Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14628

 1                           Monday, 28 March, 2011

 2                           [Prosecution Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.10 a.m.

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

 7     courtroom.  Mr. Registrar, will you please call the case.

 8             THE REGISTRAR:  Thank you, Your Honours.  Good morning,

 9     Your Honours.  Good morning to everyone in and around the courtroom.

10     This is case number IT-04-81-T, the Prosecutor versus Momcilo Perisic.

11     Thank you, Your Honours.

12             JUDGE MOLOTO:  Thank you very much, Mr. Registrar.  Could we have

13     the appearances, please, starting with the Prosecution.

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

15     Good morning, everyone in the courtroom.  Mark Harmon, Barney Thomas,

16     Bronagh McKenna, April Carter and Rafael La Cruz and Carmela Javier for

17     the Prosecution.

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

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

20     morning to all the participants in the proceedings.  Mr. Perisic is

21     represented in court today by Mr. Gregor Guy-Smith, Novak Lukic, and then

22     our co-workers, Deirdre Montgomery, Tina Drolec and Boris Zorko.

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

24     please move into private session.

25                           [Private session]

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Page 14630

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 8   (redacted)

 9   (redacted)

10                           [Open session]

11             THE REGISTRAR:  We are back in open session, Your Honours.

12             JUDGE MOLOTO:  Thank you very much, Mr. Registrar.

13             Now, Mr. Harmon, Prosecution final brief, is the Prosecution

14     charging the two modes of liability cumulatively or alternatively.  I

15     tell you why I'm asking, I'm asking because up until we received the

16     final brief, I had been under the impression that it is cumulative.

17     However, at page 294, paragraph 808 of your brief, for the first time I

18     see the phrase, "in the alternative."

19             MR. HARMON:  Your Honour, we are charging General Perisic

20     cumulatively.  The Court makes a finding on 7(1) of guilty, then we say

21     that it does not have to make a finding in respect of 7(3).

22             JUDGE MOLOTO:  Having given that answer, my next question then

23     become, then I, I see it's not a first time in the Tribunal that this is

24     done, what is actually the rationale for charging cumulatively two

25     mutually exclusive modes of liability?


Page 14631

 1             MR. HARMON:  Your Honour, we usually charge cumulatively.  The

 2     courts have made decisions that have suggested that if in the event there

 3     is a conviction on 7(1), it does not have to make a finding on 7(3).  We

 4     have charged it cumulatively, the Court has discretion then to make a

 5     finding either 7(1) or 7(3).

 6             JUDGE MOLOTO:  I'm going to start again, Mr. Harmon.  I did say

 7     at the beginning I've seen that it is done in the Tribunal, I've seen it

 8     in the courts.  I have not found any legal justification, legal

 9     explanation why it must be the Court, which is not the dominus litis,

10     which must choose which one to convict on.  And I understand that it has

11     been done, but all I'm asking is what is the rationale, what is the legal

12     reason for doing this, because as you've just said, it is -- the Court

13     has discretion then to make a finding either on 7(1) or on 7(3), the

14     court is not the dominus litis.

15             MR. HARMON:  Your Honour, both ways of charging General Perisic

16     are proper and correct.  We have asserted both modes, both 7(1) and 7(3).

17     I think, Your Honour, I do believe there are different types of

18     liability.  The first is --

19             JUDGE MOLOTO:  Maybe I'm being unfair on you.  My actual

20     question, really, is why charge both modes of liability, which are

21     mutually exclusive, for the same conduct?  You see, for the same conduct,

22     you are saying under 7(1) you are the perpetrator, under 7(3) you are

23     saying I acknowledge you are not the perpetrator, it's your subordinates

24     who are the perpetrators, but it's for the same conduct.

25             MR. HARMON:  They address different issues, Your Honour.  One

Page 14632

 1     addresses the issue of General Perisic's responsibility as a commander

 2     for the actions of his subordinate, and we assert that he is responsible.

 3     And the other method, the other charge under 7(1) is that he assisted in

 4     the crimes.  We assert that is proper.  I can't give you a legal

 5     justification, Your Honour.  I can tell you that we have asserted both.

 6             JUDGE MOLOTO:  The problem is if they are charged in the

 7     alternative, then there's logic in the whole indictment, but if they are

 8     charged cumulatively, I don't see the logic of the indictment.  And, if

 9     you charge them in the alternative, you still get what you get if you

10     charge them cumulatively because you say, as you say that if you convict

11     on the one, you don't bother on the other.  So the end result will still

12     be the same, but I just don't find -- if I had been in the pre-trial of

13     this case, I wouldn't have accepted this kind of indictment.  Even though

14     it has been done before in this court.

15             MR. HARMON:  Your Honour, we have been proceeding for over three

16     years on this indictment in the way in which it's been charged.

17             JUDGE MOLOTO:  I couldn't ask this question during the trial and

18     I didn't have the opportunity at the pre-trial phase, I'm asking now at

19     the beginning of the final brief, of the closing arguments, because this

20     is only opportunity I thought was appropriate.

21             MR. HARMON:  Well, Your Honours, we, as I said, we have charged

22     it in both respects in our brief.  We said alternatively, we accept the

23     decision of the Courts and we are proceeding on the decision of the

24     Courts and the logic of the Courts to proceed in this way.  If there is a

25     conviction on 7(1), the Court doesn't have to make finding on 7(3).  Of


Page 14633

 1     course, Your Honour in respect of the charges on Zagreb the only charges

 2     against General Perisic are 7(3).

 3             JUDGE MOLOTO:  That's fine.  That is a different consideration.

 4     Thank you very much, Mr. Harmon.  I just want to raise this issue that

 5     has caused me concern right through the trial and you may proceed with

 6     your argument.

 7             MR. HARMON:  Your Honour, I'm sorry I haven't given you the

 8     satisfaction of an answer that addresses your concern, but that's the way

 9     we have been proceeding and I can make no further submissions on it.

10             JUDGE MOLOTO:  That's fine.

11             MR. HARMON:  Your Honour, this is the Prosecution's opportunity

12     to make its closing submissions.  This case started on the 2nd of

13     October, 2008.  Before I begin with the substance of my remarks, many

14     people participated in the conduct of this trial to bring it to this

15     stage, to this conclusion, and I'd like to take a minute to acknowledge

16     and thank those people who made contributions.  First of all,

17     Your Honours, I'd like to thank you Judge Moloto, Judge David, and

18     Judge Picard for your patience, for your understanding and for the

19     dignity in which you conducted these proceedings.  I thank you also for

20     the courtesy which you showed the witnesses when they appeared and you

21     showed the parties during the conduct of these proceedings.

22             I would like to thank the Office of the Prosecutor trial team,

23     both past and present, it's investigators, its support staff.  I'd like

24     to thank the Defence, Mr. Lukic, Mr. Guy-Smith, Mr. Zorko, Mr. Mair,

25     Ms. Drolec and previous counsel Mr. Castle, with whom we've had an

Page 14634

 1     excellent working relationship throughout this case.

 2             I'd like to thank the Legal Officers, Mr. Blumenstock, Mr. Moneta

 3     and others who were of great assistance to us and to the Defence, I know,

 4     who were always available to us and participated in a constructive way in

 5     this case.  The Registrar, and the many people from the Registrar who

 6     have appeared in this case, need our thanks as well.  They managed large

 7     volumes of documents very effectively and we are quite appreciative.

 8             To the interpreters, who we bedevilled for probably three years,

 9     sometimes speaking too fast, I think we have one of the hardest jobs in

10     this institution, I'd like to thank them.  They have impressed me over

11     the many years I've been here, and they impress me in this case as well.

12             We owe thanks to the translators from CLSS and from DVU who were

13     confronted with large volumes of documents, literally thousands and

14     thousands of pages and their work was impeccable.  The people in the

15     technical booths as well need special appreciation, because there are

16     many times in this 20th century courtroom, or 21st century courtroom, I

17     should say, where things broke down and without their assistance we could

18     not have proceeded.

19             The security people were, of course, quite helpful and finally,

20     the victim and witness unit that assisted both parties with the

21     management of the witnesses.  So I would like to express our gratitude

22     for the very excellent assistance we have received throughout this trial.

23             Now, Your Honours, Your Honours have received our extensive trial

24     briefs.  Your Honours were kind you have to grant our request to make

25     these briefs longer than normal.  The parties avail themselves to that.

Page 14635

 1     We do not intend, the Prosecution does not intend to repeat the contents

 2     of its brief.  We certainly rely on the briefs.  We will be making

 3     submissions in respect of certain elements of the briefs, but we will be

 4     not repeating their contents entirely, we rely on them.  Of course we are

 5     available to answer the Trial Chamber's questions.

 6             In making our submissions, Your Honour, we will be having to go

 7     into private session on occasion because of the confidential nature of

 8     some testimony.  We intend to minimise that, we've made efforts to make

 9     that as unobtrusive in these final submissions as we can.

10             Now, Your Honours, in assessing the evidence in this case, the

11     Trial Chamber must view the evidence as a whole, both direct evidence and

12     circumstantial evidence.  Circumstantial evidence forms a significant

13     part of the Prosecution case, and the Prosecution relies on inescapable

14     inferences drawn from the evidence as a whole to support each of the

15     elements of the offence.  In this respect, Your Honours, the Defence,

16     miscalculates the Prosecution case.  Throughout the Defence final brief,

17     the Defence isolates individual documents or categories of documents and

18     argues that each is either insufficient or so unreliable to be considered

19     as supporting the Prosecution case.  However, in our view that approach

20     is flawed when one considers the nature of circumstantial evidence and

21     the burden of proof.  Such evidence should not be viewed and evaluated in

22     isolation but assessed against the totality of the evidence.  Like any

23     body of circumstantial evidence, inferences are available from the whole

24     that are not necessarily provided by pieces of evidence singly.

25             Your Honours, we intend to divide the -- the Prosecution intends

Page 14636

 1     to divide its presentation in the following way.  I will start by making,

 2     not submissions, but giving Your Honours an overview of the case.

 3     Ms. McKenna will make submissions on the law and on the personnel

 4     centres.  Mr. Thomas will make submissions on aspects relating to

 5     logistics.  Ms. Carter will make submissions relating to Sarajevo which

 6     will touch on the VJ participation on Mount Zuc, the campaign of sniping

 7     and shelling in Sarajevo and on scheduled incidents.  And I will

 8     conclude, Your Honour, by making submissions of General Perisic's

 9     responsibility under article 7(3) and with sentencing submissions.

10             The Prosecution has charged General Perisic with 13 counts.  He

11     is charged both under Article 7(1) and 7(3) of the Statute of the

12     Tribunal and in respect of the crimes in Sarajevo, Your Honour, he is

13     charged with two counts of murder, one being a crime against humanity and

14     one violation of the laws or customs of war.  He is charged with one

15     count of inhumane acts as a crime against humanity and he is charged with

16     one count of attacks on civilians, as a violation of the laws or customs

17     of war.

18             In respect of Zagreb, the rocket attacks on Zagreb, we have

19     charged General Perisic with four counts, but under Article 7(3) only.

20     He is charged, in respect of Zagreb, with two counts of murder, crime

21     against humanity and a violation of the laws or customs of war; one count

22     of inhumane acts, injuring or wounding civilians as a crime against

23     humanity; and one count of attacks on civilians as a violation of laws or

24     customs of war.

25             In respect of Srebrenica, we have charged General Perisic with

Page 14637

 1     five counts under both Article 7(1) and 7(3).  He is charged with two

 2     counts of murder, violation of the customs of war, a crime against

 3     humanity.  He is charged with one count of inhumane acts, that is

 4     inflicting serious injures, wounding and forcible transfers, as a crime

 5     against humanity.  He is charged with one count of persecutions on

 6     political, racial or religious grounds as a crime against humanity.  And

 7     he is charged with one count of extermination as a crime against

 8     humanity.

 9             The modes of liability under Article 7(1) is aiding and abetting.

10     Now, I want to clarify our position in respect of General Perisic's 7(3)

11     responsibility.  General Perisic is charged with, under Article 7(3),

12     with failure to prevent his subordinates for having committed crimes in

13     Sarajevo, Srebrenica, and Zagreb, and for failing to punish his

14     subordinates for having committed those crimes.  In respect of the crimes

15     in Zagreb, the Prosecution is not seeking a conviction of General Perisic

16     for failing to prevent the crimes committed in Zagreb.

17             Now, Your Honours, and this is for the benefit of the public, and

18     not for Your Honours' benefit or for the benefit of my friends from the

19     Defence, we will be using throughout our submissions a number of acronyms

20     and in order that the public understands what we are talking about, I

21     will identify those acronyms and explain what they mean.  When we use

22     SFRY, we mean the Socialist Federal Republic of Yugoslavia.  When we use

23     FRY, we mean the Federal Republic of Yugoslavia.  We will use RS, which

24     means Republika Srpska.  We'll use RSK as Republic of Serbian Krajina.

25     JNA means the Yugoslav People's Army.  VJ means the Army of Yugoslavia.

Page 14638

 1     VRS means the Army of the Republika Srpska and SVK is the Army of the

 2     Serbian Krajina.

 3             Now, Your Honours, the crimes -- and in Sarajevo and Srebrenica

 4     that the Trial Chamber has been examining were the foreseeable

 5     consequences of state policies encouraged and promoted from Belgrade.

 6     Those policies were implemented by military force, and in the process of

 7     implementing them, the lives of ordinary men, women, and children were

 8     devastated.  Some people resisted the ferocious onslaught that endangered

 9     their lives, the lives of their families, the lives of their fellow

10     citizens.  Many did not, or could not, only to be crushed and swept aside

11     by forces greater than themselves.  They were the collateral damage of

12     state policies.  This case addresses the criminal responsibility of

13     General Perisic, who during the period of the indictment was the key

14     military implementer of FRY state policy, vis-a-vis Croatia and Bosnia.

15     The indictment identifies a crime base of enormous scale and scope.  A

16     campaign of shelling in Sarajevo and sniping in Sarajevo that occurred

17     over a protracted period of time.  The forcible expulsions and mass

18     executions at Srebrenica.  The Orkan rocket attacks on Zagreb.  And the

19     manner by which we have endeavoured to prove the crime base was by

20     availing ourselves to procedures provided in the Tribunal's Rules of

21     Procedure and Evidence; adjudicated facts from other trials; we proceeded

22     by using agreed facts, facts we could agree with the Defence; we

23     submitted numerous witness testimonies in written form, in lieu of oral

24     testimony; and we also presented some oral testimony from victims.

25             Now, the use of this -- these procedural measures to present

Page 14639

 1     evidence clearly stream-lined this case, but I offer this observation,

 2     and I do not intend this to be a criticism, is we all appreciate that the

 3     core of these cases are people, ordinary people like you and like me,

 4     like people in this courtroom, but who have had the misfortune of being

 5     caught up in the maelstrom of war and who have suffered at the hands of

 6     others.  What happened to them, to their loved ones and to the members of

 7     their communities the public needs to hear.  Streamlining cases before

 8     the Tribunal has its benefits, but the cost in part is that the voices of

 9     the victims have often less been heard.  They have become muted.

10             The voices of the victims were not entirely silent in this case.

11     The Prosecution presented a number, a small number, of representative

12     victims to establish the crime base.  They testified before Your Honours

13     so Your Honours could hear what happened to them, that the forces aided

14     and abetted by General Perisic.  We are indebted to them for having the

15     courage to come to The Hague to recount what must have been truly the

16     worst experiences of their lives.  I'd like to thank them publicly for

17     having the courage to come here to tell Your Honours about what happened

18     to them.

19             Now, one of the victims who testified was Ms. Afeza Karacic, she

20     was the victim of scheduled incident A-8 in the indictment.  Ms. Karacic

21     was a Sarajevan.  She testified that on the 23rd of November, 1994, after

22     she and her sister had been out for the day looking for food, she boarded

23     a tram, they were returning home.  While riding on that tram in Sarajevo,

24     she told you that something terrible had happened to her, something that

25     had changed her life entirely.  She was grievously wounded by a sniper's

Page 14640

 1     bullet, that tore through her shoulder, shattering bones and severing

 2     nerves.  She had multiple surgeries to repair her arm, which is now 6

 3     centimetres shorter than her other arm.  Ms. Karacic was a civilian.  She

 4     was 31 years old at the time she was shot.

 5             You will recall the testimony of MP-294 who was a victim of the

 6     crimes committed in Srebrenica in 1995.  He was a farmer, a humble man,

 7     who along with his wife, his two sons, his daughter, his daughter-in-law,

 8     and his four grand-children had been expelled from his village near

 9     Srebrenica.  In July of 1995, they were inhabitants of the UN safe area

10     in Srebrenica.

11             Following the VRS conquest of the enclave in July of 1995, tens

12     of thousands of civilians were forcibly expelled from the enclave.

13     MP-294 and members of his family were amongst them.  They were placed on

14     a lorry, but shortly after it left the enclave, MP-294 told you that it

15     was stopped and that he and other men from the lorry were separated from

16     their loved ones and sequestered in nearby schools.  They were abused and

17     some of them were killed.  Members of the VRS then transported them to

18     various execution sites, where thousands of men and boys were

19     slaughtered.  Few survived.  MP-294 was amongst the handful of those who

20     did.  He told Your Honours what happened at the Branjevo military farm

21     where he and other men and boys were lined up in a field and shot by VRS

22     soldiers.  By his estimate, between 1.000 and 1.500 men and boys died in

23     the field that day.

24             The Defence has challenged the evidence of MP-294 in

25     paragraph 584 of the Defence final trial brief.  They assert that the

Page 14641

 1     Prosecution has presented no evidence to corroborate the estimate of the

 2     witness, and the Prosecution has failed to prove the number of persons

 3     allegedly killed at the Branjevo military farm on the 16th of July, 1995.

 4             We do not accept this submission, Your Honours.  You will recall

 5     the testimony of a VRS soldier who participated in the executions at the

 6     Branjevo military farm, Drazen Erdemovic who was a member of the

 7     10th Sabotage Detachment of the VRS.  He was asked specifically how many

 8     people were killed at the Branjevo military farm, and he provided an

 9     answer.  You'll see his answer on the monitor before you.  His answer

10     was:

11             "Again, it's my estimate.  I do not know, I do not wish to know,

12     but I think it was about 1.000 people."

13             The victim and the executioner agree on the numbers of people

14     killed at the Branjevo military farm.  Mr. Erdemovic has corroborated the

15     testimony of MP-294.  It's our submission, Your Honour, that the

16     Prosecution has proved that between 1.000 and 1.500 persons were killed

17     at that location on that day.

18             During the war in Bosnia, General Perisic never saw Ms. Karacic

19     or MP-294.  He was a warrior who operated in the shadows behind the

20     facade of FRY denials of involvement in the Bosnian conflict.  He aided

21     and abetted the crimes in the indictment from his office in Belgrade.  He

22     didn't see Mrs. Karacic or MP-294 until they appeared in the courtroom to

23     explain to the Trial Chamber the damage wrought on their lives by the

24     forces that he so willingly assisted.  To General Perisic, they simply

25     were not on his radar.  They were not part of the equation he considered

Page 14642

 1     when implementing the policies of his political masters by providing

 2     vital assistance to the VRS despite his knowledge that the VRS had killed

 3     and injured thousands of innocent civilians and had ethnically cleansed

 4     large swathes of Bosnian territory and would do so in the future.

 5             Now, this case, Your Honours, has illuminated the role of the

 6     SFRY and the FRY and the army in sponsoring the wars in Bosnia and in

 7     Croatia.  The state policy to support the VRS and the SVK was the

 8     products of decisions taken by the political leadership of the SFRY, and

 9     later, the FRY.  By Slobodan Milosevic, the most powerful political

10     figure in the SFRY and FRY, and by his colleagues at the Supreme Defence

11     Council, Momir Bulatovic and FRY president, Zoran Lilic.

12             I would like to provide Your Honours with a brief overview of

13     events in the FRY in order to put in context the case we presented

14     against General Perisic.  It's not intended to be comprehensive.  In that

15     respect I refer Your Honours to the expert reports of Dr. Donia and

16     Dr. Treanor for a comprehensive analysis of the historical background

17     against which the facts relevant to this case occurred, that would be

18     P375, P348, 349 and 350.

19             When the Socialist Federal Republics of Bosnia and Croatia sought

20     to become independent states, tensions developed between the inhabitants

21     of those republics, between those who sought independence, principally,

22     the non-Serbs and those who wished to preserve Yugoslavia as a state.

23     The vast majority of Serbs living in the socialist republics of

24     Bosnia-Herzegovina and Croatia sought to preserve the state of

25     Yugoslavia, or failing that, sought to achieve unity of the Serb people.

Page 14643

 1     Their aspirations were firmly supported by the political leaders in

 2     Belgrade, in particular, Slobodan Milosevic, and by the military leaders

 3     of the JNA.

 4             The JNA was the most respected and powerful instrument of policy

 5     in the former Yugoslavia.  Throughout its existence, its mission and its

 6     purpose, in which it took great pride, was to protect all the peoples of

 7     Yugoslavia.  However, in the increasingly tense period before the

 8     outbreak of war, a political decision was taken in Belgrade to support

 9     the Serbs living in Bosnia and Croatia, and this resulted in an epic

10     shift by the JNA.  The JNA shed its lofty mantle of protector of all

11     peoples of Yugoslavia and took sides in the conflict.  The army became

12     and remained a potent instrument for advancing Serb policies and

13     objectives.

14             We can see that, Your Honour, in Prosecution exhibit 164 which

15     will appear for you on the monitor.  Now, P164, Your Honours, is a

16     directive on the use of armed forces for the preparation and performance

17     of combat operations in the forthcoming period.  This directive, as we

18     know, is the highest command instrument in the army.  This was issued --

19     this directive was issued by General Kadijevic, who was the head of

20     Federal Secretariat for National Defence of the SFRY, it was issued on

21     the 10th of December, 1991.  And in his directive, and before you on the

22     screen is some of the text from that directive, he says:

23             "Our forces are entering a new period of exceptional significance

24     for accomplishing the ultimate aims of the war:  Protection of the

25     Serbian population, a peaceful resolution of the Yugoslav crisis, and the

Page 14644

 1     creation of conditions in which Yugoslavia may be preserved..."

 2             Now, in aligning itself with the Bosnian Serbs, the JNA provided

 3     assistance to the Serbs living in Bosnia in two significant ways.

 4     Firstly, before the conflict it provided arms to the Bosnian Serbs, and

 5     this, Your Honour, can be seen in Prosecution Exhibit 185, which appears

 6     before you.  This is a -- P185 is a document that was issued in March of

 7     1992.  It was issued by General Kukanjac, who was the JNA commander of

 8     the 2nd Military District.  And this is conclusions -- this is

 9     conclusions that he made on the situation in the territory of his area of

10     responsibility, and if we go next to his conclusions, if we turn to

11     subpart (5), which is before you on the monitor, you will see that

12     General Kukanjac and the JNA was quite vigorous in terms of distributing

13     arms to the Serbian population.  You'll see that, first off, there were a

14     number of volunteer units.  Now, these volunteer units, by the text of

15     this document, were not part of the TO.  They were not part of the JNA.

16     These volunteer units comprised 69.198 persons.  And you'll see in

17     subpart (f) that the JNA distributed 51.900 weapon to them, the SDS

18     distributed 17.298 weapon to them.  And you'll see in subpart (g) in

19     Sarajevo 300 automatic rifles have been distributed to them.

20             There was an annex that was attached to this report of

21     General Kukanjac.  We'll go to that next.  That is P186, Your Honour.

22     And if we go to 186, to this annex, what is remarkable about this annex

23     is it shows, first of all, the number of volunteers who received those

24     weapons and their locations.  And you'll see, for example, through the

25     first numbers up through 7 are areas in Sarajevo.  Now, the distribution

Page 14645

 1     wasn't limited to Sarajevo.  If you go to 51 on this, you'll see that

 2     weapons were distributed far and wide.  Number 51 is Srebrenica, number

 3     52 is Banja Luka, number 67 is Sanski Most.  So this document, by

 4     General Kukanjac, that he distributed to his command in March of 1992,

 5     shows the widespread nature of the support that the JNA gave to the

 6     Bosnian Serb population.

 7             Now, further to the issue of the JNA support to the civilian

 8     population, I direct Your Honours' attention to the statement of

 9     Miroslav Deronjic.  And I specifically direct Your Honours to

10     paragraphs 4 through 36, where he describes in detail the support from

11     Belgrade, the manner in which weapons were distributed prior to the

12     conflict.

13             Now, Your Honours, the second important way in which the JNA

14     contributed, participated, was that they participated in combat

15     operations and ethnic cleansing operations with Bosnian Serb forces.

16     Typical, Your Honour, of these operations was the attack on the village

17     of Glogova which occurred on the 9th of May, 1992.  Now, Your Honours may

18     recall we drove by Glogova during the site visit.  It's located not far

19     from Bratunac and not far from Srebrenica.  If we could go to the next

20     visual aid, Your Honour.  This before you is the factual basis for the

21     plea of Miroslav Deronjic.  Mr. Deronjic was the former SDS head of the

22     party in Bratunac municipality.  He entered a guilty plea before this

23     institution.

24             He describes the attack on the village of Glogova and in that

25     attack, Your Honour, he describes in paragraph 36 that the attack was a

Page 14646

 1     joint operation.  The attacking forces comprised of members of the JNA,

 2     the Bratunac TO, the Bratunac police, and paramilitary volunteers from

 3     Serbia.  During the attack on the village of Glogova it was eliminated.

 4     The result of that was that everybody in that village was driven out.

 5     The majority of homes, Muslim homes, in that village were burned.  The

 6     mosque was burned, and 65 Muslim residents of the village were murdered.

 7             The assistance of the JNA in these operations wasn't limited to

 8     the village of Glogova, it was widespread, and as I will discuss in a few

 9     minutes, Your Honour, once the JNA left Bosnia, its successor, the VJ,

10     continued actively to participate in operations, and in ethnic cleansing

11     operations in Bosnia.

12             I'll be referring in a few minutes to the military campaign

13     specifically that occurred in the Podrinje region.  The Podrinje region

14     is the region that includes Srebrenica.  Let me -- before I get to that,

15     I'd like to just touch upon some political developments that were

16     happening in Bosnia, because as Bosnia was fracturing along ethnic lines,

17     the Bosnian Serbs created parallel legislative bodies and adopted a

18     declaration proclaiming a republic of the Serbian people of Bosnia.  They

19     also created their own army, the VRS.

20             Prior to the creation of the army, the establishment of the VRS,

21     which occurred on the 12th of May at the 16th session of the Bosnian Serb

22     Assembly, Radovan Karadzic contacted General Perisic.  He asked

23     General Perisic to be the commander of the VRS.  General Perisic refused

24     because in his own words, they wanted an ethnically clean army because --

25             JUDGE MOLOTO:  Sorry, you have referred to the date of the 12th

Page 14647

 1     of May and the 16th session of the Bosnian Serb people, the record

 2     doesn't show what year.

 3             MR. HARMON:  Maybe I didn't say it.  1992, Your Honour.

 4             JUDGE MOLOTO:  The record doesn't show it.

 5             MR. HARMON:  Thank you, Your Honour, I'd like the record to be

 6     complete on that, so thank you for bringing that to my attention.  It was

 7     1992, the 16th session which was, incidentally, probably the most

 8     important session of the development -- in the development of the Bosnian

 9     Serb entity, the Republika Srpska.  Because as I say, as I will explain

10     in a few minutes, I'll explain in a few minutes its importance, but in

11     any event, the -- before, as I said, before the VRS was established,

12     General Perisic had been contacted by Radovan Karadzic and he had been

13     offered the position of being chief of the VRS Main Staff.  He refused.

14     He refused, as I said, because they wanted an ethnically clean army,

15     because they wanted the army to be under the influence of the SDS.

16             JUDGE MOLOTO:  I don't understand that sentence.  "He refused

17     because they wanted an ethnically clean army."

18             MR. HARMON:  Yes.

19             JUDGE MOLOTO:  Who are the "they"?

20             MR. HARMON:  The VRS -- Radovan Karadzic.  The "they" is the

21     Bosnian Serbs, Your Honour.

22             JUDGE MOLOTO:  Now, if you say -- are you saying "they", the

23     VRS's desire for a ethnically clean army is the reason why he refused.

24             MR. HARMON:  Let me rephrase what I want to say, Your Honour.

25     Maybe I didn't make it clear.

Page 14648

 1             President Karadzic approached General Perisic.  He asked him to

 2     be the commander of the army.  General Perisic who had been serving in

 3     Bosnia in the Mostar area was familiar with the activities that were

 4     occurring in Bosnia.  He refused Karadzic's offer to become VRS Main

 5     Staff commander, because and I'm using his own words, because they wanted

 6     an ethnically clean army.  He is referring to the Karadzic's army and the

 7     political leaders wanted the army to be an ethnically clean army, so he

 8     refused.  He also refused because he said they wanted the army to be

 9     under the influence of the SDS.  The SDS was the party of

10     Radovan Karadzic.  The SDS was the party that advocated, as I'll say --

11     inform you in a few minutes in my remarks, wanted ethnically clean

12     territories.

13             He also said -- he also refused because he said, and he didn't

14     give any further details on this, "because I saw that their concept is

15     unacceptable for my belief."  In any event, he refused.  Instead,

16     General Perisic was instrumental in the appointment of his friend and

17     fellow JNA officer Ratko Mladic to become head of the VRS.  You can see

18     that, Your Honour, in Prosecution Exhibit 2938 which on page 8, this is

19     an excerpt, Your Honours, from Ratko Mladic's diary.  It is dated the

20     11th of May, 1992.  In other words, this is one day before the 16th

21     session where Ratko Mladic was announced to be the VRS Main Staff

22     commander.  And what Mladic's diary records is a statement from

23     General Perisic and what is recorded is the following:

24             "Ninkovic and I undertook an initiative with Karadzic for Mladic

25     to come here.  He showed with his example what a JNA officer should be

Page 14649

 1     like.  You have the right person.  If you support him, you will get what

 2     you want."

 3             Now, this account that's reflected in General Mladic's notebook

 4     was corroborated by Radovan Karadzic at the 50th session of the Bosnian

 5     Serb Assembly in April of 1995.  You'll find that at P312, page 317.

 6     Now, I mention the 16th session because the 16th session was critically

 7     important session in the development of the Republika Srpska.  Besides

 8     the announcement of and the establishment of the VRS and besides the

 9     announcement that General Mladic was to be its commander, it was

10     important for another reason:  At that session President Karadzic

11     announced and discussed strategic objectives of the Serbian people in

12     Bosnia.  Now, the mere announcement of those objectives wasn't an

13     epiphany, those objectives had been known before their formal

14     announcement at the 16th session.  The text of this portion of Karadzic's

15     exposition on the strategic objectives is found in P188.

16             Now, if we can turn, Your Honours, to the strategic objectives

17     themselves, which is P334, they are before you, there are six strategic

18     objectives.  Three are directly relevant to this case.  Strategic

19     objective number 1 was:  "The demarcation of the state as separate from

20     the other two national communities."  In other words, the separation of

21     the Serbs from the non-Serbs.

22             Third strategic objective, "establishment of a corridor in the

23     Drina River valley, the eradication of the Drina River as a border

24     between the Serbian states," is relevant because it relates to the events

25     that took place in and around Srebrenica.  Strategic objective number 5

Page 14650

 1     is relevant because it relates to the events that we have described in

 2     the indictment relating to Sarajevo.  It reads:  "Partition of the city

 3     of Sarajevo into Serbian and Muslim sections and the establishment of an

 4     effective state authority in each section."

 5             Now, according to Momcilo Krajisnik who was at the time president

 6     of the Bosnian Serb Assembly, Mr. Krajisnik has subsequently been

 7     convicted in this Tribunal for various crimes.  He, after the enunciation

 8     of the strategic objectives by Karadzic -- he stated the followed, and

 9     this is, I think, very important, he stated -- and this is what he says:

10             "The first goal," in other words, the goal of ethnic separation,

11     "is the most important one, and in relation to all other goals, all other

12     goals are sub-items of the first one."

13             Now, according to Defence witness Dusan Kovacevic, who was the

14     former RS minister of defence and a member of the 30th Personnel Centre,

15     the strategic objectives were military as well as political objectives,

16     and the military implemented those objectives.

17             If we could, Your Honours, go to a map of Bosnia.  This is an

18     ethnic map.  It's P2963.  It's the ethnic map as of 1991.  And as you can

19     see -- I am sorry, I misquoted the exhibit numbers.  2693 my colleague is

20     kind enough to bring that to my attention.

21             As you can see, Your Honours, in this map, Bosnia is a patchwork.

22     The ethnic communities are intertwined.  It is -- in fact, it was the

23     richness of Bosnia that it was multi-ethnic and it appears to be

24     reflected in that map.  According to the testimony before Your Honours,

25     and I would also submit according to common sense, separation was an

Page 14651

 1     objective that was impossible to achieve without the use of force or

 2     immediate or credible threat of force.

 3             Unravelling the ethnic communities was an impossibility.  It

 4     could be done one way and that's the way it was done.  From the evidence

 5     that we have received in this trial, the Bosnian Serb forces, the VRS,

 6     implemented strategic objective number 1 robustly.  They reconfigured the

 7     map of Bosnia.

 8             What's important for this case, Your Honours, and very important

 9     for this case, is that the strategic objectives of the Bosnian Serbs

10     never changed throughout the war.  They never changed throughout the

11     period when General Perisic was chief of the VJ General Staff.

12     General Perisic was aware of the strategic objectives of the Bosnian Serb

13     people.

14             If we go to Prosecution Exhibit 2933, Your Honour, this is a --

15     another excerpt from General Mladic's diary.  It reflects a meeting that

16     took place on the 13th of December, 1993.  That meeting was attended by

17     General Perisic.  It was attended by Slobodan Milosevic, and from the

18     Republika Srpska it was attended by Karadzic, Mladic,

19     General Milovanovic, General Djukic, General Miletic, president of the

20     Bosnian Serb Assembly Momcilo Krajisnik, who believed that the strategic

21     objective number 1 was the most important, and it was attending by

22     others.

23             During this meeting, President Karadzic described and what is

24     reflected in the report, he identified the strategic objectives of the

25     Bosnian Serb people.  Number 1, to be separated from the Muslims and

Page 14652

 1     Croats.  Number 3, for the Drina not to be the border.  And he says, 6,

 2     to have our part of Sarajevo.

 3             Thus, Your Honours, throughout Perisic's tenure as the VJ Chief

 4     of the General Staff and at all times he was providing arms and

 5     ammunition and personnel, critical assistance that the VRS needed to

 6     prosecute the war, he was fully aware of the objectives of the Bosnian

 7     Serbs and their intentions toward the non-Serbs.  He knew their

 8     attitudes, that's why he rejected becoming chief of the VRS Main Staff,

 9     he knew of their strategic objectives and he knew from common sense that

10     ethnic groups, non-Serbs, would not willingly abandon their homes, their

11     villages, except through the use of force.

12             Your Honours, on the 19th of May, 1992, about six weeks after the

13     war in Bosnia started, the JNA officially withdrew from Bosnia.  Of

14     course, that was an artifice.  In truth and in fact, the JNA support, and

15     later the VJ support, of the VRS continued undiminished.

16             The JNA had stockpiles of arms, ammunition, military equipment in

17     various warehouses in Bosnia.  Before the JNA left Bosnia, some of that

18     material was seized by Bosnian Muslim and Bosnian Croat forces.  However,

19     the JNA left the vast majority, vast stockpiles of arms, ammunition, and

20     other war materiel to the VRS, and it was that arsenal in the earliest

21     stages of the war that sustained the VRS war machine.

22             Now, as those, I will say those supplies, Your Honour, were not

23     inexhaustible, and after the break, I will make submissions on that.

24     10.15 is when we break, is that right, Your Honour, or 10.30?

25             JUDGE MOLOTO:  You are right, Mr. Harmon.

Page 14653

 1             MR. HARMON:  This is an appropriate time.

 2             JUDGE MOLOTO:  We'll take a break and come back at quarter to

 3     11.00.  Court adjourned.

 4                           --- Recess taken at 10.14 a.m.

 5                           --- On resuming at 10.46 a.m.

 6             JUDGE MOLOTO:  Mr. Harmon.

 7             MR. HARMON:  Thank you, Your Honours.

 8             Now, following the JNA's departure on the 19th of May, 1992, from

 9     Bosnia, the war continued for another 15 months before General Perisic

10     became chief of the VJ General Staff.  The war was a ferocious and

11     unforgiving war, and in that period of time the VRS and the VJ

12     participated in joint military operations in the Podrinje region and

13     elsewhere in Bosnia.  The objectives of the military campaign in Podrinje

14     can be seen in directive 4 that was issued by General Mladic on the 19th

15     of November, 1992, and in particular in his instructions to the

16     Drina Corps.  Now, the Drina Corps, as Your Honours are aware, is the

17     corps that in 1995 was responsible for the atrocities that were committed

18     in Srebrenica.

19             But if we could go to P866, we can see directive 4 that was

20     issued by General Mladic, and it was issued to various corps.  I have

21     isolated the particular section that deals with the Drina Corps, and his

22     orders to the Drina Corps were as follows, and I'll read in part what

23     those orders were:

24             "From its present position, its main forces shall persistently

25     defend Visegrad, the dam, Zvornik, and the corridor while the rest of the

Page 14654

 1     forces in the wider Podrinje region shall exhaust the enemy, inflict the

 2     heaviest possible losses on him, and force him to leave the Birac, Zepa,

 3     and Gorazde areas together with the Muslim population."

 4             Now, the VJ's participation in that operation was publicly

 5     denied.  We have submitted to Your Honours a series of exhibits which are

 6     exhibits from the Uzice Corps, the VJ corps that was participating in the

 7     Podrinje region.  If we could go to one of those, I'll show Your Honours

 8     as an exemplar.  It's P2162, and this is an exhibit that was a document,

 9     it was to the command of the Drina Corps issued by the commander of the

10     Uzice Corps, that was General Ojdanic.  Now, General Ojdanic is someone

11     who has been convicted in this institution.

12             Your Honour, you can see from this particular document that if we

13     go to a portion of it, this is pursuant to the orders of the

14     General Staff of the Yugoslav Army.  He then gives his orders, or his --

15     he then describes what his forces, the VJ forces, have been doing in the

16     area where they are operating.  And you can see from this document,

17     Your Honours, that they have been engaged in combat operations.

18             JUDGE MOLOTO:  What is the date of this document, sorry?

19             MR. HARMON:  This is the 27th of January, 1993.  So -- and as I

20     say, Your Honours, this is at a time when the Federal Republic of

21     Yugoslavia was denying any involvement in the events in Bosnia.  This

22     document illustrates they, in conjunction with the Drina Corps, were

23     engaged in combat operations directed at Muslim villages, and you'll see

24     that, Your Honour, in subpart (3) and you'll see that in another part of

25     this document where there is a direction to carry out an attack against

Page 14655

 1     various portions within the area of responsibility.

 2             Now --

 3             JUDGE MOLOTO:  While you are talking about this, I'm tempted to

 4     ask a question which I was reserving for the end of your argument.  And

 5     my question is what is the authority for the proposition that being

 6     jointly involved in combat makes the one party guilty of crimes that are

 7     committed during that combat?

 8             MR. HARMON:  Your Honour, are you referring to the period before

 9     General Perisic becomes the Chief of the General Staff?

10             JUDGE MOLOTO:  No, it has nothing to do with the period, it's

11     just got to do with the proposition, the legal proposition.

12             MR. HARMON:  Your Honour, first of all, at this period of time we

13     have not charged any crimes in the Podrinje region.

14             JUDGE MOLOTO:  I understand.

15             MR. HARMON:  What we are saying is that these two forces operated

16     together in pursuit of a common objective.  The common objective was, to

17     the Drina Corps and the participation of the Uzice Corps, was to remove

18     the Muslim population.  So we say they acted jointly.

19             JUDGE MOLOTO:  Okay.  Then I'll ask you the same question at the

20     end of your argument.  Carry on.

21             MR. HARMON:  If I haven't answered the question I'd like to try

22     to do so.  So let me try again.  This is evidence of the Uzice Corps

23     participation.  It is evidence, one, that the forces of the

24     Federal Republic of Yugoslavia, the military forces adhered to the

25     strategic objectives of the Bosnian Serbs.  They were providing aid to

Page 14656

 1     them in the period before General Perisic became Chief of the General

 2     Staff.  That aid was both in terms of armaments and it was in terms of

 3     military forces engaged in the ethnic cleansing operations.  Our position

 4     is, Your Honour, that that proposition -- that that assistance did not

 5     change throughout the -- that is, the pursuit of those strategic

 6     objectives did not change during General Perisic's tenure as Chief of the

 7     General Staff, that there were operations with -- joint military

 8     operations in pursuit of the strategic objectives while General Perisic

 9     was Chief of the General Staff.  So the relevance of the Uzice Corps

10     document is it shows a continuation of the policies that persisted in and

11     through General Perisic's tenure as Chief of the General Staff.

12             JUDGE MOLOTO:  Let me try again.  When reading the indictment,

13     the kind of crimes that I see the accused charged with are crimes of

14     murder, persecutions and what have you which are -- he is not charged,

15     for instance, with driving the Muslims out of the area.  And making the

16     corridor clean.  He is charged with actual murders and other things that

17     are committed during that.  My question really is, and it is a question

18     that relates to the indictment, even though I'm asking it at a time when

19     we are talking about issues that are still outside the period of the

20     indictment, my question is what is the authority for the proposition

21     that, if an army assists another army in war and crimes are committed of

22     the nature that are charged in this indictment, that the assisting army

23     or the commander of the assisting army is guilty of aiding and abetting

24     those crimes.

25             MR. HARMON:  Your Honour, General Perisic provided assistance

Page 14657

 1     knowing that that assistance was going to assist the VRS and it was

 2     likely that that assistance would be used in the commission of crimes.

 3             JUDGE MOLOTO:  Okay.  Let me paint you an analogous scenario and

 4     get your comment on it.  A war began in Afghanistan in 2001 and it is

 5     generally known that there are allegations of crime having been committed

 6     at least since 2002 to date.  Does that make the commanders of the

 7     various NATO armies that are jointly participating in that war guilty of

 8     the crimes that are alleged to have been committed and are still being

 9     committed, like detentions in Guantanamo, in Bagram, in Kabul and all

10     these places.

11             MR. HARMON:  Your Honour, you can asking me obviously, an

12     explosive political question.

13             JUDGE MOLOTO:  No, no.  It's a legal question.

14             MR. HARMON:  I would like to answer your question.  The

15     objectives, as I understand, of the NATO forces isn't to ethnically

16     cleanse parts of Afghanistan.  It is to be engaged in a military campaign

17     against the Taliban.  It is --

18             JUDGE MOLOTO:  Mr. Perisic is not charged with ethnically

19     cleansing.  He is charged with murders.  That's why I say I'm making the

20     distinction between the actual crimes that are charged in the indictment.

21     He is charged with murders, persecutions and what have you, he is not

22     charged with ethnic cleansing.

23             MR. HARMON:  Your Honour, he is charged in count in -- in respect

24     of the crimes in Srebrenica he is charged with inflicting inhumane acts

25     one of which is the forcible transfer of the population from Srebrenica.

Page 14658

 1     That is, in our view and our respectful submission, forcibly transferring

 2     25- to 35.000 people out of an area where they were living is ethnic

 3     cleansing.

 4             JUDGE MOLOTO:  Okay.  I concede that, but still my question still

 5     stands, my question still stands that how -- what is the authority for

 6     that proposition and I'm saying can you comment on the -- on the analogy

 7     that I've drawn because all the other commanders of the NATO nations that

 8     are involved in Afghanistan are aware of the kind of crimes that have

 9     been committed there and are still continuing with that war.  It's not a

10     political question, it's an analogous situation to this one.

11             MR. HARMON:  I draw the distinction as I say, as follows,

12     Your Honour, the first situation is it's a war, it's a war in Bosnia and

13     it was a war in and it is an on-going war in Afghanistan.  Where I make

14     my distinction is the purpose in objectives.  The objectives of Bosnian

15     Serbs, in part from strategic objective number 1, was to ethnically

16     cleanse, if you will, that is a much broader term, it was to separate the

17     Serbs from the non-Serbs.  That act gave rise to conduct, long-standing

18     conduct that lasted throughout the war of the VRS taking populations of

19     Muslims and Croats and removing them from their homes by force.  That was

20     no mystery.  General Perisic was aware, as we say in our brief, was fully

21     aware of the conduct of the Bosnian Serbs, and with the knowledge of that

22     conduct he provided them with assistance that enabled them to continue to

23     conduct the war, continue to commit crimes, and that assistance that he

24     provided had a substantial effect on the commission of those crimes.  So

25     I make a distinction between the Afghan war, where there is not the

Page 14659

 1     stated purpose which is to remove and ethnically cleanse, I also make one

 2     other observation about the Afghan war.  In the Afghan war, I'll take the

 3     United States as an example, because I'm familiar with the United States'

 4     participation in part in that.  When they were crimes that were committed

 5     by American soldiers, those crimes were prosecuted in the United States

 6     and people are serving life prison sentences as a result of those crimes

 7     committed against Afghan civilians.  In this situation, there were no

 8     prosecutions whatsoever, either in the VRS or in the Federal Republic of

 9     Yugoslavia for war crimes.

10             JUDGE MOLOTO:  There are some people who are not being prosecuted

11     in the United States.

12             MR. HARMON:  There may well be, Your Honour.

13             JUDGE MOLOTO:  What I'm saying is, okay, I hear what you say on

14     the forcible transfer, but all I'm saying is there are also other crimes

15     charged against the accused in this case which like the murders, you

16     know, which were which were committed in combat or while they were there.

17     These are similar crimes as the crimes that are being committed in the

18     Afghanistani war.

19             MR. HARMON:  Your Honour, there are deaths that were committed in

20     combat both in Afghanistan and Bosnia.  The crimes that we charge are not

21     combat deaths.  They are deaths of civilians purposefully committed so in

22     Afghanistan, for example.

23             JUDGE MOLOTO:  The detentions are not combat crimes, those are

24     detentions that are made after people have been captured, some of them

25     away from the theatre of war.

Page 14660

 1             MR. HARMON:  We are not charging General Perisic with detentions.

 2             JUDGE MOLOTO:  I understand that.

 3             MR. HARMON:  We are charging General Perisic with murder, which

 4     is the likely consequence of providing aid to a military machine whose

 5     objective is to forcibly separate the ethnic populations.  It was

 6     foreseeable Your Honour, and General Perisic's assistance makes him

 7     guilty of the foreseeable consequences of that assistance which includes

 8     murder, which includes the wounding of civilians, it includes the

 9     forcible transfer of civilians.  So that's how we make --

10             JUDGE MOLOTO:  You see, unfortunately, we don't seem to be on the

11     same wavelength.  The detentions that I'm referring to in the

12     Afghanistan -- how do you pronounce this word, Afghanistani war, I know

13     that General Perisic is not charged with such, but they are the type of

14     crime, like the murders that he is charged with, that are committed away

15     from the theatre of war, not in combat and but still they are crimes,

16     they are war crimes, so they are crimes against humanity and -- but the

17     point I'm asking simply is because the armies, the commanders of the

18     remaining NATO countries that are participating in Afghanistan are aware

19     of the fact that crimes have been committed, crimes against humanity have

20     been committed, and yet those commanders are still continuing to

21     participate in that war, are they then guilty of those crimes that are

22     being committed?

23             That's just -- you either say they are not guilty or they are

24     guilty.  If anybody is guilty of those crimes, then they are equally

25     guilty with those people of those crimes, because they are aware of those

Page 14661

 1     crimes being committed and yet they are continuing to participate in that

 2     war.

 3             MR. HARMON:  I draw a distinction, Your Honours, between

 4     continuing to participate in the war.  The position that we assert here

 5     is identical to the situation in your hypothetical situation.

 6             JUDGE MOLOTO:  It is identical, you are right.

 7             MR. HARMON:  Yes, I don't resile from that, Your Honour.

 8             JUDGE MOLOTO:  And, therefore, if it is identical, then you are

 9     saying, yes, they ought to be guilty if anybody else is guilty.

10             MR. HARMON:  Your Honour, I don't want to go that far.  I'm

11     saying that the situation is identical in terms of the framework of our

12     case.

13             JUDGE MOLOTO:  I won't force you to go any further than that.

14             MR. HARMON:  Thank you.

15             JUDGE MOLOTO:  Thank you for your answers.

16             MR. HARMON:  Thank you, Your Honour.

17             I believe they were at the Uzice Corps document and what -- I

18     want to come back to this document just for a minute, Your Honour.  What

19     I want to say about this document is that the VJ's participation in this

20     campaign really demonstrates the political decision to support the

21     Bosnian Serbs.  If we look at the map of Bosnia, the ethnic map of Bosnia

22     after the Podrinje campaign, months after this statement or this document

23     I've shown you from General Ojdanic, it looked considerably different.

24     It looked different because Muslims in the Podrinje area were forced out

25     of their homes and into a small geographic region in and around

Page 14662

 1     Srebrenica.  In that location, tens of thousands of Bosnian Muslims were

 2     facing a humanitarian disaster and it was a disaster that was only

 3     thwarted by the UN intervention, or the intervention by the international

 4     community.  Had that intervention not occurred, those people who had been

 5     forced in that region would have been forcibly transferred out of it,

 6     many of them would have been killed.  What is important, Your Honour, to

 7     recognise is that the creation of the Srebrenica enclave frustrated the

 8     fulfillment of strategic objective number 1, the separation of the

 9     Muslims from the other ethnic groups, because sitting in the bosom of the

10     Republika Srpska was an enclave that was filled with tens of thousands of

11     Muslims.  The creation of the enclaves did not, in any way, diminish the

12     desire of the Bosnian Serbs to complete their goal, and in fact, the days

13     of reckoning for those people who were living within the enclave were to

14     come in July of 1995 with the crimes that we have described in our

15     indictment.

16             Now, General Perisic came to his position as chief of the VJ

17     General Staff in August of 1993.  He came at a critical phase of the war

18     in Bosnia because the VRS was confronted with two acute problems that put

19     at risk the VRS's ability to prosecute the war and impeded their ability

20     to achieve their strategic objectives.

21             The first problem was that a large number of active military

22     personnel in the VRS were abandoning their units without permission of

23     the VRS and were being accepted into the VJ.  This was quite damaging to

24     the VRS because it threatened their ability to maintain combat readiness

25     of the units in the VRS.  Now, I won't make any submissions on this,

Page 14663

 1     Ms. McKenna will be discussing this with Your Honours shortly, but I will

 2     discuss the second acute problem that was facing the VRS, and that was

 3     that after 15 months of constant warfare, the VRS had exhausted its

 4     materiel reserves.  Without ammunition, without war materiel, the VRS

 5     would cease to become an effective military force and its strategic

 6     objectives would be unobtainable.

 7             Now, we had some evidence in this case, I think it was

 8     Mr. Kovacevic who said to Your Honours that the VRS had no problems with

 9     its ammunition stocks in 1993.  We take issue with his testimony and I'd

10     like to show you a series of documents that we presented.  If we go first

11     to Prosecution Exhibit 2915.  2915, Your Honour, is a document that

12     was -- is dated the 18th of July, 1993.  This is approximately five weeks

13     before General Perisic became chief of the VJ General Staff.  And it's on

14     the screen before you.  You can see what it is.  It is a document from

15     the VRS Main Staff.  It's dated the 18th of July, and it's entitled

16     "replenishment need of the Army of the Republika Srpska."  It is

17     submitted directly to General Perisic's predecessor General Panic.

18             And in this document, I believe this document was signed by

19     General Milovanovic who was the second in command of the VRS,

20     General Milovanovic says the following, he says:

21             "During the last six months, the Army of Republika Srpska has

22     been engaged in continuous combat activities aimed at the liberation of

23     ancient territory of the Serbian people.  In that combat, we suffered a

24     huge number of casualties and we -- and have also spent huge quantities

25     of materiel means which we cannot replenish from our own resources."

Page 14664

 1             If you look down on that document you'll see there is a request

 2     to General Panic that the VJ provide large quantities of materiel, I

 3     think there's approximately 1.200.000 rounds of 7.65 millimetre

 4     ammunition, just the first three items.

 5             If we take a look at the next document, P2917, this is nine days

 6     before General Perisic became chief of the VJ General Staff.  And this is

 7     a document that is from -- this is from General Mladic's notebook and it

 8     records a meeting of the inner circle of the VRS Main Staff.  In other

 9     words, they are talking privately amongst themselves and the agenda, the

10     first item on the agenda is the "situation in the army of RS problems and

11     how to solve of them."  And if we go down into this document you'll see

12     that one of the participants, General Miljanovic, is recorded as saying.

13     "Materiel reserves have been exhausted."

14             If we go to yet another document, Your Honour, this is after

15     General Perisic has become Chief of the VJ General Staff.  This is

16     Prosecution Exhibit 2918.  This is a document that was addressed to the

17     government of the Republika Srpska.  It is dated 1 November, 1993, it is

18     from General Mladic.  And if we go into this -- it's top secret,

19     classified top secret.  If we go into this document, which is entitled

20     "problems of logistics support for the army" you'll see that

21     General Mladic says to the government of the Republika Srpska, "The

22     materiel reserves of the army is the main source of supply from the

23     beginning of the war until the present, have been exhausted."

24             He goes on to say, "148 types of ammunition, 35 per cent of

25     these, the reserves of military and PA ammunition is zero."

Page 14665

 1             If we turn to the next document I'd like to show Your Honours,

 2     it's P2766.  This is a document, Your Honour, that is dated the 15th of

 3     May, 1994.  It's authored by President Karadzic, and it's sent personally

 4     to General Perisic.  The document says to General Perisic:

 5             "I am compelled to inform you about the dangerous developments in

 6     the military situation here."  He goes on to say:

 7             "Our army is exhausted and stretched out over a long front line.

 8     This too could be overcome however, but the shortage of every type of

 9     ammunition cannot be overcome but through the provision of ammunition."

10             Finally, Your Honours, if we could take a look at P149 which is a

11     document, an internal document, it's an analysis of the combat readiness

12     of the activities of the VRS in 1992.  It was -- it's dated in April but

13     retrospectively looks back at the situation of the army in 1992, and in

14     that particular document it says:

15             "Reserves of materiel resources, starting with those of

16     significance for troops, are exhausted."  It goes on to say that:

17             "Materiel needs for the successful combat operation in the

18     territory are being met from the existing reserves and by relying on the

19     FRY army.  The materiel base is insufficient and its characteristics

20     are:"

21             One of the bullet points says:  "Materiel reserves have been

22     exhausted and their present levels are critical."

23             "There are no imports, except from the FRY."

24             So, Your Honours, when Perisic became chief of the VJ General

25     Staff, the VRS was in crisis.  Perisic, General Perisic appreciated that

Page 14666

 1     grave risk that confronted the VRS and months after, he appreciated and

 2     he expressed the problem many months later, but the quotation and his

 3     appreciation is reflected in the particular quotation that he made at the

 4     21st session of the SDS -- SDC on the 7th of June, 1994.  This is P766.

 5     What he said was the following:

 6             "Both presidents know that their position is such that they can

 7     no longer wage war without our help.  If we stop helping them in the area

 8     of education, financing of educated personnel, and materiel assistance

 9     for certain combat operations, they will start losing territories.  If

10     they lose territories, combat morale will gradually decline and the enemy

11     will achieve its goal.  If the enemy achieves its goal, everything we've

12     done so far will have been futile, and besides, we can't stop the war

13     from spreading to this territory.  This means we have to help somehow."

14             Now, the desperate situation that was confronting the VRS

15     required urgent attention if the FRY's policy objectives in Bosnia were

16     successfully to be implemented.  Finding the solution required people to

17     act, it required people to lead, it required a person like

18     General Perisic.  And he did act.  And he acted in a number of ways.  He

19     created and maintained strong and reliable life-lines for the VRS and in

20     so doing, he aided and abetted the crimes committed in Sarajevo and

21     Srebrenica.

22             First, Your Honour, he created two new formations, the 30th and

23     the 40th Personnel Centres.  They were formations within the VJ General

24     Staff and they -- those formations brought order and stability to the

25     situation of the VJ personnel who were serving in the VRS.  Again,

Page 14667

 1     Ms. McKenna will make some submissions in respect to the personnel

 2     centres, I won't go further.

 3             Secondly, to address the critical ammunition and materiel

 4     deficits to the VRS he -- just a minute, Your Honour.  Okay.  I think I'm

 5     solid.

 6             To create those deficiencies in the ammunition, the ammunition

 7     crisis in the VRS, he requested that the SDC grant him authority to

 8     provide the SVK and the VRS with weapons and military equipment on which

 9     their war effort depended.  The SDC granted him that authority.  You can

10     see that, Your Honours, in Prosecution Exhibit P1009 which is on the

11     monitor.  And this is an order of President Lilic on the supplying of

12     30th and 40th Personnel Centre with weapons and military equipment.  Two

13     parts to this order.  The first part is:

14             "The Yugoslav Army shall supply the 30th and 40th Personnel

15     Centre with weapons and military equipment."  And we know from testimony

16     that the 30th and the 40th Personnel Centres referred to the VRS and the

17     SVK.

18             Second of all, in this order of President Lilic:

19             "The Chief of the General Staff of the Yugoslav Army is hereby

20     authorised to reconcile the requests of the 30th and 40th Personnel

21     Centre with the means of the Yugoslav Army and specifically regulate the

22     method and procedures for providing supplies from item 1 of that order."

23             General Perisic discharged that authority effectively.  Without

24     the materiel assistance Perisic provided from the VJ's reserves, the wars

25     in Bosnia and Croatia could not have been prosecuted, nor could the

Page 14668

 1     crimes have been committed.  Perisic's contributions had a substantial

 2     effect on the commission of crimes in Sarajevo and in Srebrenica.

 3             The importance of General Perisic's assistance to the VRS was

 4     underscored by Defence witness and former RS minister of defence

 5     Dusan Kovacevic.  He stated, and I quote and this will -- his quotation

 6     is appearing before you, Your Honours:

 7             "Especially in 1995, more combat materiel was spent in 1994,

 8     especially compared to 1993 because during this period, from August 1994

 9     until the end of the war, the biggest combat operations took place.

10     There was Podrinje, Srebrenica, there was the defence of the western

11     municipalities."

12             He goes on also affirm his statement:

13             "I'm going back to what I said, August 1994 till the end of the

14     war in 1995, that was the period when the greatest combat operations were

15     carried out with the most resources spent, fuel, victims, and everything

16     else in that period."

17             Mr. Thomas, Your Honour, will make submissions on logistics.  I

18     won't address this any further.  Thirdly, General Perisic assisted the

19     VRS by ordering VJ Special Unit Corps units to Sarajevo to participate in

20     the siege of Sarajevo.  Ms. Carter is going to make submissions on that,

21     I won't go further.

22             The fourth way in which General Perisic assisted and aided and

23     abetted the crimes in Sarajevo and Srebrenica was by perpetuating an

24     environment of impunity.  When General Perisic became Chief of the

25     General Staff he inherited an environment of impunity.  General Perisic

Page 14669

 1     had a duty under international law to prevent his subordinates' crimes

 2     and to punish them for their occurrence.  His persistent failure to

 3     fulfill his duty to uphold military discipline throughout his tenure

 4     perpetuated that environment of impunity.

 5             The environment perpetuated by General Perisic had a positive

 6     impact on the commission of the crimes in Sarajevo and Srebrenica in that

 7     it afforded his subordinates serving in the VRS the comfort of knowing

 8     that they could not be punished, they would not be punished, and so

 9     encouraged them to continue committing crimes.

10             Now, General Perisic's remarkable laissez-faire attitude after

11     learning of crimes committed by his subordinates in the VRS is reflected

12     by what he did when Slobodan Milosevic informed him sometime between the

13     15th and the 20th of July, 1995 of the killings in Srebrenica and of

14     Mladic's possible involvement in them.  According to General Perisic:

15             "When I heard from Milosevic about the terrible crime, believe it

16     or not, since then I did not want to know anything about it.  I distanced

17     myself from that because it was unbelievable that something like that

18     happens in the 20th" -- and then the answer is cut off.

19             General Perisic acted like an ostrich, burying his head in the

20     sand in the face of what was the single largest atrocity committed by the

21     VRS in the war.  Of course, General Perisic had an opportunity to inquire

22     of General Mladic.  If we could go to Prosecution Exhibit 2805, you can

23     see that on the 18th of July, in other words, in the time-period when

24     General Perisic learned from Slobodan Milosevic, General Perisic drove to

25     the VRS command centre in Han Pijesak, he met with General Mladic.  And

Page 14670

 1     if we go to the next exhibit, 2803, he also met with General Gvero, who

 2     is the gentleman on the far left of this photograph.  In other words,

 3     General Mladic [sic], who said he didn't want to know anything about it,

 4     was meeting with people who were responsible for those crimes.

 5             Now, it's worth noting, Your Honours, that five weeks after this

 6     rather incredible reaction or lack of reaction by General Perisic to the

 7     killings in Srebrenica, the Markale marketplace was shelled on the 28th

 8     of August, 1995.  It's our position, Your Honour, that this environment

 9     of impunity had a substantial effect on the commission of crimes in

10     Sarajevo and Srebrenica.

11             Now, turning to General Perisic's 7(3) responsibility, as we

12     discussed this morning, General Perisic is also charged with criminal

13     responsibility under Article 7(3) of the statute.  What we allege is that

14     he was the superior officer to personnel in the personnel centres.  I'll

15     be making some submissions on that after I finish this presentation and

16     after my colleagues have finished their presentations.  General Perisic

17     was aware that his subordinates had committed or were about to commit

18     crimes, and he failed to take the reasonable and necessary measures to

19     prevent them or to punish his subordinates for having done so.  Again, as

20     I say, I will make some submissions on Article 7(3) after my colleagues

21     have concluded.

22             But that concludes, Your Honour, my overview.  I am prepared to

23     answer any questions you may have, otherwise I will turn the podium over

24     to Ms. McKenna.

25             JUDGE MOLOTO:  You say you will make some submissions on

Page 14671

 1     Article 7(3) later.

 2             MR. HARMON:  Yes, I will, Your Honour.  I intend to, after my

 3     colleagues have made their submissions.  Then I'm going to address.

 4             JUDGE MOLOTO:  Let me put this question, and you can either deal

 5     with it now or you can deal with it later, or Madam McKenna can deal with

 6     when she speaks.  Would you agree to the proposition that the

 7     establishment of the 30th and 40th Personnel Centres is analogous to a

 8     re-subordination arrangement?

 9             MR. HARMON:  Well --

10             JUDGE MOLOTO:  Actually, it's actually a re-subordination put on

11     record.

12             MR. HARMON:  Re-subordination is a very technical term, I know,

13     in the VJ jargon, on the lexicon of the army's act.  I don't remember all

14     of the elements but I would say this, Your Honour, that the people who

15     were in, I'll make these submissions later, the people who were in the

16     personnel centres were VJ personnel.  Whether I call it re-subordination,

17     transfer, they were VJ soldiers who were operating in Bosnia.  Now, I

18     don't want to characterise it as subordination, re-subordination, but our

19     position is they were VJ soldiers.

20             JUDGE MOLOTO:  Okay.  Put aside the word "re-subordination".  If

21     you accept that they were VJ soldiers transferred to another army, would

22     you accept that command and control of them would then go over to the

23     army to which they are subordinated or transferred.

24             MR. HARMON:  Your Honour, I'm going to make some submissions on

25     that.

Page 14672

 1             JUDGE MOLOTO:  Thank you so much.  I'll wait for them.

 2             MR. HARMON:  Good, I will look forward to making those

 3     submissions, Your Honour.

 4             Now, I have just one minute, I would like to just adjust our

 5     podium.  Thank you.

 6             JUDGE MOLOTO:  Madam McKenna.

 7             MS. McKENNA:  Thank you, Your Honours.

 8             As Mr. Harmon outlined, I will be making brief submissions on the

 9     applicable law followed by submissions on the personnel centres.  As

10     regards the submissions on applicable law, I intend to deal briefly with

11     statements of law in the Defence brief which the Prosecution disputes or

12     statements of law in the Prosecution or Defence briefs which the

13     Prosecution seeks to clarify.

14             I'll be dealing with my submissions with respect to Article 7(1)

15     and Article 7(3) in turn.  As regards Article 7(1), I'll be making three

16     submissions.  Firstly, that the assistance provided need not be

17     specifically directed to a crime, nor need Perisic have had direct intent

18     to commit the crime.  Secondly, that proof of Perisic's knowledge of

19     precise scheduled incidents is not necessary.  And thirdly, I will be

20     making submissions on the aiding and abetting by perpetuation of an

21     environment of impunity.

22             As regards my first submission, assistance need not be

23     specifically directed to a crime, nor need Perisic have had direct intent

24     to commit the crime.  The actus reus of aiding and abetting requires only

25     that assistance was provided and that that assistance had a substantial

Page 14673

 1     effect on the commission of the crime.  The mens rea for aiding and

 2     abetting requires that the aider and abettor knew of the probability that

 3     a crime would occur and that his acts would assist in the commission of a

 4     crime.

 5             The Defence misapplies this legal standard by suggesting or by

 6     implying in its brief that the Prosecution must prove either that

 7     Mr. Perisic's acts were specifically directed towards a crime or that he

 8     had direct intent to commit the crime.  For example, at paragraph 794 of

 9     the Defence brief, the Defence states that there is no evidence that the

10     VJ training of the VRS was, and I quote, "designed to assist or

11     facilitate criminal conduct."

12             The Prosecution need not prove such a criminal design, either for

13     an individual element of the assistance provided, or for the totality of

14     that assistance.  Nor once again must the Prosecutor prove that the aider

15     and abettor had direct intent to commit the crime.  Rather, the

16     Prosecution must prove that Perisic provided assistance, that that

17     assistance had a substantial effect on the crime, that when Perisic

18     provided that assistance, he knew of the probability that crimes would

19     occur, and he knew of the probability that his assistance would have a

20     substantial effect on those crimes.

21             Turning to my second submission.

22             JUDGE MOLOTO:  Before you do that.

23             MS. McKENNA:  Certainly.

24             JUDGE MOLOTO:  Now that you were the one talking about the law,

25     Madam McKenna, would you please apply that law to the question that I put

Page 14674

 1     to Mr. Harmon about the Afghanistani war.

 2             MS. McKENNA:  Your Honour, I wouldn't like to go further than

 3     what Mr. Harmon said, other than to say that on the applicable law before

 4     this Tribunal, the jurisprudence provides the mens rea and actus reus are

 5     as I have just set out.

 6             JUDGE MOLOTO:  Sure.  But I would like to see how this would

 7     operate in the situation in Afghanistan, because as we have agreed, the

 8     situations are identical, if I may borrow Mr. Harmon's word.  And that

 9     there is substantial provisional arms and ammunition and soldiers by the

10     various NATO commanders in Afghanistan, crimes are committed there, they

11     don't have the intention to commit crimes, they don't supply the

12     assistance with the intention to commit crimes, but nonetheless crimes

13     are committed, and therefore every commander should be held responsible

14     for whatever crimes are committed in Afghanistan, all of them.

15             MS. McKENNA:  Your Honours.

16             JUDGE MOLOTO:  By that analogy.

17             MS. McKENNA:  Your Honour, I would submit that the underlying

18     crimes with which Perisic is charged are part of a widespread and

19     systematic attack against the civilian population or a violation of the

20     laws and customs of war.  Once again, if in hypothetical situation --

21             JUDGE MOLOTO:  I have painted no hypothetical situation.  I've

22     given you a situation that is existing on the ground in Afghanistan.

23     It's not a hypothetical.

24             MS. McKENNA:  In my own opinion, Your Honour, and I not

25     knowing -- not being able to speak for the applicable law --  the law

Page 14675

 1     applicable in general to the crimes in Afghanistan, in my own opinion,

 2     the crimes -- any crimes committed in of Afghanistan would not be part of

 3     a widespread and systematic attack against a civilian population, and

 4     therefore again --

 5             JUDGE MOLOTO:  They are crimes against humanity, ma'am,

 6     Mr. Perisic is also charged with crimes against humanity.

 7             MS. McKENNA:  Your Honours, once again I would prefer not to go

 8     any further than Mr. Harmon.

 9             JUDGE MOLOTO:  Thank you very much, Madam McKenna.

10             JUDGE DAVID:  In relation to the questions by which the

11     Prosecution has addressed in reply to Judge Moloto, my feeling is that

12     it's very difficult for me to make comparisons between this specific case

13     that we got in hand and any case for instance, of the Nuremberg trial or

14     the Tokyo trial or Afghanistan or any other event like Libya today.

15     First, because we cannot extrapolate the specific structure of a given

16     case to any piecemeal instances of any other trial or possible trial or

17     possible events.  While it may be legitimate to extrapolate from present

18     circumstances of the war around certain elements, to infer

19     generalizations that may apply to this case, the reasoning itself for me

20     is faulty.  And I'm not saying anything about the questions of my

21     distinguished president.  In fact, for me, it's faulty, misleading and

22     out of place.  This is my opinion about the questions raised so far.

23     Thank you very much.

24             JUDGE MOLOTO:  You may proceed.

25             MS. McKENNA:  Thank you, Your Honour.  Turning to my second

Page 14676

 1     submission, proof of Perisic's knowledge of precise scheduled incidence

 2     is not necessary.  As regards the mens rea element of aiding and

 3     abetting, the Defence in its brief adopts an overly restrictive

 4     interpretation of applicable law.  For example, regarding the siege of

 5     Sarajevo, at paragraph 803 of the Defence brief, the Defence states that

 6     the Prosecution failed to prove that Mr. Perisic had any knowledge

 7     whatsoever about any of the specific schedule B incidents.  This analysis

 8     is incorrect as a matter of law.  While the Perisic -- while the

 9     Prosecution must show Perisic's knowledge of specific crimes, this

10     relates to the type of crimes at issue and not the precise scheduled

11     incidents.

12             Regarding the mens rea for aiding and abetting, the Haradinaj

13     Appeals Chamber at paragraph 58 of the judgement, gave examples of

14     murder, extermination, rape and torture as the specific crimes of which

15     the aider and abettor must be aware.  At paragraph 86 of the Simic

16     Appeals judgement, the Chamber held that it is not necessary that the

17     aider and abettor knows either the precise crime that was intended or the

18     one that was, in the event, committed.

19             So the Prosecution need not prove, for example, Perisic's

20     knowledge that scheduled incident B-6 would occur.  Rather, the

21     Prosecution must establish that Perisic knew of the probability that

22     attacks on Sarajevo civilians, including murder and inhumane acts, would

23     occur.

24             Turning to my third submission, regarding the aiding and abetting

25     by the perpetuation of an environment of impunity.  At paragraph 57 to 65

Page 14677

 1     of the Defence brief, the Defence disputes the legitimacy of aiding and

 2     abetting by omission as a theory of criminal liability.  Contrary to the

 3     Defence contention, aiding and abetting by omission is settled law in

 4     this Tribunal and that's at paragraph 49 of the Mrksic appeals judgement.

 5     However, as Mr. Harmon has set out the form of aiding and abetting

 6     alleged in the present case is not, strictly speaking, aiding and

 7     abetting by pure omission, but rather it is aiding and abetting by

 8     encouragement, and this is a distinction made in the Brdjanin appeals

 9     judgement in paragraphs 273 to 274.

10             The Appeals Chamber has on a number of occasions acknowledged

11     factually the encouraging effect of a superior's failure to prevent or

12     punish.  So for instance, in the Celebici appeals judgement at paragraph

13     739, in the context of sentencing, the Appeals Chamber found that a

14     superior's consistent failure to act, in relation to the conditions and

15     unlawful conduct within the camp, must have had an encouraging effect.

16     Equally at paragraph 301 of the Strugar appeals judgement, the Appeals

17     Chamber stressed, in the context of discussion of Article 7(3) liability,

18     that a superior's failure to punish a crime of which he has actual

19     knowledge is likely to be understood by his subordinates, at least, as

20     acceptance, if not encouragement, of such conduct, with the effect of

21     increasing the risk of new crimes being committed.

22             THE INTERPRETER:  Kindly slow down, thank you.

23             MS. McKENNA:  My apologies to the interpreters.  So in the

24     circumstance of this case, Perisic's persistent failure to prevent or

25     punish his subordinate's crimes perpetuated the environment of impunity

Page 14678

 1     which he inherited.  This environment had a positive impact on his

 2     subordinates' actions and a substantial effect on their commissions of

 3     crimes in Sarajevo and Srebrenica.

 4             Your Honours, I now turn to my submissions on Article 7(3), and

 5     I'll be making two brief submissions.  Firstly, regarding the existence

 6     of a superior-subordinate relationship and secondly regarding the

 7     mens rea required for 7(3).

 8             As regards the existence of a superior-subordinate relationship,

 9     the Defence brief asserts at paragraph 72 that:

10             "It must be proven that through his role or position, a personal

11     relationship of subordination, vis-a-vis the perpetrators, was

12     established and was acknowledged by both parties to that relationship."

13             This, Your Honours, is legally incorrect.  A superior-subordinate

14     relationship arises where a superior has effective control over the

15     subordinate, being the material ability to prevent or punish the

16     subordinate's acts.  As repeatedly affirmed, indicators of effective

17     control are more a matter of evidence than of substantive law.  An

18     acknowledgement by a subordinate of a relationship of subordination may

19     be a factual indicator of effective control, but it is not a prerequisite

20     for finding a superior-subordinate relationship.

21             Turning to the mens rea requirement for Article 7(3).  Under

22     Article -- under Article 7(3) liability, it must be shown that Perisic

23     had knowledge or reason to know that crimes had been or were to be

24     committed by his subordinates.  On the Strugar appeals judgement at

25     paragraphs 302 and 304 states that this standard is met if Perisic

Page 14679

 1     possessed sufficiently alarming information, putting him on notice of the

 2     risk that crimes might subsequently be carried out by his subordinates

 3     and justifying further inquiry.

 4             In discussing the requisite mens rea, the Defence misstates the

 5     law.  In paragraphs 82 and 91 of the Defence brief, a number of tests are

 6     put forward citing ICTY and ICTR trial chamber jurisprudence and Bosnian

 7     state court jurisprudence in support.  These tests suggest a higher mens

 8     rea standard.  For example, at paragraph 82 of the Defence brief, the

 9     Defence states that there must be information putting a superior on

10     notice of a present and real risk or likelihood of a legal act by his

11     subordinates.  The tests cited by the Defence are incorrect.  If Perisic

12     possessed information sufficiently alarming, putting him on notice of the

13     risk that crimes might be subsequently carried out by his subordinates

14     and justifying further inquiry, he had the requisite mens rea for

15     liability under Article 7(3).

16             The Defence brief at paragraph 83 states that knowledge of the

17     commission of crimes generally is not sufficient.  This point merits

18     clarification.  Paragraph 155 of the Krnojelac appeals judgement is

19     authority for the proposition that, with regard to a specific offence,

20     for example, murder, the information available to the superior need not

21     contain specific details on the unlawful acts which have been or are

22     about to be committed.  Rather, the information must provide general

23     notice of the type of crimes charged.

24             At paragraph 83 of the Defence brief, the Defence cites the

25     Oric appeals judgement at paragraph 59 of the Oric appeals judgement,

Page 14680

 1     which states that knowledge of a crime and knowledge of a person's

 2     criminal conduct are, in law and in fact, distinct matters.  This is

 3     correct.  But the Oric appeals judgement in the same paragraph goes on to

 4     say that the latter may be inferred from the former.  So as with the

 5     mens rea standard for Article 7(1), Perisic need not have had notice of

 6     the precise scheduled incidents.  Rather the Prosecution must prove that

 7     Perisic had notice of the attacks on civilians, the murder, and the

 8     inhumane acts being committed by his subordinates as part of the campaign

 9     of shelling and sniping in Sarajevo, and equally, the Prosecution must

10     prove that he had had notice of the murders, extermination, inhumane acts

11     and persecutions committed by his subordinates in Srebrenica.

12             Your Honours, unless you have any further questions on the

13     applicable law, I will turn to my submissions on the personnel centres.

14             As Mr. Harmon outlined, Perisic aided and abetted the crimes in

15     Sarajevo and Srebrenica by the provision of assistance which had a

16     substantial effect on those crimes.  The first element of the assistance

17     provided by Perisic was personnel through the 30th and 40th Personnel

18     Centres.  I'll be making three main submissions in respect of the

19     personnel centres.

20             Firstly that the personnel centres addressed an essential need of

21     the VRS.  Secondly, that the VJ remained the ultimate arbiter of whether

22     an individual returned to the FRY from the VRS or the SVK.  And thirdly,

23     that the regulation of status provided by the personnel centres was

24     vitally important.

25             Turning to my first submission.  The personnel centres addressed

Page 14681

 1     an essential need of the VRS.  Prior to the creation of the personnel

 2     centres, the provision of VJ officers to the VRS and the SVK was ad hoc

 3     and unregulated.  This created serious problems for those armies.  It

 4     resulted in a drain of personnel giving rise to both damage to combat

 5     readiness and damage to combat morale.  And these problems were set out

 6     in detail in a March 1993 request from Mladic to the to the then VJ Chief

 7     of General Staff, Perisic's predecessor, regarding the prevention of

 8     personnel from leaving the VRS.  And that's P1529 that Your Honours will

 9     see on the screen before you.

10             And Your Honours, I intend to go through this letter in some

11     detail.  In this letter, Mladic highlighted that a large number of VRS

12     personnel were abandoning their units without permission to leave for the

13     VJ, and at this point I'll just note that there is a revised translation

14     of this document which the Defence have agreed, and I'll just point out

15     the revised wording.  The revised -- the Prosecution will be making a

16     written submission on this but the revised wording will read that "a

17     large number of active military personnel and army employees abandoned

18     their units without permission and leave for the Yugoslav Army."

19             Mladic went on to emphasise that:  "The damage stemming from this

20     to combat readiness, especially combat morale in the Army of Republika

21     Srpska is multifaceted.  A large number of officers in command posts with

22     high responsibility leave units without handing over their duties,

23     because of which units suffer losses or their tactical position is

24     jeopardised along the front line; troops remain uncared for and left to

25     their own devices; units remain without officers for an extended period;

Page 14682

 1     and the negative influence on morale is extremely harmful since active

 2     officers are involved."

 3             Mladic proceeded:

 4             "Based on the above and in order to overcome negative

 5     consequences and maintain the necessary level of combat readiness in the

 6     units of the Army of Republika Srpska, please take the necessary measures

 7     in your authority to put a stop to the unauthorised return to the

 8     Yugoslav Army of active military personnel and civilian employees who are

 9     engaged in the Army of Republika Srpska ..."

10             JUDGE MOLOTO:  And we say that letter is dated the 31st of March,

11     1993.

12             MS. McKENNA:  1993.

13             Mladic emphasised the necessity of VRS agreement prior to the

14     return of those officers stating:

15             "Every individual request to return to the VJ will be reviewed by

16     the relevant commands and officers of the VRS, who will issue the

17     appropriate agreement.  Among other things, your measures are necessary

18     to prevent the admission and assignment and especially promotion of all

19     those who return without this agreement."

20             Mladic went on to underline the VRS's continuing need for

21     additional personnel, stating:

22             "Please adopt an enactment making it obligatory for all active

23     military personnel who come from the former Bosnia-Herzegovina to join

24     the Army of Republika Srpska at the request of the Main Staff of the Army

25     of Republika Srpska ...

Page 14683

 1             "All those who refuse to comply with this request must be removed

 2     from the Yugoslav Army in an appropriate procedure."

 3             On this last point he urged the termination of those who refused

 4     to go, stating:

 5             "If they are not prepared to defend their own homeland, they will

 6     not want to fight for someone else's."

 7             Finally, Mladic highlighted the unequal treatment of personnel

 8     serving in the VRS in housing and status matters and requested that

 9     subordinated commands be prevented from adopting enactments with negative

10     status decisions for active military personnel who are engaged in the

11     Army of Republika Srpska while they are with us."

12             MS. McKENNA:  If I may have a moment, Your Honour.  Your Honour,

13     I note the time.

14             JUDGE MOLOTO:  Is that the appropriate time for you, you have a

15     minute or two still.  If you are going to another point, we can stop.

16             MS. McKENNA:  I'm moving on to another point, thank you.

17             JUDGE MOLOTO:  We'll take a break and come back at 12.30 p.m.

18                           --- Recess taken at 11.59 a.m.

19                           --- On resuming at 12.33 p.m.

20             JUDGE MOLOTO:  Madam McKenna.

21             MS. McKENNA:  Thank you, Your Honour.

22             Your Honours, before the break we had done a detailed review of

23     P1529 which was Mladic's letter from March 1993 highlighting the problems

24     which the VRS had at that point.  When Perisic became VJ Chief of General

25     Staff some five months later these problems remained unresolved.  Indeed

Page 14684

 1     the issues highlighted by Mladic in that letter are precisely those which

 2     were emphasised by Perisic both in his written submission to the SDC on

 3     the formation of the personnel centres and his discussions in his

 4     discussions with the SDC on the personnel centres.

 5             In the next series of slides, we'll do a comparison between the

 6     issues as highlighted by Mladic and as addressed by Perisic in these

 7     discussions.  Turning to the first issue, Mladic had highlighted the

 8     problem of morale in the VRS, and again, Your Honours will recognise this

 9     text as the text that we had previously reviewed before the break.

10             On the topic of morale, Perisic in his written submissions before

11     the SDC, and that's P1872, document ID 0630-6544, stated that:

12     "Considering the fact that VJ officers born in Bosnia-Herzegovina or

13     Croatia who did not respond to the VRS are or SVK call-up, "were better

14     provided for in everything regarding service, housing, and so on in

15     relation to the active servicemen who stayed behind or were subsequently

16     dispatched, we must accept that there is a reason for constant

17     misunderstandings, various requests, and moral dilemmas with reference to

18     these active servicemen and problems regarding their actual obligations

19     based on the service in the VJ."

20             Secondly, Mladic had urged of additional officers born in

21     Bosnia-Herzegovina to the VRS requesting than an enactment be adopted

22     making it obligatory for those personnel to join the VRS at the request

23     of the VRS Main Staff or be terminated from the VJ.  Again, in Perisic's

24     written submission on this topic, Perisic echoes or, rather, responds to

25     this need.  The submission states that:

Page 14685

 1             "In the proposed order of the FRY president to be put into effect

 2     by the VJ Chief of General Staff, all professional soldiers and civilians

 3     serving in the VJ who were born in Croatia or Bosnia-Herzegovina and sent

 4     to do their training or service in the JNA from these territories, would

 5     be obliged to respond to call-up from the Main Staff of the Army of

 6     Republika Srpska or the Republic of Serbian Krajina, or else their

 7     service in the Yugoslav Army would be terminated."

 8             On this issue of termination, Mladic's position had been very

 9     clear stating that if they were not prepared to defend their own

10     homeland, they would not be -- they would not want to fight for someone

11     else's.

12             This stated position by Mladic resonates throughout Perisic's

13     statements on this topic to the SDC.  At the 14th SDC session on the 11th

14     of October, 1993, Perisic stated:

15             "If those men refuse to go there, then we need to view them as

16     deserters who don't want to defend their homes."

17             That's at page 33 of P709.

18             Later in the same session at page 36 of the exhibit, Perisic

19     stated:

20             "If such an individual is not ready to go fight anywhere, and

21     this is a single people, we need to think about whether he should be in

22     this army at all."

23             And then at the next SDC session, the 15th session, on the 10th

24     of November, 1993, this is P780, page 5, Perisic states:

25             "If someone flatly refuses to go, then I'll do everything I can

Page 14686

 1     to help him leave the army, because, if he doesn't want to defend his

 2     people when they are most threatened, when will he defend them?"

 3             Mladic had also highlighted the problem of unequal regulation of

 4     status of officers serving in the VRS, and requested that an enactment be

 5     made regularising that service.  Again, Perisic made repeated submissions

 6     on this issue to the SDC.  With reference to those VJ officers serving in

 7     the VRS and the SVK, he stated, and this is in his written submission at

 8     P1872:

 9             "The legal position and personal status of all those persons

10     (those who stayed behind and those who were dispatched there) has not

11     been equally regulated, regarding salary, promotion in rank and service,

12     provision of care for the families in the FRY, right to provision of

13     housing, and other service rights."

14             Before the 14th session of the SDC, Perisic stated, at page 32 of

15     P709:

16             "In order to have a foothold, we have paved the way for the

17     president of the state, in his capacity as supreme commander, to issue an

18     order regulating their status and that of officers here."  And later that

19     same session he emphasised that:  "I'm insisting that they should get the

20     same status as officers here."

21             Finally, Mladic's 1993 letter had highlighted the problem of the

22     return of officers to the VJ without VRS consent, and the impact that the

23     drain of officers was having on VRS combat readiness and combat morale

24     and the need for VRS consent to be mandatory prior to an officer's

25     return.  To that end, the instructions on the personnel centres signed by

Page 14687

 1     Perisic provided for the consent of the personnel centre commander prior

 2     to the return of an officer to the VJ.  These instructions are at P734

 3     and the relevant page is page 7 and the relevant provision provides that:

 4             "In keeping with service requirements, professional soldiers and

 5     civilian personnel sent or transferred to the personnel centre may be

 6     returned, assigned, or transferred to the VJ units or institutions with

 7     the consent or on the recommendation of the personnel centre Main Staff."

 8             This provision ensured that the needs of service of the VRS and

 9     the SVK would be considered, that the drain of personnel would be

10     prevented, and that the army's combat readiness would be protected.

11             The Defence gives an incomplete and inaccurate account of

12     Starcevic's testimony on this particular provision of the instructions.

13     Paragraph 264 of the Defence brief cites a direct Starcevic quote, and I

14     quote that:

15             "If this paragraph stipulates that they can return to the VJ, at

16     this point in time, they must not have been in the VJ, since this

17     paragraph provides for their return.  There is no other reasonable or

18     legal understanding of this term."

19             In fact, in an exchange beginning at T-6924, line 4 of the

20     transcript, Defence counsel had asked Mr. Starcevic:  "If this paragraph

21     stipulates that they can return to the VJ, am I right in understanding

22     it, that at this point they were not in the VJ, since this paragraph

23     provides for their return?"

24             Mr. Starcevic responded:

25             "To put it simply, there is no other reasonable or legal

Page 14688

 1     understanding of this item.  But if you view this paragraph separate from

 2     everything else that we have seen."

 3             Mr. Starcevic then went on to elaborate at T-6925, line 2 of the

 4     transcript that:

 5             "The counsel has offered an interpretation for which I said there

 6     could be no other reasonable or legal understanding of this item.  But,

 7     if we perceive this item separate from other provisions that we have seen

 8     before, but only if we perceive this item separate."

 9             JUDGE MOLOTO:  What does that mean?  I don't understand that last

10     quotation.

11             MS. McKENNA:  Your Honours, this means that this document, in

12     common with the other documents with which the Trial Chamber has before

13     it, cannot be viewed in isolation, but and as Mr. Harmon will discuss

14     further in his submissions on Article 7(3), Mr. Starcevic testified that

15     the personnel centres were members of the VJ as a matter of law [sic].

16             JUDGE MOLOTO:  You may proceed.

17             MS. McKENNA:  In summary, the personnel centres proposed by

18     Perisic addressed the needs highlighted by Mladic by formalizing the

19     support being provided by the VJ to the VRS and the SVK by, firstly,

20     creating a mechanism to staunch the flow of personnel from those armies

21     by ensuring that the VRS and SVK commanders could act as gatekeepers,

22     preventing the unauthorised return of officers to the FRY.  Secondly, by

23     ensuring that the rights of those officers serving in VRS and the SVK

24     would be fully protected and enjoyed in the same manner and scope as

25     those of other VJ members.  And thirdly, by providing the VJ, in

Page 14689

 1     Perisic's words, with legal cover to ensure that it could continue to

 2     transfer officers to the VRS and SVK in order to maintain and support

 3     their war efforts.

 4             Perisic was the architect of the personnel system through which

 5     the VRS and the SVK commands were provided the security of knowing that

 6     the VJ would continue to support them by providing further officers,

 7     preventing a personnel drain, and thereby ensuring that the command

 8     structure remain solid.  And the officers themselves were given the

 9     security of knowing that their livelihoods would be protected, and

10     together this ensured that the combat readiness and the combat morale of

11     the VRS and SVK would be sustained.

12             Turning to my second submission.  Throughout this period,

13     however, the VJ remained the ultimate arbiter of whether an individual

14     returned to the FRY from the VRS or the SVK.  The Defence brief at

15     paragraph 304 states that requests from officers in the VRS and the SVK

16     to rejoin the VJ were decided by the VRS and SVK commander and that

17     Perisic played no role in the decision, nor is there any evidence that he

18     was able to overrule and influence any decision in other armies.

19             The purpose of the personnel centres was to sustain and maintain

20     the VRS and SVK officer corps and for this reason, as we have seen, the

21     instructions on the personnel centres provided for VRS or SVK consent

22     prior to the return of officers to the FRY.  The Prosecution doesn't

23     dispute that the VRS and the SVK made the majority of decisions as to

24     assignment to duty within those armies, and that the duties to which

25     officers were assigned in the personnel centres reflected the decisions

Page 14690

 1     that had been made by the VRS and the SVK commands.  And that's set out

 2     in paragraphs 176 and 183 of the Prosecution brief.  And Your Honours,

 3     this is consistent with the purpose of the personnel centres, namely, to

 4     supply officers in accordance with the VRS and SVK needs of service.

 5             However, it's clear from the documents in evidence that Perisic

 6     and the VJ retained the ultimate authority as to who could return to the

 7     FRY.

 8             Paragraph 193 of the Prosecution brief discusses P2864, which is

 9     a instruction from the VJ General Staff personnel administration to the

10     40th Personnel Centre Main Staff and it provides that -- dealing with the

11     issue of officers transferring out of the 40th Personnel Centre, and the

12     instruction provides that:

13             "Recommendations for transfer from the 40th Personnel Centre may

14     be submitted only through the 40th Personnel Centre Main Staff and with

15     the 40th Personnel Centre Main Staff commander's signature.  The transfer

16     can be executed only after reception of response - approval from the VJ

17     General Staff personnel administration."

18             The examples cited by the Defence at paragraph 304 of its brief

19     all relate to instances where an officer himself requested transfer.

20     Given the VJ's purpose in supplying the officers to the VRS and the SVK -

21     namely to support the war effort, it's unsurprising that the approval of

22     those officers' immediate superior was standard before they came back to

23     the VJ or to the FRY.  Ultimately, however, the determination as to

24     whether an officer stayed in the personnel centres or returned to the FRY

25     rested with the VJ, and its needs of service overrode all others.

Page 14691

 1             D335 is a VRS Main Staff personnel sector response to an

 2     officer's request for transfer out of the 30th Personnel Centre.  The

 3     officer is of informed that his case was discussed at the VRS Main Staff

 4     commander advisory board and that:

 5             "A decision was made to forward your request to the 30th

 6     Personnel Centre with a proposal to the officer in charge to issue an

 7     order for transfer to the VJ outside the 30th Personnel Centre."

 8             So the VRS considered the case and decided to propose to the VJ

 9     that the officer be transferred.  The VJ remained the ultimate arbiter.

10             Equally, paragraph 192 of the Prosecution brief discusses the

11     case of VJ Major-General Branislav Petrovic, who had been deployed to

12     serve in the 11th Corps in the Slavonia Baranja district.  That's P2754.

13     This case the Slavonia Baranja Corps chain of command requested to

14     Perisic personally that Petrovic be permitted to stay in the Slavonia

15     Baranja corps until after completion of the operations in the territory.

16     The office of the VJ Chief of General Staff responded stating that

17     Perisic -- that Petrovic was required to return to duty in the VJ General

18     Staff air force administration and "his re-engagement in the defence of

19     the Slavonia and Baranja district shall be duly regulated based on the

20     indicators of the beginning of the aggression against this district."

21             That is, the VJ refused the request to resend him, but informed

22     the Slavonia Baranja Corps command that they would reconsider resending

23     him in the event that there was aggression against it.

24             So in summary, contrary to the Defence contention, the VJ

25     remained the ultimate arbiter as to whether individuals returned to the

Page 14692

 1     FRY, and Perisic himself could overrule other armies' decisions.

 2             Turning to my third submission, regulation of status was vitally

 3     important.  Proper record-keeping, necessary to regulate status and

 4     protect status rights, was an integral function of the personnel centres.

 5     That's acknowledged at paragraph 255 of the Defence brief and paragraph

 6     200 and 201 of the Prosecution brief.

 7             As is evident from Mladic's 1993 request, this regulation was

 8     vitally important to the effective functioning of the armies.  It

 9     reassured VJ officers and their families of their livelihood, giving them

10     security in a chaotic time and providing them both with a financial

11     life-line and moral support.  And this enabled them to serve in the VRS

12     and the SVK as part of the VJ assistance provided to the VRS and the SVK

13     war effort.

14             The Defence concedes in its brief that the regulation of status

15     and the protection of status-related rights was necessary and important.

16     The status-related rights regulated included those relating to salary,

17     pension, housing, and promotions, and there is a wealth of evidence

18     showing the importance of status-related rights to officers and their

19     families as outlined at paragraphs 201 and 209 to 210 of the Prosecution

20     brief.

21             Defence witness Stamenko Nikolic testified that personal records

22     in relation to members of the VJ were exceptionally important.  It's

23     important for regulating the position and status of a member within an

24     army.  He proceeded to testify regarding the failure to keep records of

25     those former JNA members serving in the VRS and the SVK that those

Page 14693

 1     persons were facing such a situation that "unless their status was

 2     resolved and the rights they enjoyed under their status, this would have

 3     utterly destroyed their families and made their survival as human beings

 4     entirely impossible."

 5             Perisic understood the importance of status regulation and the

 6     salaries being received by the officers and in June 1994 at the 21st SDC

 7     session, that's P776, having set out the numbers of VJ officers serving

 8     in the VRS and SVK and the amounts that were allocated annually for their

 9     salaries, he stated, "that's a great help to them."

10             In November 1994, following the FRY sanctions against the

11     Republika Srpska, Mladic complained that stopping the salaries to VJ

12     members serving in the VRS had caused "an enormous existential crisis for

13     their families.  A situation has been created in which the attention is

14     necessarily drawn from combat tasks.  Deferring of this issue is making

15     the matters worse for the professional soldiers of the VJ and their

16     families."

17             And again Defence Nikolic testified in relation to resolving this

18     problem that -- and witness Nikolic was dealing with the families at

19     issue.  He stated:

20             "This agony went on for a full five months and I have never in my

21     life faced a crisis as severe as that."

22             Indeed, following the imposition of these sanctions, in September

23     1994, Perisic sent 500.000 dinars to Mladic for salaries for VJ officers

24     serving in the VRS.  And that's P851.

25             Actions taken by officers, including Dragomir Milosevic and

Page 14694

 1     Mladic, to enforce their status-related rights including compensation for

 2     unused annual leave, injury compensation, separation allowance and unpaid

 3     salaries are discussed at length in paragraphs 788 to 799 of the

 4     Prosecution brief.  One element of this status regulation was promotions.

 5     The Defence wrongly limits its analysis or its discussions of promotions

 6     in the VJ to a 7(3) context.  However, promotions and their regulation

 7     were also a clear component of the assistance provided by Perisic under

 8     Article 7(1).  The Defence argues that promotions of VJ officers serving

 9     in the VRS were made final in the VRS and that the only steps taken in

10     the VJ were to verify those promotions to regulate the status rights of

11     an officer.  This is incorrect and Perisic's active role in this regard

12     will be discussed by Mr. Harmon in the context of his submissions on

13     Article 7(3).

14             However, the Defence accepts at paragraph 383 of its brief that

15     an officer's rank formed part of the basis of payment for increased

16     salary and other attendant benefits, such as pension entitlements.  The

17     Defence also accepts at paragraph 415 to 420 of its brief, that any

18     change in salary, pension contributions, housing priorities or other

19     status-related rights only became effective when a VJ officer was

20     promoted in the VJ.  As with the other elements of status regulation,

21     this was important to officers serving in the VRS.

22             For example, in Galic's VRS exit interview at P1760 on the 12th

23     of August, 1994, the first point that Galic made was:  "Before the

24     adoption of a decision on the termination of my professional military

25     service, I wish my appointment to my current post of commander of the SRK

Page 14695

 1     establishment rank Lieutenant-General PG-4 rank group, to be verified."

 2             Promotions were also good for morale, and Perisic strongly

 3     advocated for promotions of VJ officers serving in the VRS and the SVK on

 4     that basis.  At the 15th SDC session on the 10th of November, 1993, and

 5     that's P780, page 23, Perisic stated in relation to promotions:

 6             "We'll be giving them moral support.  It's not just the matter of

 7     a flat or something like that.  These men are fighting and by doing so,

 8     they are ensuring peace to us.  I urge - and that's why I proposed - that

 9     they be given this since it would greatly motivate them.  In doing so, we

10     would recognise what they have done."

11             In summary, Your Honours, the regulation of status-related rights

12     relating to salary, pension, housing, and promotions, and the security of

13     access to those rights, enabled VJ officers to serve in the VRS and the

14     SVK for as long as they were so regulated.  It gave the officers serving

15     in the VRS the comfort to stay as long as they were needed in the

16     knowledge that they weren't giving up their VJ benefits.  No such

17     security was available for former JNA officers serving in the ABiH or the

18     HVO.

19             Through sustaining and maintaining the VRS officer corps, the

20     assistance provided through the personnel centres had a substantial

21     effect on the crimes committed in Sarajevo and Srebrenica.

22             That concludes my submissions on the personnel centres,

23     Your Honours.  Unless you have any further questions, I will hand over to

24     my colleague Mr. Thomas.  Excuse me, one moment, Your Honours.

25             My apologies, Your Honours, Mr. Harmon has just pointed out an

Page 14696

 1     error in the transcript which is at page 62, line 16.  And it currently

 2     states that personnel centres were members of the VJ as a matter of law.

 3     And it should of course read that persons serving in the personnel

 4     centres were members of the VJ as a matter of law.

 5             JUDGE MOLOTO:  Thank you, Madam McKenna.

 6             MS. McKENNA:  Again, unless Your Honours have any questions, I

 7     will hand over to my colleague Mr. Thomas who will make submissions on

 8     the second element of the assistance provided by Mr. Perisic, namely the

 9     logistical and materiel assistance.

10             JUDGE MOLOTO:  Thank you very much, Madam McKenna.

11             MR. THOMAS:  Thank you, Your Honours.

12             JUDGE MOLOTO:  Thank you, Mr. Thomas.

13             MR. THOMAS:  Your Honours, in the time left before we break, I

14     will endeavour to discuss the aspects of the logistics case, namely the

15     assistance provided by the VJ to the VRS in weapons, ammunition and other

16     logistics assistance.  In doing so, I don't propose to discuss the

17     Prosecution case in any detail.  I don't wish to summarise it in any way.

18     The Prosecution allegations are substantiated by an analysis of the

19     wealth of evidence that has been tendered in this case and which is

20     described in our final trial brief.  I don't -- we don't seek to augment

21     that analysis or qualify that analysis in any way today.

22             What I would like to do, Your Honours, however, is just to take

23     the opportunity to address a number of misconceptions under which the

24     Defence appear to be operating when it comes to this part of the case.

25     The first of those is the interrelationship between the VJ and the FRY

Page 14697

 1     Ministry of Defence.  The Defence have made the assertion that in the

 2     budget planning and production phase, namely the phase during which funds

 3     are being made available for the VJ and production requirements are being

 4     assessed and paid for, the Defence have asserted that during this period,

 5     the VJ is operating or was operating under the authority of the MOD, the

 6     FRY MOD, and that assertion, Your Honours, is found at paragraph 613 of

 7     the Defence final trial brief.

 8             That misstates the true relationship between the VJ and the FRY

 9     Ministry of Defence.  At the time that General Perisic took his position

10     as Chief of the General Staff, there had been the restructure of the

11     Federal Secretariat of National Defence and as a result of that

12     restructure, the VJ and the FRY MOD were each -- sorry, neither the VJ

13     nor the MOD were subordinated to the other.  In practical terms, what

14     that meant was that the FRY MOD had the responsibility for submitting a

15     national defence budget to the FRY Assembly.  For the purposes of that

16     national defence budget, let me go back a step Your Honours.  The

17     national defence budget provided for the VJ requirements and it provided

18     for the FRY MOD requirements.  In other words, funds were put aside for

19     the functioning of both the VJ and the functioning of the MOD in the

20     national defence budget.  By far, the larger component of the national

21     defence budget was to meet VJ needs.

22             Although the MOD was responsible for preparing the draft national

23     defence budget, because the vast proportion of the VJ national budget

24     went to providing for VJ needs, it would seek from the VJ General Staff a

25     draft VJ budget plan.  The VJ would essentially provide a submission to

Page 14698

 1     the FRY MOD seeking funds for its operations.  That was prepared by the

 2     General Staff of the VJ.  In it, they would seek funds for the coming

 3     year for all of their needs.

 4             The single biggest need was salary, or the single biggest need

 5     during the indictment period was the payment of salaries.  And

 6     incorporated in that request for funds for salaries from the VJ included

 7     the amounts that were payable to VJ officers serving in the 30th and 40th

 8     Personnel Centres.  Also sought by the VJ General Staff in its budget

 9     plans would be the other requirements or other needs for it to properly

10     function, including the replenishments of its reserves.  Once the

11     VJ General Staff had prepared that budget plan and it was forwarded to

12     the FRY Ministry of Defence, we've heard evidence that there would, on

13     occasion, be discussion as to whether or not that VJ budget plan was

14     realistic, in other words, whether given the state of the FRY at that

15     time that the FRY Assembly would likely pass a budget that contained such

16     requests or whether the VJ budget plan would need to be amended to make

17     it a little more realistic in that respect.

18             However, ultimately, the two entities reached a position where

19     the VJ budget plan for the coming year had been submitted by the General

20     Staff to the MOD.  The MOD incorporated it in the draft national defence

21     budget, which was then sent for approval to the FRY Assembly.  Once the

22     FRY Assembly approved the budget, the MOD was responsible for disbursing

23     funds against that budget in large measure.  In particular, the MOD was

24     responsible for disbursing the individual salaries to the individual

25     officers concerned, but, of course, this was against the funds put aside

Page 14699

 1     for that purpose in the national defence budget as requested by the

 2     General Staff.  The FRY MOD was also responsible for ensuring that the

 3     funds that had been approved for the replenishment of VJ reserves were

 4     put to that purpose, and in practical terms that meant that the FRY MOD

 5     would arrange for the necessary production from the special-purpose

 6     industry facilities that Your Honours have heard about during the course

 7     of this trial.  And those special-purpose industries being subordinated

 8     to the Ministry of Defence would produce the necessary material, and upon

 9     production of that material, it would be sent to the VJ to replenish VJ

10     reserves.

11             Now, the evidence on all of that comes from two Defence witness,

12     General Stamenko Nikolic, who was the FRY MOD head of administration for

13     systems and status-related administration affairs, and General Jovanic,

14     who was FRY MOD head of finance and budget administration.

15     General Nikolic also provided Your Honours a piece of evidence that

16     corroborates other evidence in this trial, but which is important when it

17     comes to the logistics case, because notwithstanding that relationship

18     between the VJ and the MOD, once material that had been produced by FRY

19     special-purpose industry formed part of VJ reserves, it came under the

20     control of General Perisic.  It was General Perisic as Chief of the

21     General Staff who had authority to decide the use to which the VJ

22     reserves would be put.

23             And it's important, Your Honours, when we look at P1009, which we

24     could have on the screen for a moment, to view the document in that

25     context and Your Honours will recall this document from Mr. Harmon's

Page 14700

 1     presentation and also from the occasions that we have seen it during the

 2     course of this trial.  This is the order where the -- this is the order

 3     where President Lilic authorises the Yugoslav Army - not the MOD, but the

 4     Yugoslav Army - to supply the 30th and 40th Personnel Centres with

 5     weapons and military equipment.  And this is where President Lilic

 6     authorises General Perisic to regulate the requests submitted to the VJ

 7     by the VRS and the SVK with the means of the VJ to fulfill those requests

 8     from the reserves which he had authority over.

 9             This order exists, Your Honour, because General Perisic asked for

10     it.  General Perisic knew full well his legal obligations and the state

11     of the law when it came to disbursing military equipment.  He understood

12     that he had no right to send military equipment, weapons and ammunition,

13     to another army.  He understood that the materiel wasn't his to give in

14     the first place, because ownership of it vested in the Ministry of

15     Defence.  Nevertheless, it was he who advocated for the issue of this

16     order, so that the Yugoslav Army could provide this materiel to the 30th

17     and 40th Personnel Centres, and so that he could control that process.

18             This comes from the 18th session of the Supreme Defence Council.

19     At a session on the 7th of February, 1994, which preceded by a matter of

20     days the order being issued by President Lilic, and if we can move,

21     please, to the first highlighted section.  Thank you.  And this is

22     General Perisic, Your Honours, addressing the members of the SDC.  They

23     are discussing the provision of assistance to the SVK and the VRS or the

24     specifically the provision of VJ assistance to the VRS and the SVK.

25             He states:

Page 14701

 1             "The property law which entered into force does not give the

 2     Chief of General Staff any right to misappropriate any resource,

 3     especially in terms of assistance and specifically now to

 4     Republika Srpska and the Republic of Serbian Krajina."

 5             JUDGE MOLOTO:  Can we put a [sic] after misappropriation.

 6             MR. THOMAS:  Yes.

 7             JUDGE MOLOTO:  Thank you.

 8             MR. THOMAS:  Can we move to the second part of the quote please.

 9             "Either things should remain the way they are regulated by law,"

10     in other words I can't send it, "or the supreme council should adopt the

11     decision to authorise me to give them something that this body decides

12     upon.  So they make a request to the supreme council, I convey it to you

13     and say whether this is justified or not.  You make a decision and then

14     it is implemented by the Chief of the General Staff.  This is the way I

15     propose because we really have to bear this in mind.  If the two Krajinas

16     are not defended, we will be significantly jeopardised and they certainly

17     can't be defended without our assistance and weapons and military

18     equipment."

19             So as I've said, Your Honour, the result of that submission by

20     General Perisic so the SDC on the 7th of February was for President Lilic

21     to issue the order that we have just been looking at, ordering the VJ to

22     provide weapons and ammunition to the VRS and SVK, and also authorising

23     General Perisic to reconcile the requests.  In other words, to say

24     whether this is justified or not as he has pleaded before the SDC on the

25     7th of February.

Page 14702

 1             The second misapprehension that I'd like to address is related to

 2     the first, namely the relationship between the VJ and the MOD.  In a part

 3     of its final trial brief entitled, "VRS knowledge" -- sorry, "VRS

 4     understanding of request process," and this is at paragraph 633 of the

 5     Defence final trial brief, the Defence quote General Dusan Kovacevic.

 6     General Kovacevic testified that if the VRS needed anything, the VRS

 7     would go to the RS Ministry of Defence.  The RS Ministry of Defence would

 8     go in turn to either its own special purpose abilities or to the FRY MOD,

 9     not to the VJ but to the FRY MOD, to source what had been requested by

10     the VRS.

11             If the FRY MOD were not able to provide what the RS MOD was

12     seeking, then President Karadzic would go to see Slobodan Milosevic and

13     see if Mr. Milosevic could find a way to provide what was needed.  Now,

14     what is patently missing from that description of the process is what

15     actually occurred.  General Kovacevic was the minister of defence for the

16     Republika Srpska at that time and what he was testifying about was the

17     role that the FRY MOD had in securing materiel for the needs of the VRS.

18     But what his testimony fails to take into account is the reality of the

19     situation which was that, in furtherance to the order that we've seen

20     from President Lilic, General Perisic established a system whereby

21     requests would go direct from the Main Staff of the VRS to the General

22     Staff of the VJ.  We've had plenty of testimony on that during this trial

23     and there are plenty exhibits showing that process and operation.

24             Mladic or somebody else from the VRS Main Staff would send a

25     request to the General Staff.  It would find its way to General Perisic,

Page 14703

 1     he would direct that the request be forwarded to the appropriate

 2     logistics organ for an opinion as to whether or not the materiel could be

 3     supplied.  If the materiel could be supplied, then General Perisic or his

 4     cabinet would issue an order to that effect and the materiel would be

 5     supplied.

 6             This was a process that bypassed both the RS MOD and the FRY MOD.

 7     It was nothing to do with the MOD.  This was Perisic carrying out Lilic's

 8     order, the order obtained at his request to directly supply, VJ to VRS,

 9     the 30th Personnel Centre with weapons and ammunition, to regulate the

10     requests and to provide an opinion based on the ability of the VJ to meet

11     those requests, and to provide that assistance to the extent that the VJ

12     could meet those requests.

13             The next misapprehension I'd like to discuss, Your Honours, is a

14     submission by the Defence that it was the Serbian MUP who controlled

15     official border crossings.  And that submission is made at paragraph 681

16     of the Defence final trial brief.  First of all, the Prosecution accepts

17     that official border crossings were under the control of the police, the

18     Serbian MUP.  However, official border crossings were only part of the

19     picture and the reality was that unofficial border crossings played as

20     much a role, if not more, in the provision of assistance than anything

21     else.

22             First of all, it was General Vuksic, the VJ General Staff

23     assistant chief of relations with foreign armies who explained the

24     difference between MUP control of border crossings and VJ control of the

25     border.  And if we could move to his testimony.  He was asked by my

Page 14704

 1     learned friends for the Defence:  "  Why was the VJ not in a position to

 2     control in full the so-called border?"

 3             And his answer was:  "If we are talking about borders in the

 4     standard meaning of the term, the military never controlled the entire

 5     border-line, only the stretches between official border crossings.  At

 6     the official border crossings, there was the police as well as customs."

 7             And this becomes important testimony when one considers,

 8     Your Honours, that the official border crossings were bypassed and they

 9     were bypassed deliberately, which means that supplies were going through

10     the parts of the border that were controlled by the VJ.

11             Could we go -- I am sorry, Your Honour.

12             JUDGE MOLOTO:  I'm not quite sure I understand what you are

13     saying, read with what has been said here and I just want you to clarify

14     this.  If we are talking about borders in the standard meaning of the

15     term, the military never controlled the entire border-line, "only the

16     stretches between official border crossings."  What does that last phrase

17     mean?

18             MR. THOMAS:  The VJ controlled the entire border-line, was

19     responsible for controlling the entire border-line, Your Honour, with the

20     exception of official crossing points.

21             JUDGE MOLOTO:  Okay.

22             MR. THOMAS:  So the official crossing points would have police

23     and customs but the rest of the border was the responsibility of the VJ.

24     And as I've said, Your Honour, this becomes important when one considers

25     that effectively unofficial crossings were used.  And if we could move


Page 14705

 1     very briefly, Your Honours, into closed session.

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

 3                           [Private session]

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             THE REGISTRAR:  We are we are back in open session, Your Honours.

22             JUDGE MOLOTO:  Thank you so much.  Yes, Mr. Thomas.

23             MR. THOMAS:  Thank you, Your Honour.  Further support for that

24     proposition comes from General Djukic, Your Honour, who was the VRS

25     deputy chief for logistics and I'm reading now from his 92 quater


Page 14706

 1     statement:

 2             "I know that the transfer of the weapon and ammunition was

 3     carried out secretly," in the areas stated, "by civilian trucks avoiding

 4     border crossings where there were UNPROFOR observers."  So while it might

 5     be true, Your Honours, that the Serbian MUP and customs and UNPROFOR

 6     observers were present at official border crossings, there are, as you

 7     can see, self-evident reasons why unofficial crossings were used to

 8     transport this material.

 9             The next matter that I'd like to briefly address, Your Honour, is

10     again similarly related to this concept of VJ versus MOD.  At paragraph

11     718 of the Defence final trial brief, the Defence accept that there is

12     evidence showing that certain entities provided materiel to the VRS and

13     they list three.  They list Kragujevac, they list the depot at Mrsac and

14     they list Krusik factory and Valjevo.  They assert in their paragraph

15     that these three entities, however, were not VJ entities or subordinated

16     to the VJ.  However, in this respect they are wrong, both Kragujevac and

17     Mrsac were, in fact, VJ entities and a concession more appropriately that

18     these two as VJ entities sent weapons and ammunition to the VRS and that

19     Krusik as an MOD entity sent materiel.  The authority for that

20     proposition first of all, comes from General Kodzopeljic who was in

21     charge of Kragujevac.  He was the VJ General Staff chief of technical

22     administration.  And he was asked specifically about the status or the

23     subordination of the Kragujevac Technical Institute.  If we could move to

24     that testimony, please.

25             Starting about halfway down that quote, Your Honours:

Page 14707

 1             "What I'd like you to do if you could, is I'd like you to explain

 2     to us the technical institutes and how the Military Technical Institutes

 3     and specifically the Military Technical Institutes with regard to repair,

 4     fit into your duties, if you could."

 5             And his answer:

 6             "I can only speak of the technical and maintenance institutes

 7     that were under me."  In other words as chief of the technical

 8     administration of the VJ General Staff.  "It was the institute in

 9     Kragujevac and Cacak."

10             MP-14 testified about the subordination of the Mrsac military

11     depot to Kragujevac, thereby establishing its status at a VJ military

12     unit.  In discussing a particular materiel list, Your Honour --

13             JUDGE MOLOTO:  Earlier you asked to go into private session where

14     you discussed this witness, are you happy to do so now in open session.

15             MR. THOMAS:  Yes, this was testimony given in open session,

16     Your Honour.

17             JUDGE MOLOTO:  Thank you.

18             MR. THOMAS:  In discussing a particular materiel list, MP-14

19     stated that "Kragujevac is the sender and the place, Mrsac, that's

20     probably a depot somewhere in Serbia.  I wouldn't know where it was.  And

21     it belonged to the main military post in Kragujevac.  Just as the

22     27th base was my main military post and Kragujevac was subordinate to it,

23     so the main command would be at Kragujevac and the depot would be in

24     Mrsac."

25             Placing both of those, Your Honour, under the authority of the VJ

Page 14708

 1     General Staff chief of technical administration, General Kodzopeljic.

 2             Further support for the status of Mrsac comes from a document,

 3     several, but this is one of several which will suit our purposes.  This

 4     is an order issued by the 1st Army of the VJ, in July 1994.  "Further to

 5     a decision," so this is, first of all, Your Honours, it's important to

 6     note that this is a VJ order.  "Further to decision confidential number

 7     85-35, dated 21 April 1994, issued by the Chief of the General Staff of

 8     the VJ, issued to the 30th Personnel Centre, the following types and

 9     quantities of ammunition from herein below listed military posts."

10             And amongst those listed we have military post 5292, Mrsac, 7.9

11     millimetre bullet, 1 million rounds; 7.62 millimetre bullet, 750.000

12     rounds.

13             So from those pieces of evidence, Your Honour, you have

14     established, as well as from others, that the Defence concession that

15     these entities provided materiel to the VRS is a concession that these VJ

16     installations provided the materiel.

17             The final matter I'd like to very briefly address, Your Honours,

18     is one that was the subject of much discussion by my learned friends in

19     the Defence final trial brief and that is General Mladic's report to the

20     50th Bosnian Serb Assembly session on the 15th of April, 1995.  And this

21     is discussed from paragraph 732 onwards in the Defence final trial brief.

22             At this Bosnian Serb Assembly session, General Mladic was invited

23     to address the delegates on the state of the war, the state of the VRS,

24     its activities, its combat readiness and its needs.  And during the

25     course of that address, he described materiel that had been used, that

Page 14709

 1     had been consumed by the VRS from the very beginning of the war through

 2     until December 1994, and the various sources of that materiel.  For

 3     example, he stated that the VJ had provided 47.2 per cent of infantry

 4     ammunition consumed by the VRS in that period, and he gave other

 5     percentages of other items.

 6             However, Your Honours, it's important to not look at this

 7     document in isolation.  This is a theme that has been picked up by others

 8     who have gone before me.  First of all, well, not least of all, the

 9     time-period referred to by General Mladic was from the beginning of the

10     war in Bosnia through to December 1994, in other words, it includes a

11     large period that preceded General Perisic as Chief of the General Staff

12     of the VJ, and significantly in that period, as we've seen from documents

13     referred to by Mr. Harmon, it was during this early period that the VRS

14     had the benefit of being able to rely very heavily on reserves left

15     behind by the retreating JNA.  The point is, the document is useful only

16     when it is placed up against the entire body of evidence that

17     Your Honours have in relation to logistics.

18             As I've said, that discussion appears more fully in our final

19     trial brief.  I can do no more at this point, Your Honours, than to

20     simply state that we rely on the entire body of evidence and for the

21     conclusions that Your Honours feel that you can draw from that entire

22     body of evidence, but our position is that from the testimony and from

23     the exhibits, it was clearly articulated FRY policy to assist the RS and

24     the RSK.  It was FRY policy for the VJ to directly supply the VRS and the

25     SVK with weapons, ammunition, and other logistics assistance.  Perisic

Page 14710

 1     was authorised to make sure that happened.  He set in place procedures

 2     necessary to make that happen.  He continued to involve himself in those

 3     procedures throughout his tenure.  Throughout this time, the VJ did

 4     supply materiel to the VRS on repeated occasions and that throughout the

 5     indictment period, when the VRS had no more JNA reserves left, this

 6     assistance was crucial and substantial.

 7             Your Honours, those are my submissions.  Unless you have any

 8     questions, I will leave it at that point.

 9             JUDGE MOLOTO:  Thank you very much, Mr. Thomas.

10             Yes, Mr. Harmon, who is next?

11             MS. CARTER:  Your Honour, the next submissions will be made by

12     me.  I see that we only have five minutes left for today's session, I'm

13     happy to begin.  However, clearly with as fast as I talk I still can't

14     get my entire submission done in the five minutes.

15             JUDGE MOLOTO:  Thank you very much, Madam Carter.  I understand

16     that to be saying we should take an early break.

17             MS. CARTER:  I'm at the leave of the discretion of Your Honours.

18     I'm happy to begin or happy to begin in the morning, whichever you

19     prefer.

20             JUDGE MOLOTO:  We'll take a break then and come back tomorrow.

21     Court adjourned to tomorrow morning, 9.00.  Same court.

22                           --- Whereupon the hearing adjourned at 1.41 p.m.

23                           to be reconvened on Tuesday, the 29th day of March,

24                           2011, at 9.00 a.m.