Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14793

 1                           Wednesday, 30 March, 2011

 2                           [Defence Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.00 a.m.

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

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

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

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

10     the Prosecutor versus Momcilo Perisic.  Thank you.

11             JUDGE MOLOTO:  Thank you so much.  Could we have the appearances

12     for the day, starting with the Prosecution, please.

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

14     good morning, everyone in and around the courtroom.  Mark Harmon,

15     April Carter, Bronagh McKenna, Barney Thomas, Rafael La Cruz, and

16     Carmela Javier for the Prosecution.

17             JUDGE MOLOTO:  Thank you very much, Mr. Harmon.  And for the

18     Defence.

19             MR. GUY-SMITH:  Good morning, Your Honours.  Dee Montgomery,

20     Tina Drolec, Chad Mair, Boris Zorko, Gregor Guy-Smith and Novak Lukic

21     appearing on behalf of Mr. Perisic.

22             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.

23             Mr. Guy-Smith.

24             MR. GUY-SMITH:  Yes, before I start my remarks of today, I was

25     looking over the transcript last night and noted two areas where I'd like

Page 14794

 1     to make a correction and an addition.  The correction is at page 14769 at

 2     line 24, it indicates footnote 619, should be footnote 1619.

 3             Also, when I was discussing the issue of the Lilic/Perisic

 4     intercept in regards to figuring out a way of influencing Mr. Mladic, I

 5     mentioned at page 14791, lines 12 through 20, P886 and I would like it to

 6     add to that, P1464.

 7             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.

 8             MR. GUY-SMITH:  I'd like to turn my attention now to the

 9     discussion that has been had with regard to the issue of Zuc.  It is

10     absolutely clear from the discussions that have been had concerning much

11     of the evidence, but clearly when it comes to the issue of Zuc, that

12     although there's an agreement on many of the facts, the perception of how

13     one is to interpret those facts is quite distinct.  The Prosecution

14     presented evidence of a military operation.  The Chamber received

15     evidence that that military operation was a failure, that men from the

16     72nd died, that territory was lost, and that the purpose of that

17     particular operation, that being capturing, holding, and controlling Zuc

18     did not occur.

19             Now, whether there would have been a different result and whether

20     that would have had a substantial effect on the commission of crimes is

21     no longer an issue which is on the table because there was not a

22     different result, it was a limited incident and there is no evidence that

23     was offered to the Chamber that establishes a nexus between the failed

24     operation in Zuc and the bombing or shelling of Sarajevo.

25             The fact that both of these incidents occurs in and of itself


Page 14795

 1     does not establish a nexus.  It would be convenient if it did, but it

 2     doesn't, and by indicating that two separate factual matters occurred,

 3     does not establish proof that there is a relationship between them or in

 4     this particular situation that there was a substantial effect, which is

 5     the test.  Furthermore, I think it's very important that the Chamber go

 6     back and carefully review the cross-examination of MP-11 with regard to

 7     his claimed status, and I will leave it at that in terms of any further

 8     discussion in open session, and I will not go into private session.

 9     However, his assertion that he was present at a meeting --

10             JUDGE MOLOTO:  Don't you think you should go into private

11     session, sir.  I think you should.

12             MR. GUY-SMITH:  Very well.

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

14                           [Private session]

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 14796

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4                           [Open session]

 5             THE REGISTRAR: [Microphone not activated]

 6             MR. GUY-SMITH:  Now, you also have --

 7             JUDGE MOLOTO:  Hold on, please.

 8             MR. GUY-SMITH:  Thank you.

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

10             JUDGE MOLOTO:  Thank you, Mr. Registrar.  Yes, Mr. Guy-Smith.

11             MR. GUY-SMITH:  You also have received other testimony with

12     regard to the issue of Perisic's presence and that was from

13     Zlatko Danilovic and Zlatko Danilovic was specifically asked whether he

14     ever saw General Perisic, he answered he did not.  And he was asked

15     whether or not he ever heard about General Perisic being present, and

16     once again his answer was that he had not.

17             The conclusion drawn by Ms. Carter in her argument yesterday that

18     they have established a nexus is inaccurate and wanting.  Prosecution's

19     failed to prove and the Defence contention that there's no nexus as

20     between Zuc and the crimes charged remains.  There's one other thing

21     which is of some moment with regard to the argument that was made by

22     Ms. Carter and that was the use of the term "trained snipers".  I don't

23     think that there would be any dispute that snipers are in fact used in

24     war.  They are a legitimate manner of fighting, and the fact that there

25     were trained snipers at the failed operation does not forward the


Page 14797

 1     Prosecution's case whatsoever.  It is, of course, something that would, I

 2     suggest, potentially cause some thought since there is an issue and

 3     there's been a discussion in which the word "sniper" has been used as it

 4     relates to Sarajevo, but the fact that once again there are trained

 5     snipers in a failed military operation does not necessarily, in any

 6     fashion whatsoever, establish that there was a substantial effect on

 7     whatever crimes were committed in Sarajevo.  In the absence of there

 8     being a nexus, there has been a failure of proof.

 9             Mr. Harmon in his opening remarks mentioned, as did I, that a

10     fair amount of his case is based on circumstantial evidence and I wish to

11     just spend a moment reading a definition of that because I think it's of

12     critical importance to this Chamber's consideration.

13             "Circumstantial evidence may be of no less substance than direct

14     evidence.  However, a Trial Chamber must be cautious not to draw

15     inferences based upon the assumptions rather than proven facts.  As

16     pointed out by the Trial Chamber in Krnojelac, 'While a number of

17     different circumstances, which taken in combination, point to the

18     existence of a particular fact upon which the guilt of the accused

19     depends because they would usually exist in combination only because a

20     particular fact did exist.  Such a conclusion must be the only reasonable

21     conclusion available.'"  I repeat the last phrase:

22             "The only reasonable conclusion available."

23             If there is another conclusion available, Mr. Perisic is entitled

24     to the benefit of that conclusion.

25             Finally, once again in terms of the issue of perception, I want

Page 14798

 1     to discuss very briefly the issue of the French pilots and the measure of

 2     the man and what Perisic did.  Now, we all recall that at the time that

 3     individuals went to get the French pilots, there was the Paris Peace

 4     Conference days away.  We have received direct evidence from the highest

 5     of sources that the following was on the table:

 6             "We were rapidly approaching the formal peace conference in

 7     Paris.  However, President Chirac had declared that it could not take

 8     place until two French pilots captured by the Bosnian Serbs when their

 9     aircraft was shot down over Pale on August 30th had been released.  There

10     was no reason to doubt his determination to make the meeting in Paris

11     conditional on the release of the pilots."

12             I'm a simple lawyer.  I work in courtrooms --

13             JUDGE MOLOTO:  Just before you go to the simple lawyer, as you

14     quote, can you give us the speaker and the reference.

15             MR. GUY-SMITH:  Absolutely.  The speaker is Carl Bildt.  The

16     reference is page 14314, lines 5 through 10.

17             JUDGE MOLOTO:  Thank you, Mr. Guy-Smith.

18             MR. GUY-SMITH:  Surely.  I still remain a simple lawyer and I

19     don't understand how nations negotiate.  I don't understand what is put

20     on the table, but one thing is very clear, if the pilots had not been

21     released, there would have been no Paris conference.  Based on the

22     information that has been presented to this Court, if there had been no

23     Paris conference, there would have been no Dayton Peace Accord.  Not only

24     was a nation waiting for the return of these two gentlemen, the world was

25     waiting for the return of these two gentlemen.  And the issue of peace

Page 14799

 1     and cessation of hostilities was conditioned upon this release, and the

 2     evidence that you have received is that General Perisic was instrumental

 3     in obtaining the conditions that allowed for that release and allowed for

 4     the peace process to move forward.

 5             I turn the balance of our remarks at this time over to Mr. Lukic.

 6     In the event that I have failed to say anything with regard to those

 7     issues that I have addressed or that were the subject matter of my

 8     discussion, I'm not concerned.  I do apologise, but I'm not concerned.

 9     And the reason for that is under this system where the Prosecution has

10     the proof and bears that burden of the proof beyond a reasonable doubt,

11     you, the Chamber, the fact-finders, are the find hurdle that the

12     Prosecution must satisfy, and you, the Chamber, hold that particular

13     obligation and that particular task and I'm confident that you will

14     exercise that duty fully, responsibly and with great analysis and care.

15     Thank you.

16             JUDGE MOLOTO:  Mr. Lukic.

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

18     morning to our colleagues from the Prosecution.  Good morning to all the

19     participants in these proceedings, especially to the interpreters who are

20     now going to give their contribution to these proceedings of ours.  I'm

21     going to be speaking in my mother tongue.

22             Your Honours, the first part of my remarks will be channelled

23     towards challenging the charges that through his actions General Perisic

24     provided the officer corps to the VRS and the SVK and in this way

25     substantially contributed to the crimes that occurred in Sarajevo and

Page 14800

 1     Srebrenica.  Finally, I'm going to speak about command responsibility,

 2     and ultimately, I will be speaking about the personality of Mr. Perisic

 3     and some of his personal actions.

 4             According to the indictment General Perisic continued with the

 5     practice of financing and providing most of the personnel who comprised

 6     the officer cadre of the VRS.  The Defence never denied that part of the

 7     officers personnel, I repeat, part of the officers personnel of the VRS

 8     and SVK and for whom the Prosecution claims was -- were members of the

 9     Army of Yugoslavia were financed by the Army of Yugoslavia.  However, the

10     Prosecution thesis is based on the contribution given to that by the

11     personnel centres and previously it is explained on the basis of ad hoc

12     departures based on a voluntary joining of the troops there.

13     The Prosecution is avoiding the wider evidence, as it were, what happened

14     previously, how this functioned, and what happened after General Perisic

15     was appointed Chief of General Staff of the Army of Yugoslavia in August

16     1993.  We do not wish to ignore that.  When trying the facts, the Trial

17     Chamber has to judge the actions of the accused, determining his personal

18     participation, contribution to the commission of crimes, and that has to

19     be significant.  In our view, Your Honours, that means that you have to

20     establish what General Perisic's significant contribution was to

21     providing those officers in relation to the situation that prevailed

22     before he became Chief of General Staff, especially the extent to which

23     personnel centres affected this personnel and their stability.

24             Let us be quite specific on this.  The Defence claims that the

25     Prosecution has not proven beyond reasonable doubt that since Perisic was

Page 14801

 1     appointed Chief of General Staff of the Army of Yugoslavia, there were

 2     significant changes as a result of his actions in providing officers for

 3     the Army of Republika Srpska and especially with respect to the stability

 4     and efficacy of these officers that the Prosecution refers to.

 5             The first question that I would like us to deal with in relation

 6     to these divergent positions between the parties is: Who comprised the

 7     personnel of the Army of Republika Srpska from the moment when that army

 8     was established?  The next question is: What, and to what extent,

 9     General Perisic changed, which would constitute the actus reus of his

10     incriminations among the personnel of Republika Srpska?  It is important

11     for you to establish in this respect, Your Honours, whether the

12     Prosecutor proved their contention that the personnel centres maintained

13     the vitality of that army, and that they made the command structure of

14     that army sustainable, in Mr. Harmon's words.

15             Who were the officers that comprised the command structure of the

16     Army of Republika Srpska?  According to the Prosecution, they were

17     officers of the Army of Yugoslavia.  The Defence asserts that the

18     majority of these officers had the status of, initially, officers of the

19     Army of Republika Srpska and that that was their status throughout the

20     war.  When the Law on the Army of Republika Srpska was passed in June,

21     1992 - P191, that is the relevant exhibit - of their own free will they

22     became active-duty personnel of the Army of Republika Srpska in

23     accordance with Article 377 of that law.  There is a great deal of

24     testimony and references to that effect in our final brief and I'm not

25     going to quote any of that specifically now.

Page 14802

 1             From that moment onwards they became part of that single chain of

 2     command.  They had their actual place within the establishment, and in

 3     any army, there can be only one for any particular officer.  They held

 4     their respective ranks, their respective positions, they had their

 5     uniforms, they had their insignia, their emblems stating that they

 6     belonged to the Army of Republika Srpska.  They had their own oath and

 7     they had their own subordinates.

 8             THE INTERPRETER:  Interpreter's correction:  Superiors.

 9             MR. LUKIC: [Interpretation] They had orders, naredjenje and

10     naredbe that they obeyed.  According to the Law on the Army of

11     Republika Srpska, they saw what the consequences would be if they did not

12     obey these orders.  What the specific responsibility involved was if they

13     did not obey these orders.  In a word, they were part of a functioning

14     army within their chain of command established by law.

15             Your Honours, there was nothing untruthful or concealed within

16     that chain of command, nothing was fictitious either, nothing whatsoever.

17     The Prosecution wishes to attach importance to the moment when personnel

18     centres were established.  And within that task of theirs, they are

19     disregarding what happened before the personnel centres were established

20     and after the Army of Republika Srpska was established.  D242 and P1864,

21     may I remind you.  These are documents of the Presidency of the Socialist

22     Federal Republic of Yugoslavia, are decisions of the top state leadership

23     of the then Yugoslavia recognising the rights of these officers, like

24     other members of the JNA.  And this happened as far back as May 1992.

25     That is to say, a year and a half before the personnel centres were

Page 14803

 1     founded and before General Perisic was appointed Chief of General Staff.

 2             And not only that, these two documents set the criteria for their

 3     remaining in that army.  Members of the JNA who had citizenship of the BH

 4     or who wish to remain in the territory of BH are the main criterion for

 5     having them stay on and constituting the very core of the officers corps

 6     of that army, the Army of Republika Srpska.  These criteria were set

 7     considerably before General Perisic became Chief of General Staff.

 8             On this occasion, I don't want to deal with numbers in detail,

 9     Your Honours.  We provided part of our analysis in our final brief in

10     paragraphs 3 to 6, all the way up to 330.  However, I would like to draw

11     your attention to D113.  That is a report of General Zivota Panic, the

12     then Chief of General Staff of the Army of Yugoslavia, from August 1993,

13     just before Perisic took over the position of Chief of General Staff.

14             On the basis of that report, you will see that the salaries for

15     July 1993 were received by 2.894 officers commissioned and

16     non-commissioned from the VRS, and 1.186 officers from the SVK so the

17     total is 4.080.

18             JUDGE MOLOTO:  May I?  Is it the Defence position that if a

19     particular activity had been taken place before Mr. Perisic took over the

20     position of Chief of the General Staff, and for argument's sake, that

21     activity is criminal and he comes in and continues with that activity,

22     therefore he is not guilty of that criminal activity simply because the

23     crime had started before he came in?  Is that the position?

24             MR. LUKIC: [Interpretation] No.  No.  I am referring to other

25     arguments here.

Page 14804

 1             JUDGE MOLOTO:  Maybe I've jumped the gun.  You'll probably come

 2     to that point.

 3             MR. LUKIC: [Interpretation] When I refer to these figures from

 4     these documents, I included those officers from the Army of Yugoslavia

 5     who, according to that report, were sent in the meantime to the Army of

 6     Republika Srpska because that is the category that the Prosecution

 7     included among the persons who are involved in setting up this officers

 8     corps of the Army of Republika Srpska.  The figures are very specific and

 9     exact in that document.

10             The Defence asserts that from the moment when General Perisic was

11     appointed Chief of General Staff until the end of the war, this number of

12     officers who were serving in the Army of Republika Srpska and the

13     Serb Army of the Krajina and were financed by the Federal Republic of

14     Yugoslavia never attained these numbers, these levels, the figures that I

15     just provided.  We have provided relevant proof about that as well in our

16     final brief.

17     Now, why does the Defence believe that it is important for you to have

18     these figures?  They show the absence of any change in the structure of

19     this officers corps after the personnel centres was established. And that

20  is what the Prosecution has been contending.  The establishment of personnel

21    centres did not make an increase in the officers corps possible, and there

22    was no actual increase, nor was the same manpower level maintained,

23    as the Prosecution contends.  On the contrary, there was a decline in

24    those figures.  That is one of the effects of the personnel centres.

25             Another important position of the OTP, starting from the

Page 14805

 1     indictment itself and Mr. Harmon's opening arguments, is that the most

 2     important positions in the VRS and the SVK were held by officers who were

 3     members of the 30th and 40th Personnel Centres of the Army of Yugoslavia.

 4     The Prosecution asserts in their wish to show how significant General

 5     Perisic's contribution was to providing those officers, they say that he,

 6     General Perisic, provided a group of essential officers, in their words,

 7     who were responsible for the crimes in Sarajevo and Srebrenica.  That is

 8     paragraph 463 and 503 of the final brief of the Prosecutor.

 9             The Prosecution exploits this thesis through their famous, I'm

10     going to use that word because they refer to it so many times in court,

11     it is diagram or schedule E.  By using it, they want to portray a picture

12     of General Perisic's role in the maintenance and stability of this

13     essential part of the officers corps of the VRS.

14             You heard Witness Skrbic on all of that, page reference 11660 of

15     the transcript.  We spoke about that in our final brief.  Now, this is

16     our position:  All the officers in the key positions in the Army of

17     Republika Srpska, including the officers that the Prosecution defines as

18     being essentially and basically responsible for the commission of crimes,

19     were appointed to these positions considerably before Perisic came to the

20     position of Chief of General Staff of the Army of Yugoslavia, that is to

21     say, considerably before the personnel centres were established.

22             Now, what are the activities of General Perisic and the personnel

23     centres with regard to their position and the fact that they remained in

24     those positions that they had held already?  We haven't heard about that

25     during the trial.  You are asked to speculate as to whether they would

Page 14806

 1     leave the Army of Republika Srpska, and their positions and duties, had

 2     these personnel centres not been established, and had General Perisic not

 3     come to the position of Chief of General Staff of the Army of Yugoslavia.

 4             Let us look at the diagram that I'm talking about.  You are going

 5     to see that on your screens.  That is Schedule E of the final brief of

 6     the Prosecution.  Mr. Harmon referred to it in his opening remarks.  It

 7     says what all the names and ranks and positions are within the Army of

 8     Republika Srpska, and it says that each and every one of these persons

 9     are members of the 30th Personnel Centre.  That is the position of the

10     Prosecution.

11             Now let us look at what this organogram looks like within the

12     Army of Republika Srpska at the moment when Perisic became the chief of

13     General Staff, or rather, who came to these positions after the personnel

14     centres were established.  Empty.  The same mechanism that Mr. Harmon

15     showed you by applying the same method, I'm showing this to you, not a

16     single officer came to the Army of Republika Srpska from among these

17     essential basic officers of the Army of Republika Srpska after Perisic

18     was appointed Chief of General Staff of the Army of Yugoslavia and after

19     the personnel centres were established.  There were some internal changes

20     in terms of these duties, we know that General Dragomir Milosevic

21     replaced General Galic, but all of the persons we saw a moment ago were

22     already in the VRS before Perisic, General Perisic became Chief of

23     General Staff.

24     It is clear, Your Honours, that the entire structure of the command

25     personnel, the essential personnel of the VRS was within that army.

Page 14807

 1     They had the status of members of that army considerably before Perisic

 2     became Chief of General Staff of the Army of Yugoslavia.  Their position

 3     in the VRS was defined and occasionally changed in terms of procedure

 4     within the framework of the VRS completely independently of the VJ and

 5     General Perisic.  No matter how hard the Prosecution tried to prove that

 6     General Perisic did have a role in their appointments to the positions in

 7    the VRS which enabled them or put them in a position of authority enabling

 8     the commission of crimes, they failed to prove that.  Contrary to that,

 9     the Defence put forth a number of exhibits proving that they were

10     appointed to those positions by those responsible in the VRS itself.

11             I invite you to look at paragraphs 272 to 301 of our final brief.

12     Out of the two groups of documents I have just indicated, what it is that

13     you can conclude in terms of the number of personnel, the officer cadre

14     of the VRS, as well as the most important positions of that army, the

15     situation vis-a-vis the time when they were in position of authority

16     enabling the commission of crime did not change.  That situation existed

17     far in advance of Mr. Perisic's appointment.

18             Your Honours, the Prosecution did interpret correctly

19     Mr. Perisic's position, however, in his clearly articulated position that

20     those who hailed from Bosnia and Herzegovina and Croatia and who did not

21     wish to fight for their own homeland and who were VJ officers in his view

22     had no place in the VJ.  He said so publicly.  It is a legitimate

23     position of a professional soldier and a patriot.  However, the evidence

24     we could see during the proceedings speak to his inability to persuade

25     members of the Supreme Defence Council to accept such a firm position

Page 14808

 1     which would be binding on him because he was put in that position by his

 2     superior, the superior being the President of the Federal Republic of

 3      Yugoslavia and Supreme Defence Council, in these decisions.

 4             When his proposal was rejected by the SDC, Perisic lost his

 5     position of authority which would enable him to order something to anyone

 6     to do anything.  He lost his power to issue an order from his position of

 7     the superior to send anyone to the VRS.  His order, therefore, did not

 8     have a binding nature, a binding character.  No matter how hard the

 9     Prosecution tried to prove that when dealing with his de jure authority.

10          Had those orders been true and real, no other mechanisms would have

11     been necessary that were shown to you by the Prosecution for anyone to be

12     sent to the VRS. That situation also tell us another thing. It shows that

13    when an officer is formally appointed to a position within the30th or 40th

14    Personnel Centre, that could have happened only by virtue of his voluntary

15     departure to the VRS or the SVK. General Perisic speaks to that effect

16     when in paragraph 145 of the Prosecution's final brief they refer to it.

17             If somebody objected to being appointed to such a virtual, I dare

18     say, position in the 30th and 40th Personnel Centre, or in other words

19     sent to the VRS or the SVK, such an order would not have been issued

20     because it was known that if a person did not wish to go, could appeal

21     that decision quite easily.  There is not a single proof that anyone

22     complained or appealed their decisions of transfer.  However, there is a

23     lot of evidence testifying to the fact that many VJ officers were

24     persuaded to go to the VRS.  However, it leads to a conclusion contrary

25     to the conclusion of the OTP on the significant assistance provided by

Page 14809

 1     Perisic to their personnel centres in the provision of the officers

 2     corps.  When the personnel centres were formed, nothing changed in terms

 3     of the existing mechanism of persuasion to depart for the VRS and the

 4     SVK, in the absence of any coercive measures that could be exercised.

 5             Have a look at P317, it is a instruction for co-ordination of the

 6     17th of December, 1993.  I won't display it now, I will only provide

 7     references.  In B/C/S it is page 8, in English page 9.  It concerns a

 8     period after the formation of the personnel centres and the staffing

 9     levels are referred to.  It is stated as follows: On the 8th and 10th of

10     December, 1993, a total of seven officers from the VJ responded and an

11     issue of shortage of younger officers personnel is highlighted.  Perhaps

12     this may not be the most illustrative example, but let us have a look at

13     something else.

14             Let us look at P1020, which is General Celeketic's report of the

15     10th of April, 1995.  That is to say, 20 days in advance of the events in

16     Zagreb.  In B/C/S it is page 4, in English 6.

17             It has to do with the dispatching of officers.  It reads:

18             "At the beginning of March, 1995," so a year and a half following

19     the establishment of the personnel centres, "the personnel department of

20     the 40th Personnel Centre invited the commanding officers born in the

21     territory of the former Socialist Republic of Croatia to discuss their

22     volunteer department to the SVK.  Out of 600 present officers, 112 stated

23     in a survey that they would be willing to go.  In further processing and

24     preparations for the dispatching to the SVK, a final positive answer was

25     provided by 66 officers.  On the day of their departure when the time

Page 14810

 1     came to board the buses, the officers started hesitating and changing

 2     their mind so that only 30 commanding officers went to the SVK (15

 3     officers and 15 NCOs)."

 4             General Perisic, at the 37th session of the SDC which is P786 in

 5     June 1995, which is over one and a half year following the formation of

 6     the personnel centres repeated his proposal he had articulated at early

 7     as October 1993 that Mr. Harmon made use of.  He asked that those people

 8     truly be re-subordinated to the SVK with all the corresponding

 9     consequences.

10             THE INTERPRETER:  Interpreter's correction:  Instead of

11     re-subordinated, it should be transferred.

12             MR. LUKIC: [Interpretation] Why such things did not develop

13     exactly as the OTP would wish you have?  Well, the SDC rejected his

14     proposal again and reached a firm conclusion, which is something we can

15     see in Exhibit P762.  Could we please have it in English.  Here it is.

16             In the English version page 5, item J:

17             "The council did not accept the proposal of the Main Staff of the

18     40th Personnel Centre that officers of the Army of Yugoslavia subject to

19     military service be sent in the future to Republika Srpska, as the

20     service may require.  The voluntary principle remains in effect."

21             Therefore, in the summer of 1995 although the personnel centres

22     had been in existence for over one and a half years, they did not produce

23     the effect the Prosecution referred to when putting forth their thesis of

24     significant assistance in the provision of the officers corps.

25             There are two conclusions you can draw from this which are

Page 14811

 1     completely contrary to some of the theses of the OTP.  The first one the

 2     significant contribution in the commission of crime which took place

 3     through the provision of the officer cadre, and two, that by provision of

 4     the formation of the personnel centres, nothing really changed in the way

 5     that cadre was sent.  I may add that there is there was no legal

 6     mechanism, that is to say, that the orders of transfer could not result

 7     in sanctions for anyone refusing to join the VRS.

 8             The Prosecution assert that by virtue of the formation of the

 9     personnel centres, the position of those officers was institutionalised:

10     those who until that time would serve in the VRS on an ad hoc basis and

11     voluntary basis were, as it is asserted, defined specifically as

12     members of the VJ based on their status regulated within the Army of

13   Yugoslavia. In their view, the view of the Prosecution this amounted in the

14    institutional approach of the transfer of officers to the SVK and the VRS,

15    including those who had already been serving with those armies, as well as

16     those who left subsequently. It is in paragraph 176 of their final brief.

17             The same thesis becomes the crux of their thesis that those

18     officers were then introduced into the chain of command of the Army of

19     Yugoslavia.  It is very important for us to ascertain what the matter at

20     hand indeed was, because of Article 7(3) and their thesis that they were

21     part of the officers cadre of the VJ.

22             En route to your final conclusion, the OTP should have

23     established whether they were indeed part of the chain of command of the

24     VJ and whether General Perisic was their superior, whether the relation

25     of superior/subordinate existed.  Even if they had been members of the VJ

Page 14812

 1     serving outside the VJ, they were no longer part of their chain of

 2     command.

 3             The army of -- the Law of the Army of Yugoslavia which is

 4     Exhibit P197, stipulates that precisely and it was often referred to by

 5     the OTP.  That law, which provides imperative decisions on the status of

 6     those serving outside the VJ, and I will address the specific paragraphs

 7     later on, is something that the OTP did not refer to.  The Law on the

 8     Army of Yugoslavia is quite precise in respect of the status and rights

 9     and obligations of those serving outside the VJ.  They were definitely

10     outside the chain of command of the Army of Yugoslavia under Article 802

11     [as interpreted] of the law.  They had the same rights and obligations as

12     if they were members of the army unless provided otherwise by the law.

13             So what is essential for our analysis?

14             Please bear with me.  I have an intervention for the transcript.

15     It should be Article 8(2) or subparagraph (2).

16             JUDGE MOLOTO:  Just before you proceed, is it 8 subparagraph (2)

17     or 80 subparagraph (2)?  80 subparagraph (2)?

18             MR. LUKIC: [Interpretation] Article 8, paragraph (2).

19             JUDGE MOLOTO:  Thank you, sir.

20             MR. LUKIC: [Interpretation] The Law on the Army of Yugoslavia,

21     Your Honours, has to do with the commanding officers serving outside the

22     VJ regulating their status in relation to their promotion, appointment to

23     duty, transfer, and termination of service, defining that these aspects

24     lay solely with the Ministry of Defence.  It was Article 158, referring

25     to Article 152 of the law.  The Army of Yugoslavia has no input including

Page 14813

 1     the General Staff and its chief.  You heard detailed testimony from

 2     Mr. Starcevic at page 6969 about that topic, as well as Mr. Nikolic at

 3     page 10717.  They personally enjoyed the status and had their personal

 4     experience based on that.

 5             If a VJ officer is serving outside the VJ, all of the aspects of

 6     his service were exclusively in the remit of those who were in charge of

 7     the armies where they served, not the VJ.  That is stipulated by the law.

 8     What I said a moment ago when I said, unless stipulated otherwise by the

 9     law, we have in this example another binding provision.  It has to do

10     with the initiation of disciplinary procedure which should take an

11     important place in your conclusions.  The Army of Yugoslavia is competent

12     to initiate disciplinary procedure only vis-a-vis those people who are

13     within the chain of command of the Army of Yugoslavia.

14             In respect of the individuals who are outside of the chain of

15     command of the Army of Yugoslavia, for instance, the law refers to the

16     Ministry of Defence, Article 181 confers the sole responsibility for the

17     initiation of a disciplinary procedure upon the Ministry of Defence.  In

18     relation to the exhibits dealing with disciplinary proceedings, we will

19     be discussing those in relation to 7(3).

20             Now, since all the individuals we are interested in right here

21     fall outside of the chain of command of the VJ, the evidence is

22     compelling, Your Honours.  In their final brief, the OTP referred to

23     Mr. Starcevic and his analysis of Article 33 of the instructions

24     governing the work of personnel centres, P734.  His testimony even gave

25     rise to some questions from the Bench.  Those paragraphs -- or rather,

Page 14814

 1     let me ask that we call up now Article 33, that same article in respect

 2     of which we heard the interpretation of the OTP.  Let me just see what

 3     page it is.  Yes, it's page 7 in English and page 10 in B/C/S.

 4             I would like to draw your attention to this article also because

 5     I think it's relevant in respect of some other issues.  "In keeping with

 6     service requirements, professional soldiers and civilian personnel sent

 7     or transferred to the KC may be returned, assigned, or transferred"

 8     that's what it says" to Yugoslav Army units or institutions with the

 9     consent or on the recommendation of the KC Main Staff."

10             In our view, Your Honours, there is no dilemma in interpreting

11     the language of this particular paragraph.  In order for someone to

12     return, one has to leave before that, but let's move on.

13             The Prosecution relies on another set of exhibits to prove that

14     the officers of the personnel centres were members of the VJ.  These are

15     judgements of the regular courts and military courts where certain

16     officers were asked for some of their entitlements to be recognised.

17     However, these judgements in fact support the position of the Defence

18     that they were outside of the VJ.  In fact, that's what all the

19     judgements assert.

20             Yesterday, Mr. Harmon in his submissions referred to

21     Colonel Blagojevic's judgement, which is P1073, I believe.  I will not be

22     calling it up now, but look at what the statement of reasons of the

23     military court states, that Blagojevic was outside of the VJ.  In no

24     uncertain terms, as a member of the VJ, outside of the VJ ranks.

25     Now, as for this particular judgement and Dragomir Milosevic's case which


Page 14815

 1     was before a regular court and not a military court, so the claims made

 2     in respect of that must be taken with caution by the Chambers.

 3             In those proceedings, no evidence was adduced with regard to the

 4     status of those individuals in, for instance, the VRS, as for instance,

 5     D330 was never adduced in respect of Mr. Blagojevic.  That was the

 6     operational map of the Army of Republika Srpska.  Or let's look at

 7     something else which will overturn the contention by the OTP.  Can we now

 8     move into private session, please, and look at D120.

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

10     Do we have confirmation that those screens there are dead?  Thank you.

11                           [Private session]

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 14816











11 Page 14816 redacted. Private session.















Page 14817

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11                           [Open session]

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

13     you.

14             JUDGE MOLOTO:  Thank you so much.

15             Yes, Mr. Lukic.

16             MR. LUKIC: [Interpretation] The Defence argues that the officers

17     defined by the OTP as members of the 30th and 40th Personnel Centres of

18     the VJ General Staff - and I will continue using the term that I consider

19     quite appropriate which is "virtual," so that they were holding virtual

20     positions with the VJ while they were in reality with the VRS or SVK -

21     were not actually members of the Army of Yugoslavia.

22             Besides, it is the OTP themselves who admit that the officers

23     were outside of the VJ at the time.  In their final brief, they in fact

24     support our thesis in several paragraphs.  For instance, in paragraph

25     190, the Prosecution states resolutely that General Perisic was able to


Page 14818

 1     transfer them back to the units of the VJ.  In other words, to go back to

 2     where they were not by that point.  And I will refer you to some other

 3     portions of the OTP brief where the OTP admits that they were not members

 4     of the Army of Yugoslavia in a period of time which is important for us.

 5             Can we have the break now, Your Honours, because I would like to

 6     broach a new topic, albeit a similar one.

 7             JUDGE MOLOTO:  Thank you very much.  We'll take a break and come

 8     back at quarter to 11:00.  Court adjourned.

 9                           --- Recess taken at 10.13 a.m.

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

11             JUDGE MOLOTO:  Mr. Lukic.

12   MR. LUKIC: [Interpretation] Thank you, Your Honour. Before the break, I

13   said that the evidence adduced did not demonstrate that these individuals,

14   officers of the VRS and SVK who were, according to the OTP, members of the

15   VJ because of the 30th and 40th Personnel Centres, that they were in fact

16   within the chain of command of the Army of Yugoslavia at the time.

17             Let me continue along the same lines but from a different angle.

18     In order to link these officers up with the VJ, the Prosecution looks to

19     evidence on the formal orders appointing them 0to duties within the

20     personnel centres.  According to the Prosecution, if they are appointed

21     to a duty within the personnel centre and the centre is a body attached

22     to the VJ General Staff, then by the same token, they are within the line

23     of -- within the chain of command of the VJ and therefore subordinated,

24     de jure, to Perisic.  Even if they were not within the VJ before, as

25     these orders were passed, they would become, in institutional terms,

Page 14819

 1     members of the VJ.  You will have to assess these positions within the

 2     evidence in its entirety.  The Prosecution is well aware of the fact that

 3     these orders were only formal paperwork enabling these individuals to

 4     claim status rights and nothing more.  The Prosecution knows that if the

 5     matters were as lege artis as they would wish them to appear, in that

 6     case there would not have been any need to set up these personnel

 7     centres.  The Prosecution knows that the top state leadership would in

 8     that case not be concerned as to whether the orders would be executed or

 9     whether the matter would be taken to court.  The Prosecution is aware of

10     all this, because in their submissions they chose to rely on the evidence

11     speaking to these matters.  The Prosecution evidence demonstrates that

12     these appointment orders into the personnel centres were not accurate,

13     among other things in their substance in terms of the information that

14     they contained about the actual existence of these units within the VJ as

15     nominally indicated in these documents, and in terms of the actual

16     establishment post which purportedly existed within the VJ and to which

17     these officers were appointed.

18             In paragraph 150 of their brief, the Prosecution refers to

19     Perisic's words as reflected in P709 which is minutes from a meeting, the

20     14th meeting of the SDC, I believe.  And let's have a look at what it is

21     that the Prosecution have to say.  Let's look at page 32, if we could

22     have it on our screens, of P709.  This is the 14th minutes in 1993, when

23     personnel centres were discussed for the first time, and this is the

24     portion quoted by the OTP in their brief.  I will only be quoting one

25     essential sentence.

Page 14820

 1             "In order to avoid receiving any complaints from anyone, we

 2     invented a temporary formation within the Army of Yugoslavia.  We will be

 3     appointing them here but in actual fact they are not here, rather, they

 4     are in the areas to which they are posted."

 5             In other words, Your Honours, a temporary formation is invented,

 6     they are not here, rather, they are in the other place where they

 7     actually are, which is the VRS or the SVK holding duties which exist in

 8     reality and to which they were appointed, pursuant to orders issued by

 9     commanding officers of those armies.

10             On the same page, page 33 in English, there is a reference to

11     Perisic's words yet again and Perisic goes on to explain the mechanism

12     envisaged behind this construct.  And this is what the OTP quotes:

13             "In the orders we will be, for instance, writing to them:  The

14     commander of such and such a unit shall be deployed in a training corps

15     which is supposed to be here, but in fact he is going over there."

16             Hence a unit which is supposedly here is a reference to the

17     Army of Yugoslavia and the units over there, where the individual

18     actually is, is a reference to the VRS.  And this is precisely how, when

19     assessing P734, instructions governing the work of personnel centres,

20     which is something that both sides are referring to and specifically

21     paragraph 25 of the instructions that we are referring to in our final

22     brief, you will see that the procedure was defined in detail.  As

23     referred in our trial brief.

24             So why is the Defence insisting on the factual, the actual state

25     of matters when speaking about transfers and appointments to duty, and

Page 14821

 1     this is something that we discussed in detail in our brief at paragraphs

 2     272 to 295.  Your Honours, we are talking about armies here and the

 3     functioning of these armies.  Appointment to a duty in any army

 4     establishes relationships within the service involved and that is a

 5     relationship of subordination and superiority.  One becomes part of a

 6     single chain of command, every member of that army, including the

 7     officers that we are dealing with here, gets his or her superior officer.

 8     And now this is what matters to me:  The orders of that individual have

 9     to be obeyed and not observing these orders produces consequences.  They

10     have to be held responsible.  That is how any army functions and that is

11     how the VRS and the VJ functioned.

12             Therefore, Your Honours, because of these principles, you have to

13     study in detail all the evidence that speaks of such appointments.  Both

14     parties have presented such evidence to you, and it is only then on the

15     basis of assessing all of that evidence together, rather than partially,

16     you will come to your conclusions about which army a particular officer

17     actually belonged to when being appointed to a certain duty.  In the VRS,

18     these orders on appointment functioned fully, with truthful contents,

19     completely.  And if one does not act in accordance with such an order,

20     the mechanism did function within the Army of Republika Srpska.  In the

21     orders of the 30th and 40th personnel corps that is not the way

22     appointments took place.

23             I'm going to give you an example now showing what an actual order

24     on appointment is and what a fictitious one is, from the point of view of

25     this situation of superiority and subordination.  When the Prosecutor

Page 14822

 1     develops his thesis on appointments and the significance of personnel

 2     centres, he relies on the so-called group orders on transfers and

 3     appointments, so I would like us to deal with a particular case that can

 4     be shown through some of their exhibits that they spoke of themselves. 

 5     Exhibit P2128.  It has do with Mr. Tolimir, General Tolimir, because that

 6     is what they actually analyse in their final brief.

 7             They analyse it in paragraph 175 of their final brief and this is

 8     what they say:  That is the only order that they invoke.  That Tolimir on

 9     the 7th of February, 1994, was transferred to the 30th Personnel Centre

10     of the VJ and that this order made formal his service that had started on

11     the 10th of November, 1993.  By now I believe that all of us in this

12     courtroom are familiar enough with the fact that the 10th of November,

13     1993, was the day when personnel centres were established on the basis of

14     an order issued by President Lilic.

15             Before we look at that document, I suggest that we --

16             JUDGE MOLOTO:  Slow down, slow down.  I heard the interpreter

17     rushing desperately to keep pace with you.  Slow down.

18             MR. LUKIC: [Interpretation] Please let us deal with this

19     chronologically.  So before we look at this document, let us look at

20     something else, but we will be looking at this eventually as well.  Let

21     us first look at Defence Exhibit D693.

22             This is a document issued by the president of the

23     Republika Srpska, the date is the 16th of December, 1992.  Then

24     Colonel Zdravko Tolimir is being appointed to assistant commander for

25     intelligence and security in the Main Staff of the Army of

Page 14823

 1     Republika Srpska.  You can see that previously he, as it says here, up

 2     until now, it says that a bit further down, he was chief of

 3     administration for security in the Main Staff from the 10th of June,

 4     1992.

 5             Now let us look at another document before we go back to the

 6     Prosecution document that I referred to, that is D526.  After the end of

 7     the war, on the 28th of January, 1997, this is a document of the

 8     president of Republika Srpska because it is only decrees, presidential

 9     decrees that deal with appointments of generals.  General Tolimir is

10     being relieved of his hitherto duties, and you see here which duty he

11     held, the one that we saw a moment ago, from December 1992 onwards;

12     assistant commander for intelligence and security, affairs in the

13     Main Staff of the Army of Republika Srpska.

14             Let me digress.  Even the Prosecution themselves accept this

15     title of Mr. Tolimir's as a real one, because throughout their brief they

16     accept that Tolimir held this position that we've read out just now, that

17     is paragraph 175, 197, 539, even Annex G of the Prosecution final brief.

18             Now, when we have this picture, let us look at P2128.  This order

19     of the General Staff of the Army of Yugoslavia, B/C/S page 3 and 4, and

20     English page 3 and 4.  A bit further down in B/C/S, Tolimir, that's where

21     it starts, and then it continues on the next page.  Now, could I have the

22     next page in English, please.  The date of this document is the one that

23     the Prosecution refers to, and that is February 1994.

24             Now, let us see what this document says.  It says that on the 7th

25     of February, 1994, he is appointed in the General Staff of the Army Of

Page 14824

 1     Yugoslavia as assistant chief in the 30th Personnel Centre in the

 2     Main Staff and the date is the one that you recall that Witness Malcic

 3     explained to us, I think.  10/11/1993, that is the date.  The 10th of

 4     November, 1993.

 5             A bit further down in the text you see that up until that date,

 6     the 10th of November, 1993, he held a position in the

 7     2nd Military District holding the rank of colonel from the 8th of

 8     February 1992 in Sarajevo Garrison.  Both of these pieces of information

 9     are incorrect, Your Honours.  You saw a great deal of evidence regarding

10     the structure of the General Staff of the Army of Yugoslavia in all

11     stages of the indictment, before Perisic and after he appointed Chief of

12     General Staff.  Remember those organisational diagrams, D195, D196, D197,

13     D198.  According to the establishment of the Army of Yugoslavia, there

14     was no Main Staff.  There were no corps either, except for the Special

15     Units Corps of the Army of Yugoslavia, that was the only corps that was

16     subordinated directly to the Chief of General Staff.  But there are no

17     brigades or corps that are within the General Staff of the Army of

18     Yugoslavia.  You saw the diagrams.  There is no such thing.

19             Another piece of information that is incorrect is as follows:

20             JUDGE MOLOTO:  What is meant, now that you are talking about

21     corps in the region, what is meant by the term 1st Army, 2nd Army, within

22     the VJ vocabulary?

23             MR. LUKIC: [Interpretation] Now I would have to be an expert in

24     the field, and I'm not.  Armies were the highest military units that

25     covered a certain part of the territory of Yugoslavia, and they had their

Page 14825

 1     respective areas of responsibility.  These areas of responsibility and

 2     these units were outside the General Staff, but the structure -- in terms

 3     of the structure, they belonged to the General Staff too.  Let me explain

 4     this immediately.  I think that at the time when General Perisic headed

 5     the Army of Yugoslavia, I think there were three armies.  Every one of

 6     these armies covered a certain territory.  In the days of the JNA, I

 7     think there were five military districts that later turned into armies,

 8     and they covered a certain territory so they were above the corps level

 9     in this territorial organisational structure.  That's where the army is.

10     The army is superior.  I mean, it is a group of corps that cover a

11     certain territory.

12             JUDGE MOLOTO:  But you just told us there were no corps in that

13     time, so.

14             MR. LUKIC: [Interpretation] Yes.

15             JUDGE MOLOTO:  In the place of the corps there was the army, the

16     1st Army, the 2nd Army and all these various armies were part of either

17     the JNA or the VJ?

18             MR. LUKIC: [Interpretation] That's right.  Yes.

19             JUDGE MOLOTO:  So, in fact, are we to understand that, in

20     substance, the 1st Army is the same thing as a corps but probably bigger?

21             MR. LUKIC: [Interpretation] That's right.  Bigger.  Exactly.

22             Another piece of information that is incorrect in this document

23     is that Mr. Tolimir was in the 2nd Military District from the 8th of

24     February, 1992 and then as it says here in this document until the 10th

25     of November, 1993.  Why?  Because the 2nd Military District after the JNA

Page 14826

 1     fell apart no longer existed.  The 2nd Military District was within the

 2     structure of the old JNA, and in that structure -- or he could have been

 3     in that structure only until May 1992, so in this period of time that

 4     could not have been the case and that is what this document states and

 5     that is incorrect.

 6             Another example, and I'm not going to explain it any further, but

 7     I want to show in these examples how in my view this evidence can be

 8     interpreted in the easiest way.  As a lawyer I found them very difficult

 9     to understand and interpret.  P1732, can we please deal with that now.

10     We don't have to put it on our screens, but it's very similar.  That is a

11     Prosecution exhibit, by which they wish to show that Vinko Pandurevic was

12     a member of the Army of Yugoslavia from the 10th of November, 1993.  It's

13     the same type of order, like the other one.  Here it is.  Thank you,

14     perhaps it's going to be easier for us to follow if we have it on our

15     screens.

16             The 7th of June, 1994, is the date of this order.  It was issued

17     by the General Staff of the Army of Yugoslavia, which we are not

18     contesting, and it says that then Major Vinko Pandurevic in June 1994 is

19     being assigned to, look at this name of the unit, General Staff of the

20     Army of Yugoslavia, the 30th Personnel Centre, Ground Forces Corps,

21     Light Infantry Brigade.  Incorrect, Your Honours.  All of us in this

22     courtroom know that.  There was no such establishment post in the

23     General Staff of the Army of Yugoslavia.  We saw evidence to that effect.

24             And look at what it says further down, again something incorrect,

25     that up until the moment when this decision was made, he was relieved of

Page 14827

 1     duty and sent for training to the General Staff academy already in

 2     October 1990.  So according to this document, it seems that he is being

 3     trained, that he is undergoing schooling from October 1990 until December

 4     1993, and we know that that was not the case.  The Prosecution knows that

 5     too.  There's plenty of evidence to show that.  He was in the Army of

 6     Republika Srpska.

 7             Could we please have D296 on our screens now.  The same type of

 8     document, appointment, but a different state, Republika Srpska.

 9     According to their law of the 8th of October, 1993, the minister of

10     defence is appointing Vinko Pandurevic commander of the 1st Zvornik Light

11     Infantry Brigade in the Drina Corps.  That is the actual duty that he

12     held, and that is what Mr. Harmon refers to as well.  In the indictment

13     in Schedule E of the indictment in the annex of his final brief in

14     paragraphs of the brief itself, 406, 421, and 438, that was the position

15     he held.  That was the actual position he held.

16             We are telling you, Your Honours, that in all these decisions,

17     group orders concerning appointment, the only true information is the one

18     entered there and that pertains to rank and position.  And you heard a

19     great deal of evidence about certain status rights that have to do with

20     salaries, benefits that accompany a particular status, and that is the

21     only thing that caused legal effect, but not the way the Prosecution is

22     trying to portray it, that through these orders they enter the chain of

23     command of the Army of Yugoslavia, because other than where it concerns

24     salaries, these orders would have had no other legal effect.  But I will

25     come to that later.  But even when it comes to salaries, nothing in these

Page 14828

 1     orders alters anything that was the situation before that.  And you had

 2     evidence to that effect.

 3             Now, where then can we find this significant contribution of

 4     General Perisic to the personnel centres in providing officer cadres for

 5     VRS?  Now, that these orders did not establish the most important thing

 6     in any letter of appointment, and that is the subordination or chain of

 7     command, I will show, Your Honour, the chain of command that the

 8     Prosecutor is trying to show in their Annex C of the final brief where

 9     they say, personnel centres are part of the personnel administration of

10     the Yugoslav Army, and the personnel administration is part of the sector

11     for mobilisation and structural changes of the General Staff of

12     Yugoslavia and that that sector was actually subordinated to

13     General Perisic as the Chief of Staff of the General Staff of the

14     Yugoslav Army.  Now, if that was the case, Your Honour, I wonder, and I'd

15     like you to consider this in coming to your conclusions, would this mean

16     that General Mladic was subordinated to Zoric, who was the chief of the

17     personnel administration?  Or for instance that he was subordinated to

18     General Matovic, who was the chief of the sector for mobilisation and

19     development of the General Staff of the Yugoslav Army?  Is it possible

20     that Mladic was subordinated to them, and this is what the Prosecution's

21     claim is, would it be the case that Mladic would actually abide by

22     anything that this person said to them?  And this is the chain of command

23     that the Prosecution is trying to show existed there, and that the

24     Prosecution is trying to claim that it was an attempt to institutionalize

25     the membership of these individuals in the command chain or chain of

Page 14829

 1     command of the Yugoslav Army.

 2             JUDGE MOLOTO:  As I understood Mr. Harmon's argument yesterday,

 3     and I think this was also alluded to sometime during the trial, the

 4     Prosecution postulates parallel chains of command.  I heard Mr. Guy-Smith

 5     yesterday contradicting that and saying no, there can only be chain of

 6     command.  So basing it on the Prosecution's theory, without necessarily

 7     accepting it, is it not possible therefore that operationally Mladic

 8     wouldn't take commands from the chief of the administration for personnel

 9     in the personnel centre, but that administratively that chief dealt with

10     Mladic's salaries, whatever, or -- not salaries, but submitted reports to

11     the paying office of his rank, his position, his service and therefore

12     what he is entitled to as a salary?

13             MR. LUKIC: [Interpretation] I will speak about the parallel chain

14     of command a little later, but your question is very to the point, and

15     let me say a few words about it.  What you have asked me, and by the very

16     fact that you've put this question, you are actually seeking to find a

17    verbal expression for how their status is regulated through administrative

18     matters and that is indeed the case, but that at the same time, is not

19     the chain of command.  The chain of command means issuing and following

20     orders and that is something that Matovic could not do, nor anything else

21    that had to do with any administrative matters.  General Matovic could not

22     issue orders to General Mladic.  For instance, he could tell Mladic, and

23     this is an administrative matter, "I need a report about the situation

24     with your family, so would you go to your service there and provide that

25     information for me."  Now, this is what the Prosecution is claiming that

Page 14830

 1     they could issue commands, because they could also issue administrative

 2     orders.  It is one thing to regulate administratively service-related

 3   rights, but there can be only one chain of command, and command and control

 4     means only one thing, and in my view this is the red herring that the

 5     Prosecutor, Mr. Harmon, is trying to show us here where he is equating

 6     these two.  We can talk about that, but in fact that is not the case in

 7     the case that you have before you.  This is just a red herring. 

 8     It's just conflating two different things. Now, I will come back to that

 9     later when I speak of command responsibility and perhaps then you will

10     have more questions that will clarify that matter.  May I continue?

11             JUDGE MOLOTO:  You may, Mr. Lukic.

12             MR. LUKIC: [Interpretation] Your Honours, when you have to draw

13     your conclusions on one of the crucial matters in this case, according to

14     the Defence, which is whether these officers that were mentioned in these

15     group orders, that's how I would refer to them, whether thereby their

16     position in the Yugoslav Army was institutionalised formally, I ask you

17     to ask yourselves the following and the Honourable Judge David put that

18     question at one point, on transcript page 8340 and 8341, to one of the

19     witnesses where he asked the following:  "Did the paperwork show one

20     thing and in reality the facts were different?"

21             Perhaps this question was actually directed at something else,

22     but this is very important for our case here.  Because the evidence that

23     we have before this Court about the actual reality are actually based on

24     fictitious theses of the Prosecution.

25             Now, the fictitiousness can be seen in another important argument

Page 14831

 1     of the Prosecution which relates to command responsibility and effective

 2     control.  The Prosecution is trying to show that these orders actually

 3     indicate that there was effective control and they mention this in their

 4     paragraph 782 and 783 in their final brief, however, it is the Defence

 5     position that it is in fact these very orders that show that there was no

 6     effective control.  These orders that the Prosecution in paragraph 783

 7     claims were binding, in reality were not orders to which responsibility

 8     would be attached, such as any orders which are not obeyed which relate

 9     to military orders.  And Witness Starcevic spoke about this on transcript

10     page 5571.  And why is this so?  Well, because it did not actually

11     correspond to reality.  First of all, these individuals were in the VRS

12     and if they disobeyed those orders, there would be no responsibility and

13     no consequences.  That's number one.  And number two, where the orders

14     were -- where individuals were assigned subsequently, they could only be

15     transferred to those other armies if they agreed to that.

16             Now, this is not something that you will find in any law as a

17     precondition for obeying orders.  And why is this so?  Because it had to

18     do with transfers that were not regulated under the law, and all of the

19     participants here are aware of that.  Had these orders really been

20     binding, there would be no voluntariness and no attempts by anyone to try

21     to talk someone into going anywhere, including by General Perisic.

22             I would now like briefly to digress and mention another argument

23     by the Prosecution that has to do with the assignment to posts.  And it

24     is our position that the Prosecution did not show beyond reasonable doubt

25     that Perisic did have the authority to appoint within the VRS itself.

Page 14832

 1     And this is what they claim in their final brief, and I believe they also

 2     mentioned it in their closing arguments.

 3             The evidence shows that all, and I repeat, all appointments to

 4     certain positions in the VRS and the SVK were done exclusively within

 5     those chains of command without any involvement by anyone from the

 6     Yugoslav Army or by General Perisic himself.  In order to corroborate

 7     their position, the Prosecution in paragraph 183 of their final brief

 8     refers to analysis of evidence, P2126 and P1815 in isolation.  Those

 9     orders that the Prosecution makes a reference to is nothing other than

10     the appointments of these individuals to their posts, or changes in their

11     establishment post.

12             On the other hand, Defence witnesses and Prosecution witnesses as

13     well, Raseta, Orlic, Skrbic, Matic, Novakovic, and I will mention no

14     others, although there are more, testified here that all appointments to

15     duty were done exclusively within the systems of those two armies, the

16     VRS and the SVK.  We provided our references in our final briefs in

17     paragraphs 280.

18             THE INTERPRETER:  Interpreter's correction, 280 to 301.

19             MR. LUKIC: [Interpretation] in other words, both Prosecution

20     witnesses and Defence witnesses tell the same story.  Now, in relation to

21     those facts and the witnesses that I just referred to, the Prosecution

22     never in their cross-examination asked any of the Defence witnesses to

23     clarify any of those theses.  As for the Prosecution witnesses, Raseta

24     and Orlic, whom we cross-examined, the Prosecution had nothing to ask

25     them in redirect.  In other words, they are not really contesting our

Page 14833

 1     position, and the Prosecution completely ignores this.  It just goes over

 2     it.

 3             Now, the Prosecution also claims that General Perisic forced

 4     officers who refused to go to VRS or SVK to go and if not, that he

 5     actually punished them as claimed in paragraph 184 of the Prosecution

 6     final brief.  In this paragraph, they refer to certain exhibits such as,

 7     for instance, P1865, which is an order from the 3rd Army after a meeting

 8     with officers from the SVK, where there's a discussion as to who is going

 9     to be retired and who is going to be assigned to the personnel centres.

10             Now, this exhibit when shown to Witness Skrbic actually prompted

11     the Honourable Judge Moloto, on transcript page 11895, to ask for

12     clarification as to what the substance truly of that document was.

13     Obviously exhibits such as these cannot prove beyond reasonable doubt

14     that there was coercion on these officers.  The Prosecution did not show

15     any witnesses who would speak about these decisions, nor that they would

16     be coerced into retirement if they refused to go to the VRS or the SVK.

17             So there is no evidence, either direct or indirect, that would

18     lead beyond a reasonable doubt to the conclusion that any individual was

19     retired as a direct consequence of their refusal to be assigned to the

20     VRS, as the Prosecution claims.  Our colleagues from the Prosecution also

21     referred to the Erak case and Mr. Harmon referred to it by the same name

22     which is mentioned in paragraph 189 of their final brief.  The written

23     evidence that the Prosecution is producing here in order to show coercion

24     actually do not prove that there is any coercion.  If you look at the

25     notes of a meeting, and this is in document P1896, a meeting -- notes

Page 14834

 1     from a meeting between Erak and his commander Zivanovic, where he says --

 2     well, let's wait for the document to come up on the screen.  That's

 3     P1896.  Let us see what these minutes show.  These are minutes from an

 4     official interview about transfer to the VRS, and we see here that

 5     Colonel Erak himself says in these minutes that he refused to sign a

 6     letter of appointment whereby he would accept this new assignment,

 7     whereby Mr. Erak -- if you look at paragraph A and then the last

 8     sentence, the last three lines:  "I have refused to be transferred and

 9     that is why I did not sign the report," et cetera.  Can you see that?

10             JUDGE MOLOTO:  Thank you.

11             MR. LUKIC: [Interpretation] In other words, Colonel Erak states

12     here that he refused to accept this document and that he was entitled to

13     it.  We've seen the laws and both laws show that.  Any order on transfers

14     is subject to appeals.  He refused to sign this document.

15             JUDGE MOLOTO:  And what were the consequences?

16             MR. LUKIC: [Interpretation] He remained where he was, but he did

17     not appeal this decision as he was entitled to.  The second exhibit that

18     the Prosecution produced, P1858, also dealing with the Erak case, and we

19     can see in this document the following:  We see that Mr. Dragutin Erak

20     did not wait to get the approval of the Main Staff of the VRS in order to

21     return to the VJ, but rather he left the VRS of his own volition.  And

22     this was mentioned and something that Witness Skrbic testified to on

23     transcript page 11698.

24             Now, if we look at these two exhibits of the Prosecution

25     together, they do not show coercion.  Quite the contrary, they prove

Page 14835

 1     voluntariness.  They show that there was no authority and no coercion

 2     whatsoever that the Prosecution was trying to show General Perisic

 3     engaged in.

 4     Now, in the last -- in the final brief in paragraph 197, for instance,

 5     the Prosecution discussing certain officers of the Yugoslav Army when

 6     discussing the case of Kosovo, tries to show that there was an connection

 7     between them and the Yugoslav Army, and as Mr. Harmon said, he said that

 8     they were going back and forth between the two armies like a ping-pong

 9     ball. And in this specific case even in 1999.  Now, our claim is that

10     this did not show anything that would be incriminating for General

11     Perisic.  They show something else, and we will show that in a moment.

12             Namely, that none of the officers mentioned by the Prosecution in

13     this paragraph and who were on duty in the war in Kosovo in 1999, were on

14     duty in the Army of Yugoslavia during General Perisic's tenure after

15     ending their careers or duties in the VRS.  There is not a shred of

16     evidence that that was the case.  And for us this is a very important

17     subject that we will come back to when we speak about subordination.

18             A few words about promotions.  The Prosecution relied on such

19     documents of promotion and verification of rank to prove both types of

20     liability.  Although two days ago you could hear that the Defence when

21     analysed the promotion and verification issues only did so concerning the

22     mode of liability under Article 7(3) in paragraph 426 to 430 in final

23     brief and we would like to invite you to make reference to them.  This is

24     where we specifically deal with the thesis proposed about the promotions,

25     verifications and their influence on the stability of the personnel cadre

Page 14836

 1     of the VRS and their morale.  In our view, the Prosecution asserted that

 2     this was precisely their thesis on how the officers were provided.  We

 3     assert that the conclusion that the Prosecution relied on in order to

 4     prove the verification of ranks and its effect on the stability of the

 5     army, and that it also is an indicator of effective control is based on

 6     an isolated display of certain documents and exhibits.  When assessing

 7     this issue you will have to decide what it was that the Prosecution

 8     managed to prove as a proper indicator of verification concerning the

 9     ranks.  Whether such rank verifications influenced their stay in the VRS,

10     and whether those rank verifications were a means to exercise authority

11     and effective control by General Perisic over the people who had their

12     ranks verified.

13             The Defence, in its final brief in paragraph 379 to 441 analysed

14     in detail all evidence about rank verifications and its links to the

15     charges against Mr. Perisic.  In that regard, we won't repeat ourselves.

16     However, I would like to refer to something we referred to in our final

17     brief as was Mr. Harmon's thesis in his closing argument, and that is the

18     extraordinary promotion of Ratko Mladic.  These are P1902, a document

19     issued by President Lilic of the 16th of June, 1994.  And P1903, the

20     extraordinary promotion of General Mladic to the same rank in

21     the VRS by virtue of Karadzic's decree.  The two promotions did not take

22     place at the same time.  He was exceptionally promoted in the VRS 12 days

23     after he had been promoted in the FRY.

24             Mr. Harmon knows well that he holds no evidence of any Perisic's

25     participation in the exceptional promotion of Mr. Mladic in the VJ.  He

Page 14837

 1     knows that because they read all of the minutes of the SDC in detail as

 2     did we.  What is important for, you when deciding on the facts, have to

 3     bear in mind all the existing evidence which can be correlated to the

 4     specific promotion.  Because the documents alone say nothing which would

 5     enable you to conclude anything about the participation of

 6     General Perisic in the exceptional promotion of General Mladic.

 7             However, there is an interesting point to note that I would

 8     particularly wish to draw your attention to.  At all SDC sessions whether

 9     exceptional or regular promotions are concerned, there were proposals,

10     and as you could see from the minutes, discussions took place about

11     perhaps I could call them candidates for promotions.  This was also the

12     case during the meetings and sessions preceding General Mladic's

13     promotion in the VJ signed by Mr. Lilic.  There were two particular

14     sessions.  One is the 15th which deals with promotions, and the other is

15     the 21st, it is a very interesting session of the SDC.

16             The Exhibit in question is P776.  We need not display them on the

17     screen because they are quite voluminous.  The 21st session was held on

18     the 7th of June, 1994, seven days before President Lilic promoted him

19     exceptionally.  We have the stenographic notes, where we see that regular

20     and exceptional promotions were discussed, but there was not a single

21     mention of General Mladic.  Mr. Harmon knows that well.  It is obvious,

22     therefore, that his promotion, General Mladic's promotion in the VJ, was

23     not discussed at the SDC.  There were no comments and Mr. Perisic did not

24     propose that promotion.  Perhaps I can digress a little.  When Mr. Harmon

25     is trying to link Mr. Perisic with Mr. Lilic's promotion, he invoked the

Page 14838

 1     preamble of the promotion referring to Article 46 of the Law on the Army.

 2             JUDGE MOLOTO:  The interpretation says Mr. Lilic's promotion.  Is

 3     it Mladic or Lilic?

 4             MR. LUKIC: [Interpretation] Mr. Lilic's promotion of Mladic.  Pre

 5     on the promotion [as interpreted].  The only link that the Prosecution

 6     wishes to establish concerning Mladic's exceptional promotion with

 7     Mr. Perisic is their reference to the preamble of the exceptional

 8     promotion decree whereby Article 46 of the army of the -- of the Law of

 9     the Army is mentioned.  In the article we see that the president of the

10     FRY can exceptionally promote following a proposal of the Chief of

11     General Staff.  That is the wording of the article.  However, we have

12     cases of exceptional promotions of generals, not only without General

13     Perisic's proposal, but also against his opinion for some people's

14     promotions in the VJ.  Perhaps we should look at the very interesting

15     discussion of the 30th session of the SDC where President Milosevic

16     insisted, I dare say, that General Borovanovic [as interpreted] be

17     exceptionally promoted.  Two sessions earlier, Mr. Perisic initiated

18     disciplinary proceedings against the same person.  When President

19     Milosevic proposed that as a member of the SDC, General Perisic decidedly

20     objected.  In spite of that, General Jovanovic was exceptionally promoted

21     at the session.  Therefore, there is no proof beyond a reasonable doubt

22     that would make you conclude that General Perisic was involved in the

23     exceptional promotion of General Mladic.  The Prosecution know that well.

24             When considering the issue of promotions, we need to bear in mind

25     the words of Witness Skrbic at transcript page 11273.

Page 14839

 1             THE INTERPRETER:  Interpreter's correction:  11723.

 2             MR. LUKIC: [Interpretation] He said that the exceptional

 3     promotion in question was directly correlated with the announced public

 4     exceptional promotion of Mladic in the RS only twelve days later. 

 5     Although he had no direct knowledge, and I don't want to draw any

 6     conclusion based on speculation, he stated that there was a link in his

 7     testimony when addressing the issue.

 8             Let us look at the other side of the coin, which is important for

 9     your conclusion on the importance of verifications and especially the

10     verification of this promotion.  You need to ask yourselves what effect

11     that promotion had on Mladic's authority.  And I will also use the term

12     specifically referred in 7(3) as the means of effective control over him.

13     He indicated that through his personal action which followed a month

14     later following his exceptional promotion.  He was one of the pioneers of

15     the idea to reject the Contact Group plan in July 1994.  He openly

16     opposed the leadership of the FRY and the SDC which had promoted him

17     exceptionally in June.  Despite the exceptional promotion, Mladic

18     displayed absolutely no respect let alone acknowledgement of the

19     authority of the FRY leadership, and those were the people who had

20     promoted him exceptionally.

21             The Prosecution in a number of places in their final brief and

22     closing arguments refer to such evidence concerning the promotions of the

23     40th Personnel Centre and the SVK.  We know that the SVK or its members

24     were not in any way linked with the crimes in Srebrenica, leaving aside

25     the issue of provisional personnel officers cadre.  I understand that

Page 14840

 1     they may wish to use that evidence to show how promotions functioned in

 2     the other army, the RS, by indicating the practice in the SVK, but when

 3     you are faced with such indirect evidence speaking of one army, trying to

 4     prove something that occurred in the other army and the charges relating

 5     to that particular army, then you need to corroborate that by direct

 6     evidence through witnesses from the RS and the VRS.  I invite you to

 7     carefully analyse the witnesses who testified about the importance of

 8     rank verification in the VRS because its members were accused of the

 9     crimes in Sarajevo and Srebrenica, rather than members the SVK.

10             First and foremost, I have in mind Skrbic and Malcic, because

11     they were the witnesses involved and they were basically questioned very

12     little on those facts by the OTP in their cross-examination.  In

13     paragraphs 236 and 237 of their final brief, the Prosecution refer to the

14     secrecy of the verification process, which runs counter to their thesis

15     of motivation and morale as an important element in the procurement of

16     the officers cadre in the VRS and their propensity to crimes.  How, I

17     have to ask myself, was their morale improved and how was the further

18     development of the officers cadre assisted and influenced if this was not

19     known publicly, if those officers did not even receive decrees on

20     promotion in the VJ.  Many witnesses, as we mentioned in our final brief,

21     confirmed that remained in their positions in the VRS for over a year and

22     longer before their ranks were verified in the VJ.  None of them left the

23     VRS, and we didn't hear any testimony to that effect, because their ranks

24     had not been verified.

25             The Prosecution, simply put, did not prove beyond a reasonable

Page 14841

 1     doubt that rank verifications in any way contributed to the stability of

 2     the VRS.  Witness Malcic testified in detail of the importance the

 3     promotion in the VJ had on his stay and promotions in the VRS.  He

 4     immediately placed that rank insignia on his uniform and that was the

 5     primary confirmation of the quality of his work, as he said himself on

 6     transcript page 11294 and 5.  It didn't even occur to him to leave the

 7     VRS because his rank was not verified.

 8             We should also look at another reference Mr. Harmon made, which

 9     is from the Galic case, and Exhibit P1759.  It is General Milovanovic's

10     letter in 1996 asking for General Galic's verification of rank and

11     General Galic was retired in 1994.  I truly cannot establish a link

12     between that exhibit and the fact that that exhibit was supposed to show

13     the importance of General Galic's rank verification at the time when he

14     was in a position of authority which enabled him to assist in the

15     commission of crimes, as the Prosecution would have it.

16             I will move on to a completely different topic now.  The

17     Prosecution in certain parts of their final brief, finally, I would use

18     that word, described or identified the persons they believe to be direct

19     perpetrators of crimes.  In the indictment it was put in more broader

20     terms, but now we had a specific reference as regards the VRS and the

21     SVK.  I will deal exclusively with Sarajevo and Srebrenica in this part.

22             Some of the people they detail in their final brief are also

23     referred to in the indictment.  Some of them who appear in the final

24     brief had not been mentioned in the indictment, although they can always

25     be included in the group descriptions of their positions.  In any case,

Page 14842

 1     here for the first time we have all of them precisely stipulated in the

 2     final brief.  When one analyses the evidence of their status but not as

 3     shown by the Prosecution because it is single -- it is single-sided and

 4     isolated, but when you look at the totality of evidence, I believe there

 5     will be no questions left in your mind.

 6             They did not enjoy the status ascribed to them by the

 7     Prosecution.  The positions of authority they held is something that

 8     enabled them to commit the crimes that Mr. Perisic is charged with, as

 9     the OTP assert.  Those positions and those ranks received by them from

10     the VRS and the SVK much earlier than the verifications in the VJ

11     themselves.  The rank verifications as such did not influence their stay

12     in those positions, as I said a moment ago.

13             Let us now look at some of the most significant examples of

14     persons whom the Prosecutor describes as crime perpetrators and let us

15     see what their status is in the army and let us see thereby what their

16     link to General Perisic would be.  Ratko Mladic, as for his position of

17     authority that enabled him to commit the crimes concerned, the Prosecutor

18     claims that that was the case and he was appointed to this position by

19     Karadzic's order, P2043, in May 1992.  We don't have to look at that

20     exhibit, but let us look at P2024.  He held that position until the 8th

21     of November, 1996.  By the decree of Biljana Plavsic, President of

22     Republika Srpska, what does this document say?  He is relieved of the

23     duty he held until now, Ratko Mladic, son of Nedzo, and he is being

24     placed at the disposal of the General Staff or Main Staff of the Army of

25     Republika Srpska.

Page 14843

 1             General Mladic was never placed at the disposal of the Army of

 2     Yugoslavia and he was not appointed, after he was relieved of this duty,

 3     to any position in the Army of Yugoslavia.  In contrast to what the

 4     Prosecution says on the basis of their evidence, P2025, P2036, and P2037,

 5     after this duty, he served in Military Post Code 7403, Han Pijesak.

 6     That's a military post code for the Army of Republika Srpska that has

 7     nothing whatsoever to do with the Army of Yugoslavia.  This is

 8     Prosecution exhibits.

 9             Finally, according to P2033, his active military service was

10     terminated by a decree of the president of the Republika Srpska.  Let us

11     look at P2033.  We have seen it often during the trial itself.  It is

12     from 2002 and this document says that his service in the Army of

13     Republika Srpska is terminated.  All of this is evidence produced by the

14     Prosecution and when analysing the status of General Mladic, the

15     Prosecution totally ignored these documents.  Your Honours, you should

16     not do that.

17             As for General Mladic, there is not a shred of evidence to the

18     effect that at any point in time he was appointed to any position in the

19     30th Personnel Centre.  The document on his appointment since he was a

20     general could only have been passed by Lilic, the President of the

21     Federal Republic of Yugoslavia.  We have not seen evidence to that

22     effect.  Let us look at Annex G of the Prosecution final brief in

23     relation to the column where transfers are being analysed with regard to

24     General Mladic too.  That is where I wanted to see whether there was any

25     proof, on the basis of what was the Prosecution claiming that he was

Page 14844

 1     appointed to the 30th Personnel Centre?  Look at the references made by

 2     the Prosecution in their final brief.  There is no proof of this

 3     whatsoever.  There is no document related to his appointment to the

 4     30th Personnel Centre.  Theres no document saying that

 5     General Ratko Mladic was appointed to the 30th Personnel Centre.

 6             Your Honours, if you would agree, this would be the right time to

 7     take the break.

 8             JUDGE MOLOTO:  It certainly is.  We'll come back at half past

 9     12.00.  Court adjourned.

10                           --- Recess taken at 12.01 p.m.

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

12             JUDGE MOLOTO:  Mr. Lukic.

13             MR. LUKIC: [Interpretation] Thank you, Your Honours.

14             I was speaking about General Ratko Mladic a moment ago and his

15     status on the basis of the evidence adduced during the trial.  Now I'd

16     like to say a few words about Stanislav Galic, General Stanislav Galic

17     and the evidence related to his status.  The Prosecution did not refer to

18     that at all.  He was appointed to a duty that allowed him, as claimed by

19     the Prosecution, to be in a position to commit crimes as commander of the

20     Sarajevo-Romanija Corps on 31st of August, 1992.  That is document D295

21     and D294.  He was also promoted in the Army of Republika Srpska to the

22     rank of lieutenant-general on the 7th of August 1994.  This rank was

23     never verified in the Federal Republic of Yugoslavia.  He was pensioned

24     off in the FRY in September 1994.  As for the retirement of

25     General Galic, just like all other generals, and the regulation of their

Page 14845

 1     status and service, on the basis of Article 151 of the Law on the Army,

 2     it is the president of the republic that makes the relevant decision and

 3     it was President Lilic who decided on his retirement.  General Galic was

 4     never appointed to any duty in the VJ after his service in the VRS

 5     terminated.

 6             Then General Dragomir Milosevic, I would like to say a few words

 7     about him as well because the Prosecution also analysed his status.  He

 8     held different positions in the army of Republika Srpska from January

 9     1993, that is, for example, D648 and D667.  That's when he was in the

10     Sarajevo-Romanija Corps.  From July 1993, he was Chief of Staff and that

11     is document D675.  All the duties he had in that army were held before

12     General Perisic was appointed Chief of General Staff of the Army of

13     Yugoslavia.

14             JUDGE MOLOTO:  Sorry, I'm hearing something.  You say that that's

15     when he was in Sarajevo-Romanija Corps from July 1993 when he was

16     Chief of Staff and that is document D675.  All the duties he had in that

17     army were held before General Perisic was appointed -- beg your pardon,

18     fine.  Chief of Staff, what do you mean by Chief of Staff?  Chief of the

19     Main Staff of the SRK or --

20             MR. LUKIC: [Interpretation] No, no, no, you can see from this

21     document that he was appointed Chief of Staff of the Sarajevo-Romanija

22     corps.

23             JUDGE MOLOTO:  I beg your pardon.

24   (redacted)

25   (redacted)


Page 14846

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

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

 9                           [Private session]

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19                           [Open session]

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

21     you.

22             JUDGE MOLOTO:  Thank you so much.

23             Yes, Mr. Lukic.

24             MR. LUKIC: [Interpretation] General Milosevic asked to be

25     pensioned off on the 26th of November, 1996 and it is at his request that


Page 14847

 1     he is relieved of his duty and retired, that is P1759.  Until he was

 2     pensioned off, General Dragomir Milosevic did not perform a single duty

 3     in the Army of Yugoslavia.

 4             Cedo Sladoje, at that time he was a colonel.  The Prosecution

 5     decidedly refers to him for the first time only in the final brief.  He

 6     is not mentioned in the indictment, not even in the annex.  During the

 7     trial itself, the Prosecution did not adduce much evidence as to whether

 8     he was appointed or when to the 30th Personnel Centre.  As for his status

 9     in relation to the 30th Personnel Centre, they are trying to prove that

10     only through P738.  That is that list of members of the personnel centre,

11     the 30th Personnel Centre.  There is no date, so we cannot see when

12     Colonel Sladoje was appointed to that position.  You are being asked to

13     speculate.  As for the position of Colonel Sladoje, we did not hear a

14     single word about that during the trial itself.  Let us be quite frank,

15     Your Honours, in the view of the Defence, the Prosecution did not

16     consider Colonel Sladoje, when they were preparing their case, when they

17     were writing up the indictment, all the way up until the appeals

18     judgement in the Dragomir Milosevic case, when General Milosevic was

19     acquitted of the charges related to Markale 2.  That is incident A-9 from

20     the indictment.  And that is the position of our Defence.

21             JUDGE MOLOTO:  When you say the Prosecution did not consider

22     General Sladoje when they were preparing the case, are you talking about

23     this Prosecution or are you talking about the Dragomir Milosevic

24     Prosecution?

25             MR. LUKIC: [Interpretation] Our case.  Let me be more specific,

Page 14848

 1     in the indictment in relation to the officers that are referred to in

 2     Annex E, more specifically, in relation to the Sarajevo-Romanija Corps

 3     there's a reference to Veljko Stojanovic and now in the final brief he

 4     has been left out completely.  In the indictment, when the subordinate

 5     persons were referred to from the Sarajevo-Romanija Corps, subordinated

 6     to General Perisic as they put it, the indictment says other officers of

 7     the SRK, so if that means that the persons referred to in the indictment

 8     are defined in that way, then perhaps that might include him.  However,

 9     that particular individual, Cedo Sladoje, was not someone that the

10     Prosecution was interested in at all during the trial.  The Prosecution

11     did not exhibit any document related to him or related to his record.  So

12     we cannot on the basis of their documents tell from when he was allegedly

13     a member of the 30th Personnel Centre.  However, the Defence tendered a

14     document related to Cedo Sladoje, and I would like to draw your attention

15     to that a document.  D348.  Could we please have it on our screens.

16             If I may put it this way, this is another group order, a decree

17     of the president of Republika Srpska on the termination of service.  Can

18     we please move on to page 3, number 20.  According to the document you

19     see now, number 20, Cedo Sladoje, lieutenant-general in 2002, it says

20     that he is serving in the General Staff of the Army of Republika Srpska

21     at the point in time when his active military service was terminated.  We

22     assert that he never held any position in the Army of Yugoslavia.

23             Milan Gvero, I will deal with him very briefly.  We don't have to

24     look at any documents, but I'm going to say what the evidence says.  He

25     was appointed to a position that he held throughout the war.  As for this

Page 14849

 1     position that he held in the Army of Republika Srpska, not in the Army of

 2     Yugoslavia, is quoted in Annex G by the Prosecution, quite properly, as

 3     assistant commander of Main Staff of the Army of Republika Srpska for

 4     morale and religious affairs.  That is what the Prosecution says and

 5     that's what we say too.  That was already in December 1992.  According to

 6     President Karadzic's decree, D698.  The evidence adduced before this

 7     Trial Chamber from personal records including that of General Gvero,

 8     there is not a single document on any appointment of his to the

 9     30th Personnel Centre.  Why?  We can only speculate.  But we do know that

10     such a document would have to be passed by President Lilic because this

11     had to do with the general who was a general at the time and had been a

12     general in the JNA as well.  He was relieved of duty in the

13     Army of Republika Srpska, according to P1977, and he was put under the

14     disposal of the VJ, as opposed to General Mladic.  That never happened in

15     his case.  However, although he was placed at the disposal of the VJ

16     until his retirement, General Gvero was never appointed to any particular

17     duty within the Army of Yugoslavia, the VJ.

18             General Krstic, who held various positions and held various ranks

19     in the Army of Republika Srpska up until the 28th of February, 2002 when

20     he was discharged from duty by President of Republika Srpska.  We have

21     various exhibits to that effect.  P2007, D119, P2008.  They testify to

22     the various positions he held within the VRS.  These documents indicate

23     that he was appointed to these positions by the individuals who held the

24     appropriate competence to do so in the VRS.

25             Now that we are dealing with General Krstic, I will make an aside

Page 14850

 1     in relation to his predecessor, General Zivanovic which the OTP -- whom

 2     the OTP has not been referring to directly but there is a reference in

 3    their brief in paragraph 802, which says that General Zivanovic apparently

 4     took up a new position in the VJ.  I think they even made an allegation

 5     to that effect in the indictment, I'm not sure.  The allegation by the

 6     OTP is not consistent with the evidence adduced at trial.  This is what

 7     the OTP is aware of.  General Zivanovic was discharged from duty pursuant

 8     to an order by President Karadzic, D684, thereafter, he did not hold any

 9     duty within the Army of Yugoslavia.  He was retired.  It was a disability

10     retirement, and there is proof to that effect which is P2012, which the

11     OTP simply ignored.

12             Can we look at P2012 now.  It's a document which relates to

13     General Krstic, but look at the statement of reasons.  The statement of

14     reasons indicates that he will remove -- he will be replacing

15     General Zivanovic who is gathering medical documentation for disability

16     retirement because of his deteriorated health caused by serious wounds,

17     and that is true.  He was not appointed to any position within the

18     Army of Yugoslavia.

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)


Page 14851

 1   (redacted)

 2             Svetozar Kosoric is not mentioned in the context of those who

 3     committed the crimes charged, however -- bear with me for a moment,

 4     please.  I'm being told that D115 -- a moment, please.  My apologies,

 5     Your Honours.  Can we move into private session for a moment.

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

 7                           [Private session]

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18                           [Open session]

19             THE REGISTRAR:  We are back in open session, Your Honours, thank

20     you.

21             JUDGE MOLOTO:  Thank you so much.

22             Yes, Mr. Lukic.

23   (redacted)

24   (redacted)

25   (redacted)

Page 14852

 1   (redacted)

 2   (redacted)

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

 4     I suppose can we redact also lines 14 to 18 of page 61.

 5                           [Private session]

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16                           [Open session]

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

18     you.

19             JUDGE MOLOTO:  Thank you.

20             MR. LUKIC: [Interpretation] Thank you.  Your Honours, what we

21     have been examining in my submissions is related to our submission that

22     you assess and examine the evidence in its totality.  You need to

23     cross-reference them and gauge them against each other until you

24     establish facts.  I have given you only -- I've referred to only a couple

25     of documents by way of illustration, but of course this is an enormous


Page 14853

 1     task before you.  If the Prosecution claims that these individuals, by

 2     their membership of personnel centres, have had their status

 3     institutionalised as being members within the VJ at the time when the

 4     conflicts broke out and that by that token Perisic was their superior de

 5     jure, then there is only one inference that you can make, only one

 6     finding that you can make in that regard, and I will go back to that when

 7     discussing effective control because the OTP referred to these orders as

 8     proof of effective control.  You cannot draw, as the only reasonable

 9     inference, not even on the basis of the selection of documents presented

10     by the OTP, and especially not if you regard the evidence in its

11     totality, that they were within the chain of command of the Army of

12   Yugoslavia at the time.  We submit that at the time they were solely within

13    the chain of command of their own armies, namely the Army of Republika

14    Srpska and the Army of the Republic of the Serbian Krajina because they

15    were on duties within these armies as the OTP agrees, and as such they

16    were within the superior-subordinate relationships within these armies.

17    As we discussed, the superior-subordinate relationship is established

18    upon appointment to duty. This was the only and true superior- subordinate

19    relationship they were in. None of the individuals we referred to or any

20  of the individuals that the OTP referred to as responsible for the crimes

21  in Sarajevo and Srebrenica were, at any point in time, appointed to any duty

22     or position within the Army of Yugoslavia.  In order for them to be able

23     to feature within the chain of command of the VJ, and in order for

24     General Perisic or anyone else for that matter within the VJ to have them

25     as part of the superior-subordinate relationship as envisaged within the

Page 14854

 1     Army of Yugoslavia.

 2             Your Honour, I do not doubt that in making your findings with

 3     regard to the responsibility of Mr. Perisic in respect of aiding and

 4     abetting crimes in Sarajevo and Srebrenica, you will always keep in mind

 5     the case law of this Tribunal and the way it defines this form of

 6     criminal responsibility, as actions directed at assisting and providing

 7     moral support to the perpetrators of specific crimes, which constitute

 8     substantial contribution to the commission of crimes.  Only once you will

 9     have established beyond a reasonable doubt all these various elements,

10     will you be able to establish that elements have been satisfied for the

11     actus reus of the accused in respect of the crimes he is charged with,

12     and we claim that the Prosecution has not adduced evidence or provided

13     submissions that would enable you to arrive to that finding with respect

14     to any of the actions by Mr. Perisic relating to their thesis on the

15     provision of the officers corps of VRS in assisting and aiding and

16     abetting crimes in Srebrenica and Sarajevo.

17             I would now like to go to deal with the other form of

18     responsibility, namely that of command responsibility of General Perisic.

19     In a number of legal arguments about command responsibility, both the

20     Prosecution and the Defence referred to the same legal authorities.  At

21     the outset, I would like to remind you of what you must be aware of

22     regardless of the submissions we make in our briefs, and which we think

23     is relevant in assessing the evidence and arriving at findings.

24             The theory of command responsibility has been pretty much

25     crystallised through among other things, the jurisprudence of this

Page 14855

 1     Tribunal.  The case law has provided answers to many issues that have now

 2     become part of the standards and part of the international customary law.

 3     One of positions that are frequently referred to from the ICTY case law

 4     has been formulated in the Celebici appeal judgement at paragraph 303,

 5     and I will repeat it although we must all know it by heart now.  There

 6     the responsibility -- the idea of command responsibility is construed as

 7     responsibility of persons who by virtue of the position they occupy have

 8     authority over others.  But that idea of command responsibility has not

 9     been intended to impose liability on persons of equal status.  That is

10     the motto, or the guiding idea, that we all follow when dealing with

11     command responsibility.

12             The two main legal issues concerning command responsibility

13     raised by the Prosecution require that we respond to them.  At transcript

14     page 14678 and 14679 in relation to what Madam McKenna said, we as a

15     Defence believe that both sides in a superior subordinate relationship

16     need to be aware of the existence of this relationship, whereas the OTP

17     contend that the only parameter of the existence of this relationship is

18     effective control.  We continue to hold the position that both parties

19     need to be aware of the existence of a superior-subordinate relationship

20     in order for there to be one.  The superior-subordinate relationship is a

21     personal relationship between two individuals and in our view one of

22     these individuals, and that's the subordinate individual, needs to be

23     aware of the existence of the relationship, especially in military

24     structures.  The OTP has been building their thesis on the de jure

25     relationships within the army on what is provided by the law.  It is

Page 14856

 1     inconceivable of the army being operational without the subordinate

 2     knowing who his superior is.  Of course he doesn't need to know who all

 3     of his superiors up the chain of command are, he needs to know who his

 4  immediate superior is, or possibly, who the second or third up the level is.

 5             Command responsibility as a form of responsibility can be

 6     workable within an army only if the individuals involved are aware of the

 7     rules of the game.  The Prosecution has used the standard of effective

 8     control frequently and they want to use it roughshod over all the other

 9     elements that may arise and that may be relevant for the determination of

10     effective control.  And this is a very dangerous approach, because we

11     know that their effective control exists.  Even outside of a

12     superior-subordinate relationship, and we've got many examples from the

13     ICTY case law to testify to that.  The superior-subordinate relationship

14     is a relationship between two individuals and the -- and also the

15     insubordination or the duty to obey the superior's orders.  And the test

16     of effective control can only be an element that is important for the

17     determination of it.

18             JUDGE MOLOTO: [Overlapping speakers] ... Let me check something

19     here.

20             MR. LUKIC: [Interpretation] Certainly.

21             JUDGE MOLOTO:  Page 66, line 8, the translation reads

22     "insubordination."  Is that what you said?  It doesn't seem to click with

23     the rest of the...  "Subordination" would, but not insubordination.  I'm

24     not sure.

25             MR. LUKIC:  Subordination.  Subordination, Your Honour.

Page 14857

 1             JUDGE MOLOTO:  Thank you.

 2             MR. LUKIC: [Interpretation] This is what Mr. Guy-Smith said

 3     yesterday that he envied your position.  I didn't find it established

 4     within the ICTY case law in no uncertain terms, the position with regard

 5     to aiding and abetting, about the perpetrators not needing to be aware of

 6     aiders and abettors who may be accused in a case.  I'm drawing a parallel

 7     here.

 8             JUDGE MOLOTO:  I'm just saying I didn't understand Mr. Guy-Smith

 9     yesterday on that point.  I am sorry for being slow on the uptake.  Up to

10     now, I still don't.

11             MR. LUKIC: [Interpretation] My understanding of what he said is,

12     and I may be mistaken, is that since this is a unique case, you will be

13     faced with a challenge that places you in a very -- in a position of

14     great responsibility, as does all of us.  In relation to aiding and

15     abetting, the ICTY case law says that the perpetrator himself need not be

16     aware of the existence of an aider and abettor.  Now, what we are

17     discussing here and what you will have to make a final finding on is that

18     we haven't found a decision rendered by this tribunal to that effect.

19     But we found it elsewhere.  I will call on you to look at a case of the

20     State Court of Bosnia-Herzegovina which we are all familiar with.  The

21     State Court of Bosnia-Herzegovina frequently relies upon the ICTY case

22     law as part of international law now.  There are two judgements.  One is

23     that of the appeals judgement in the Mandic case, paragraph 107.  And the

24     other speaks quite directly about the position we have taken, this is the

25     Todovic-Rasevic trial judgement, paragraph 148.  This is legal fury

Page 14858

 1     turned into case law.  Let me conclude.  We --

 2             JUDGE MOLOTO:  What was the second case.

 3             MR. LUKIC: [Interpretation] Rasevic and Todovic -- or Todorovic.

 4     I only had the first instance decision to refer to.  In order to

 5     conclude, I wanted to say that --

 6             JUDGE MOLOTO:  [Microphone not activated] paragraph?

 7             MR. LUKIC: [Interpretation] Your microphone was off but I believe

 8     you wanted to know the paragraph, it is 148.  Let me check.  Yes.

 9             JUDGE MOLOTO:  Last question before you go.  Can we find it in

10     the English?

11             MR. LUKIC: [Interpretation] Yes, I think you can in their

12     database.

13             JUDGE MOLOTO:  Thank you.

14             MR. LUKIC: [Interpretation] Concerning this legal matter, it is

15     our position that both participants in the superior-subordinate

16     relationship have to be ware of the existence of that relationship

17     especially within military structures.  Let me add another thing, this

18     same Prosecution in earlier cases asserted that there was a presumption

19     of the existence of subordinate-superior relationship in military

20     structures.  I believe it was in the Hasanovic or Halilovic case, and it

21     was found insufficient.

22             Another important issue raised by Mr. Harmon, at transcript page

23     14751 and 14752, in which he asserts that we, the Defence, did not make a

24     distinction between the singleness of command and effective control.

25     They refer to the Popovic judgement, paragraph 2025 and 2026.  It is a

Page 14859

 1     recent judgement.  He relied on that source to corroborate his thesis

 2     that a singleness of command does not equal effective control.  We, Your

 3     Honours, believe that the analysis carried out in the Popovic case that

 4     Mr. Harmon relies on is completely inapplicable in our circumstances,

 5     because it makes the distinction between effective control and the

 6     singleness of command within the same chain of command.  It was the

 7     relationship between Vinko Pandurevic as brigade commander and Mr.

 8     Obrenovic as his Chief of Staff.  In that regard, their relationship was

 9     analysed trying to see that while he was not in the position of

10     commander, standing in for the Chief of Staff could have exercised

11     effective control, and the Defence relied on the principles of singleness

12     of command.

13             We are in a different case here.  The OTP themselves assert the

14     existence of two parallel chains of command, not a single one.  In that

15     regard, I wish to draw your attention to the separate opinion of

16     Judge Kwon on this topic, as part of the judgement I referred to.  As he

17     puts forth in paragraph 50 of his opinion, because I believe it tallies

18     completely with our interpretation as stipulated in paragraph 73 of our

19     brief.  These are two legal matters which will obviously pose a challenge

20     to you in this case.

21             We also wish to draw your attention to the distinction between

22     influence and control.  Mr. Guy-Smith addressed it briefly yesterday and

23     Mr. Harmon did not mention it at all.  This Defence team is deeply

24     convinced that this case is the best example of the difference that needs

25     to be drawn between influence and control.  This is the case which can

Page 14860

 1     openly and crystal clear show to us the extent of influence when it

 2     exists, when it does not, when it is exercised without reaching the

 3     threshold of control.  Based on all evidence presented, you cannot

 4     establish beyond a reasonable doubt that there was effective control that

 5     crossed that threshold.  By virtue of that, you cannot conclude that

 6     there was the relationship of superior/subordinate between Mr. Perisic

 7     and those designated by the Prosecution as crime perpetrators.

 8             When analysing the relationship between influence and control,

 9     please bear in mind that in this case we move within the boundaries of a

10     clear set of the way the game is played.  There was a single chain of

11     command and we know how it worked.  Before I move on to the issue of

12     influence itself, I wanted to mention another important thing and this is

13     where we differ from the Prosecution.  However they did not mention it in

14     their final argument, but they did in their final brief.  We have

15     opposing Tribunal jurisprudence in that respect.  We assert, as we put

16     forth in paragraph 80 of our final brief, we support the jurisprudence

17     confirmed in several cases including their appeal phase before this

18     Tribunal which states that the liability of the commander can exist only

19     if there was effective control over the perpetrators at the time crimes

20     were committed.  We are aware of the existence of two appeals with

21     different positions and this is ours.  Only at the time of the crimes

22     there must be effective control.

23             JUDGE MOLOTO: [Overlapping speakers] ... Can you cite all those,

24     all three of them, please.  Sorry, the stenographer didn't hear me, I was

25     saying can you cite us all three judgements.  The one that you go with

Page 14861

 1     and the two that go against you.

 2             MR. LUKIC: [Interpretation] I don't think I mentioned three.

 3     There were several.  However, there are two on appeal that are

 4     contradictory and I will refer to them.

 5             JUDGE MOLOTO:  Okay.  There were two.

 6             MR. LUKIC: [Interpretation] Okay.  Please bear with me.

 7     Halilovic.  Just a second.  The judgement in the Halilovic case,

 8     paragraph -- first, the trial judgement because I have a few references.

 9     Perhaps not to complicate things, I can tell you that it is all in our

10     paragraph 80, footnote 130 of our final brief.  Perhaps that is the

11     simple way to go about it.  These are the references we invoke to support

12     our arguments, the opposing position was taken in the Oric case and the

13     appeals judgement, and I believe the OTP relied on that.

14             THE INTERPRETER:  Interpreter's correction:  Footnote numbers

15     131.

16             MR. LUKIC: [Interpretation] I'd like to move on to the

17     relationship I wanted to discuss at some length, that is to say the

18     existence of influence and control within the parallel chains of command.

19     The OTP in this case, regarding command responsibility, had to face the

20     jurisprudence encountering a significant obstacle, namely, how to charge

21     Perisic without compromising their own thesis of the responsibility of

22     certain people in the chains of command of the VRS and the SVK.  They had

23     the dilemma of how to establish a thesis on the responsibility of

24     Commander Perisic when they already had existing indictments against

25     Mr. Karadzic and Mr. Martic and the Prosecution to assert that

Page 14862

 1     Mr. Perisic was not their subordinate.  It is not in question.

 2             Their impossible mission, they formulated in the indictment by

 3     forwarding a thesis that Perisic delegated the so-called operational

 4     control to Mladic and Celeketic, as well as Novakovic, in paragraph 6 and

 5     35 of the indictment, and that his command responsibility was, as they

 6     say, parallel to Karadzic's, which is what they said in their opening

 7     statement, and at transcript page 379 and 380, as well as in their final

 8     brief.

 9             In the final brief, they articulate the concept in paragraph 804

10     where they say that there was this unique situation in which we found

11     ourselves in this case.  In the army, commanding is the gist of -- the

12     prerequisite of the functioning of the system.  There's an order which

13     needs to be obeyed.  You asked about that, Your Honour, and this is how I

14     understand the thesis of the parallel chain of command.  There is no army

15     in the world which is based on a parallel chain of command.  The

16     Prosecution know that, and then they created the concept of the so-called

17     administrative control, trying to compare this still unique case to an

18     existing model.

19             Expert Melvin did not help the Prosecution in that regard.

20     There's absolutely no correlation that could compare NATO or the allied

21     concepts with our case.  I say our case because we are all familiar with

22     it.  In this case, an officer left an orderly structured military system,

23     entering, fully and completely, another organised system.  He is assigned

24     his position in the other system, his only and single superior who

25     promotes him, who commands him in any respect.  He also enters a


Page 14863

 1     completely regulated system of military discipline and military judiciary

 2     and we know it functioned.  The Prosecution assert so as well because

 3     they state that Karadzic could have initiated disciplinary procedures

 4     against his subordinates in the VRS.

 5             In the final brief, it seems to us that the Prosecution gave up

 6     on the assertion put forth in the indictment, that is to say, that

 7     Perisic delegated operational control to the commanders of those armies,

 8     because there's simply no evidence to that extent.  There isn't a single

 9     shred of evidence to show that he delegated such control to Mladic,

10     Mrksic, Celeketic and Novakovic as asserted by the Prosecution in the

11     indictment.  We discussed it in detail in our brief in several

12     paragraphs, and I will tell you what they are, it is 148, 154, 858, 985

13     and 995.  Let me add something else, in a single chain of command, there

14     could be several superiors exercising direct or indirect effective

15     control and they can bear the responsibility, but not outside the chain.

16     Armies are structured and function in a way so as to obey one superior.

17     If that does not work, the army does not work.  What it looks like in

18     real life rather than in an isolated lab can be seen if we are look at

19     the Zagreb charges.

20             Could we please move into private session for that.

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

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 14864

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11   (redacted)

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17                           [Open session]

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

19     you.

20             JUDGE MOLOTO:  Thank you very much.

21             Yes, Mr. Lukic.

22             MR. LUKIC: [Interpretation] Thank you.  The Defence assert, as we

23     have explained in our brief, and in the first part of our closing

24     argument that all officers of the VRS and the SVK, designated by the

25     Prosecution as direct perpetrators and members of the VJ, at the time the


Page 14865

 1     crimes were committed were not within the chain of command of the VJ.  No

 2     matter how hard they try to show that their status in the personnel

 3     centres tallies with the command chain of the VJ, they themselves have to

 4     admit that while they were on service in the VRS and SVK, they were not

 5     within the VJ chain of command.

 6  If they are outside the VJ, then at the time when the crimes were committed,

 7     Perisic was not their superior. If there is no relationship of hierarchy,

 8     then there is no superior-subordinate relationship and we all know that

 9     that is one of the three essential elements of command responsibility.

10             Now I'm going to move on to some of direct evidence that shows

11     about absence of control on Perisic's part over his alleged subordinates.

12     Please assess all the evidence in its totality.  I would like to deal

13     with something now that Mr. Guy-Smith mentioned yesterday and that was

14     the policy of the state.

15             JUDGE MOLOTO:  The Chamber can assure you the Chamber will look

16     at the entire evidence.  The Chamber can assure you that the Chamber will

17     look at the entire evidence.  We have been reminded of this several times

18     during the Defence argument and we just want to make that assurance to

19     you.

20             MR. LUKIC: [Interpretation] Thank you for your support.  I think

21     that I speak for all the participants in the proceedings.  I have this

22     concern, I think we all have this concern that we are trying to look at

23     all of this together at a given point in time.  I would like to point

24     this out to you, when assessing something that is called context.  I

25     spoke about that in my opening statement when you look at a document, and

Page 14866

 1     you are probably going to say now that that is certainly what you are

 2     going to do, but it is important for us to say that documents always need

 3     to be looked at within context.

 4             JUDGE MOLOTO:  Thank you so much, Mr. Lukic.

 5             MR. LUKIC: [Interpretation] Now I would like to say something

 6     about this context of state policy as an important factor for assessing

 7     responsibility and facts.  Although expert Melvin could not assist the

 8     Court very much in explaining the general principles of command and

 9     control, in his methodology he mentions in paragraph 2.1 -- could I

10     please have that on the screen.  P2772, page 4 in English, page 4 in

11     B/C/S, he speaks of context, and he says that context is very important,

12     as we have said, to assess the functioning of any chain of command.  And

13     that there are many non-military factors that affect that and he ends

14     with a particular position that I would like to quote.  And this is what

15     he says:  "Actually, command at highest level, strategic level, can never

16     be isolated from governmental policy and direction.  Thus, the exercise

17     of command must always be viewed in the appropriate context, if

18     motivation were to be understood, reasons, and desired and actual

19     outcomes of the commander's decision."

20             I think that you heard the interpretation, so you don't have to

21     look at the rest in English on your screen, because we would need to move

22     on to the next page in English in that case.  In this case, we have

23     evidence related to command and control at the highest strategic level

24     that is most directly linked to policy as such, political decisions and

25     top state leadership.  Although the Prosecution wishes to stop the

Page 14867

 1     positions of the state leadership of the FRY and their policy in the

 2     early stages of the war as something that was defined and unchanged, that

 3     was actually not the case.  The evidence that they produced before you

 4     shows that at least from April 1993 and especially from the summer of

 5     1994, there was a permanent and genuine wish of the state leadership of

 6     the Federal Republic of Yugoslavia to stop the war and the leaderships of

 7     Republika Srpska and the Republic of the Serb Krajina as well as their

 8     military leaderships should accept the peace settlements offered by the

 9     international community.  Namely, the Contact Group Plan, as well as plan

10     Z-4 pertaining to RSK, all the way up to the Dayton Accords.

11             There's a great deal of evidence that points to this and we dealt

12     with part of it in our final brief.  However, Your Honours, now we have

13     the opportunity of referring to some of that evidence in open court.

14     Evidence that shows unequivocally on the one hand the objective of the

15     state leadership of the FRY to have the war ended, and on the other hand,

16     this very important decision -- distinction between influence and what

17     the Prosecution wishes to portray as control.

18             I know that you are going to assess all of that evidence within

19     the context of the time-frame involved.  Let us first look at P778.  In

20     B/C/S, it is page 26, and in English, it is page 39.  Very briefly.  It

21     is the 30th session, or rather, sorry, the 25th session of the

22     Supreme Defence Council in August 1994, after the Contact Group Plan was

23     rejected.  I'm providing the context.  And that was after the FRY imposed

24     sanctions against Republika Srpska.  President Milosevic is speaking

25     about the relationship between the two political and military

Page 14868

 1     leaderships.

 2             Very briefly, the first paragraph:  "Yes.  Therefore, the war

 3     option is absolutely pointless.  From a moral point of view, I don't

 4     think that we should be beating ourselves in the chest as to who is

 5     amongst us a better Serb, or a Serb by profession.  We have had that over

 6     the past few years, but now you can find such people by the dozen."

 7             Now page 41 and 42, again it is Milosevic who is the speaker.

 8     The end of the page, this is what Milosevic says:

 9             "All of that is being put at a risk by a fixation that 'perhaps

10     one or 200ths of the territory could be acquired if the plan is

11     rejected.'  In my view," says Milosevic, "this is not worth prolonging

12     the agony of war, of sanctions against Yugoslavia and all other

13     difficulties that could be place on the shoulders of the Serbian people."

14             Finally, page 44, again it is Milosevic.  It is page 29 in

15     English.  This is his conclusion:

16             "Therefore, the answer to this question is, we must apply all

17     possible forms of pressure towards having the peace plan accepted.  It is

18     out of the question that any reasonable person could opt for a

19     continuation of war and the drawing of Yugoslavia into the war conflict.

20     This was the major and most important danger, the drawing of Yugoslavia

21     into the armed conflict, which we managed to escape."

22             Milosevic said all of that at that session.

23     P779 is what I'd like to call up now.  This is the 28th session of the

24     Supreme Defence Council.  The 2nd of November, 1994 is the date.  In

25    English it is page 32, and in B/C/S it is 30. This is what Milosevic says:

Page 14869

 1             "It is not the question anymore whether they can accomplish that

 2     goal."  He is talking about the Army of Republika Srpska and the

 3     leadership of Republika Srpska.  May I

 4     remind you of the context.  November 1994, we, I beg your pardon, the

 5     Federal Republic of Yugoslavia imposed sanctions on Republika Srpska.

 6     This is what Milosevic says:  "We told them on time that it was

 7     impossible to achieve the goal that they wanted to achieve and that

 8     politics is the art of the possible and not the art of the impossible.

 9     It is simply impossible for the international community to go along with

10     the fact that two-thirds of the population, including Croats and Muslims,

11     are crammed into less than half of the territory."

12             Then Perisic, General Perisic, page 34 in English, the very same

13     transcript.  Page 32 in B/C/S.  The context is the attempts to influence

14     the leadership of Republika Srpska to accept and support the plan of the

15     Contact Group.  Now, in that context, General Perisic says:

16             "I suggest that we try to persuade them if we still can do

17     anything," the reference is to the leadership of Republika Srpska,

18     "otherwise they will face a complete disaster.  It is not only that they

19     will face it, but such a situation will have dramatic consequences for

20     the Serbian and Montenegrin peoples."

21             Now, look at another short dialogue from that session.  In

22     English it is page 36, and in B/C/S, 34.  This is what General Perisic

23     says:

24             "It would be good if any factor could get involved that has any

25     influence on them in order to try to bring them to reason."  And then

Page 14870

 1     Milosevic says:

 2             "Momo, the army is the sole factor that has influence on them and

 3     you know very well that you cannot do anything there."

 4             When you read this entire document, you will see what this refers

 5     to and who, but it is clear that it is the Army of Republika Srpska, then

 6     Perisic says:

 7             "Mr. President, at least we can invite them and we can try to

 8     persuade those people before this audience.  There are multiple reasons

 9     why I'm asking you to do it."

10             Milosevic says, "Call Mladic.  I think we can talk again."

11             And then, Your Honours, this is P734, or rather, 743, I'm not

12     going to ask to have it displayed.  Sorry, P743.  Those are the

13     conclusions from that session and I suggest that when you analyse the

14     evidence, you look at conclusion number 4, where an unequivocal decision

15     is being made on the basis of this dialogue, and it says:

16             "Caution the Main Staff of the Army of Republika Srpska and try

17     to bring General Mladic in for a talk."

18             That is the end of that conclusion.

19             Please look at P794 for a moment, the 31st session.  Let us look

20     at the context, the 18th of January, 1995.  We have heard a great deal of

21     evidence about that, the officers of the VRS no longer received their

22     salaries, sanctions were imposed, and there is a lot of discussion at

23     that session about how the leadership of Republika Srpska can be

24     persuaded to accept the plan of the Contact Group.  Let us see what

25     President Milosevic says.  Page 50 in English, and B/C/S is 45.  It's

Page 14871

 1     just a short sentence.  The second paragraph, Your Honours, these are

 2     Milosevic's words:

 3             "However, on the other hand, the army should not be a prisoner of

 4     a crazy policy there led by that leadership.  That is something that

 5     Perisic tried to explain to them on several occasions, as we all did, but

 6     unfortunately, it was unsuccessful."

 7             Can we now adjourn for the day three minutes early because I will

 8     be discussing the same topic, but I'd have to call up a different

 9     document, so perhaps this would be a good time.

10             JUDGE MOLOTO:  Thank you very much, Mr. Lukic.  We'll then

11     adjourn for the day and come back tomorrow at 9.00.  Same court.  Court

12     adjourned.

13                           --- Whereupon the hearing adjourned at 1.42 p.m.

14                           to be reconvened on Thursday, the 31st day of

15                           March, 2011, at 9.00 a.m.