic and Sidik Ademovic, as well as D005, testified that

2 these locations precisely were used to attack the Muslim population in

3 December 1992. According to the testimony of those witnesses and numerous

4 other evidence, the fighting in these villages took place after the 7th of

5 January, 1993.

6 P317, its second part, shows the panoramic view of Banjavici on

7 the 12th of January, 1993. You saw it yourselves, and I believe you

8 remember that. Only one house seems to have been torched. What can be

9 seen, though, is that in the close proximity of that house, there was a

10 large group of Serb soldiers armed to their teeth and well-equipped,

11 firing off a mortar and another heavy artillery piece. It is precisely

12 this video, P317, invalidates any probative value of P161.

13 To reiterate, this is what the evidence of the Prosecutor is like,

14 as stated by witness Azir Malagic in his testimony on the 29th of

15 September, 2005 when he was shown exhibits by the Prosecutor. I believe

16 you will recall that. He said: "Each of your documents runs contrary to

17 the previous one."

18 This is what Witness Malagic said and he was right.

19 [No interpretation].

20 I am receiving English on my channel.

21 JUDGE AGIUS: So I couldn't have known that because I'm not on

22 your channel. Thanks for pointing that out. Is it solved now?

23 MS. SELLERS: Your Honour, we are receiving B/C/S. We were unable

24 to hear the last part in the English translation.

25 JUDGE AGIUS: All right. So let's remedy that. No. I could get

1 that, so what I couldn't get, of course, the translation of Ms. Vidovic's

2 remark, or complaint, which was -- is it okay now?

3 And is it okay with you, Ms. Sellers?

4 MS. VIDOVIC: [Interpretation] Yes.

5 MS. SELLERS: Yes, Your Honour.

6 JUDGE AGIUS: Let's proceed.

7 MS. VIDOVIC: [Interpretation] And for this reason, it is very

8 important that witnesses see the documents, especially those documents the

9 authenticity of which is suspect for any reason.

10 It is the standpoint of the OTP that our case as regards the

11 documents is unfounded. The OTP states that our case that the witnesses

12 had to see the documents is wrong. Moreover, in their closing arguments,

13 they referred to the Appeals Chamber decision in the Blaskic case dated

14 the 31st of October, 2003. In that decision, a certain Defence exhibits

15 were accepted and, according to the Office of the Prosecutor, the Chamber

16 referred in its decision to evidence not seen by any witness.

17 Your Honours, their reasoning is completely incorrect. It is

18 quite clear from the decision on evidence of the Appeals Chamber in the

19 Blaskic case of the 31st of December, 2003 that in that case the Defence

20 was permitted to tender to the Appeals Chamber additional evidence not

21 available to it during the trial. This was completely new evidence which

22 the Defence was unable to come by previously.

23 This also refers to Exhibit number 1 mentioned by Mr. di Fazio.

24 This is natural, because this is new evidence, not available at the time

25 of trial, and meeting the requirements of Rule 115. Therefore, the

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1 Prosecutor is trying to compare what the Prosecution did in this case to

2 what happened in the Blaskic case, where the Defence was permitted to use

3 new evidence not available to it previously.

4 Your Honour, there can be no comparison here. The Prosecutor sat

5 on this evidence like a hen sitting on eggs, for years, while these

6 proceedings continued. Numerous witnesses were heard, both Prosecution

7 and Defence witnesses, who could have commented on these exhibits. The

8 Defence checked. For each and every exhibit used here, they had it for

9 years, and Your Honours can check this very easily, yet they did not show

10 the exhibits to the witnesses. This was their tactical decision. They

11 waited for the witnesses to turn their backs, and only then did they

12 produce the documents. They wish to corroborate documents not seen or

13 confirmed with other documents not seen or confirmed, and these with yet

14 others, again not seen or confirmed. I'm sure that the Chamber will not

15 allow this.

16 Yesterday, the Prosecutor, in his closing arguments, showed the

17 photograph of Philipp von Recklinghausen, P460, placing it in the context

18 of Kravica, which was awash in blood and flame. They placed this

19 photograph in the context of the 7th of January, 1993 in Kravica.

20 Your Honours, you were able to see from the written statement of

21 Mr. Recklinghausen that this photograph was taken in late February or

22 early March 1993, as one of many photographs taken by him in the area. It

23 does not depict any kind of celebration of success, as the Prosecutor

24 wishes to imply, nor does it impress one as showing well-armed men.

25 According to the Prosecutor's description of the equipment and

1 weapons these people had, had one had one's eyes closed we would have

2 imagined Naser sitting on a tank rather than a horse. The Prosecutor

3 wishes to suggest that Oric could have seen the torched houses in Kravica.

4 However, Your Honours, from the 7th of January, 1993, or early March 1993,

5 when the events in Kravica alleged in the indictment took place, until the

6 end of February or early March 1993, the Serb winter offensive was raging

7 in the area. Kravica was bombed and shelled on a daily basis, including

8 bombings from aircraft. Your Honours will recall the testimony of Sabra

9 Kolenovic of the 31st of August, 2005, transcript pages 10112 to 10113.

10 Your Honours, I wish to draw your attention to something I

11 consider very important here. The submissions of the Prosecutor in this

12 case are of such a nature that Your Honours will first of all have to deal

13 not with legal issues raised by the Prosecutor, which is something only to

14 be expected in a trial at an International Tribunal, but with the

15 correctness of their allegations. You will need time to do this. Lacking

16 evidence, they are simply inventing and fabricating evidence.

17 In response to their submission, paragraphs -- in paragraphs 141

18 to 143, we showed how they invented that Akif Ustic spoke of torchings in

19 Fakovici, whereas he mentioned the burning in the context of dugouts, and

20 they invented the fact that the Muslims had two dugouts in the area. They

21 knew that they had an incorrect translation or interpretation because they

22 had received the correct one from the appropriate section of the Tribunal.

23 They continued to claim that Zulfo Tursunovic talked of burnings

24 in Bjelovac, although in that document it says that Zulfo said, Do not

25 burn houses; P84.1, page 37 of the English version. Zulfo Tursunovic did

1 not say anything else about burnings. Yesterday, speaking of the attitude

2 to burnings in connection with the session of the 10th of January, 1993,

3 page 49, Mrs. -- the Prosecutor, without batting an eyelid, said that it

4 was only a staff session, not a joint session of the War Presidency and

5 the staff, as if we would not check this.

6 In fact, if you look at this session, you will see that it was

7 attended by all the members, or almost all the members of the War

8 Presidency, including Mr. Avdic personally, the president of the

9 Presidency, and that Avdic was one of the people planning the action

10 against Skelani. At that session, Ahmo said, burnings should not be

11 allowed before the people from Skelani take their property back.

12 However, if you look at page 50 of the English translation, you

13 will see other conclusions there, one of which is, Naser's group is no

14 longer to eat in the canteen; the next conclusion is food for the staff

15 according to the decision of the War Presidency. This is the best

16 indication of the kind of influence Naser Oric had among the members of

17 the War Presidency. He could not even achieve that his people be allowed

18 to eat in the kitchen or in the canteen.

19 Based on these minutes of the 10th of January, 1993, one can see

20 very well that Naser was not treated as a commander but as somebody who

21 had a group of his own. Moreover, Naser was not even among the group of

22 people planning the action or rather the attack on Skelani. In fact,

23 Skelani was never set on fire.

24 You will evaluate the professional conduct of the Prosecutor but

25 we have our own opinion about it.

1 Your Honours, I have just said that it is the Prosecution case

2 that all the TO units in the Srebrenica area were under the effective

3 control of the accused and that this case is highly disputed. In fact,

4 the allegation made through the mouth of Hakija Meholjic, what actually

5 transpired was that the accused only had control over a small group of his

6 fighters in Potocari, Naser's men. That is what is evident from the

7 document I have just mentioned. He was not in control of the other groups

8 who elected their own leaders and acted on a voluntary basis. If they

9 wanted to, they participated in an action, but if they didn't want to,

10 they didn't.

11 In our closing brief, we speak in detail of the improvised,

12 voluntary, local nature of the fighting in Srebrenica, and I will not

13 repeat our submissions here.

14 I will now speak of the meeting in Bajramovici. I will not repeat

15 once more, Your Honours, what we have stated in our written submissions

16 about the meeting in Bajramovici in our final brief and in our response to

17 the Prosecution brief, but I will say the following. The Prosecution has

18 given this meeting a significance it does not have. The reality was much

19 more mundane. The group leaders, quite understandably, addressed each

20 other, saying, "Let's see whether we can help each other in our common

21 fight against the Serbs."

22 Do documents P73 and P75 reflect with precision the decisions that

23 were made is a question we cannot go into here today, but we have done

24 this in our final brief. Your Honours, even were these exhibits

25 authentic, they do not reflect anything further than an intention to

1 establish a staff. An intention is one thing, whereas the implementation

2 of the intention is something quite different.

3 According to the Prosecution, the act of putting pencil to paper

4 is a mystical event which transforms everything that is written into

5 reality in the actual world. According to the Prosecution, events can

6 become real by typing or by writing. It was sufficient to write down the

7 words "unified command," and a unified command would be established that

8 very moment. Of course, the reality was quite different. It is not hard

9 to imagine people under siege, people who are trapped, who have already

10 lost many friends and family members, who have seen the Serbs set fire to

11 Srebrenica, elderly people being burnt alive in their homes, people trying

12 to strengthen themselves and their decisiveness by announcing a grand plan

13 to establish a TO staff or by celebrating the anniversary of that staff.

14 However, did it really function? You cannot get the answer to that from a

15 piece of paper or from the video shown on Monday, P433, on which you saw

16 Naser reading out a prepared speech intended to encourage the people and

17 give them hope, to convince the people that there is someone looking after

18 them and that they have something in common.

19 Did the unified command actually function in practice? Only

20 witnesses can give you the answer to that. And they have given the

21 answer. They said decisively that the unified command never actually came

22 to life. All the Defence witnesses and all the Prosecution witnesses who

23 testified about the situation in Srebrenica, Hakija Meholjic, Ibrahim

24 Becirovic, Omer Ramic, Hamed Tiro, Nesib Buric, Azir Malagic, Ibro Alic,

25 Ejub Dedic, D005, Suad Smajlovic, and others.

1 Prosecution witness General Sead Delic, commenting on P129, and

2 this is a document containing an order to mobilise the municipal TO

3 Srebrenica staff within 12 hours, dated September 1992 said on the 30th of

4 May, 2005, on transcript pages 8693 and 8695: "My comment is a piece of

5 paper can withstand anything. It can take anything."

6 And he explained. "This is a phrase we use in the Bosnian

7 language, which means that you can write whatever you like on a piece of

8 paper. However, when it has to be implemented that's where the problems

9 arise."

10 The Prosecution case that the meeting in Bajramovici resulted in

11 the establishment of a unified command is just theory. It has not been

12 confirmed by witnesses but, on the contrary, it has been disputed by

13 witnesses more than once, and this includes Prosecution witnesses. Not

14 only this. Numerous towns and villages did not participate in the meeting

15 in Bajramovici, nor did they know about it or about any decisions made

16 there. These decisions were not binding upon them.

17 To start with, not a single town or village in which the Muslims

18 retained control in Bratunac, Zvornik or Vlasenica municipalities,

19 participated in that. These were simply different municipalities. In

20 these municipalities, they also had their groups. They organised their

21 own War Presidencies. They organised their own staffs of Territorial

22 Defence. Please bear in mind, Your Honours, that only one out of five

23 attacks alleged in the indictment was conducted in the Srebrenica area,

24 and this one was in the Ratkovici area. The others were not.

25 The evidence has shown that the groups from Bratunac, Vlasenica

1 and Zvornik took part in all these events. You should recall the Bratunac

2 groups. These are Ejub Golic's group, Nurif Rizvanovic's group with the

3 400 men from Tuzla at Konjevic Polje, the group from Jagodnja and Joseva,

4 Zanjevo, Abdulici, Voljavica. Many groups of Konjevic Polje that were

5 testified about in this case. Remember the groups from Vlasenica, the

6 group of Becir Mekanic, the group from Cerska that Mr. Dedic testified

7 about. Remember Muhamed Sekiric and the Zvornik groups, which Mr. Dedic

8 also testified about. All of these groups, up until the time when these

9 areas fell, that's to say up until demilitarisation, operated outside

10 Srebrenica. It wasn't Sefer Halilovic in document P76, or President

11 Izetbegovic in P33 who placed under Oric's jurisdiction or command,

12 whichever way you take it, the units from the municipalities of Bratunac,

13 Vlasenica and Zvornik.

14 If these documents had ever reached Srebrenica, which has not been

15 proved by the Prosecutor beyond a reasonable doubt, then they must have

16 had to do only with the municipalities of Srebrenica and its Territorial

17 Defence. The Prosecutor said that it was only Oric's name that was

18 mentioned in the context of Srebrenica. This does not -- does say -- it

19 says about the lack of information about -- among the people who came to

20 Srebrenica, about what was happening in Srebrenica, and that there were no

21 people in Srebrenica who were able to do the jobs that they were supposed

22 to do. Therefore, the Prosecutor asserts, and it is completely unfounded,

23 that, according to P33, Oric was authorised to issue orders to Ejub Golic

24 because this wasn't the case. Glogova is part of Bratunac municipality.

25 In Srebrenica municipality, only six places or villages took part

1 at the Bajramovici meeting. According to Prosecution Exhibit P73, these

2 were Potocari, Srebrenica, Suceska, Bajramovici, Bojna and possibly

3 Skelani, although not likely, because Skelani was held by Serbs. Osmace,

4 Kragljivoda and Skenderovici were added to this staff on the 26th of May,

5 1992, according to Exhibit P75.

6 Your Honour, on Monday, the Prosecution quoted Bogilovic's words,

7 according to which the decision taken at Bajramovici was binding on the

8 groups that met there. These were nine locations out of dozens of

9 villages in Srebrenica, which had their own independent armed groups,

10 which fought the local Serbs, all of which took part in the events alleged

11 in the indictment.

12 In our final brief, we mentioned more than 20 such locations. How

13 can someone say that it can be established beyond reasonable doubt that

14 the fighters of these groups did not wantonly destroy property in any

15 action but that the fighters from the groups which took part at the

16 Bajramovici meeting did? Lastly, how can the Prosecution continue

17 asserting that the accused had effective control over the groups that met

18 at Bajramovici when their own evidence says that Ustic and Tursunovic

19 among others were not under the accused's control? Testifying to that

20 effect were Hakija Meholjic on the 8th of April, 2005, transcript

21 page 6948; on the 6th of April, 2005, transcript page 6810; Becir

22 Bogilovic, their own witness, 22nd of March, 2005, transcript page 6419;

23 Ibrahim Becirovic, also a Prosecution witness, on the 25th of April, 2005,

24 transcript pages 7625 and 7631.

25 The Bajramovici meeting was merely an attempt on the part of

1 courageous individuals to coordinate their efforts in their fight against

2 Serbs. For the Prosecution, this meant a second Yalta.

3 From the closing arguments of the Prosecution, it clearly

4 transpires that the Prosecution wishes to paint the picture of a level of

5 organisation of Srebrenica fighters that grew increasingly better over

6 time in 1992. At the same time, they wish to prove the strengthening of

7 the power of the accused because a document was drafted expanding his

8 powers.

9 Your Honours, the reality was quite different. I will mention

10 only some of the factors which had a bearing on the reality and defined it

11 as it was.

12 Our Exhibit, D75, showed the order of the General Staff the army

13 of the Republika Srpska to destroy Ustasha forces in the region of Birac,

14 ordering an offensive. The report of the command of the Drina Corps dated

15 4 November 1992, Defence Exhibit D921 [as interpreted], demonstrated

16 that. I quote: "After several months of fighting in the areas of

17 Zvornik, Sekovici, Vlasenica, Milici, Bratunac, the combat operations have

18 reached their final stage. The enemy has been pushed back into a very

19 small area at the centre of which is Konjevic Polje. They are encircled

20 and on the verge of a full military defeat."

21 The commander of the Drina Corps, Milenko Zivanovic, held a speech

22 on the occasion of the establishment of the Bratunac Brigade on the 14th

23 of November, 1992, and announces: "I expect the winter to be our ally

24 because the results of the fighting to date are striking and grand. How

25 grand? Well, we are holding 80.000 Turks in encirclement. The Turks from

1 Cerska can't stand the sight of the Turks from Srebrenica. Those from

2 Kladanj don't go along with those from Srebrenica or from Cerska. Those

3 from Zepa can't go to Srebrenica. Those in Gorazde can't go to Zepa.

4 These are really grand results when regarded from a broader perspective."

5 And these are words of the commander of the Drina Corps.

6 Your Honour, I will repeat a section of what I said because it was

7 not correctly reflected. And I quote what Colonel Zivanovic said: "Well,

8 we are holding 80.000 Turks in encirclement. Turks from Cerska can't see

9 those Turks from Srebrenica. Kladanjski can't even with those from

10 Srebrenica or from Cerska. Those from Zepa can't go to Srebrenica and

11 those from Gorazde can't go to Zepa. These are really grand results when

12 regarded from a broader perspective."

13 In commenting this speech by the commander of the Drina Corps, the

14 Prosecution witness, Dr. James Gow, stated on the 23rd of November, 2004,

15 at page 1924 [as interpreted], the following: "It is consistent with many

16 other matters I've already said. This indicates that there was an

17 approach which meant isolating and surrounding places, cutting them off

18 and eventually entering them in order to cleanse them when there is a

19 chance to do that."

20 On the 19th of November, 1992, the General Staff of the VRS issued

21 a new directive to the effect that the enemy be tired in the general area

22 of Podrinje and that it be compelled to leave the areas of Birac with the

23 Muslim population. This is our D76. This order was forwarded by the

24 command of the Drina Corps to the commands of the subordinate units on the

25 24th of November, 1992 with the following task, among others: "That the

1 Muslim population be forced to leave the areas of Zepa, Cerska and Gorazde

2 and that the enemy forces be routed and pushed out."

3 That's our D928.

4 In our final brief, in the part which has to do with attacks, we

5 presented a number of documents which point to numerous attacks and the

6 cutting off of Cerska and Konjevic Polje which, Your Honour, ought to be

7 parts of the subregion. It was precisely to these areas that Oric's

8 reportedly expanded powers applied, these areas that were cut off.

9 About the actual situation in these areas, in the course of the

10 autumn and summer months of -- or in the winter months of 1992, the

11 following witnesses testified: Izet Redzic, Ejub Dedic, D005, Ejub Guster

12 and many others.

13 The idea that this subregion was able to function constitutes the

14 other part of the Prosecution case. Not a single witness confirmed that

15 the subregion functioned. Quite the contrary. Both Prosecution witnesses

16 and Defence witnesses testified that the subregion had never functioned

17 because of the winter offensive of the Serbs, the humanitarian catastrophe

18 in Srebrenica, and the general chaos that reigned there in this period of

19 time.

20 The Prosecution wishes to persuade you that several written

21 orders, mostly those by Hamed Salihovic, are proof of the fact that the

22 subregion functioned because the documents exist, regardless of what even

23 the Prosecution witnesses had to say about this. The best illustration of

24 what is stated in the documents on the one hand, and what the actual

25 reality was, on the other, is the testimony given on the 14th of December,

1 2005, transcript page 15032, by Witness Lieutenant-Colonel Rex Dudley

2 whilst commenting Prosecution documents. I'm quoting: "In view of what I

3 saw, there was a large difference between intentions and possibilities.

4 This document indicates an intention. Whatever the case, I doubt that the

5 forces on the ground had had the possibility to effectively execute this

6 order."

7 Prosecution witnesses stated that in the course of the winter in

8 1992 and 1993, the situation in the Srebrenica area became disastrous.

9 Colonel Tucker, who they referred to so many times these past days,

10 described how the Serbian pacmen steadily engulfed village by village in

11 early 1993 in applying the strategy of merciless terrorism by artillery,

12 as he put it, which was then normally followed by infantry attacks.

13 Your Honours, in wartime, just as in life in general, matters

14 don't always take the best course. In this case, the situation in

15 Srebrenica did not improve, nor were they able to improve their

16 organisation. The events that unfolded in the months prior to the

17 demilitarisation led to a catastrophe. Things went from bad to worse.

18 And only the proclamation of a protected zone saved people from massacre

19 in April 1993. Even the Prosecution witnesses stated that what happened

20 in July 1995, that terrible tragedy, was merely a continuation of events

21 from 1992 and 1993. Had Serbs seized the town back then, it could easily

22 have happened two or three years earlier.

23 Despite all these facts, the Prosecution continues to believe in

24 their disproved case that until the end of 1992 the accused was at the

25 head of this large subregion constituted by the municipalities of

1 Vlasenica, Bratunac, Srebrenica and Zvornik. Moreover, in Annex D of

2 their final trial brief, the Prosecution is attempting to show the

3 boundaries of this subregion.

4 Can we please see slide number 14?

5 Your Honours, please take a look at what the boundaries of the

6 subregion ought to be.

7 According to the Prosecution map, which they present in Annex D of

8 their final trial brief, please take a look, the towns of Vlasenica and

9 Milici were under Muslim control -- of the Muslim forces, including Naser

10 Oric. Just as the towns of Bratunac and Zvornik. Take a look at the map,

11 please. In fact, all these towns were held by Serbs, already back in

12 April 1992, up until the end of the war.

13 The truth and reality are things and matters quite different,

14 quite something different.

15 The Muslims actually controlled small parts -- and you will recall

16 that thousands of Muslims were killed in these areas that they never

17 mentioned. What is the truth is that Muslims controlled only small parts

18 of the municipalities, parts of Bratunac, in the area of Konjevic Polje,

19 Glogova mount, and Bljeceva, parts of Vlasenica, the area of Cerska, a

20 small part in the Zvornik municipality in the area of Kamenica, and not

21 even all the parts of Srebrenica municipality.

22 Naturally, the people in the areas wanted to get united. Of

23 course, they attempted to do so. You heard, and numerous witnesses

24 confirmed that, that Hamed Salihovic did whatever he could. He wrote

25 orders and, as witnesses confirmed, that's where it all stopped. There

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1 was nothing to follow up on these orders.

2 Your Honours, I will now move on to the topic of the ability of

3 the accused to control the enclave. You have our submissions, and this

4 particular position is stated in paragraph 12 [as interpreted] of the

5 final defence brief. Still, I wanted to mention this briefly today. The

6 extent of desperation amongst the members of the enclave by the end of

7 December 1992 is best illustrated by their own enemy's document; that is,

8 the army of Republika Srpska from the Bratunac Brigade command dated the

9 28th of December, 1992, which is D807. This is a report in which the Serb

10 military command describes the behaviour of Muslim civilians on their way

11 to Glogova.

12 It states --

13 JUDGE AGIUS: One moment. We need to have this clarified a little

14 bit. You're referring now to paragraph 12. This is how it appears in the

15 transcript. I'm pretty sure it's wrong. Paragraph 12 of the final

16 Defence brief. Paragraph 12 is definitely a wrong reference.

17 Are you referring to part -- are you referring to part 12 of

18 the -- which starts --

19 MS. VIDOVIC: [Interpretation] Yes, Your Honours. I apologise.

20 That is chapter 12, or section 12.

21 JUDGE AGIUS: All right. It starts at page 1413, in other words?

22 I'm pretty sure it's like that, but for the record I want to make it

23 clear.

24 MS. VIDOVIC: [Interpretation] Yes.

25 JUDGE AGIUS: Chapter, part 12, starting at page 1413.

1 Sorry for having interrupted you, Ms. Vidovic. Please go ahead.

2 MS. VIDOVIC: [Interpretation] Thank you for your intervention,

3 Your Honour.

4 I started quoting the Bratunac Brigade command report, D807.

5 In this report, that particular Serb military command describes

6 the behaviour of Muslim civilians on their way to Glogova. They were

7 trying to go back to the place where they were expelled from in May 1992.

8 I quote a part of that document: "According to your assessment,

9 in that region there are around 500 fighters and a far greater number of

10 civilians, women and children. That is around 1.000 of them. Their

11 numbers increase in evening hours. They move freely in columns, in spite

12 of constant artillery fire."

13 Your Honours, this is a document describing people moving freely

14 in columns although they were fired upon from artillery. This is

15 mind-boggling. The Prosecutor imagines that such desperation could be

16 controlled. They had no fear of death. They moved under artillery fire

17 and, on occasion, listening to the witnesses we had, it sounded

18 impossible, but this is clearly portrayed by the Bratunac Brigade report.

19 In order for you to assess the possibility of control, you can

20 make use of an exhibit put forth by the Prosecutor. It was Hakija

21 Meholjic in his testimony of the 8th of April, 2005, page 6961 of the

22 transcript, and he mentioned what the circumstances and conditions should

23 be for a commander to exercise effective control over his subordinates.

24 He said the following on slide 15: "There was nothing in place to

25 provide for an efficient control. Not even the organised military of the

1 United States cannot control all of its troops, let alone us. We were not

2 organised. Secondly, there were no corps. There was no mechanism to

3 punish a soldier. You could only beat him or chase him out of your ranks.

4 There were no institutions as such in place."

5 Prosecution theory relies on the idea that the accused was some

6 sort of king in the enclave. In their pre-trial brief, they described him

7 as follows: Naser Oric was the highest authority in the enclave, loved by

8 the people of the area as if he were a king. They clung to the theory of

9 Naser as king throughout. But still, when it was put to Dr. Mujkanovic,

10 who supposedly had to corroborate that, he said the following.

11 Can we have slide number 16, please?

12 Question put to Dr. Mujkanovic: "When the Prosecution opened the

13 case against Naser Oric last October, Mr. Wubben said that Naser Oric was

14 a war lord, drunk with power. Is that how Naser Oric struck you?

15 "Answer: No. Certainly not. Drunk with power? There was no

16 power to speak of in Srebrenica. What sort of power? To be anything in

17 Srebrenica, where you could hardly survive, it was a punishment rather

18 than power."

19 One needs to read these lines carefully: What sort of power? To

20 be anything in Srebrenica where you could hardly survive.

21 There was no power to be had in Srebrenica at that time. One only

22 be a sitting duck waiting for its turn to be killed.

23 The accused, as a war lord, displaying his drunkenness with power

24 is yet another cliche, a myth put forth by Prosecution with their

25 evidence.

1 Still, Dr. Mujkanovic described that the accused praised the

2 virtues of other fighters and never spoke about himself. He was very

3 young and he carried a great burden.

4 It was one of Prosecution's witnesses, Colonel Tucker, was far

5 more realistic and humane in his opinion of the accused than Prosecution

6 had ever been. He said: "He worked in the most hostile and difficult

7 circumstances. I can even picture myself working under such

8 circumstances. One couldn't speak of any power, and in particular about

9 that sort of power needed to control thousands of desperate and

10 malnourished civilians."

11 This is important to be put in the context, not as background

12 noise but as one of life's realities. There were refugees, unknown,

13 unidentified, unregistered. They flooded Srebrenica in masses during the

14 time, because of the ethnic cleansing conducted by the Serbs in local

15 villages. How could anyone control such miserable masses? The context is

16 of crucial importance, in order to assess that. There was no functioning

17 military police, the judiciary or prosecutors; there were no rules or

18 regulations that people in Srebrenica could rely on to organise their life

19 in the enclave, as testified by Judge Mesud Omerovic on the 26th of May,

20 2005, and this was at another Prosecution witness, when he commented the

21 situation in late 1992 and early 1993.

22 Could we please see slide number 17?

23 I quote: "Every day it was said that Srebrenica was to fall. I

24 didn't address anybody about their lack of work in the period from October

25 1992 to May 1993. It was on account of the terrible humanitarian

1 situation and that nothing was working in Srebrenica. The surrounding

2 villages were falling under Serb control one after the other. The

3 refugees had filled the whole of Srebrenica. The working of the court was

4 not a priority at that time. The town was dying, and it was not possible

5 to pay attention to such things."

6 Your Honours, it wasn't only Bosniak Mesud Omerovic who saw the

7 situation as such. It was seen the same way by the international

8 witnesses who were in Srebrenica at the time, Dr. Dachy, in his testimony

9 on a report by an international organisation on the situation in the

10 enclave, being D711, dated the 11th of July, 2005.

11 THE INTERPRETER: Interpreter's correction: The testimony was on

12 the 11th of July, 2005, page 9460 of the transcript.

13 MS. VIDOVIC: [Interpretation] Confirmed the truthfulness of the

14 image portrayed by the report on Srebrenica. I quote: "The population of

15 Srebrenica had been completely isolated from the outside world, made to

16 cope any which way it could. Sometimes it is impossible to put coping

17 mechanisms in place in the short period or even in the long run for as

18 long as the Bosnian Serbs were in their positions. There were no water

19 sources, no sources of energy supply, no institutions, no people, and no

20 means to put such institutions in place."

21 Further down the report states: "They were all facing the same

22 problems. They had no qualified staff to run these institutions and they

23 were not to come from Sarajevo or Tuzla. The idea of an enclave looking

24 after itself as best it can surrounded by an enemy population is a

25 complete illusion."

1 Your Honours, I quoted a document by an important international

2 organisation. The fact that Srebrenica at the time looked like the Lord

3 of the Flies by William Golding, is not sheer background, just another

4 fact that can be recorded and then ignored. All of the facts in this case

5 are closely linked to reality. And the reality shows the following facts.

6 There were no institutions or they were not functional. The

7 Prosecutor would have you convinced that this was not so, although their

8 own witnesses stated that. They put forth entire theories of military

9 police. They claimed that the military police was functional and

10 equipped. Yesterday they stated that it was Defence who would suggest to

11 you that the military police was unequipped and that they had only two

12 guns, two rifles. To remind the Prosecutor, it wasn't said by Defence

13 but, inter alia, it was stated in their own exhibit they used extensively.

14 That was P84.

15 Your Honours, I wanted to quote the last sentence on page 34 of

16 the English of this document, P84, pertaining to a meeting of the armed

17 forces staff of Srebrenica dated the 4th of December, 1992. The 4th of

18 December. Krdzic, Atif, states: "The military police had not been

19 completed. Many gave up because of food and accommodation. There are no

20 weapons, only two guns and two rifles."

21 Therefore, this wasn't put forth by Defence but, rather, by their

22 own favourite document, P84. The role of the military police in the

23 conditions of war in Srebrenica was not as the Prosecutor imagines it was.

24 It couldn't have been, because there were no regulations, no military

25 organisation, or military rules in place.

1 The Prosecutor was trying to prove that the staff headed by Oric

2 appointed Atif Krdzic as military police commander. They claim that he

3 was subordinated to the staff. In order to show that, they used patrol

4 orders, alleged patrol orders by the military police, P15, 16 and 17, as

5 well as documents P11 and P12. They used P561, that is P458, and again

6 they used the war diary, P84.

7 To stress yet again, the Prosecutor used exhibits, the validity of

8 which was not confirmed by anyone. Nobody confirmed the contents of these

9 documents. Quite the contrary. The validity of the contents of the

10 patrol orders, P15, 16 and 17, was denied by their own witnesses, C007 and

11 Ms. Andza Radovic [phoen]. The Prosecutor interviewed Dzanan Dzananovic,

12 the military policeman whose name appears in those orders. His statement

13 is our D139. He himself put those documents in question. He told the

14 Prosecutor that he had never seen the documents and that the signature

15 on P17 and P333 is not his. He wasn't called to testify, as were not many

16 other witnesses who expressed their doubts as to the authenticity of their

17 documents. Some of them even clearly stated that those documents were

18 fabricated and that they had nothing to do with them.

19 I will go back to P17. They didn't call Dzanan Dzananovic to

20 testify, but they sent the document for handwriting examination. Their

21 expert concluded that the signature on document P17 probably is not that

22 of Dzananovic. Rather, he ruled out the possibility that it was

23 Dzananovic's signature. It was the same type of patrol order as P15

24 and P16.

25 Your Honours, is that a part of that theory, conspiracy theory, as

1 Mr. di Fazio said yesterday? Unbelievably still, the Prosecutor relies on

2 these documents to confirm that Krdzic was appointed by the staff and that

3 he was under its control, irrespective of the fact that there is

4 sufficient evidence not to use those documents. They use P84 to try and

5 corroborate it, claiming that at the meeting of the 22nd of November,

6 1992, Krdzic was appointed military police commander by the staff, and

7 that the War Presidency was not present.

8 First of all, that is not correct. The Prosecutor never invested

9 an effort in order to understand who the people at those meetings were,

10 what their names were, and what their so-called functions or titles in

11 Srebrenica were. Had they done that, they would have known that Suljo

12 Hasanovic, who on page 02115072, page 22 in the English, of the same

13 document, is mentioned as a member of the Executive Board of the War

14 Presidency for All People's Defence, and on page 02115051, page 8 of the

15 English, as the person in the War Presidency tasked with All People's

16 Defence. There was no Suljo within the staff, and at the meeting of the

17 22nd of November, 1992, Suljo was there, seconding the comments made by

18 some other people.

19 Your Honours, it seems that the Prosecutor and their policy is to

20 remain silent on such parts of documents they don't like and to interpret

21 it the way they seem fit.

22 Could we please see slide number 18?

23 It's also part of P84, and I will quote from it: "Osman reported

24 on the position of the RP regarding the reorganisation of the VP. A

25 request for the dismissal of the commander was also read. Hamed, there

1 have been failures. In the town there should be a VP squad attached to

2 the staff."

3 Your Honours, the date of what you see here is the 22nd of

4 November, 1992. When you take a look at what was actually discussed on --

5 at the session of the 22nd of November, 1992, you will see that Osman

6 Osmanovic reported about the standpoint of the War Presidency on the

7 reorganisation of the military police. Therefore, what was discussed at

8 the meeting was the standpoint of the War Presidency on the reorganisation

9 of the military police. It was in this context that Mirzet Halilovic was

10 mentioned. It says here that a request was read out to dismiss the

11 commander, as well as Atif Krdzic.

12 It's quite clear from this part of the document which they refer

13 that in the town, a VP squad is needed in the town, which means at the

14 very least that at that point in time there was no military police squad

15 attached to the staff; otherwise, why would they be requesting one?

16 They referred to P561 or P458, claiming that the military police

17 was not subordinate to the War Presidency. P561, let me remind you, is a

18 document which was allegedly found on a field. Unlike those who call it

19 the diary of the military police, we call it the field diary. And that's

20 a diary in which it says, under the date the 6th of December, 1992, I

21 quote: "I was walking along the street while the bus was leaving the bus

22 station to go to Bratunac."

23 As you know, Your Honours, there were no buses in Srebrenica in

24 December 1992 and especially there was no traffic through the firing

25 lines. This document cannot be correct.

1 Take another look, Your Honours, as the Prosecution documents

2 which they rely on in an attempt to prove that the military police was

3 subordinate to the staff. Both of the documents you will see now have

4 been used by the Prosecutor in the same paragraph, 44, of their response

5 to our final brief. They use both documents in an attempt to corroborate

6 the allegation that it was the staff that issued orders to the military

7 police.

8 Please take a look at the document on slide 19. It's

9 document P15, Your Honours, which I have just mentioned.

10 It says: "Patrols in town," and Mr. Atif is mentioned as the

11 commander of the military police, Atif Krdzic. And you will see that it

12 says on the seal, Srebrenica, Potocari, which doesn't have much to do with

13 the military police. And then please pay attention to the second part of

14 the document, which says: "Report of the patrols in town, dated the 9th

15 of January, 1993, time 0600 to 1400 hours."

16 And it says: "At 1200 hours, acting on the same Srebrenica OS

17 staff order we sealed up two blacksmith shops and took the keys to the

18 police. At 1300 hours, we took two prisoners of war to the OS staff for

19 interviewing."

20 Now, please let us see slide 20.

21 Your Honours, this is now part of document P561 through 458 dated

22 the 13th of January, 1993, and it says: "On the orders of Suljo

23 Hasanovic, who had a written receipt, I opened the blacksmith's shop to

24 Idriz Mehic and handed him the keys. The aforementioned blacksmiths was

25 shut down, (sealed) on the 9th of January, 1993 at the order of the

1 Secretariat for National Defence."

2 Your Honours, once again, this is the kind of evidence the

3 Prosecution has produced. It always -- there are always discrepancies.

4 However, they wish you not to believe those parts of the documents that do

5 not fit their case. Which of these two documents should you believe, Your

6 Honours? Because, according to their two documents, which fortunately for

7 us, deal with exactly the same event of the 9th of January, 1993, the

8 blacksmith shop, and we see that the order to the military police in

9 connection with the blacksmith shops was issued by two different bodies.

10 According to P15 by the staff, and according to P561 and P458, the

11 Secretariat for National Defence. You will recall that will this was part

12 of the War Presidency of Srebrenica. The Prosecutor wants to say that

13 both are correct when they deal with the issuing of orders to the military

14 police.

15 According to their Exhibit P561, P458, on the 10th of December,

16 1992, five men from the military police are put at the disposal of the

17 staff. Why would those people from the military police be put at the

18 disposal of the staff on that date if the military police, as the

19 Prosecution alleges, was subordinate to the staff? There is no logic

20 there.

21 Your Honours, this might be a convenient moment for a break.

22 JUDGE AGIUS: I thank you, Ms. Vidovic.

23 We'll have a 30-minute break starting from now.

24 --- Recess taken at 12.29 p.m.

25 --- On resuming at 1.04 p.m.

1 JUDGE AGIUS: One moment, Ms. Vidovic, because before the break I

2 was in the middle of making -- taking a note.

3 Yes. Thank you. You may proceed.

4 MS. VIDOVIC: [Interpretation] Thank you, Your Honour.

5 In their response to our brief, our final brief, in paragraph 45,

6 the Prosecutor alleges that there is no evidence in their document P561

7 that the military police received orders from the War Presidency.

8 However, this is not the case. You will remember the testimony of

9 Mrs. Suhra Djilovic, the administrative secretary of the War Presidency,

10 of the 17th of January on -- of 2005 [as interpreted], on page 15235, who

11 stated clearly that the War Presidency was attempting to get firewood for

12 the hospital by organising farmers to transport the firewood on horses.

13 You have the slide here, Your Honours, and you will see the entry

14 of the 8th of December, 1992, referring to a session of the War Presidency

15 at which there is discussion of something falling within the purview of

16 the military police and allegedly signed by the author of this diary who

17 is purportedly a military policeman. You will see that they discuss a

18 curfew and an agreement to stop daily shooting incidents in the town.

19 Please show the next slide.

20 Your Honours, this is part of -- the part of the document that

21 follows the previous one. It's the very next page. And I wanted to show

22 it to you because, according to the Prosecutor, as stated in paragraph 45

23 of their response, this page is supposed to be an order issued by Naser

24 Oric. However, from what you see on the slide, you will see that it is a

25 draft of a patrol order, as envisaged by someone. The Prosecutor alleges

1 in paragraph 45 of their response to our final brief that this is an order

2 issued by Naser Oric. However, this piece of paper has nothing whatsoever

3 to do either with any kind of order or with Naser Oric.

4 Please show the next slide now.

5 I am going through the diary in sequence. Immediately after this

6 alleged patrol order, allegedly issued by Naser Oric, is an entry

7 referring to the 10th of December, 1992, referring to -- calls upon owners

8 of pack animals to bring firewood for the hospital. This was the task of

9 the War Presidency in Srebrenica, and you will recall that Mrs. Djilovic

10 talked in detail about how the War Presidency found firewood and procured

11 firewood for the hospital in Srebrenica. By no means does this document

12 show what the Prosecutor wants it to show, that is that the military

13 police did not carry out orders issued by the War Presidency. In our

14 final brief, we gave other examples showing that the War Presidency did,

15 in fact, issue orders to the military police. This is described in our

16 paragraph 628 to 646.

17 The Prosecutor attaches great significance to the fact that in

18 some places in P561, the commander of the military police is addressed as

19 the commander of the military police of the armed forces of Srebrenica.

20 Your Honours, in Bosnia-Herzegovina and in the former Yugoslavia in

21 general, the term "armed forces" had a far wider meaning than the one

22 attached to it by the Prosecutor. In the general confusion in Srebrenica,

23 the lack and the ignorance of regulations and legislation and adequate

24 terminology, something that is written down does not necessarily reflect

25 the actual situation. That is why Your Honours heard witnesses and what

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1 witnesses said about the appointment and control of Atif Krdzic. Suhra

2 Djilovic, the administrative secretary of the War Presidency of Srebrenica

3 testifying on the 17th of January, 2005, on page 15235 said as

4 follows: "Yes, I remember Atif Krdzic was appointed after Mirzet

5 Halilovic.

6 "Question: Do you remember who appointed Atif Krdzic?

7 "Answer: Yes. The War Presidency."

8 A little further on there was a question as follows: "According

9 to what you know, to whom was Krdzic subordinated?

10 "Answer: To Becir Bogilovic, the chief."

11 On the 13th [as interpreted] of October, 2005, on pages 13287 to

12 13288 of the transcript, this testimony was corroborated by Mustafa

13 Sacirovic who, like Mrs. Djilovic, was in the situation to know what went

14 on in the War Presidency because he worked there, as did Mrs. Djilovic.

15 The Prosecutor did not, pursuant to Rule 90(H)(ii) put to these

16 witnesses the nature of his case, which is contrary to their testimony.

17 Certainly, it was the sacred and solemn duty of Prosecution counsel to put

18 their case in cross-examination. We always did so. You will find in many

19 places in the submissions by the Prosecutor that Prosecution witnesses

20 categorically rejected some things put to them by the Defence. Whether

21 Your Honours will believe that rejection or not is a different matter.

22 But we as Defence counsel made it possible for Prosecution witnesses to

23 respond to our suggestions whenever there was an issue we did not agree

24 on.

25 Why am I saying this now? Because it is impermissible that months

1 after the witnesses have left, the Prosecutor finds questions where

2 they -- and issues in which they disagree with Defence witnesses without

3 ever having put their case to those witnesses. And not only this, they

4 heard the same kind of testimony from their own witnesses, and they did

5 not even try to impeach these witnesses.

6 This was the case, for example, with the documents which I say

7 they had for years but they did not put these documents even to their own

8 witnesses. This was the case, inter alia, with Prosecution witness Hakija

9 Meholjic and his statement that the military police, from its very

10 founding in early July 1992, was within the structure of the civilian

11 police. Hakija Meholjic, who was appointed chief of the Public Security

12 Service in Srebrenica in April 1993, and in that capacity certainly knew

13 about the situation and the relations that he found in the

14 military police on the 8th of April, 2005 testified on pages 6992 to 6993

15 that he found the military police and Atif Krdzic within the structure of

16 the civilian police, that he had certain complications and problems with

17 Krdzic, but that he managed to solve those.

18 When asked the following: "Mr. Meholjic, you said clearly that

19 before your appointment, the military police was part of the civilian

20 police within the structure of the civilian police."

21 The answer was: "Yes. There is no dispute about that. I have

22 repeated that more than once."

23 Let us see what another Prosecution witness had to say about the

24 military police, namely Judge Mesud Omerovic. In his testimony on the

25 25th [as interpreted] of May, 2005, page 8537, he described the military

1 police as follows -- Your Honours, there is slide number 24 for you to

2 see there.

3 "Its composition, level of equipment, necessary knowledge,

4 education level of the staff, did not allow them to run a procedure or to

5 submit a report. I do not think they did anything regarding public

6 security. That job was done by the civilian police."

7 He confirmed that in Srebrenica, at the time, it was believed that

8 the task of the civilian police was that of initiating proceedings against

9 perpetrators of misdemeanours and criminal offences and any other duties

10 in the realm of public security.

11 Could we have slide number 25 now, please?

12 Throughout the trial, the Prosecution has been trying to persuade

13 you that the authority over the military police, prison, prisoners and

14 exchanges was held by the staff. That's to say by Naser Oric. Look at

15 document P45. This is their exhibit, a document by the municipality of

16 Srebrenica, War Presidency of Srebrenica, dated 9 February 1993. If this

17 is an authentic document, then it states that the War Presidency was the

18 one dealing with prisoners and their exchanges. In this case, the

19 document confirms this beyond any doubt. This is a document of the War

20 Presidency, bearing the stamp of the War Presidency and the type of

21 signature we were able to see in other documents as Avdic's signature. In

22 this case, this very Prosecution evidence confirms everything the

23 witnesses Suhra Djilovic and Mustafa Sacirovic said, including

24 documents D987 and D866, the so-called Karno video clip and Karno

25 document, which showed the communication concerning prisoners between

1 Mr. Jusufovic, commander of the civilian police, and Mr. Avdic.

2 This particular piece of evidence relating to the military police,

3 prison and prisoners was adduced by the Prosecution themselves. Now they

4 are claiming something quite different. The Prosecution asserts that a

5 military court was established in Srebrenica and that Oric had the legal

6 basis for setting up a special military court. In actual fact, their own

7 witness, Prosecution Witness Enver Hodzic, in his testimony on the 11 May

8 2005, pages 8073 and 8074, he stated: "In the time period between 1992

9 and 1995, or 1996, for as long as I was a member of the army, this type of

10 court had never been set up in the area of responsibility of the

11 2nd Corps."

12 He is therefore mentioning the area of responsibility of the

13 2nd Corps, and that's a Prosecution witness speaking, which include -- the

14 area of responsibility which includes Srebrenica.

15 This -- it is quite cynical that the Prosecutor should be

16 referring to the regulations of the newly established state of the BiH

17 when at least five of their own witnesses, namely Brkic, Hogic, Omerovic,

18 Meholjic and Becirovic stated that the regulations were never either sent

19 or received, sent to or received in Srebrenica.

20 That the military court was set up in Srebrenica is confirmed by

21 the Prosecutor through the war diary, P84, because that is what the war

22 diary says. Regardless of the fact that their witness, Judge Omerovic,

23 who attended precisely the meeting they are referring to, held on the

24 9th of November, 1992, stated in his testimony on the 25th of May, 2005,

25 on page 8456, and I'm literally quoting: "It says military court here but

1 I can claim with full responsibility that a decision setting up the court

2 was not passed at this meeting, nor was it put to a vote. Actually, I'm

3 absolutely certain that this is a mistaken interpretation of the person

4 that kept the minutes."

5 Your Honours, this fact is quite telling in terms of weight you

6 can attach to Prosecution Exhibit P84.

7 Yesterday, the Prosecutor said something that was not correct in

8 connection with P84. The Defence has never accepted either the

9 authenticity or the accuracy of the document because it is aware of the

10 background of the document. Your Honour, yesterday, in order to attach

11 greater weight and seriousness to the document, they stated that the

12 document was officially certified and registered in special official

13 files.

14 Can we please take a look at slide number 27?

15 Your Honours, please take a look at the slide. It says here that

16 the document was certified and that it has 100 sheets of paper. Of

17 course, admittedly, in English, it was translated as 100 pages.

18 You will recall, Your Honours, that at the start of trial, we

19 submitted that, on the face of it, one could see that there were pages

20 missing. Moreover, we stated right at the start that the diary was

21 written in two different handwritings. If indeed it is true that the

22 diary was certified as argued by the Prosecution, then it is true that at

23 the moment of its certification, it had 100 sheets of paper, not pages.

24 Your Honours reviewed the document and the Defence team inspected the

25 document twice. Whichever way you count the pages of the diary, you will

1 see that it has either 67 sheets of paper. In our language, we call a

2 piece of paper that was written on on both sides a sheet of paper.

3 Therefore, it has either 67 sheets of paper or 134 pages. We established

4 this by carefully inspecting the diary and you yourselves noticed that at

5 the very start of the trial. At any rate, we are not dealing with 100

6 pages.

7 In the course of testimony of expert witness de Koeijer, Your

8 Honours themselves noticed that there were pages missing. I'm referring

9 to his testimony on the 13th of October, 2004, pages 652 to 655, and we

10 presented the expert witness with different handwritings. His answer

11 was: "The Prosecution did not request that I examine the handwriting and

12 I did not do it."

13 That's transcript page 681 of the testimony on the 13th of

14 October, 2004.

15 Your Honours, we are submitting accordingly that P84 should not be

16 accorded the weight the OTP attaches to it.

17 Yesterday, the Prosecution showed you one clip of the interview

18 which again is going to be very telling about the Prosecution approach to

19 this case. I'm speaking of the following part of the interview, P328,

20 tape 13, pages 7 and 8 of the English version. Your Honours, I do not

21 have the time to play that part to you again, but you will remember that

22 in this part Oric stated that during a break at the time he took part in

23 the interview, he learned from some fighters that the military court was

24 set up after the action at Zalazje and that later on Zulfo Tursunovic was,

25 as he put it, some sort of military judge at the military court. This in

1 fact tells you how Oric obtained information for the interview, although I

2 mentioned it for a completely different reason. In this part of the

3 interview he goes on to say: "The reason we appointed him was that he was

4 a man who had spent many years in prison."

5 He then goes on to explain quite clearly that Zulfo was in prison

6 because he had himself committed a criminal offence and convicted to a

7 sentence of several years. The Prosecution presented this part to you

8 yesterday as if Oric said that Zulfo had spent a lot of time in prison

9 because he was working in the prison during the war and that therefore

10 Oric was able to receive information about prisoners from him.

11 Such distortion of facts is rarely to be seen in case law, Your

12 Honours. We trust the Trial Chamber and we believe that something of the

13 sort will not mislead them.

14 The Prosecution argues that Oric had the possibility to

15 communicate with subordinates and superiors. What's more, the Prosecution

16 states that the possibility of communicating with the subordinates and

17 superiors is one element of the reasonable measures for exercising

18 effective control by a commander. Therefore, they state that Oric had

19 reasonable means of communication to exercise effective control over their

20 subordinates. To corroborate this, the Prosecution stated that the Muslim

21 forces had led very successful military actions from June 1992 up until

22 March 1993.

23 Your Honours, first of all, it is completely incorrect that the

24 Muslim forces conducted any sort of action, let alone a successful one,

25 after the 16th of January, 1993. There are numerous documents of the

1 Drina Corps demonstrating this. As for those successful actions, I'd

2 rather call them struggles by desperate people for bare survival.

3 In paragraph 644 of their final trial brief, the Prosecution

4 mocked the fact that these successful actions were achieved even at the

5 cost of dozens of dead who had to tread through minefields. The

6 Prosecution should be ashamed of such reasoning. They should be ashamed

7 of these words put on paper, because they will be read by people who are

8 survivors. As the Honourable Chamber knows, in Srebrenica, people died of

9 hunger. They were shocked by shelling and desperate. People can make

10 incredible achievements in despair.

11 In one of the Nazi concentration camps, a group of prisoners who

12 were sent to gas chambers managed to break through a brick wall in a

13 frenetic attempt to avoid death. This would not be convincing, according

14 to our Prosecution.

15 In the Warsaw ghetto the barely armed members of the Jewish

16 resistance movement stood ground to the enormous German army for 28 days.

17 Our Prosecution would complacently write, "This is unbelievable." They

18 never even tried to imagine themselves in Srebrenica in 1992 as having

19 been attacked together with their families and friends without any food.

20 Let's see what they would do. Perhaps they would manage to surprise

21 themselves.

22 In the indictment the Prosecution alleged that Oric's forces

23 torched at least 50 villages and hamlets and described these in

24 paragraph 932 of the Prosecution final trial brief.

25 Your Honours, please take a look at the footnote, 1931, what

1 exactly the Prosecution did to demonstrate the number of the villages in

2 the footnote 1931. They listed individually each of the hamlets of the

3 villages in the indictment as if each and every one of these was a

4 separate village. So that every single hamlet of Kravica was treated as a

5 separate village, including the hamlets of Jezestica and the same goes for

6 Ratkovici.

7 If you look at their list, then you will see that into these

8 reportedly 50 villages they counted Glogova, you can see it here, it is a

9 purely Muslim village, whose tragic fate is known to you. According to

10 the Prosecution, here, Muslims torched their own Glogova and probably

11 killed one another there. They also cited mixed villages among the

12 torched villages, for instance, Magasici where it was in fact the Muslim

13 houses that were torched. You will see that probably in order to achieve

14 the necessary number of villages they mentioned Magasici three times,

15 Dvorista three times, Kajici two times. They also cited Radijevici

16 although the evidence showed that there was no torching there, even

17 though, at the end of the Prosecution case, these charges in relation to

18 Radijevici were dismissed. Although they separated these villages into

19 hamlets, they weren't able to achieve the number of 50 villages, not even

20 remotely. Not to speak of what they haven't managed to prove in regard

21 with the torching, they haven't been able to prove the pattern as well as

22 many other things.

23 The Prosecution argues that Oric himself agreed that various

24 communication means existed in his interview. This is something that they

25 expounded in their reply to our final trial brief.

1 Your Honours, please take a look at that reply and look at

2 paragraph 106 and footnote 199.

3 In trying to establish what it was that Oric in fact stated in

4 this part of the interview, you will encounter great difficulties because

5 none of what they allege is written there is in fact to be found. Also,

6 in paragraph 112, footnote 212, out of nine references, six contain

7 nothing whatsoever that would serve to confirm their allegation that Oric

8 described the way communication means were used. I can now read out to

9 you the footnotes although it would take too much time. The same goes for

10 paragraph 113 and footnote 216. Paragraph 113, footnote 216.

11 Let us take a look at what Oric said indeed as regards means of

12 communication. Your Honours, you will see that while I'll be speaking

13 that I will mention some names on the following slide that do not appear

14 in the English. For example, something said by Nijaz Masic or Nedzad. It

15 is not a mistake on my part but, rather, those are examples of how the

16 Prosecutor adjusted the translation and left out some portions.

17 To go back to what Oric said regarding communication, you have the

18 interview reference. Investigator: "Now, to clarify a few things before

19 I ask you something in general, as concerns communication during the

20 period of war, that is from 1992 until the demilitarisation, the way you

21 communicated with your other commanders, as well as with Sarajevo and

22 Tuzla consisted of the following, couriers; is that correct?

23 "Answer: Yes.

24 "Question: Ham radios?

25 "Answer: Yes.

1 "Question: And the fax you told us about yesterday?

2 "Answer: For a very short time, very short time. Until August.

3 And Masic said that therefore it was at the very beginning. Later on we

4 didn't have it.

5 "Question: Was there any other sort of communication apart from

6 the aforementioned three?"

7 I apologise to the interpreters, but what was written here in

8 Bosnian is something I can hardly read. I believe they will understand.

9 "Question: And was there any other communication or types of

10 communication apart from those three?

11 "Answer: But you don't have the packet communication there.

12 "Question: So that would be the fourth?

13 "Answer: No, but I told you about this.

14 "Question: You did.

15 "Answer: And that's what arrived just prior to the

16 demilitarisation. And since Nedzad was working there they sent that from

17 Tuzla in order to wire-tap the Chetniks. That's what I said.

18 "Question: So those were the four ways?

19 "Answer: As for the couriers --

20 "Question: No need to go into that.

21 "Answer: No, no. It had nothing to do with Sarajevo and Tuzla

22 at the beginning."

23 Your Honours, this was another type of questioning that the

24 international Prosecutor shouldn't be proud of, because the way it was

25 acquired runs contrary to the basic postulates of criminal procedure. The

1 investigators did not allow Oric to explain certain facts important for

2 his potential criminal liability. Apart from -- instead of allowing him

3 to do that, he was interrupted aggressively, and they claimed he said

4 something he never did. Although he denied two out of the four means of

5 communication they cited, the investigator said, "So those were the four."

6 And on the basis of that, they carried on with their interview.

7 Apart -- instead of being ashamed and putting such evidence deep

8 underground, away from the eyes of the public, they invoke such evidence

9 and seek a conviction on the basis of evidence acquired in such a way.

10 They paid a lot of attention to the allegedly existing system of

11 couriers to support their thesis that Oric, probably via the couriers as

12 one of the means of communication, realised effective control over his

13 subordinates in the besieged Muslim villages.

14 If one is to look at what Oric said concerning this type of

15 communication with other groups in the field, you will find that he

16 described very basic communication with other groups pertaining to danger

17 warnings only.

18 They also dealt with urgent requests for assistance, for example,

19 in food, medication, ammunition, and so on and so forth. And this was

20 confirmed by all of the Defence witnesses. This only points to a certain

21 type of coordination in the very broad sense of the word. This is no

22 communication that would enable any commander in the world to have

23 effective control.

24 The Prosecutor will immediately try to convince you that

25 coordination was one of the command principles in the General Staff of the

1 SFRY doctrine and Oric used it. The principle of command laid out in the

2 doctrine of the General Staff of the SFRY.

3 In their final brief in paragraph 283, they show you a provision

4 that in true fact corresponds to the level of the corps commander, who is

5 duty-bound to organise coordination and control to implement his

6 decisions. There was no corps in Srebrenica. There was no corps

7 commander. And the rules of the SFRY General Staff do not prescribe that

8 the provisions pertaining to the corps should be applied to staffs, and

9 such SFRY rules were not in place in Srebrenica and people there were not

10 familiar with them.

11 It is unbelievable how the Prosecutor tried to distort evidence,

12 rules, Oric's interview, as well as witness testimonies.

13 In their reply, paragraph 107, footnote 202, they stated that

14 Muslim soldiers had come up with a way to charge their radio in order for

15 it to be used to communicate in the military sense of the word and they

16 relied for that on one of the Defence witnesses, Suad Smajlovic. Your

17 Honours, Smajlovic never even came close to mention anything like that.

18 He mentioned the way they charged their radio transistors. They used to

19 listen to the Serb news and the Serb media. He did not have any sort of

20 military communication in mind for charging such radio stations.

21 Oric's interview, as well as other evidence, show that it's the

22 same basic type of communication in the period relevant to the indictment

23 existed between Srebrenica, Sarajevo and Tuzla, no matter how hard the

24 Prosecutor tried to show the contrary. All Oric's contacts boil down to

25 assistance -- requests for assistance, and that's that.

1 There was no other type of reporting in the sense of

2 superior/subordinate relationship in the period relevant to the

3 indictment.

4 Your Honours, perhaps this would be a good time for me to stop,

5 and I will continue briefly tomorrow. After that, my colleague will

6 address the counts of detention and as well as applicable law.

7 JUDGE AGIUS: Thank you, Madam Vidovic.

8 We will reconvene tomorrow. As I said, the sitting has been

9 transferred to the morning, so we will be sitting in this same courtroom

10 at 9.00 tomorrow morning. And then Friday, if we need it, if we still

11 need it, will be in the afternoon, I don't know in which courtroom. I

12 think it's Courtroom II or III. III?

13 Thank you.

14 --- Whereupon the hearing adjourned at 1.46 p.m.,

15 to be reconvened on Thursday, the 6th day of April,

16 2006

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