Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9855

 1                           Monday, 22 February 2010

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.07 a.m.

 5                           [Defence Opening Statement]

 6             JUDGE MOLOTO:  Good morning to everybody in and around the

 7     courtroom.

 8             Mr. Registrar, please call the case.

 9             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

10     everyone in and around the courtroom.  This is case number IT-04-81-T,

11     the Prosecutor versus Momcilo Perisic.  Thank you.

12             JUDGE MOLOTO:  Thank you so much.  Could we have appearances for

13     the day, please, starting with the Prosecution.

14             MR. HARMON:  Good morning, Your Honours.  Good morning, counsel.

15     Good morning everyone in and around the courtroom.  Mark Harmon,

16     Dan Saxon, Barney Thomas, and Carmela Javier for the Prosecution.

17             JUDGE MOLOTO:  Thank you very much.  And for the Defence.

18             MR. LUKIC: [Interpretation] Good morning, Your Honours.  Good

19     morning to all the parties to the proceedings.  Mr. Perisic will be

20     represented today in this courtroom by Gregor Guy-Smith and Novak Lukic

21     as Defence counsel.  There are also our assistants, Chad Mair,

22     Boris Zorko, and also our intern.

23             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.  May the record

24     show that the Chamber is sitting pursuant to Rule 15 bis today in

25     Judge Picard's absence.

Page 9856

 1             Mr. Lukic.

 2             MR. LUKIC: [Interpretation] The Defence wishes to give its

 3     introductory statement today.  I would like to inform you also that

 4     Mr. Gregor Guy-Smith and I will jointly present the introductory word of

 5     the -- Mr. Perisic's counsel.  I will start, Mr. Gregor Guy-Smith will

 6     follow, and I will conclude.

 7             JUDGE MOLOTO:  Thank you, Mr. Lukic.

 8             MR. LUKIC: [Interpretation] Your Honours, this Tribunal, in its

 9     work so far has been faced with a large number of cases which in a

10     broader or narrower way were supposed to give -- provide many important

11     answers.  The answers to some of the most controversial issues concerning

12     the break-up of a country and all the consequences of that break-up.

13     This Trial Chamber also has an important task in accomplishing that

14     mission.

15             The Prosecution claims - and I'm saying this in the most general

16     terms for the sake of the public - that General Perisic is responsible on

17     two counts of criminal responsibility as set forth by the Statute of the

18     Tribunal.  Briefly, that he, firstly, in his capacity as Chief of

19     General Staff of the Army of Yugoslavia, in the period of time since he

20     was appointed Chief of General Staff of the VJ in August 1993 until the

21     end of the armed conflict in Bosnia-Herzegovina and Croatia, in

22     compliance with the policy and the limitations set forth by the

23     Supreme Defence Council of the Federal Republic of Yugoslavia provided

24     significant military assistance to the VRS, although he knew that it

25     would, for a great part, be used to commit crimes, the crimes mentioned

Page 9857

 1     in the indictment.  We know that these crimes are the artillery campaign

 2     and the sniper campaign in Sarajevo as well as the crimes committed in

 3     Srebrenica.

 4             Secondly, according to the indictment, General Perisic bears

 5     command responsibility because he was the superior officer of former JNA

 6     members who had joined the newly established armies of the Republika

 7     Srpska, that is the VRS and the SVK, and who became officers of the

 8     30th and the 40th Personnel Centre of the General Staff of the VJ, whose

 9     members are the perpetrators of the aforementioned crimes as well as the

10     crime of the shelling of Zagreb.

11             The Prosecution claims that General Perisic had effective control

12     over them through the salaries paid out to them by the Army of Yugoslavia

13     and preserving the right to have the final word on their promotion or

14     their end of service.  Furthermore, that he, although he had this kind of

15     control, did not prevent those crimes, nor did he punish the

16     perpetrators.

17             I claim with full responsibility, Your Honours, that you are now

18     faced with one of the most complex cases of this Tribunal both from the

19     factual and the legal point of view.  The trial of General Perisic

20     requires that you, Your Honours, become directly acquainted with many

21     concepts and notions.  From legal provisions, through military doctrine,

22     international relations, internal economic and socio-political relations,

23     up to personal dramas and tragedies.  You are expected to analyse all

24     these facts with understanding in order to achieve your basic task, to

25     establish whether or not General Perisic is responsible.

Page 9858

 1             During the Prosecution case, you have been faced with a series of

 2     very different concepts and facts.  They have been presented from one

 3     point of view, and that will not suffice you to carry out your task.  You

 4     will have to get deeper inside, into the relations that existed during

 5     the breaking out, the development, and the end of a drama which as its

 6     content had the break-up of a country, civil war, suffering, and,

 7     unfortunately, crimes.  That is why the Defence, during the Defence case,

 8     will insist on certain concepts which we claim will be crucial to your

 9     full understanding of the facts and drawing true conclusions from those

10     facts.

11             One of these concepts to which I would like to turn your

12     attention at the beginning is the word "context."  Facts taken out of

13     context can only create confusion and give rise to wrong conclusions.

14     Although our position on how to assess the Prosecution case we will give

15     in our final submission, I feel the need to stress that the Defence --

16     it's said that the Defence's position that the Prosecution focused much

17     of its energy in the presentation of evidence on, if I may call it that,

18     bombarding the -- bombarding the case file with documents.  It mostly

19     failed to put these -- to put this evidence through the Prosecution

20     witnesses into context, although without context they cannot be correctly

21     read and understood.

22             The Prosecution gave up on a large number of its witnesses meant

23     to assist them in shedding more light on the reasons, motives, and

24     relations having to do with the facts that it wanted to present in its

25     case.  It is exactly because of this approach of the Prosecution that the

Page 9859

 1     Defence is now in a unique situation.  What should be an exception,

 2     namely, tendering documents directly in the courtroom without cases has

 3     been a rule rather than an exception in this case.  Thus the Defence has

 4     received a new role and a new task, namely, that in the Defence case it

 5     now has to explain these documents and the facts contained in them.

 6             Your Honours, a large number of witnesses will testify before

 7     you, witnesses who are direct participants of events, who have immediate

 8     knowledge of the most relevant facts contained in the indictment.  At the

 9     same time, they are witnesses who have knowledge about everything that

10     constituted the general framework and the context in which these

11     complicated relations existed.

12             These relations existed at several levels, and we must not

13     neglect them.  They existed in the international community and were

14     present in its attitude toward the conflict in former Yugoslavia, but

15     they also existed among the participants of the conflict in BiH and

16     Croatia.  Likewise, in the Federal Republic of Yugoslavia and its

17     institutions, as well as their -- their relations and attitude toward

18     that conflict.

19             I would like to say a few words about the context in which the

20     country disintegrated, because I think that will be extremely relevant at

21     this stage of the proceedings.

22             The Yugoslav People's Army of the then SFRY had often been

23     described as one of the most serious armed forces in Europe.  Its concept

24     and its internal organisations had been developed for decades based on

25     the notion of Yugoslav-ship and on the doctrine of preparations for a

Page 9860

 1     defence war against an external enemy.  One of the keys of such structure

 2     was a rule for officers to be deployed, to do their service

 3     without the -- without the place of their residence, either with or

 4     without their families, and particularly outside of their ethnic

 5     territories.  That was the principle that was intended to cement a unique

 6     feeling of belonging to a single country of Yugoslavia and as a guarantor

 7     of patriotism, and it was built exclusively to serve, to repel an

 8     external attack.  And then when the Pandora's box was opened and politics

 9     began to shape the future of Yugoslavia, it was those officers who had

10     felt the most serious traumatic experience, because as such, as pillars

11     of Yugoslavia, suddenly became undesirable and a burden for all these new

12     political trends.  What used to be a concept, that is to say, the

13     protection of Yugoslavia, had suddenly become heresy.

14             Eight new armies emerged from a single reputable army, and that

15     has no precedent in history.  After certain fledgling stages, all these

16     armies were basically structured on the same rules stemming from the

17     rules governing the functioning of the Yugoslav People's Army, and at the

18     heads of all these armies were brought professional officers from this

19     very same Yugoslav People's Army.

20             As an illustration, in 1991 and 1992, the JNA left -- over

21     10.000 professional officers left the JNA, and they constituted the core

22     for these new armies.  In that period, over 3.000 officers went to

23     Croatia alone, and over 1.300 of them went to the Army of

24     Bosnia-Herzegovina, and you're going to hear evidence about that.

25             These officers also joined the newly formed Army of

Page 9861

 1     Republika Srpska in the Serbian Krajina.  They became their members, and

 2     they took up the most responsible positions when these armies were

 3     incepted.  Who and when assigned them to these positions, you will hear a

 4     lot of evidence.

 5             This movement of officers created a new reality.  The officers

 6     who used to be deployed all over Yugoslavia turned to their own people

 7     and new armies and entered the command structure with their new

 8     commanders in chief.  Their then decisions to join these new army were,

 9     in principle, voluntary, and they carried all the consequences that such

10     decisions normally have.  However, these consequences were different in

11     different entities and in different armies.  In some places they were

12     proclaimed heroes.  Elsewhere, they were branded traitors.

13             The new political establishments and who had created these armies

14     very often perceived them as relics or the remnants from the old system

15     that should be gotten ridden of as soon as possible.  With such legacy,

16     their status was that of people who were not desirable, people who lacked

17     reputation, and it was problematic.

18             What also became impossible in all this movement of personnel

19     involved the whole territory of the former Yugoslavia.  When the

20     withdrawal of the army in Slovenia took place in 1991, that marked the

21     beginning of that process.  Then came Bosnia-Herzegovina, Croatia, and

22     Macedonia.  Often without any personal belongings and only with their

23     standard-issue weapons, they went to new territories and went to join new

24     armies.  These new states were now much less sizable in terms of

25     territory, and therefore, consequently had fewer personnel needs.

Page 9862

 1             Political, economic, and social problems emerged that one had to

 2     face.  The families of these military personnel were broken up and

 3     eventually expelled.  They lost their flats.  They lost their property.

 4             The new state of the Federal Republic of Yugoslavia was only at

 5     the beginning of setting up a new legal framework in which it had to put

 6     a considerably changed army, in terms of structure, that is to say, the

 7     change from national army to a professional army.  This context, in our

 8     view, is very important for the sake of understanding the facts that have

 9     already been presented or will be presented in evidence.  We believe that

10     you have not been presented with significant proof, and one of our

11     objectives is that we shed some light on this particular subject in our

12     Defence case.

13             Another context which is extremely important for understanding

14     the facts and the creation of new states is their political, legal, and

15     military reality.  This new political reality, which as consequence had

16     the emergence of new subjects of power and decision-makers and new

17     realistic relations.  There were a lot of such issues, but as far as this

18     indictment is concerned, we are going to focus on Republika Srpska, the

19     Republic of Serbian Krajina, and their newly established armies.

20             You will have an opportunity, Your Honours, to hear testimonies

21     about these facts of witnesses who discharged the most responsible duties

22     in the Army of Republika Srpska, in the army of the Serbian Republic of

23     Krajina.

24             Can we please move to private session for a while?

25             JUDGE MOLOTO:  May the Chamber please move into private session.

Page 9863

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Page 9864

 1   (redacted)

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 6   (redacted)

 7                           [Open session]

 8             THE REGISTRAR:  We're back in open session, Your Honours.

 9             JUDGE MOLOTO:  Thank you so much.

10             Yes, Mr. Lukic.

11             MR. LUKIC: [Interpretation] I would like now to focus on a

12     subject about which Mr. Harmon and I agree that it constitutes one of the

13     key issues in this case, that is, one of the three elements of command

14     responsibility, and that is the existence of superior/subordinate

15     relationship.  We know that if the Trial Chamber fails to establish the

16     existence of this relationship, there will be no command relationship,

17     nor this form of criminal responsibility.  We also know that what this

18     Trial Chamber has a task with regard to this element of criminal

19     responsibility is to establish the existence of effective control exerted

20     by General Perisic over the perpetrator qualified as direct perpetrator

21     of crimes as stated in the indictment.  And with this, we embark on what

22     is of essence when it comes to the very existence of command

23     responsibility.

24             In the appeals judgement of Celebici, paragraph 303, it is said

25     that the historical focus was put on persons who had power, by virtue of

Page 9865

 1     their positions, over other people.  The persons claimed by the OTP in

 2     the indictment to be the perpetrators were at the time members of the VRS

 3     and RSK armies.  You already had an opportunity to hear evidence about

 4     the constitutional structure of the RSK and the RS and how, in legal

 5     terms, their respective armies functioned.  The Defence often insisted,

 6     in its questions during the Prosecution case, that this should not be

 7     based only on de jure regulations but, rather, on the de facto

 8     functioning of this army as well such as is the case with other armies

 9     who have their own chain of commands.

10             These principles are simple.  It is quite clear who the

11     Commander-in-Chief is, who is subordinated to him, who issues orders, and

12     who keeps the army under control.  There is no dual chain of command.

13             Let me draw to your attention to the two sentences that I'm going

14     to read out to you now.

15             "Ratko Mladic was the highest officer of the Army of Republika

16     Srpska, subordinated only to the Presidency/President of Republika

17     Srpska.

18             "Based on his authorities governed by military rules and

19     instructions, Mladic controlled the operation of the Main Staff and took

20     decisions on behalf of the Main Staff and the subordinate units."

21             These are paragraphs 16 and 17 from the indictment issued by the

22     ICTY against Ratko Mladic.

23             One thing is clear, what the OTP is presenting as allegations in

24     one case becomes a problem for their proposition about the relationship

25     of superiority and subordination as a crucial element of responsibility

Page 9866

 1     pursuant to Article 7(3) of the Statute in another case.  They are aware

 2     of this and that is why they are advocating the indictment against

 3     Mr. Perisic in their thesis about his effective control and they want to

 4     establish parallel command structure.  This is included in several

 5     propositions; namely that Perisic ordered all his subordinates to join

 6     this army, that they were transferred to those armies, and that the daily

 7     operative control was transferred to the commanders of these armies.

 8     Both these terms "transfer" or "reassignment" and transfer of operational

 9     control do not exist in military legislature and the doctrine either in

10     the JNA or the VJ, or the VRS and SVK.  The Defence claims that in all

11     military structures, if they are established properly, and the evidence

12     have already shown and will continue to show during the forthcoming

13     procedure that these were properly established armies, there cannot be

14     multiple chains of commands.  This is contrary to the very basics of how

15     an army should function.

16             Leaving one military chain of command and structure and transfer

17     to another is not known either in the domestic legislature or in the

18     international practice.  However, making a comparison of such different

19     status with international forces and all coalition forces may only create

20     confusion and eventually can lead the Chamber to draw wrong inferences.

21             The Defence will present to you relevant documents and will prove

22     that such relationships never existed between anyone in the VJ, on the

23     one hand, and the VRS and the SVK on the other.

24             The Defence, it does not deny some facts, namely, that there

25     existed relationships among these three armies.  In the Defence case, we

Page 9867

 1     will not fail to use the term "co-ordination," which is a generally

 2     accepted standard in the communication among all those who have something

 3     in common, and especially with reference to military relations.

 4     Co-ordination and communication are ways in which the interests of

 5     certain partners are realised.

 6             The Federal Republic of Yugoslavia and its army had a clear

 7     interest to secure their safety or the safety of their borders and of

 8     their territory.  The previously single system, not only from the point

 9     of view of organisation and functioning but also including military

10     industries, overhaul facilities, et cetera, including training, health

11     care, et cetera, had been torn apart.  The political and historical

12     interest and decisions that grew out of this interest created obligations

13     on the military subjects to re-establish some relations.  Is that a

14     crime?

15             You've already had the chance to hear in the Prosecution case how

16     many different interests were present in the Balkans at that time and

17     even today.  Much political and especially military co-ordination was

18     required in forwarding those interests.

19             We don't want to embark on a tu quoque argumentation, but we do

20     think that co-ordination is a legitimate means in the relations among

21     those who have some sort of interest, that this shows that there's no

22     subordination in place at all, but, rather, that these relations were the

23     relations of equal participants.  In that context, we are not at all

24     afraid of the word "co-ordination."

25             You were able to hear terms such as "control," "subordination,"

Page 9868

 1     and the like in the Prosecution case; but now during the Defence case,

 2     you will be faced with the concepts of co-operation, interest, and the

 3     Defence will not shun the term of "influence."  Influence, even

 4     substantial influence, are not the equivalent of control, and the

 5     jurisprudence of this Tribunal is unambiguous in this respect.  Influence

 6     is something that the leadership of the Federal Republic of Yugoslavia,

 7     including the highest military officials, among who there was

 8     General Perisic, something they tried to exert often, but these attempts

 9     of theirs were often completely thwarted.  However, other times they were

10     successful.  I mean, influence on the leadership of the RS on the RSK.

11             Influence is an instrument of politics.  If you look at influence

12     in the context of the events in question, you will see to what -- or,

13     rather, in what direction the influence of the political and military

14     leadership of the SRJ on the subjects in the RS and RSK was -- or went.

15             In order to point out the difference between influence and

16     control, during the Defence case we will lead you through certain events

17     that are blatant examples of such relations -- relationships.

18             The -- an important example for the powerlessness of influence

19     and the absence of control is, among other things, the direct charges as

20     mentioned in the indictment.  This is -- I mean, the transparent attempt

21     to talk sense into the military and political leadership of the RSK, to

22     stop their activity to shell Zagreb in May of 1995.

23             For the sake of the public, I stress that this is an

24     incrimination which is put against Mr. Perisic based on his command

25     responsibility and his failure to prevent that.

Page 9869

 1             This clear example of influence and its -- and the failure to

 2     achieve success through this influence is that the shelling continued on

 3     the following day, although General Perisic required it to stop.  This

 4     can -- this is an indication to the Trial Chamber that at least two

 5     conclusions can be drawn:  One, that there was no authority in the direct

 6     requirement to stop the attack, and for -- on the other hand, the -- the

 7     direct effort made to resolve the conflict peacefully.

 8             For the Defence and its argument about influence and control, it

 9     is extremely important to show the context of the relations among the

10     political and especially the military leaderships after the refusal of

11     the peace plan put forward by the Contact Group by the RS leadership and

12     the imposing of sanctions by the SRJ toward the RS in August 1994 as a

13     reaction to the refusal of that plan.

14             This was the continuation of the SRJ's insistence which followed

15     after the equally unsuccessful attempt to influence the acceptance of the

16     Vance Plan in 1993.  The SRJ insisted on -- insisted that a peaceful

17     solution to the war in Bosnia-Herzegovina be found, but obviously it

18     lacked sufficient influence on the political leadership of the RS for

19     them to accept that plan.  The consequence of that refusal are the facts

20     about which we'll hear the testimony by immediate participants from both

21     sides of the Drina River about the existence of a conflict of

22     leaderships, about breaking off of relations, and about a blockade.  You

23     will hear testimonies about the consequences of that blockade that

24     reflected themselves on the relations of some VRS officers toward the SRJ

25     and the Army of Yugoslavia.  Those who thus far had received salaries

Page 9870

 1     from the Federal Republic of Yugoslavia clearly showed who their superior

 2     was even though no more salaries were paid out.  Although there were

 3     direct appeals by the highest representatives of the SRJ authorities to

 4     the VRS officers not to support the RS leadership, even to leave the VRS,

 5     they did not accept these appeals.

 6             You will be able to hear testimonies about many kind of

 7     influence, including imposing sanctions, being an insufficient argument

 8     on -- on the part of the one who has the money as opposed to the one who

 9     receives the money.

10             Witnesses, members of the VRS, will testify to their personal

11     feelings of belonging to that army and about the fact that certain status

12     rights of theirs were regulated in the SRJ.  Their testimonies are clear

13     and militarily precise.  They will openly state that they were part of

14     the single command -- chains of command of their armies, structured in

15     accordance with all doctrines, and more precisely, that their activities

16     were not controlled by anybody from the Army of Yugoslavia, not even its

17     highest-ranking officer, General Perisic.

18             Salaries, the verification of ranks, the regulating of certain

19     status rights for them and their families couldn't make these officers do

20     anything that would go beyond the chain of command of their army, to obey

21     anybody and carry out the orders of anybody else but those superior to

22     them in their chain of command.

23             Finally, as far as influence and control are concerned, you will

24     hear evidence about yet another episode that reverberated greatly in the

25     international community and which, if you follow the context, follows the

Page 9871

 1     attempts by the Yugoslav leadership to finally establish permanent peace

 2     in Bosnia-Herzegovina.  I mean the episode about the liberation of the

 3     French pilots in the autumn of 1995, which triggered off such a political

 4     crisis that the highest French leadership actually questioned the

 5     verification of the Dayton Accord in Paris.

 6             General Perisic played an active role in that episode.  You will

 7     hear testimonies about that from persons directly involved.

 8             Mr. Harmon, in his introductory statement, mentioned the facts

 9     related to the liberation of the French pilots in an attempt to convince

10     you of his claim that Mr. Perisic was aware of the existence of this

11     Tribunal and about General Mladic's attitude toward the demands for his

12     extradition.

13             Mr. Harmon quoted an intercept of the conversation between

14     Mr. Lilic and General Perisic about this, which is now Exhibit P1464.  In

15     that conversation, let me remind you, President Lilic speaks to

16     General Perisic about the attempts to convince him to meet General Mladic

17     regarding the French pilots, and he says:

18             "Explain to him nicely that the FRY guarantees on a memorandum

19     with a stamp and my signature on it."

20             So according to this exhibit, these are the words of Mr. Lilic,

21     the then president of the Federal Republic of Yugoslavia and the chairman

22     of the Supreme Defence Council, as well as the Commander-in-Chief of the

23     Army of Yugoslavia.  He tells Perisic, "Explain to him nicely."

24             This request to be nice to General Mladic is not a coincidence.

25     This word shows the awareness of the then highest-ranking officials of

Page 9872

 1     the SRJ about how General Mladic must be approached and what was

 2     necessary to exert influence on him.

 3             If you have effective control over someone, are you asking them

 4     to tread carefully?  Are you trying to ingratiate yourselves to them?

 5     Are you begging them?  The true meaning of these words and why

 6     General Mladic was being begged you can hear from some direct

 7     testimonies, but you shall also hear something about the context.  Let's

 8     go back to this whole episode as it is.

 9             The people directly involved in these events will testify to how

10     they went through dramatic hours that led to the finalisation of the

11     Dayton Accord, an enormous effort on the international community and the

12     political and military leaderships of the SFRY to reach a peaceful

13     solution.  This example, Your Honours, will serve to you and hopefully to

14     the public, who is full of prejudice, will show you how the then Yugoslav

15     leadership persistently tried to achieve the only possible solution to

16     the crisis by persuading the leadership of the RS to accept a compromise

17     and end a war.  How potent or impotent Milosevic, Lilic, or Perisic were

18     could be felt by all genuinely unbiased members or actors in the events

19     in the international community.

20             Now, can we please have on our screens 65 ter document 01090.

21     Maybe we can even have a French version, but I would like to have an

22     original as well.

23             Your Honours, this is a letter -- yes.  We have an English

24     translation.  Excellent.  A letter sent by the military attache of the

25     Republic of France, Vialat, on the 13th of December, 1995.  The letter

Page 9873

 1     was sent to Mr. Perisic.  In it, he says, and I'm going to read -- and

 2     this, by the way, happened after the incident with the French pilots.

 3             "The Defence attache in the last six months has witnessed how

 4     efficient the role of the Yugoslav Army was under the guidance of the

 5     Chief of General Staff, in resolving sensitive problems in connection

 6     with the Blue Helmets who had been taken prisoner or detained in May and

 7     June 1995, as well as with the crew of the French aircraft which was shot

 8     down on the 30th August 1995 above the territory of Republika Srpska.

 9             "He is fully aware of General Perisic's decisive personal

10     contribution to the positive resolution of both these cases.  This also

11     made him realise how much the VJ Chief of General Staff is committed to

12     peace."

13             Then he goes on to say:

14             "This fact, which is something that high-ranking officials of the

15     French Armed Forces, Generals Douin, Chief of Defence Staff; de Lapresle,

16     Special Envoy of the President of the Republic of France; and Janvier,

17     UNPROFOR commander, have also realised, arouses hope that in the near

18     future military relations between France and the FRY will reach the level

19     at which they deserve to be.  It also represents a token of all the

20     restored French-Serbian friendship, regardless of the recent pitfalls."

21             The representatives of the international community knew what it

22     was that General Perisic advocated.  General Mladic was not under the

23     control of General Perisic.  You will hear an abundance of evidence,

24     Your Honour, about Mladic's conduct, about his attitude towards

25     VJ officers and about his relationship with the highest political

Page 9874

 1     leaders, including his relationship with General Perisic.

 2             In their opening statement, the OTP emphasised the fact that

 3     Mladic was Perisic's friend.  As the Defence understand things, this does

 4     not constitute an element of effective control.  However, I would like to

 5     underline once again in order for one to be -- understand the facts

 6     corroborating these notions, I will always insist on a context and

 7     specific events.  For each event there was a reason.  This reason was not

 8     an abstract vision but a realistic framework in which somebody acted or

 9     did not act.  If you judge somebody's acts in isolation, not in proper

10     environment, Your Honours, you will not arrive at truthful conclusions,

11     and in this particular instance, on the existence or nonexistence of the

12     effective control on the part of General Perisic.

13             I'm going to say a few words now about a few things that I would

14     like you to draw your attention during our case, and it is related to the

15     structure and functioning of all relevant institutions.

16             In order for one to be able to fully understand the functioning

17     of all those involved in this case, it is necessary to present evidence

18     before this Chamber relating to the structure and the interrelationships

19     of all relevant structures, both in the FRY and its army as well as in

20     the Republic of Serbian Krajina and their army.  The evidence to be

21     presented to you will demonstrate that the functioning of all these

22     institutions was precisely set out on the basis of rules and regulations

23     and that all those involved acted accordingly.

24             You will become familiarised with how the Supreme Defence Council

25     operated, how the Chief of the General Staff operated, as well as other

Page 9875

 1     institutions, primarily the MOD.  We shall clearly show you which part of

 2     the notion authority, which is the term which is often accentuated by the

 3     OTP in the indictment as a means of putting forward certain allegations,

 4     was really in the hands of Mr. Perisic and to what extent this -- these

 5     authorities gave him actual power.  We shall offer you evidence to the

 6     effect that he didn't carry out any activities that would incriminate him

 7     beyond the scope of these powers.  You will see that he always acted

 8     within his authorities and his obligations under the law and that he

 9     followed orders received from his superior.  This framework of his

10     conduct didn't even give him a right to breach it.

11             Let me tell you now something about the VSO, or the

12     Supreme Defence Council.  In their case, the OTP introduced -- introduced

13     a large number of documents relating to the activity of the VSO.  The

14     mystery and secrecy of these documents was used to generate certain

15     speculations in the public will now be testified to by people directly

16     involved in that, and again I understand who knew the context.  The

17     Defence team is not going to use this document for the benefit of

18     hindsight, but, rather, for the benefit of establishing relevant facts

19     that will prove the innocence of Mr. Perisic.

20             Can we please now move to a private session.

21             JUDGE MOLOTO:  May the Chamber please move into private session.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 9876

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11                           [Open session]

12             THE REGISTRAR:  We're back in open session.

13             JUDGE MOLOTO:  Thank you very much.

14             Yes, Mr. Lukic.

15             MR. LUKIC: [Interpretation] An ample part of our case will be

16     focused on presenting evidence about how the General Staff of the

17     Yugoslav Army functioned in the relevant period.  You will hear evidence

18     of high-ranking VJ officers who occupied the most responsible positions

19     in the General Staff at the time.  You will hear direct evidence about

20     the most important item in this case, and these are its organisational

21     units of the General Staff, such as the sector for operational staff

22     affairs and its first administration; operations centre, that is the

23     second intelligence administration; sector for logistics, and all

24     subordinate logistics administrations; sector for replenishment,

25     mobilisation and system matters that had two administrations, personnel

Page 9877

 1     and legal ones; sector for communications; and the sector for

 2     anti-aircraft defence and air force; and the sector for relations

 3     within -- with foreign military representatives and international

 4     organisations in the security administration and other independent

 5     administrations.

 6             Some of the most competent people from -- members from the

 7     General Staff will appear here before you.  Unfortunately, some of these

 8     people are no longer among us.  However, those witnesses who are prepared

 9     to appear before you will have full credibility, and even though they

10     were sometimes not directly involved in some events, they can give you

11     relevant evidence about them.

12             You will also have a whole series of authors of individual

13     documents, as well as witnesses who have direct knowledge about specific

14     pieces of evidence of the OTP on which we didn't hear a single word in

15     the courtroom so far.  You will have also an opportunity to hear how

16     the -- the staff of the NGH -- or the Chief of General Staff functioned,

17     which was a very important body and was directly subordinated to

18     General Perisic and whose members were on a daily basis in contact with

19     Mr. Perisic.

20             Once you become familiar with all this evidence, you will clearly

21     understand the reasons and certain activities carried out by Mr. Perisic,

22     but they were always carried out within the framework of powers and

23     obligations.  His decisions were the product of conclusions reached based

24     on the previously heard opinions and consultations with his professional

25     superior -- his professional special subordinates.

Page 9878

 1             [No interpretation].

 2             JUDGE MOLOTO:  Did you say something else?

 3             MR. LUKIC: [Interpretation] I just said that I think it's a good

 4     time for us to break.

 5             JUDGE MOLOTO:  Very well.  We will come back at a quarter to

 6     11.00.  Court adjourned.

 7                           --- Recess taken at 10.16 a.m.

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

 9             JUDGE MOLOTO:  Mr. Lukic.

10             MR. LUKIC:  Thank you, Your Honour.

11             [Interpretation] I spoke about the Supreme Defence Council or

12     SDC.  Then I talked about the General Staff of the Yugoslav Army as

13     institutions that we are going to deal with during the presentation of

14     our case.  Let me just say a few words about the Ministry of Defence of

15     the Federal Republic of Yugoslavia.  It is also extremely important for

16     the Defence to explain the functioning, the responsibility, and the role

17     of the Ministry of Defence of the FRY and their relationships with the

18     General Staff of the VJ and the SDC.

19             We are going to call evidence and present documents about all

20     these subjects that will undoubtedly convince you of the truthfulness of

21     our proposition regarding the place and role of General Perisic.  We

22     shall demonstrate that all the submissions in the indictment concerning

23     the fact or the claim that he was the sole decision-maker whose opinion

24     was always sought is a role of Mr. Perisic which is a production of

25     fabrication.  It was extracted from the context and some significant

Page 9879

 1     factors in these events have been overlooked.

 2             With all this kind of information and the -- and established all

 3     relevant facts, we are convinced that you will get a full picture about

 4     the complicated relations and responsibilities of all relevant

 5     participants in the events.

 6             I would like to draw your attention to the position of the

 7     Defence regarding one of the fundamental issues in this case, and that is

 8     the status of members of the VRS and SVK and their relationship with the

 9     VJ and the actual functioning of the personnel centres.

10             You, Your Honours, during the presentation of case by the OTP did

11     not have an opportunity to hear evidence that could give you some

12     substantial answers to these questions.  The testimony of Mr. Starcevic

13     could not go further than his personal interpretation of the rules and

14     his personal opinions about individual documents.  He precisely distanced

15     himself from the facts that were not known to him about the manner and

16     reasons of regulating certain status-related questions.  Other witnesses

17     testified about their personal impressions about status-related issues

18     and rights deriving from them but without offering any reliable

19     information that would be of assistance to the Chamber in establishing

20     the reasons and the consequences of such status-related issues.

21             I would like to underline here one apparently terminological

22     distinction that the Defence intends to focus and which demonstrates a

23     material difference of opinions between the OTP and the Defence on this

24     particular subject.

25             The OTP is using and forcing the notion of officers as members of

Page 9880

 1     the 30th and the 40th Communications Centre.  The Defence, however,

 2     asserts and intends to prove that these officers were not members of the

 3     KC.  They only regulated their certain status-related rights and

 4     entitlements through these personnel centres that had been granted to

 5     them by the SFRY and later the FRY.

 6             The status-related issues of all these officers, members of the

 7     VRS and SVK, must also be presented before this Chamber for the whole

 8     period starting from the inception of these armies and these officers

 9     joining these armies along with their personal, family, social, and other

10     consequences that had impact or that derived from their new status.  This

11     has to be perceived both in the period before and in the period after the

12     personnel centres had been set up, all the way until their status of that

13     nature and their careers came to an end.  And finally, you have to place

14     all these issues into a narrow framework that exists in the indictment

15     against General Perisic.

16             You will remember, Your Honours, that the Defence was opposed to

17     the fragmentary introduction into evidence of parts of personnel files of

18     individual officers, and it was -- it saw itself confronted with the

19     situation that in the cross-examination of Prosecution witnesses,

20     documents were being introduced that unambiguously show that these

21     officers were active members of the VRS and the SVK.  It has been and it

22     still remains our position that partially presented documentation from

23     personnel files of such persons could induce you to draw wrong

24     conclusions.  You have already had the opportunity to see status-related

25     documents from the VRS and the SVK who -- which show that service-related

Page 9881

 1     matters of any of these officers and these armies were being dealt with

 2     based on the regulations in force in the RS and the RSK, respectively.

 3             The appointment of persons to positions in those armies, movement

 4     of military personnel in them, promotions, replacement of -- from certain

 5     positions, et cetera, such as responsibility in relation to their

 6     service, as well as determination of service in those armies were being

 7     governed by the regulations and procedures in force in those armies.

 8     The -- their superiors in those chains of command took the relevant

 9     decisions which were respected and implemented in accordance with the

10     relations of subordination.

11             It was not General Perisic who decided that some officers from

12     the VRS and the SVK should claim their status-related benefits through

13     the government bodies of the SRY.  You have already had the chance to see

14     documents and hear testimonies that status-related matters were dealt

15     with in this way much before General Perisic was appointed to his

16     position -- to the position of Chief of General Staff.

17             One of the incriminations in the indictment that is related to

18     these status-related matters is the allegation that Perisic aided and

19     abetted crimes in the indictment by sending most of the officers to the

20     VRS and the SVK.  We will present evidence to the effect that a

21     negligible number of officers left the VJ and joined the VRS and the SVK

22     at the time period since Mr. Perisic's assumption of his position of

23     Chief of General Staff until the end of the conflict in BiH and Croatia.

24             For you to have a precise image of his participation here, we

25     must mention here, and we will corroborate our claims by evidence, that

Page 9882

 1     professionals who joined the VRS after leaving the JNA constituted

 2     8 per cent of the overall officers -- of the overall number of officers

 3     and NCOs, which accounts for about 1 per cent of the overall strength of

 4     that army.

 5             We will also submit evidence to the effect that at the period

 6     while Perisic was Chief of General Staff, about 350 officers and

 7     non-commissioned officers left the VJ to join the VRS, which is about

 8     10 per cent of the overall number of officers who claimed certain

 9     benefits and exercised certain rights through the 30th Personnel Centre.

10     We will show documents about the number of professional military

11     personnel in the VRS and the SVK who, when these armies were being

12     established, had some status-related rights in the SRJ and the VJ.  You

13     already know Exhibit D113.  And in our defence case you will have the

14     opportunity to see that throughout General Perisic's term in office that

15     number was falling.  By taking over his new duty, General Perisic was

16     faced with an existing situation and was involved in the procedure of

17     resolving the status-related matters.

18             What the OTP in the indictment and in its introductory statement

19     defines as a continuation of the practice of sending and ordering certain

20     officers to go to those armies must be established in the context of the

21     existence or nonexistence of his criminal responsibility.

22             The Defence will provide evidence and present exact figures by

23     which it will show whether or not or to what extent General Perisic took

24     part in the decision-making process regarding the status of these

25     officers.

Page 9883

 1             Salaries and the acknowledgement of ranks, if they are a

 2     parameter of effectively control, must be analysed by raising the

 3     question whether they were apt to prevent crime or punish the

 4     perpetrators of crime.

 5             It's another court, namely the International Court of Justice,

 6     has already provided an answer to this dilemma in paragraph 388 of its

 7     verdict in the case of BiH against Serbia and Montenegro.  However, in

 8     the context about discussing the responsibility of a country,

 9     General Perisic's acts are defined by the OTP in this case in the

10     framework of the policy and the powers of the Supreme Defence Council,

11     though.

12             Salaries or assistance to the families equal to the salaries are

13     something the General Staff of the VJ or its number-one man hardly had a

14     say in.  The legal provisions and documents show that this was part of

15     the remit of the Presidency of the Socialist Federal Republic of

16     Yugoslavia based on political decisions, and after that it was within the

17     remit of the Supreme Defence Council.  So these were issues that were

18     dealt with by the executive branch of government, exclusively at the

19     level of the cabinet and the Ministry of Defence.

20             You will also see the role of General Perisic in the procedure of

21     the acknowledgement of ranks.  Each such acknowledgement of ranks was, as

22     a rule, preceded by promotions of these officers in the armies whose

23     members they were, namely, the VRS and the SVK.  That it was -- it

24     took -- this was done in accordance with the laws and procedures

25     prevailing in the RS and the RSK.  That was a procedure that clearly

Page 9884

 1     shows how these military systems functioned in fact without any inference

 2     of the -- or without any meddling of the authorities from the SRJ or the

 3     VJ.  The acknowledgment in the VJ which followed was nothing but granting

 4     some status-related rights, the same as other status-related rights that

 5     were based on the decisions of the Supreme Defence Council and the

 6     Commander-in-Chief.

 7             The Defence will show that the procedure of the acknowledgement

 8     of ranks and General Perisic's role in that lacked any elements of

 9     control or authority.

10             I will say a few words about personnel centres, because what I

11     have said just now is the very essence of the establishment and the

12     functioning of the personnel centre.  They were no secret or mystic

13     organisations.  The personnel centres were, and we will prove that,

14     administrative bodies which did not have the structure of a unit, but,

15     rather, of an administrative body of the personnel administration of the

16     General Staff of the VJ.  Their basic task was defined by an order of the

17     president of the Federal Republic of Yugoslavia and the

18     Commander-in-Chief, Mr. Lilic, and were based on the decision of the

19     Supreme Defence Council.  That task was to register certain professional

20     members of the VRS [Realtime transcript read in error "VJ"] and the SVK

21     or those who hailed from the war-stricken areas, and it consisted in

22     making official some -- some of their status-related rights and the

23     rights of the members of their families, rights that they had exercised

24     before.

25             You will hear direct evidence pertaining to the functioning, the

Page 9885

 1     procedures and the decisions taken by the personnel centres, but you will

 2     also have the opportunity to hear first-hand evidence about something

 3     that wasn't even mentioned in the Prosecution case yet clearly correlates

 4     or directly correlates with the personnel centres and in understanding of

 5     their functioning.

 6             I have a correction to the transcript.  Page 30, line 14.  I said

 7     VRS or SVK.

 8             Your Honours, you'll be faced with an abundance of evidence about

 9     the functioning, structure and documents of the personnel of the bodies

10     in charge with personnel-related issues in the VRS and the SVK.  These

11     bodies played a crucial role in dealing with status-related rights and

12     the service of all professional members of these armies, including

13     officers in the registers of the 30th and 40th Personnel Centres.  You

14     will also see, Your Honours, what the basis was for resolving

15     status-related issues - when I say "status," I mean status based on

16     military service - who decided on that and how this was significant for

17     status-related decisions of the personnel centres.

18             These personnel bodies in the VRS and the SVK within whose remits

19     were the establishment of the fact of status and granting status-related

20     benefits, these bodies existed at all levels in those armies from

21     brigades to corps and all the way to General Staffs.

22             You will see documents and hear first-hand evidence provided by

23     the authors of those documents what these orders and decisions were about

24     in the factual sense and in what correlation they were with the decisions

25     taken by the personnel centres.

Page 9886

 1             These armies had clear and precise regulations about discipline.

 2     The RS and the RSK had their military judiciary and their military

 3     disciplinary courts.  You will also hear first-hand witnesses to that

 4     effect about their activity and functioning.  The de facto existence and

 5     functioning of military judiciary and military disciplinary bodies in the

 6     RS and the RSK was a well-known fact.  The highest military and political

 7     leaders in the RS demanded that disciplinary and criminal proceedings be

 8     launched against their subordinates, and they indeed initiated such

 9     proceedings.

10             What the Prosecution claims with regard to General Perisic's

11     responsibility is the alleged obligation of launching disciplinary

12     proceedings against their own subordinates in the military judicial

13     system of the SRY, which, according to the OTP, was a parallel or

14     subsequent obligation imposed on certain individuals.  These individuals

15     are defined by the Prosecution as persons who even then were subordinate

16     to General Perisic.

17             It is the position of the Defence, which it will prove, that

18     General Perisic couldn't have such an obligation toward those persons,

19     because those persons, in fact, were not serving the VJ.  They couldn't

20     have been called to responsibility in the framework of the discharge of

21     their duty or with regard to their service, nor were they in

22     any position -- in any official position in the VJ.

23             The launching of disciplinary proceedings with regard to

24     individual members of the SVK, which the OTP is basing its claims on, was

25     a consequence of the circumstances about which you will hear evidence.

Page 9887

 1     And these must again be viewed in the context of the times when the

 2     events took place.  After the Croatian Operation Storm, the RSK and the

 3     SVK, the army, that is, were starting to break apart.  Individual

 4     officers who -- of theirs who came to the SRY wished to -- to enter

 5     active service in the VJ once more by being put in a certain position and

 6     being assigned a certain duty.  These circumstances such as -- as well as

 7     the obligations toward the Supreme Defence Council must be placed in the

 8     context of the trial of General Perisic.

 9             THE INTERPRETER:  Sorry, interpreter's correction:  In the

10     context of the acts of General Perisic.

11             MR. LUKIC: [Interpretation] The military and civil judiciary in

12     the SRY was not anything over which General Perisic had authority.  Under

13     the constitution and the subordinate legislation, they were independent.

14     The military and civil judiciary are autonomous and acted upon any

15     information about the existence of crimes from their remit.

16             Now, I will continue to speak about crime-base evidence.

17     General Perisic's Defence is not significantly going to directly deal

18     with evidence relating to the crime base from the indictment.  When I say

19     "directly," I mean presentation of evidence that is directly related to

20     certain incidents.  With respect to these specific incidents, the Defence

21     will focus only on those that might feature to a certain extent in

22     General Perisic's mens rea, and we are going to present specific and

23     concrete evidence.

24             During the presentation of its case, the OTP devoted a lot of

25     time to the incident in Sarajevo described in Schedules A and B to the

Page 9888

 1     indictment.  Our position is that by presenting this evidence, the

 2     picture portrayed before you about the events in Sarajevo before and

 3     during indictment is a twisted one.  The evidence presented was aimed at

 4     portraying Sarajevo as a -- an encircled and besieged town.  The Defence,

 5     on the other hand, would like to present evidence that during that same

 6     period Sarajevo was also an occupied city.

 7             By this I do not wish to diminish the suffering and the

 8     importance of the suffering of the citizens of Sarajevo, but I would like

 9     to emphasise the image that realistically reflected the controversy of a

10     civil war that was being waged in an urban environment, a town that was

11     divided.

12             This town was full of army.  Between 40 and 70.000 members of the

13     Army of BiH controlled the city of Sarajevo itself, certain entry points,

14     the movement in it, and they were engaged in combat operations within the

15     town and outside.

16             You will hear evidence about how they were billeted in civilian

17     facilities, schools, kindergartens and other public buildings, and from

18     there, members of this army were engaged in active fighting with the VRS.

19     By having procured modern weapons, either covertly or overtly, they

20     became a serious and well-organised military force.  By using the media

21     in a very skilful manner and by indoctrinating the international public

22     opinion, they successfully depicted a picture that was to their

23     advantage.

24             We shall present evidence to you about organisations and acts of

25     the authorities of the BH Federation and army.  Not to point a finger, tu

Page 9889

 1     quoque, to somebody else, but, rather, to show you the other side of the

 2     fact that the Prosecution in their case omitted to underline and all that

 3     for the sake of context and the elements of establishing the mens rea of

 4     General Perisic concerning the very crimes.

 5             MR. GUY-SMITH:  Good morning.

 6             JUDGE MOLOTO:  Good morning.

 7             MR. GUY-SMITH:  Initially I'd like to also acknowledge the

 8     presence of Tina Drolec as well as Deirdre Montgomery, who have joined --

 9     or were here before with regard to the Defence of Mr. Perisic.

10             To the extent that the political sympathies of FRY or of

11     General Perisic lay with the Bosnian Serbs, this is not contrary to any

12     legal rule.  That pronouncement can be found at paragraph 237 of the

13     ICJ judgement.

14             The Defence evidence in this case will raise a reasonable doubt

15     concerning the allegations brought against Mr. Perisic and by the

16     Prosecution, and my colleague Mr. Lukic has articulated in a short

17     fashion what those two areas are.  One is that of command responsibility

18     under 7(3), and the other is that of aiding and abetting under 7(1) of

19     the Statute, which I will address in short order.

20             Forged on the anvil of adjectival truth as opposed to an

21     explication of the reality of the times under consideration, Your Honours

22     have been invited to consider the evidence in this case unprofessionally.

23     You've been asked to start your analytic journey with emotion, passion,

24     and prejudice, and I take us back to October 8th, when the Prosecution

25     started their case and in their opening statement said concerning the war

Page 9890

 1     that occurred, "new benchmarks of human depravity were added to history's

 2     long list of horrors."  Adjectival, indeed.  Of concern, yes, but hardly

 3     the basis for which to start a case.

 4             The facts and circumstances that give rise to this litigation in

 5     this case are grave, serious, and it is true that after any trauma the

 6     world or regions of the world have suffered hard to understand and accept

 7     as possible aspects of human behaviour.  However, I don't think I'm being

 8     either bold or presumptuous to say that all of us in this room have seen,

 9     experienced or studied the history of humankind sufficiently to recognise

10     that when the engines of war are unleashed, the consequences are never

11     pleasant.  Indeed, the very first recognition of the consequences

12     involved in the reality of this litigation, direct, personal, and

13     heartfelt, were articulated by none other than the man who stands accused

14     of crimes here, General Perisic, who said:

15             "I regret deeply that there were victims of crimes in the

16     territory of former Yugoslavia.  I sympathise deeply with the families of

17     the victims.  Every life lost in war is an irreplaceable loss for the

18     society, but lives lost to crime are an even greater loss."

19             He went on to say:

20             "I believe that all of those who committed crimes will face trial

21     and will receive proper punishment, and I hope that war crimes will never

22     happen again.

23             "As a professional soldier," which you have already learned that

24     he is and which the evidence will continue to show the extent to which he

25     was, "I hate war because I am fully aware of the fact that all wars, in

Page 9891

 1     particular the war that was waged in the former Yugoslavia, it was a

 2     civil war, a religious war, inter-ethnic war is the worst thing that can

 3     happen in a society.  I have felt the horrors of war.  I despise it

 4     because of the consequences it leaves in its wake, because of the lies it

 5     relies on, the hatred it engenders, because it ushers in dictatorship to

 6     topple democracy, and because of the misery it leaves in its wake."

 7             The reason that we dwell here for a moment is simple.  As my

 8     colleague stated, you must analyse this case in the context of the times,

 9     in the context of the reality of what was going on, and I would add to

10     that the most critical issue, that of perception as it influences all of

11     our actions and most definitely in this case will influence your

12     decisions.

13             It has been said - it's an old tome - that the category in which

14     one speaks determines one's thoughts.  Justice and truth are not, as one

15     would wish, abstract absolutes that stand unblemished in the wind and the

16     storm and sun of reality.  They're noble indeed, yet rather elusive

17     eagles that sore above us, but as we are, they, too, are affected by the

18     elements.

19             Its opening statement the Prosecution went on to say:

20             "This case, Your Honours, will pierce the veil of elaborate

21     deceptions and will expose the roles of Momcilo Perisic, one of

22     Milosevic's principal collaborators, and will expose his unstinting

23     support for Milosevic's policies to establish a single state of the

24     Serbian people" as the truth upon which this case rests.

25             It is not the truth.  It was not the truth.  The evidence thus

Page 9892

 1     far has failed to prove this position, and the evidence we will expect

 2     will continue to show that early on in this unfortunate process of

 3     dissolution, the issue of peace, the importance of peace, independent of

 4     the thesis proposed by the Prosecution of a single state, was present,

 5     paramount, in the minds of Milosevic and others.

 6             And why peace?  Well, if for no other reason, the evidence has

 7     established and will continue to establish, so that the Federal Republic

 8     of Yugoslavia would not be dragged into war.

 9             I apologise to the public, but for a few minutes in discussing

10     the matter of peace, I request that we go into closed session, and I do

11     that because the documents that I need to refer to have been protected by

12     a court order that requires that we go into closed session.

13             JUDGE MOLOTO:  May the Chamber please move into closed session.

14             MR. GUY-SMITH:  Private may work because I'm not putting anything

15     up on the screen, I just realised that.  I'm not going to be putting

16     anything up on the screen so we could do private perhaps.

17             JUDGE MOLOTO:  May the Chamber please move into private session.

18                           [Private session]

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

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Page 9893











11 Pages 9893-9898 redacted. Private session.















Page 9899

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21   (redacted)

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23   (redacted)

24                           [Open session]

25             THE REGISTRAR:  We're back in open session, Your Honours.

Page 9900

 1             JUDGE MOLOTO:  Thank you very much.

 2             Yes, Mr. Guy-Smith.

 3             MR. GUY-SMITH:  The discussion and minutes of the documents as

 4     just presented in closed session and further evidence to be presented in

 5     this case establish beyond any doubt that resolution, peace, was

 6     paramount in the minds of the leadership of FRY in general and Perisic in

 7     specific.

 8             Before we move on, lest we forget the comments that I've just

 9     alluded to and the conclusions that were adopted were made in defence of

10     FRY during top-secret, highly confidential meetings and decisions that if

11     peace were not a motivating factor, then it would not be articulated by

12     these men in confidence as often as it was.  From the Carrington Plan to

13     the Geneva agreement, the Vance Plan, the Cutileiro Plan, the

14     Vance-Owen Plans of January 1993 and subsequently March of the same year,

15     to the Contact Group plan in 1994, and ultimately to the signing of

16     Dayton in December of 1995, the evidence has established and will

17     continue to establish that the FRY leadership was actively and

18     conscientiously involved in obtaining peace in the region.

19             It has been asserted, and I quote Mr. Harmon:

20             "During this period, Slobodan Milosevic sought to deceive his

21     international interlocutors, the international community, and the public

22     with false claims that the governments of which he was a member and the

23     instruments of those governments, including the army, were not

24     interfering in the affairs of Bosnia and not providing material support

25     and aid to the Bosnian Serb army and to the Bosnian Croat army."

Page 9901

 1             It's the last statement that he makes here that is the most

 2     poignant and perhaps the most important:

 3             "His deceits and the deceits of his associates fooled no one."

 4             If such is the case, then the games played in the corridors of

 5     power in Washington, Paris, Berlin, Moscow, Whitehall, and New York, in

 6     the face of knowledge of such deception truly militate against the

 7     perceptual premise offered by the Prosecutor.  The suggestion by the

 8     Prosecutor that the evidence in this case be viewed statically isn't an

 9     accurate presentation of the facts and circumstances existing at the

10     time.  The evidence has shown and we suggest we expect to augment that

11     presented by the Prosecution that the process was fluid, not static,

12     ill-defined, confusing, contradictory, unsure and erratic, a combination

13     of tornadoes, earthquakes, storms, blinding sun, calm, hurricanes and

14     doldrums, in short a reflection of the human condition writ large.

15             It would be naive for us and inaccurate to suggest that there was

16     not considerable resistance to the dissolution of the former Republic of

17     Yugoslavia before the pronouncements of the Badinter Commission, as we

18     have heard, as well as United Nations Security Council Resolutions.

19     Similarly, it would be naive and inaccurate to suggest that the

20     fundamental and, indeed, structural aspects of the new nations and their

21     interrelationship to each other, the potential boundaries, their assets,

22     the balance of power were not important discussions to FRY.  That is, of

23     course, a logical and natural outgrowth of the radical shifts that

24     occurred, as Mr. Lukic has explained, and as we are confident the Bench

25     understand.

Page 9902

 1             Where there had been one nation state, there were now multiple

 2     nation states.  Indeed, this dissolution, this break-up, this political

 3     reality is something that is absolutely unique in the history of the

 4     world.  You can find no other break-up, no other war, civil or otherwise,

 5     that equates with this one.

 6             The evidence will show that Croatia was a nation state with an

 7     independent army, independent leader with independent powers.  Republika

 8     Srpska Krajina was a nation state with an independent army.  The SVK, as

 9     a matter of fact, the army, was established on the 16th of October, 1992.

10     It too had an independent leader with independent powers who made

11     independent decisions, engaged in activity which is criminal in nature,

12     which cannot be, and the evidence will show and continue to show, laid at

13     the feet of General Perisic.

14             The evidence will show that again Bosnia-Herzegovina was a nation

15     state with independent powers and independent army, an independent

16     leader, as was the Republic of Srpska.  And in speaking of the Republic

17     of Srpska, let us not forget that neither the Republic of Srpska nor the

18     VRS were de jure organs of the FRY.  They didn't have that status, the

19     status of an organ of that state under its internal law, as has been

20     found in paragraph 386 in the ICJ judgement.

21             And I suggest now would be an appropriate time to take a pause.

22             JUDGE MOLOTO:  It is indeed.  We'll take a break and come back at

23     half past 12.00.  Court adjourned.

24                           --- Recess taken at 12.00 p.m.

25                           --- On resuming at 12.30 p.m.

Page 9903

 1             JUDGE MOLOTO:  Yes, Mr. Guy-Smith.

 2             MR. GUY-SMITH:  Actions, as we suggested earlier, are predicated

 3     on perception.  We will show that General Perisic, as other men in his

 4     position throughout the history of the world, military leaders, relied on

 5     individuals and departments tasked with the responsibility of sifting and

 6     filtering through myriad pieces of disparate information in order to

 7     inform him.  Perisic's task was, among others, to advise his superiors,

 8     the Supreme Defence Council and the president, after analysing the

 9     intelligence that he received.

10             In a military sense, information is unevaluated material of every

11     description, including that derived from observations, communications,

12     reports, imagery, rumours, and other sources from which intelligence is

13     produced.  Information, we will continue to show, itself may be true or

14     false, accurate or inaccurate, confirmed or unconfirmed, pertinent or

15     impertinent, positive or negative.  Intelligence is the product resulting

16     from the collection, evaluation, and interpretation of information.

17             Now, the most common problem, especially in the military sense,

18     and most importantly when there is a conflict about that must be paid

19     attention to, is information overload.  And that's when so much

20     undifferentiated material pours into the decision-makers that they are

21     unable to discern what it means, and of course, as we have heard and we

22     will continue to show, such a problem can be exacerbated by the enemy

23     through informational warfare, propaganda, disinformation, the use of

24     civilians, be they reporters or fellow travellers with a position that

25     you espouse for purposes of producing information.  The teachings of

Page 9904

 1     Clausewitz, somebody who I think it would be fair to say all military men

 2     are acquainted with, remain as true today as then.  A great part of

 3     information obtained in war is contradictory.  A still greater part is

 4     false, and by far the greatest part, somewhat doubtful, in a few words,

 5     most reports are false.

 6             The evidence shall establish that in his capacity as Chief of

 7     Staff, his reliance, General Perisic's reliance, on the intelligence

 8     forwarded to him by his experts, by those individuals who were tasked

 9     with that particular job, the collection of information and the analysis

10     of such information to give him intelligence, given the context and

11     framework in which General Perisic was operating was subjectively and

12     objectively reasonable.

13             We suggest to you when subjecting a commander's judgement to

14     criminal critique, it is necessary to consider the situation through the

15     perspective of that commander at the time the judgement was made.

16             Early in this case we heard from a gentleman who I think

17     impressed us all, and he made a comment which is germane to this portion

18     of the opening statement.  Mr. Martin Bell testified that the Serbs were

19     isolated 14th-century thinkers living in a 20th-century world.

20             It's an interesting observation and one which though not

21     dispositive, we submit in light of the evidence that you will hear

22     concerning the incident in Dobrovoljacka Street, in early May of 1992,

23     when a large column of JNA soldiers willingly departing from Sarajevo,

24     led by General MacKenzie representing UNPROFOR, Izetbegovic, the

25     president of Bosnia-Herzegovina, and others stopped in the street.

Page 9905

 1             After the column stopped it was ambushed.  The reports are that

 2     MacKenzie and Izetbegovic, who were ahead of the stopped column, crossed

 3     the bridge to safety while the bullets flew and men died.  The massacre

 4     at Tuzla, again when young JNA soldiers were willingly leaving, most

 5     assuredly helped set the stage upon which subsequent decisions were made

 6     concerning the reliability and accuracy of information received from

 7     international sources.

 8             Mr. Bell went on to state, we submit that the evidence will show,

 9     the war in Bosnia-Herzegovina was not free from media bias.  Soon after

10     the war, there was the perception of the "good Muslims and the bad

11     Serbs."  And it is in this context that when dealing and understanding

12     the information that was received and the intelligence upon which

13     General Perisic relied, we suggest that the assertion by the Prosecution

14     on the issue of what Perisic knew with regard to the issue of notice is

15     incomplete, again, failing to consider and take into account the reality

16     of the times and the overall picture of what was going on which we will

17     be presenting to you.

18             I said at the outset that I would discuss the issue of aiding and

19     abetting, and I think there at the very outset is an important

20     distinction to be drawn here, because part of what the Prosecution has

21     presented to you is that military assistance was given to the Republic

22     of Srpska and the Republika Srpska Krajina, and that in and of itself,

23     the giving of military assistance, for purposes of prosecuting a war,

24     whether we like it or not, does not constitute a crime.  There may be

25     many in this room and there may be many in the world who take umbrage at

Page 9906

 1     the notion that wars are continued to be fought; but the giving of

 2     military assistance is not a crime.

 3             In order to prove the allegations against Mr. Perisic as they

 4     relate to the issue of aiding and abetting, the Prosecution must prove a

 5     nexus between the assistance given, completed crime, knowledge of the

 6     crime, and the assistance was substantial and significant in the

 7     completion of that crime.

 8             Mr. Lukic has already alluded to this, and there is no dispute

 9     that the VJ, among other parties, gave logistic assistance to both the

10     VRS and the SVK.  The VRS and the SVK received substantial and

11     significant logistic support from myriad sources other than the VJ.  And

12     this is part of the reason why it's very important to go back to

13     Mr. Lukic's remarks with regard to the context in which you view this

14     case, because if the case is viewed in a static fashion, it does not deal

15     with the reality of what occurred.  It doesn't deal with the reality of

16     what the evidence has shown and will show, which we submit ultimately

17     will result in this Chamber's decision that the Prosecution has failed to

18     prove beyond a reasonable doubt, which is the standard to be applied,

19     that General Perisic aided and abetted.

20             With regard to the sources from which the VRS and the SVK

21     received logistic support, let us not forget that when the JNA left the

22     region, they left substantial amounts of material logistic support before

23     Perisic's tenure.  This logistic support cannot be ascribed to

24     General Perisic.

25             At the time of the dissolution, independent of the material left

Page 9907

 1     by the JNA, there were depots controlled by the Territorial Defence,

 2     local munitions controlled by local authorities independent of that

 3     material with the JNA.  Once again, material that existed before

 4     General Perisic's position as Chief of the General Staff.

 5             The VRS most assuredly received the district support from in situ

 6     special purposes industries.  Not VJ.  The VRS and the SVK received

 7     logistic support from special purpose industries outside of the territory

 8     directly.  Not the VJ.  Support was received from special purpose

 9     industries inside the Federal Republic of Yugoslavia, that support having

10     been approved by the Ministry of Defence.  Not the VJ.  A separate organ

11     with a separate authority, separate powers, constitutionally recognised.

12             The VRS and the SVK interchanged support between them.  Before

13     General Perisic took his position as Chief of Staff in August of 1993,

14     the VJ had given support to the VRS and the SVK.  Not on his watch.

15             Outside military sources, for example Greece, Romania, Bulgaria,

16     and Russia, gave support to the VRS and the SVK.

17             And finally, war booty, the spoils of war, contributed to the

18     support that these armies had.

19             Lest there be any questions about the assertion just made, a

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 9908

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16   (redacted)

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23   (redacted)

24   (redacted)

25             And I believe the import of that entry, the remarks around it are

Page 9909

 1     that considerable support will be received from Greece with direct

 2     contact with Ratko Mladic.

 3             The evidence will show that the exhibits relied upon by the

 4     Prosecution as proof of logistics provided by the VJ are incomplete,

 5     inaccurate, and as such do not and cannot serve as a basis for proof of

 6     VJ support as defined by the law of aiding and abetting.  The requests

 7     far outnumber the provisions given, and you will learn about the

 8     methodology, the requirements for delivery of logistic material, and the

 9     internal reasons within the VJ why not only accurate record-keeping but a

10     full and complete dossier of expenditures, distribution, or agreements

11     that have been made by the VJ with regard to the giving of logistic

12     support must exist.  In its absence, the subsequent year's budget would

13     not be allowed.  So there is an internal reason that you will understand

14     after we have brought forth the evidence to show -- to show that far

15     apart from anything as regards to the issues being offered by the

16     Prosecution here concerning logistic support as an internal matter, the

17     documents being relied upon are suspect and cannot form the basis of

18     proof beyond a reasonable doubt.

19             When viewing the issue of logistic support, we believe that the

20     evidence that we will present was, I said at the beginning, establish

21     that aid was supplied for military purposes.  However, we draw a line in

22     the sand, and a line has been drawn, I think, by all members of the

23     military, as to whether that aid was for any other purpose but military

24     from the standpoint of the intent of General Perisic and with regard to

25     the issue of the knowledge that he had as regards to the aid given.  We

Page 9910

 1     submit that the evidence will show there is not the requisite nexus for

 2     purposes of proving his guilt beyond a reasonable doubt there, nor is

 3     there sufficient proof with regard to the aid given by the VJ, after an

 4     examination of all of the aid given to these armies by all of the parties

 5     that have been mentioned, that it was either substantial or significant.

 6             I thank you for your time, and at this point I will cede the

 7     podium to Mr. Lukic for his closing remarks with the Court's indulgence.

 8             JUDGE MOLOTO:  Thank you very much, Mr. Guy-Smith.

 9             Mr. Lukic.

10             MR. GUY-SMITH:  I have been told that your concerns were correct

11     with regard to the Mladic diary, but I'm not positive where we stand in

12     terms of a protective measures application.  So I think perhaps for

13     purposes of discretion, until I'm clear about that, I ask that that

14     particular section be redacted.  I'd rather put -- I'd rather put it into

15     in the public because I don't think it's a problem, but I just received a

16     note from my case manager so I want to double-check, because I certainly

17     don't want to offend any protective measures application that may exist

18     or any protective measures issue that may exist.

19             JUDGE MOLOTO:  Mr. Court Officer, will you please make sure that

20     that portion is redacted.

21             Thank you very much, Mr. Guy-Smith.

22             Yes, Mr. Lukic.

23             MR. LUKIC: [Interpretation]  At the end of our opening statement,

24     Your Honours, I would like to say a few words about the personality of

25     General Perisic.

Page 9911

 1             On this occasion, we would like to draw your attention in our

 2     opening statement to what is going to be the subject of our case before

 3     this Trial Chamber.  You will hear evidence that at first glance have no

 4     direct link with the nature of allegations in the indictment.  However,

 5     indirectly, Your Honours, this evidence should portray in your minds his

 6     character and thereby illuminate his actions that took place in the

 7     relevant period.

 8             To that end, we are going to lead evidence about his relationship

 9     with President Milosevic relating to certain areas that may not be of

10     relevance for the Prosecution.  In a nutshell, the Defence submits that

11     General Perisic clearly advocated the notion that the Yugoslav Army must

12     function within its legal responsibilities and authorities in order to

13     pursue the specific task given to it by the state, which is the

14     preservation of territorial integrity and constitutional order.  He was

15     actively involved in trying to depoliticise the army.

16             For as long as President Milosevic was happy with the Yugoslav

17     Army as it was, he was happy with General Perisic too.  However, as soon

18     as General Perisic clearly said to Milosevic that he did not accept his

19     request for abusing the army for his own domestic political goals, he

20     fully realised the implications of that view of his and he was dismissed.

21             We are going to present evidence about an episode which

22     explicitly reflects the relationship between General Perisic and

23     President Milosevic.  At the time when Milosevic was considered the most

24     important guarantor of peace in the Balkans and only one year after the

25     Dayton Accords, in early 1997, considerable protests started in Belgrade

Page 9912

 1     against his domestic policies and aimed at achieving a better

 2     democratisation of society.

 3             During the demonstrations, the Belgrade university students who

 4     launched the protest itself wanted to meet persons in charge from the

 5     police and Mr. Perisic, as Chief of General Staff, because they were

 6     concerned of the possibility of the army being involved in these events.

 7     The way in which General Perisic acted at that point was rather

 8     surprising.  He received a student delegation, and he again clearly

 9     expressed his firm view about the possibility for the army to be free of

10     politics.  He also guaranteed them that the army would not become

11     involved in the conflict and the protests.

12             This gesture of his had important ramification.  On the one hand

13     on the relationship between Milosevic and General Perisic, which

14     culminated in the latter's dismissal, and on the other hand, in positive

15     reactions articulated by the democratic public in the FRY and the then

16     political opposition, and it was also warmly welcomed by the

17     international community.

18             This example speaks abundantly about the character and the

19     personality of General Perisic.  Through this episode that you are going

20     to hear evidence about, you will have an opportunity to judge to what

21     extent Perisic insisted on the army abiding by its constitutional role.

22     The moment when Milosevic, the then president of the FRY, the

23     Commander-in-Chief and the chairman of the Supreme Defence Council asked

24     him to allow the Yugoslav Army to be used in Kosovo in 1998, beyond the

25     constitutional framework, and when General Perisic refused to comply, he

Page 9913

 1     was dismissed.

 2             Your Honours, General Perisic has clearly demonstrated what he

 3     thinks about this Tribunal on several occasions.  As an MP, he voted for

 4     the adoption of the Law on Co-operation with the ICTY.  When he learnt

 5     about the indictment issued by this Tribunal, even before it was publicly

 6     published, Mr. Perisic wrote an open letter in which he said, among other

 7     things, and I quote:

 8             "I have no dilemma whatsoever about my appearing before any

 9     court, and particularly the international court in The Hague, because

10     that is the only way for me to defend my honour, the reputation of the

11     army, and the dignity of the people."

12             The Defence intends to call a large number of witnesses to appear

13     before this Trial Chamber.  All of them want to give their evidence in

14     public.  None of them ask for any protective measures.  They told us that

15     they wanted to testify in public.  They tell us that they have no fear

16     for themselves or for those around them from anyone or anything.  I

17     presume that their intentions are identical to those of General Perisic,

18     when he surrendered to this Tribunal, and that is to try in that fashion

19     to defend the honour and the reputation of the Yugoslav Army and the

20     dignity of its members.

21             We, as General Perisic's Defence team, are prepared to give them

22     full credibility.

23             Thank you for listening to our opening statement, Your Honours.

24             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.

25             I guess that brings us to the conclusion of the opening statement

Page 9914

 1     for the Defence, and I do guess that the Defence is not in a position to

 2     call the first witness now.  Okay.  In that event, then we will stand

 3     adjourned until tomorrow, at 9.00 in the morning, in Courtroom II.

 4             Court adjourned.

 5                           --- Whereupon the hearing adjourned at 1.07 p.m.,

 6                           to be reconvened on Tuesday, the 23rd day

 7                           of February, 2010, at 9.00 a.m.