Tribunal Criminal Tribunal for the Former Yugoslavia

Page 546

 1                          Wednesday, 23 August 2006

 2                          [Open session]

 3                          [The accused entered court]

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

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

 6    kindly call the case, please.

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

 8    IT-05-88-T, the Prosecutor versus Vujadin Popovic and others.

 9            JUDGE AGIUS:  All right.  I thank you so much, and again once more

10    good morning to you.

11            Prosecution and Defence, we decided yesterday, since there are too

12    many of you - too many accused, too many Defence counsel - and a usually

13    constant appearance, that we'll try and freshen up a little bit the

14    procedure.  Instead of going through each one of the accused and then each

15    one of the Defence, Prosecution, what we will do is I will just put one

16    single question, asking the accused if any of them are not able to follow

17    the proceedings in a language that they understand, to stand up now and at

18    any time later on during the proceedings if it's the case of not receiving

19    interpretation.  So I take it that you all are.

20            And then I will not be asking for appearances but you are expected

21    from day to day that, if there are any changes in the composition of your

22    respective teams, to stand up and make the relative announcement.  Agreed?

23    Thank you.

24            Mr. McCloskey, you've been abandoned by Mr. Nicholls.

25            MR. McCLOSKEY:  Yes, they are, of course, busy with the next two

Page 547

 1    witnesses, but Lada Soljan is here today, and I will try to be here as

 2    much as I can unless I'm with a witness.

 3            JUDGE AGIUS:  Thank you so much.  Your cooperation is much

 4    appreciated, Mr. McCloskey.  So I understand there is a statement you

 5    would like to make.

 6            MR. McCLOSKEY:  Just very briefly.  I discussed this with most

 7    counsel yesterday.  I know everyone has been reading in the press about a

 8    new potential mass grave from Srebrenica, allegedly the largest mass grave

 9    found, over a thousand bodies.  We looked into this and there appears to

10    have been a mass grave that has been found.  It does not have a thousand

11    bodies.  It appears to be what looks like the normal secondary grave and

12    has probably 140 or 150 bodies and many, many body parts.  So information

13    of this sort, as you can imagine, is very emotional and sometimes prone to

14    exaggeration.  So I just wanted to get that out.  We will get more details

15    on that, but I believe it is a secondary mass grave, it may very well be

16    one that is already incorporated into our evidence, and if not, we'll --

17    we will incorporate it.  But we'll have better information on that for you

18    in the future, but I did not want anyone to think that there was another

19    grave with over a thousand bodies out there.  That is not the case.  Thank

20    you.

21            JUDGE AGIUS:  I thank you, Mr. McCloskey.  I also understand that

22    the Prosecution agrees with the way shown or indicated as the Defence of

23     -- Defence preference for the presentation or availability of

24    cross-examination documents.

25            MR. McCLOSKEY:  Yes, Mr. President, we do.

Page 548

 1            JUDGE AGIUS:  Okay.  I thank you.  So we'll be proceeding with

 2    later on in the day, hopefully, with the relative decision, which will be

 3    along the same lines indicated in the Milosevic -- in the Milutinovic

 4    decision.

 5            Last but not least, Madam Nikolic in particular, I'm sure you are

 6    aware of the latest filing by the Prosecution in relation to tomorrow's

 7    witness.  And I suppose you have no special comments to make because it

 8    more or less answers the concern that you expressed yesterday or the day

 9    before.  Is that correct?

10            MS. NIKOLIC: [Interpretation] Yes, Your Honour, thank you.

11            JUDGE AGIUS:  Is there any one of the Defence teams that would

12    like to address the subject matter of this latest Prosecution filing,

13    details of which I'm not going into because of the confidentiality of the

14    motion.  Okay.  Thank you.

15            Again, please expect a decision on those protective measures later

16    on in the day today.

17            Yes.  Mr. Ostojic, good morning to you.  You have the floor, and

18    also the lectern.

19            MR. OSTOJIC:  Thank you, and good morning, Mr. President, Your

20    Honours.  Yesterday we left off discussing several topics which we think

21    are relevant and important to ultimately adjudicating the case as it

22    relates to Mr. Beara.  We spoke briefly about collective guilt and how the

23    Madam Prosecutor herself Monday told us that it is not about collective

24    guilt.  In our opinion it's easy to say something is not this and yet try

25    to prove your case through what we call the side or the back door.  The

Page 549

 1    Prosecution, I think, tells us they don't believe in collective guilt but

 2    continues to lump the accused and continues to argue down the road of

 3    collective guilt.

 4            Collective guilt, in our view, is nothing other than if you argue

 5    that specific intent follows you into your job.  Genocide, as it is in

 6    this jurisprudence, does not subscribe to that view or that position.

 7    Specific intent doesn't follow you into a job.  We'll see that that's the

 8    view of the Prosecution, and we hope that the Court recognises that all it

 9    is is a substitution of a few words to actually talk about collective

10    guilt which they themselves reject and they themselves acknowledge is not

11    part of the jurisprudence in this case.

12            Yesterday we spoke a little bit about Mr. Beara and his rank and

13    how it maintained the same since 1995 -- 1985.  I'd like today to begin,

14    if I may, with the theory called tried and tested.  Mr. Beara's case and

15    the allegations against Mr. Beara -- [microphone not activated].

16            THE INTERPRETER:  Microphone, please.

17            MR. OSTOJIC:  Thank you.  -- have, in our view, been tried and

18    tested on at least two different occasions.  The first occasion was during

19    the Krstic trial when the Defence of General Krstic and his Defence

20    lawyers actually advocated an empty chair Defence.  In essence, in my

21    jurisdiction that is where they shift or try to shift the blame and

22    responsibility to an accused who is not present.  Any facts from that case

23    which can be seen to be adverse to Mr. Beara should be looked at that he

24    didn't have a right to cross-examine, didn't have a right to confront his

25    witnesses, and obviously had lost his presumption of innocence since he

Page 550

 1    was not present.  However, despite those three rights that Mr. Beara has,

 2    the Prosecution in that case tirelessly and steadfastly argued against

 3    this theory called dual functional relationship where the Defence there

 4    tried to shift the blame on the security officers and shift the blame on

 5    the staff officer of the security unit, namely Mr. Beara.

 6            The Prosecution was successful and convinced the Court, and

 7    rightfully so, that it was not the security staff officer who was

 8    responsible or culpable but General Krstic.  That same theory was

 9    subsequently examined in the Appellate Court and the Appellate Court again

10    rightfully found that it was not Mr. Beara, it was General Krstic.

11            MR. McCLOSKEY:  Your Honour, I apologise for objecting, but that

12    is just not a fact.  Neither the Prosecution view nor the Appellate

13    Court's view.

14            JUDGE AGIUS:  I think you are right.

15            MR. OSTOJIC:  I'd like to expand, if I may, on that, Your Honour.

16    And if we look -- if I may?

17            JUDGE AGIUS:  Yes, go ahead, but please be precise, because I

18    think what Mr. McCloskey has objected, having read both decisions myself,

19    and I will assume also my colleagues, you're not being precise.  Thank

20    you.

21            MR. OSTOJIC:  I believe that I am precise, with all due respect to

22    the Prosecutor.  If we look at the second time the case was tried and

23    tested, it was tried and tested in the Blagojevic case where specifically,

24    specifically witnesses were brought in by the Defence attorney, not by

25    Mr. Blagojevic - because we know that history - they were brought in and

Page 551

 1    they shifted the blame, or tried to shift the blame on Mr. Beara.

 2    Specifically those witnesses testified.  They have now become ultimately

 3    and all of a sudden witnesses for the Prosecution.  We'll talk a little

 4    bit about those witnesses in a few minutes.  However in that same case, I

 5    submit respectfully to Your Honours, that the Court rejected that dual

 6    functional relationship where there is a parallel hierarchy or a parallel

 7    chain, rejected it.  They found Mr. Blagojevic guilty.

 8            I'd like to inform the Court that I dare say that Mr. Beara can

 9    hold a candle to Mr. Blagojevic -- that he cannot hold a handle to

10    Mr. Blagojevic.  The evidence will show that Mr. Beara was a mere staff

11    officer in the security unit, did not perpetrate, participate, or commit

12    any of the crimes against them.  We spoke a little bit about integrity and

13    if -- I'm going to play a tape, with the Court's permission, if I may, and

14    it's merely a five-minute tape, and just by way of background - I'm going

15    to explain it - when we talk about integrity, I was proud of my colleague

16    at the Prosecution's office when he said that integrity is not a laughing

17    matter and I don't want someone to poke fun at my integrity or to make a

18    joke of my integrity.  And then we proceed -- that's the first section of

19    the tape, which is about 30 seconds.  I believe Your Honour is on it as

20    well.  The second section of the tape is from the September closing

21    argument of Blagojevic.  And I ask this Court to specifically listen

22    carefully to the comments of the Prosecution yesterday - meaning in the

23    Blagojevic trial - and today.  It's a four-minute tape, and I would like

24    to play it especially in light of the objection that we just heard moments

25    ago.

Page 552

 1            So would the gentlemen in the video booth please play the tape.

 2            JUDGE AGIUS:  Yes, Mr. McCloskey?

 3            MR. McCLOSKEY:  Your Honour, this is a rather novel approach, and

 4    I would object to this.  I think we all -- the idea that my comments

 5    earlier in this trial are somehow relevant to an opening statement is -- I

 6    don't think it is.  I think, having just not been able to give it much

 7    thought, but we need to, in this trial, be able to speak freely and not

 8    think that our comments are going to be televised again.  I don't mind my

 9    comments being televised.  He can televise my entire closing statement in

10    the Blagojevic case, but I don't see the relevance of it and it -- nor the

11    point.

12            JUDGE AGIUS:  Well, I wouldn't let the fact that we are going to

13    see a first section referring to your statement disturb you that much,

14    because I wouldn't worry about it.  But on the other hand, I think the

15    whole purpose of this exercise is to put this in juxtaposition with what

16    you stated in your opening statement in this case, contrasting it with

17    what -- if I have understood Mr. Ostojic well, contrasting it with what

18    was the Prosecution's position in Blagojevic.

19            Let's go through it first, and if it's not regular, then of course

20    we'll stop it or reverse our decision, but for the time being I think we

21    should listen or look at what is being proposed by Mr. Ostojic.

22            Yes, Mr. McCloskey.

23            MR. McCLOSKEY:  Thank you, Your Honour.  Understood.  And on the

24    point of discussing what the Prosecution's position was and what the Court

25    did in Blagojevic, we are very proud of what we did, and I know the

Page 553

 1    decision of the Court was very carefully thought out, and we have used the

 2    law as we felt it allowed us to under judicial notice and adjudicated

 3    facts to bring that material to your attention.  However, many of the

 4    conclusions and legal conclusions and theories of the Court, the law does

 5    not allow us to bring forward to you and we have not.  That would be

 6    extremely prejudicial to many of these accused.  And -- however, if this

 7    door becomes open, that it may be it would then become relevant.  I don't

 8    want to re-argue that case again.

 9            JUDGE AGIUS:  We'll see after we've gone through these two videos

10    or whatever they are.  And if it's necessary to give you the floor,

11    Mr. McCloskey, we certainly will.  Yes, Mr. Ostojic.

12            MR. OSTOJIC:  Thank you, Your Honour.  Would the gentlemen in the

13    video booth please play the tape.

14                          [Videotape played]

15            "JUDGE AGIUS:  ... Mr. McCloskey and then we will see.  If we have

16    reason to be strict with the Prosecutor, then we will do so.

17            "MS. CONDON:  I won't make any comment about trusting prosecutors,

18    Your Honour.

19           "JUDGE AGIUS:  Yes.  Mr. McCloskey, any comment on that?"

20            JUDGE AGIUS:  I'm only receiving --

21                          [Videotape played]

22            "JUDGE AGIUS:  Mr. Ostojic --

23            "MR. McCLOSKEY:  I would prefer her to come by me before she makes

24    statements.  And statements that are going to go to my integrity, I don't

25    appreciate jokes either.

Page 554

 1           "JUDGE AGIUS:  Okay.  Thank you, Mr. McCloskey.  Mr. Ostojic --"

 2            JUDGE AGIUS:  Yes, Mr. Ostojic, I repeat--

 3            MR. OSTOJIC:  It continues to play, Your Honour.

 4            JUDGE AGIUS:  Do you want to see more?

 5            MR. OSTOJIC:  Yes.  Now, the second portion, Your Honour, is

 6    playing now.  If we can just start it again at that.

 7                          [Videotape played]

 8             "... command chain, I say third man, it's Mladic, Krstic,

 9    Blagojevic.  That's the way it is.  Two generals and a colonel.  We've got

10    the MUP and we've got others.  These are the commanders.  These are the

11    key guys.  Now, we have Beara, we have Popovic, we have Nikolic, we have

12    Drago Nikolic.  These guys are staff officers.  One of the reasons they

13    get charged with genocide is because staff officers in the security branch

14    have chosen to be in the security branch and it's an ugly job and if

15    you're chosen to be in that job, specific intent is a -- follows you into

16    that job, in the view of the Prosecution.  But they are staff officers.

17    Colonel Beara can't hold a candle to Colonel Blagojevic.  Colonel Beara --

18    and we've made this very clear because we do not want to suggest Dragan

19    Jokic is a commander because there is a huge difference, a huge

20    difference.  A staff officer is an empty vessel and only has the power

21    that is given to him by his commander.  Beara is nothing but a sicko, an

22    empty vessel, until Mladic gives him those orders.  He doesn't have the

23    right to command troops, he doesn't have any troops, the same thing with

24    Popovic.

25            "These guys -- and I don't know how to communicate this to you,

Page 555

 1    but in a -- in the military context they don't even go to the same

 2    function as the commanders do.  They don't have the power, the authority

 3    and you can see it.  And I'll -- if I get time, I'll point you out some of

 4    the examples.  But you need to understand that.  It's the commanders are

 5    the ones that call the shots.  They're the ones that can make the

 6    difference, they're are the ones that have the men.  And especially in the

 7    brigades.  Remember, the Main Staff has a Protection Regiment and 10th

 8    Diversionary Unit.  The Protection Regiment's designed to protect Han

 9    Pijesak and other areas.  The Sabotage Detachment is a sabotage mission to

10    go in.  They don't really have very many troops.  The brigade is even --

11    or the corps is even less.  They have a small MP squad.  They've got, you

12    know, the 5th Engineers, they have a couple of other units that aren't

13    really involved here.  It's the brigade.  The brigade has -- he's got over

14    2.000 men under arms.  He knows where the fuel is, he knows where the

15    logistics bases are.  This is their home base.

16            "The brigade commanders are the key players in this and he's a

17    colonel.  I can't overstate that, that principle, how important the

18    brigade guys are.  The brigade guys are the guys that are dying in the

19    trenches.  And it's the Blagojevics of that war that are there to protect

20    them and their town, to give it in a positive sense.  Not the Krstics and

21    the Mladics and the others.  So a commander with honour is the man that

22    takes the blame when things are bad and gets the blame when things are

23    good.  When war crimes go down, they have to take it the same way.  They

24    can't just put it on the evil staff officers."

25            JUDGE AGIUS:  Yes.

Page 556

 1            MR. OSTOJIC:  I believe it stops there.  Thank you, Your Honour.

 2            There are a couple of points in our opening statement we would

 3    like to at least address with respect to the comments made in the last two

 4    days and, I think, in other cases.  There are more, obviously, and we

 5    don't want to waste our time by splicing them and showing them to the

 6    Court, but I think it's important when we talk, on Monday or last month,

 7    about integrity and when we talk about presenting to the Court certain

 8    things, that we maintain that honour and that we continue to tell the

 9    Court, yes, we are offended when someone attacks our credibility, our

10    integrity and our reputation, but we must also work, in my view, hard to

11    maintain that level of trust.

12            I promise this Court that what I say in my opening statement with

13    respect to Mr. Beara, we will bring forth the evidence regarding the

14    September -- the 1992 incident.  We will bring the Prosecutor, hopefully,

15    and/or the Judge.  Similarly, we'll bring in the articles and explain to

16    the Court the September 1993.  However, I believe that the same standard

17    should be held to the Prosecutor and even more so, and that is because

18    they carry the burden of proof.  And that burden of proof should not --

19    and their theory of the case should not change from day to day, from

20    witness to witness.  Our client, Mr. Beara, is entitled to a trial on his

21    own, on his own merits, not because of the joinder but because the facts

22    as they stay.  The Prosecutor cannot in one courtroom suggest, in our

23    view, that someone else is to blame and come in this courtroom and tell us

24    that another person is to blame.  He himself, we believe, and the evidence

25    will show, that you cannot blame the evil staff officers.  Why he believes

Page 557

 1    they are evil, hopefully he'll bring forth that evidence.  We believe that

 2    you cannot blame the staff officers.  We believe that there is no evidence

 3    for there to be blame attributed to the staff officers.

 4            Also, the Prosecutor suggests that the orders may flow down.

 5    There is no such thing in any criminal jurisprudence or any military army

 6    that a nod or a wink authorises someone to carry forth orders.  The

 7    Prosecutor a couple years ago suggested that Mladic gave an order to

 8    Mr. Beara.  Where is the evidence?  Did we see it yesterday?  Did he

 9    present it in his binder for Mr. Beara?  No.  Trust me on this:  There is

10    no evidence that General Mladic gave Mr. Beara orders to kill or to

11    transfer any of the Bosnian Muslims in Srebrenica in 1995.  Their best

12    witness, who will come here, has a slightly different version, again

13    depending on the day that he testifies, as to purportedly who may have

14    given Mr. Beara some instructions.  We hope that you'll find this witness,

15    or as he comes -- although Mr. McCloskey calls some of his own witnesses,

16    I think he used the word "bald faced liars" -- we hope that you'll find

17    this witness's testimony less than credible, and I believe that it is not

18    believable, and we'll get into that a little later.

19            Tried and tested?  I honestly believe it has been.  The Prosecutor

20    could have easily said that we believe whatever the Defence says in those

21    cases, they may be correct, but we have enough evidence out of Blagojevic.

22    They chose not to.  They chose to tell the Court what their theory of

23    genocide is specifically when they mentioned specific intent relating to

24    the staff officers in the security unit.  They said it flows with the job.

25            Mr. Beara was a staff officer and Mr. Beara was working as a

Page 558

 1    security in the security unit ten years, at the very least, prior to

 2    Srebrenica.  Did it follow him in 1985?  It does not hold water that they

 3    can suggest other than, with one exception, and that's the exception that

 4    the Madam Prosecutor told us she will not, because it does not exist, and

 5    that is collective guilt.

 6            So our view is you must look at the evidence specifically for

 7    Mr. Beara, take what they've done, and they've worked on this case for

 8    well over eight years, now ten, they've examined all the facts, the

 9    documents, the intercepts, the witnesses, and two years ago they tell this

10    Honourable Court - not specifically Your Honours but an Honourable Court

11    at this Tribunal - that it flows, specific intent flows to people.  We

12    suggest that the evidence will show that it does not flow, and we suggest

13    that they cannot meet their burden of proof, and we suggest that there was

14    no specific intent as it relates to Mr. Beara at any time relating all the

15    incidents, all the tragedy, all the massacres that occurred in Srebrenica

16    in 1995.  Tried and tested.

17            We'll hear from many witnesses who have testified who have been

18    cross-examined, who have been put on redirect, given multiple witness

19    statements; all this has been done, and I've tried to give you a snippet

20    of what the Prosecution's theory really is against these mere staff

21    officers.

22            I challenged them, as I expect to be challenged, that when they

23    say General Mladic gave an order, that they can prove it.  It's not my job

24    to tell this Court that he didn't or to prove somehow - by calling him?

25    It's their job then to tell the Court when we made that comment it's

Page 559

 1    erroneous or we don't have the proof to substantiate that claim.  There is

 2    no witness, there is no intercept, there is no document to suggest, infer,

 3    much less determine or establish, that General Mladic gave Mr. Beara any

 4    orders, specifically orders to kill or to massacre.  It just doesn't

 5    exist.

 6            He says that Mr. Beara cannot hold a candle to Colonel Blagojevic.

 7    His words.  Although I used them before I played the tape, those are his

 8    words.  That should remain true if we have integrity and honesty

 9    throughout the process, not to pick and choose and to elevate an accused

10    but it should be maintained throughout the entire process.

11            That's what integrity is.  That's what character is, in my view.

12    And that's what we hope to establish for the Court throughout these

13    proceedings.

14            We will not, unfortunately, be able to share this with the Court

15    early in the trial because it is a lengthy trial.  We know that the Court

16    will continue to maintain objectivity and wait until all the evidence is

17    in before you render a decision, and I say it most respectfully, but it

18    may be difficult when someone continues to press forward with a theory

19    that we believe may be inadequate, improper, unsubstantiated by law, and

20    wait a year for us to come back and try to rebut or refute or contradict

21    that theory.  Therefore we chose to give an opening statement this time in

22    order just not to let a year pass by, in order to address these very

23    concrete issues up front with the Court.  We will, in our case, hopefully

24    specifically not only contradict but rebut the evidence that the

25    Prosecution claims to have against Mr. Beara.

Page 560

 1            My next section that I would like to discuss with Your Honours is

 2    something that Madam Prosecutor said on Monday, and she is right.  Strike

 3    that.  She is right, but she said it July 14th of this year.  I'm not sure

 4    if it was taken in the transcripts but I heard it, and I don't think it's

 5    necessary to check the transcript for this:  She, when we objected to her

 6    giving her statement, part of her opening statement, she stood up and

 7    said, "Facts, just facts."

 8            It's a great phrase:  Facts, just facts.

 9            I've listened to her opening statement on Monday.  I've heard

10    conclusions.  She concluded that there was genocide.  She concluded who

11    was mostly culpable in her view.  The Prosecutor likewise leapt to

12    conclusions, in our view.  Those weren't facts.  Those were conclusions.

13    Your Honours, respectfully, will come up with the conclusions only after

14    we provide you with the necessary facts so that you may be fully informed,

15    and that's our job, and I promise you that we will give you the facts

16    which, in our view, will exonerate Mr. Beara.

17            What are those facts, just facts?  We touched upon a few of them

18    yesterday, late in the afternoon.  We believe that if the Court

19    respectfully looks at those facts properly, objectively, and honestly,

20    Mr. Beara will be found not guilty.  Those facts, some are not in dispute.

21    Some may not be in dispute.  And yet, others are.  What are those facts?

22    That he was not only a staff officer but, in the words of the Prosecution,

23    merely a staff officer.  Mr. Beara.  That's a critical fact.

24            That Mr. Beara had no military personnel to control, direct or

25    command.  That also is a fact that cannot be rebutted or contradicted.

Page 561

 1            That Ljubisa Beara was not a member of "an inner circle."  The

 2    word "inner circle" I believe was coined by the Prosecutor in their

 3    pre-trial brief, and if Your Honours would like, I could get you the page

 4    specifically.  I'm confident that it's in there.

 5            It's significant to say that Mr. Beara was not a member of an

 6    inner circle because the Prosecution alleges there are participants in

 7    this inner circle.  Separate trial for Mr. Beara?  He is not a member of

 8    the inner circle.  By their silence - not now, of course, but in their

 9    brief - by not saying Mr. Beara was in this inner circle they are clearly

10    telling us he was not a member of the inner circle.

11            Yesterday I discussed to you about Mr. Beara's promotion.  I

12    failed to mention it's not just a promotion from his rank of colonel, or

13    before that when he was a navy captain in a battleship prior to 1985, but

14    it is in fact -- he was never decorated, never awarded medals.  That's

15    relevant.  That's relevant to the theory of the Defence and the facts in

16    this case which are undisputed to show his detachment, to show his

17    isolation, if you will, during the events of Srebrenica in 1995.

18            Mr. Beara did not have the authority to command or to direct

19    subordinate military troops or personnel.  Mr. Beara did not have the

20    power to command or direct military personnel subordinate or otherwise.

21            Another critical fact:  We saw pictures; we are going to see, I'm

22    confident, videos.  Did Mr. Beara participate in what the Prosecution will

23    try to share with you are important or relevant meetings?  The evidence

24    will show quite plainly, quite objectively, quite unanimously, he did not

25    participate in any relevant or important meetings.  He did not attend, nor

Page 562

 1    was he invited to any such important meetings.

 2            You might be wondering, although you may know, respectfully, what

 3    are some of those meetings?  Well, the Prosecutor touched on it a little

 4    bit yesterday.  The Hotel Fontana meeting on July 11 and 12 of 1995.

 5    Those are facts.  When we look at those videos, with respect to Mr. Beara,

 6    he was not present, he did not participate, there was never an invitation,

 7    and there is no evidence to suggest that he was informed of the contents

 8    of the meetings that occurred.  Three meetings, not one.

 9            The other discussion - I believe the Prosecutor touched on it -

10    there was a meeting immediately prior to the third meeting at the Hotel

11    Fontana, at the Hotel Fontana, with the non-UN and Dutch personnel.  That

12    was in the morning of July 12th, 1995.  Again, Mr. Beara was not invited,

13    did not participate, and there is no evidence to suggest or infer that he

14    was informed of the contents of that meeting.

15            Mr. Beara's lack of attendance and lack of participation, in our

16    view, confirms his lack of knowledge in the purported crimes that occurred

17    in Srebrenica in 1995.

18            His lack of participation, his lack of attendance, confirms not

19    only his lack of knowledge about the crimes but his lack of knowledge of

20    any purported plan orchestrated by others if such a plan even existed.

21    The Prosecutor, in its briefs and in its indictment, suggest that the plan

22    is something that was a moving target.  They suggest that it started as

23    early as 1992, and then he goes on and develops it.  The manifestation of

24    this purported plan, which I submit to you there was none.  Not my burden

25    of proof, but I submit to you that there was no plan, as the Prosecutor

Page 563

 1    says, to commit genocide, by any of the VRS members and most definitely

 2    there was no plan that was ever shared, communicated to, or informed to,

 3    to Mr. Beara.

 4            The Prosecution, I think, says that Mr. Beara was an empty vessel,

 5    an empty vessel isolated on an abandoned ship in the middle of sea.  He's

 6    telling us two years ago, after eight years of research, eight years of

 7    witnesses, eight years of working, and I believe as Mr. Ruez will share

 8    with us next week or when he testifies, that there are two people in Mr.

 9    Ruez's view who know the Srebrenica case better than anyone.  Obviously,

10    the self-serving Mr. Ruez says it is himself, and also his superior,

11    Mr. McCloskey.  After eight years at that time, after an additional two

12    years of working this case, Mr. McCloskey again calls him an empty vessel.

13    An empty vessel because he was merely a staff officer, did not participate

14    in any meetings.  We agree.  The only thing, quite candidly, at this point

15    that we disagree with is that they come up with this vague General Mladic

16    gave some orders.  There is no evidence to that.

17            Mr. Beara was never and had never had authority vested in him,

18    expressed or implied, by any commander, had never had any responsibility

19    for the handling of the Bosnian Muslim prisoners taken or captured after

20    the fall of the Srebrenica enclave.  Mr. Beara had no power or authority

21    to organise, to facilitate, to coordinate or to transport any of the

22    Bosnian Muslims after the fall of the Srebrenica enclave.

23            Mr. Beara also had no power or authority to supervise or oversee

24    any of the Bosnian Muslim prisoners captured or taken after the fall of

25    the Srebrenica enclave.

Page 564

 1            It's significant when the Prosecutor tells us that he's an empty

 2    vessel.  It's significant when the Prosecutor tells us that Mr. Beara

 3    cannot hold a candle to Mr. Blagojevic.  It's significant when we look at

 4    the evidence and view each document, how does it fit against or in favour

 5    of Mr. Beara?  I suggest that the documents where he's not mentioned,

 6    where he doesn't appear, plainly and simply put, exonerate Mr. Beara

 7    because he was not participating, he was not present, and there is no

 8    evidence, as the Prosecutor said a day or so ago, linking him together.

 9            They call their chapter 3 The Evidence to Link.  He does claim to

10    have some -- rather, or a few intercepts.  We've touched on a couple.  I

11    invite the Court, obviously respectfully - I know you will - look at those

12    intercepts carefully.  He talked about an intercept where Beara's name was

13    mentioned with respect to Mr. Popovic.  Mr. Popovic in his discussion, as

14    you will recall, is telling, supposedly Mr. Krstic, they won't let us in,

15    they won't give us access.  There is not only more than one reasonable

16    explanation or view on those purported facts, but there are multiple, and

17    this jurisprudence suggests that if the inference can be reasonable in

18    favour of the accused, then that's the reasonable interpretation that we

19    are required and mandated to take.  I suggest to you that there is a

20    specific reasonable explanation for the intercepts.

21            I must again stress the intercepts for two reasons.  We hope to

22    call an expert relating to the intercepts, to explain specifically the

23    mechanism that goes behind the scenes of taking down such information.  We

24    believe this Court will find that the intercepts should not be allowed,

25    that this Court will find that the intercepts are not worthy of the

Page 565

 1    credibility necessary for a criminal trial proceeding, and will reject

 2    most if not all of the intercepted conversations.  Respectfully, I know

 3    I'm speculating, but I believe our expert will confirm the flaws in the

 4    intercept analysis, and that's what I expect our evidence to show.

 5            Facts, just facts.  I have to keep reminding myself that because

 6    Madam Prosecutor said it and then sometimes we as lawyers do turn a corner

 7    or go on another theory.  The fact of the matter is that there are going

 8    to be multiple witnesses that testify, as Your Honours know.  I've tried

 9    to categorise these witnesses into certain groups and subgroups.

10            One category of witnesses that I found easier to follow, and I'll

11    share it with the Court, if I may, and that is the Court -- the group

12    called insiders.  It's a fact that there are witnesses, and I think the

13    Prosecutor used the word, called insiders.  My view is that there are two

14    subgroups to these witnesses called insiders.  The first subgroup is

15    witnesses who believe that --

16            JUDGE AGIUS:  One moment.  You switched off your mike.

17            MR. OSTOJIC:  I make one little move and it all falls apart.

18            The first subgroup of these witnesses called insiders are those

19    witnesses who believe the ends justify the means.  In essence, they have a

20    result and their entire task is to work towards ultimately obtaining,

21    creating, manufacturing evidence to get that result.  The ends do not

22    justify the means, although there are witnesses that you'll find believe

23    that that is actually accurate.

24            Who are those witnesses, by way of brief example?  There are many,

25    but because of the limited nature of the time, I'll highlight some.  I

Page 566

 1    believe one of them is Mr. Ruez.  Mr. Ruez says that he was one of the

 2    first investigators to go to Srebrenica, and he's worked on it for eight

 3    years.  Mr. Ruez never attempted to get what we believe are critical

 4    information.  Critical information from the security branch, critical

 5    information such as Mr. Beara's daily required notes to examine fully what

 6    his participation, if any, was, but merely concluded, as the Madam

 7    Prosecutor did in her opening.  Mr. Ruez, you'll find, is not an expert.

 8    His investigation is nothing more, most respectfully, than a one-sided

 9    view of the Prosecutor's case, having been the senior investigator for the

10    Prosecutor.  His view is totally for collective guilt.  And we hope that

11    that will be borne out.

12            Another witness who comes to mind, which is in this category of

13    the ends justify the means, by way of example, is the insider known, or

14    previously known, as the OTP military analyst, Richard Butler.  The

15    evidence will show, I believe, that Mr. Butler left the United Nations and

16    this Tribunal and now works for a government which abuses POWs and ignores

17    the international laws governing human rights.  In our view, it says a lot

18    about someone and someone's character and integrity when they claim one

19    day to fight for human rights and to protect human rights and then the

20    next day they work for a government who abuses such rights.  Our

21    military --

22            JUDGE AGIUS:  One moment, Mr. Ostojic.  Please, if you want to

23    confront Mr. Butler with this, you do it when he is present, but please

24    don't do it in his absence.

25            MR. OSTOJIC:  If I may, with the most respect, Your Honour - with

Page 567

 1    the most respect - I agree with you, but I wish there was a court, when

 2    Mr. McCloskey called my client a derogatory word two years ago, that

 3    someone would also suggest to him not to make a comment like the word

 4    "sicko" unless he can confront us with that in a courthouse --

 5            JUDGE AGIUS:  We are dealing with Mr. Butler.

 6            MR. OSTOJIC:  Fair enough, Your Honour.  Our military expert will

 7    expose Mr. Butler's flaws as did the Appellate Court in the Krstic trial.

 8    Those are facts, where he works, just facts.

 9            The second group or subgroup of insiders are witnesses who utilize

10    information as a commodity.  Merchandise.  Which they sell or share for a

11    reduction in their prison sentence that they may receive as a result of

12    their own culpability.  These witnesses -- am I permitted to name them,

13    Your Honour?  Although I won't attack them, but --

14            JUDGE AGIUS:  I don't know who they are.  Provided we are not

15    contravening any protective measure that has already been put in place by

16    another Trial Chamber, you may proceed, but I don't know who you're going

17    to refer to and I consequently am not in a position to say whether they

18    are protected witnesses in other proceedings.

19            MR. OSTOJIC:  Fair enough.  I believe that they are witnesses who

20    are well known and testified openly.  These witnesses who are those that

21    in fact utilise information and facts as a commodity because of (redacted)

22    (redacted) Momir Nikolic,

23    in our view, among others.  These witnesses are ruthless, and for them, in

24    our view, truth is a meaningless concept.

25            For Mr. Beara and our Defence team, we suggest that truth has no

Page 568

 1    marketplace and that you cannot share or you cannot change, alter,

 2    manufacture the truth.  The truth yesterday should likewise be the same as

 3    today.  Our integrity, our character is on the line as well.

 4            The Prosecutor yesterday or the day before - I think it was Monday

 5    - said he has a witness that is a bald faced liar, but there is some of

 6    his testimony that we believe we can use and is credible.  I don't

 7    understand that concept.  I honestly don't.  Some of these witnesses that

 8    you will hear, if they are liars or bald faced liars, should be rejected

 9    in whole.  We can't pick and choose, as the Prosecutor, I believe, will

10    do, certain aspects in order to fulfil our burden of proof.  If that

11    witness is honestly a bald faced liar as identified by the Prosecutor,

12    charge him with perjury.  If he's a bald faced liar, don't ruin your own

13    credibility and call such a witness.

14            These witnesses who I call are salesmen of this commodity and

15    information and merchandise not only lie, they commit perjury, they

16    manipulate evidence, they solicit others to corroborate their own lies

17    with more lies.  You'll see from these specific witnesses, and some whom

18    I've mentioned, that they not only will solicit others to corroborate

19    their lies, but they will also obtain from documents information in order

20    to corroborate their lies with more lies.

21            I suggest respectfully that their testimony needs to be fully

22    ventilated.  Full ventilation is not possible unless all the notes, all

23    the tapes, all the transcripts, both in prison and with the Office of the

24    Prosecutor in their office when they discussed it, be something that is

25    tendered to the Defence and to Your Honours so that we could see the full

Page 569

 1    picture.  Every letter that any of these witnesses received from the

 2    Prosecutor should be given to us to see if in those letters they asked

 3    about and invited them to testify or hinted to them to testify against any

 4    accused.  Obviously with the underlying, we believe, suggestion that if

 5    you help here, we will help you there.  One witness comes to mind

 6    drastically:  Mr. Deronjic.  Mr. Deronjic admitted it.

 7                          [Trial Chamber confers]

 8            JUDGE AGIUS:  Sorry for that interruption, Mr. Ostojic, but we

 9    needed to discuss something.  Please go ahead.  You were addressing

10    Mr. Deronjic.

11            MR. OSTOJIC:  Mr. Deronjic, in our view, Your Honour, you'll see -

12    I think it's in one of the exhibits - his plea agreement.  He pled guilty,

13    I believe, to crimes involving Srebrenica but not in 1995.  He pled guilty

14    to crimes involving Srebrenica three years earlier, I believe, in 1992.

15    We talk about --

16            JUDGE AGIUS:  I was on that case, yes.  The agreed facts contained

17    in the plea agreement do not refer to 1995, no.  They refer to May, 1992;

18    8th, 9th, 10th and then 12th of May and the events that preceded the

19    takeover of Srebrenica in April and after but not beyond that.

20            MR. OSTOJIC:  Thank you, Your Honour.  I -- respectfully, I think

21    I agree.  I know I agree because that's what I said.  They don't apply to

22    1995, his guilty plea, and here is what troubles us and troubles witnesses

23    who we consider witnesses who give information or use information as a

24    commodity:  That witness in particular, if there was anyone vested with

25    authority, vested with power, vested with the ability to control or alter

Page 570

 1    the situation in Srebrenica in 1995, our view is the evidence will show

 2    that it was Mr. Deronjic.  He got a written, expressed, explicit order and

 3    direction from Mr. Karadzic telling him he's in charge of the civilian and

 4    the military and in charge to protect the civilians of Srebrenica.  The

 5    Prosecutor has made a decision not to charge someone in Srebrenica.  Or

 6    they haven't thus far; they are calling him as a witness.

 7            MR. McCLOSKEY:  Your Honour, that's a misstatement of the facts.

 8    Mr. Deronjic is not put in charge of the military.

 9            MR. OSTOJIC:  Well, as I said, Your Honour -- if I may respond.

10            JUDGE AGIUS:  Yes, go ahead but I am familiar with the facts of

11    that --

12            MR. OSTOJIC:  I thought the guidelines were that we don't object,

13    as I didn't to Mr. McCloskey's opening.  I object to a lot and almost

14    everything he said in his opening.  It's my integrity on the line.  I will

15    bring forth the document to the Court.  I want to be held accountable to

16    that, as I want them to be as well.  There is evidence.

17            JUDGE AGIUS:  Yes.  Go ahead.  We'll deal with Deronjic when the

18    time comes, but please do remember that he pleaded guilty to the attack on

19    Glogova and only that.

20            MR. OSTOJIC:  Yes.  And I do remember that, but I think if the

21    Court will look at his participation relative to Mr. Beara's participation

22    in 1995, or lack of participation, his attendance at meetings in 1995, and

23    Mr. Beara's lack of attendance in 1995, I think the picture becomes more

24    clear.

25            There is another category of witnesses that I believe we'll see

Page 571

 1    during the trial of this case, and they are what I call finger pointers.

 2    It's kind of an awkward word, but finger pointers are in essence people or

 3    witnesses who point the finger of guilt.  And they will come up to this

 4    stand and I think, from reading some of their statements and the

 5    transcripts in other cases, what they in essence do is they shift the

 6    responsibility that was placed on them, they shift the ultimate

 7    culpability that they are exposed to and ultimately their criminal

 8    responsibility that attaches with both their position, both their

 9    involvement, their attendance, participation and presence during the

10    crimes in Srebrenica in 1995.

11            These finger pointers are probably the same people as those who

12    sell information and sell what they call facts as a commodity.  It is

13    similar to when we discussed the lack of participation and lack of

14    attendance at the Hotel Fontana meeting.  Carefully, if you listen to that

15    evidence, you'll find that witnesses have a varying view of how things

16    occurred when they occurred, especially Mr. Nikolic who, as early as July

17    12th, purportedly heard or saw Mr. Karadzic make his gesture -- I mean

18    General Mladic, excuse me, make a gesture that all the Muslims should be

19    killed, and you compare that to another witness who points the finger at

20    an accused such as Mr. Beara and he says he came secretly, inebriated or

21    intoxicated late at night, and he shared with me that he got some

22    purported orders from above.  Those witnesses, these finger pointers - and

23    we will try to examine this with the Court's permission - will examine

24    first their ultimate involvement, first their ultimate responsibility, and

25    then see how credible they are when they try to attack or attach or

Page 572

 1    include others in the Prosecutor's web that they seem to be weaving of

 2    collective guilt.

 3            The finger pointers are quick to implicate and solely for the

 4    purpose of concealing and disguising their own criminal responsibility.

 5            The fact of the matter is that Mr. Beara did not become vested

 6    with any power or authority from any commander at any time and was

 7    detached from the battlefield activities, if I can use that military

 8    phrase, that regrettably occurred in Srebrenica in 1995.  The evidence

 9    will show through both our witnesses and the Prosecutor's witnesses, that

10    Mr. Beara at all times was not involved and had no knowledge of the

11    purported plan, the implementation of the plan, or the crimes that

12    occurred.  He was not promoted, he was not in the inner circle, he was not

13    in attendance at any relevant meetings; he had no command, no control, and

14    no authority.  There is no explicit or expressed order, direction, or

15    communication vesting Mr. Beara with any such authority.

16            The evidence will show that the fact of the matter is that

17    Mr. Beara was helpless.  The evidence will show that he was as helpless as

18    the UN Dutch personnel who were present, who were on the scene, who saw

19    what happened, who viewed what happened from time to time but could not

20    and did not prevent, stop or deter the horrific crimes that were

21    occurring.

22            In several articles I've heard this term "empty vessel," and they

23    refer to people just like the UN Dutch Battalion or the UN Dutch personnel

24    who were there but unable, with an inability to do anything to prevent

25    such a crime.  We believe that Mr. Beara was just as helpless.

Page 573

 1            Given his upbringing, his past education, his work experience, his

 2    altercations with the Serbs and the Serbian political aspect in 1992,

 3    1993, and also you'll hear what happened in August of 1995, August 16

 4    specifically - and we'll get to that evidence, but in the view of time I'm

 5    summarising it for you - that Mr. Beara, given all those things, given the

 6    lack of any documentation, intercepts or witnesses - credible witnesses,

 7    honest witnesses, witnesses who don't have something to sell, who don't

 8    have anything to gain - that it is not a wonder why Mr. Beara was

 9    helpless, powerless, and without authority.  Mr. Beara, in our view, and

10    the evidence will prove, is not guilty.

11            I tried to highlight -- and we are going to call a military

12    expert, as I said.  I want to expose what it means not to be able to hold

13    a candle to Mr. Blagojevic.  I know my time is running short.  I want to

14    be kept to our agreement, and I appreciate you for listening.  I want to

15    expose and also further explain or try to discuss with the Court

16    throughout this trial what this "empty vessel" means.  Those are their

17    words, not ours.  I want to expose the fact that there are no

18    documentation, intercepts, or witnesses other than those that are

19    incredible, meaning a lack of credibility in my view, and most

20    respectfully, when they implicate or finger point or actually claim that

21    the ends justify the means.  We will try to show this Court in about a

22    year or so, I'm not sure what the schedule is, specifically that evidence

23    with respect to Mr. Beara.

24            I appreciate your patience with me.  I appreciate and have the

25    confidence, the utmost confidence, respectfully, that this Court will wait

Page 574

 1    before they make a decision and not listen to one-sided evidence before

 2    they ultimately review that.  I know you know your responsibilities.  I'm

 3    saying it perhaps for my benefit more than others:  Hold us to what we say

 4    in this courtroom.  Hold the Prosecutor that their view is that specific

 5    intent flows with your job.  It doesn't exist.  Hold them when he says

 6    that Mr. Beara can't hold a candle to Mr. Blagojevic.  Hold us to the

 7    promises that I've made to you with respect to some of our witnesses and

 8    some of the evidence that I hope we will share with you in the next coming

 9    months.  On behalf of Mr. Beara and our Defence team, we thank you for

10    listening and we look forward to presenting our case to you in the future.

11            JUDGE AGIUS:  One question before you sit down, Mr. Ostojic.  You

12     -- a very few minute ago, or two, you made reference to some event going

13    back to August 16, 1995.  What event are you referring to?  Particularly

14    because I don't think you gave us an indication of what that is all about.

15            MR. OSTOJIC:  Thank you, Your Honour.  It's a great question.  I

16    wanted to pique everyone's curiosity, like the September 1992 and 1993

17    event.  In 1995, specifically August 16th, 1995, there is some evidence to

18    suggest - a document in particular - that Mr. Beara sent to the supreme

19    military court, asking that they appoint specific investigators and deputy

20    prosecutors to investigate certain war crimes or prisoners that were held

21    who were ultimately going to be transferred to Foca.  I was going to share

22    with you specifically the details of those three meetings and how in one

23    meeting the UN, I think, witnesses will also say that General Mladic

24    ordered - ordered - that the prisoners that were captured, the military

25    prisoners, those who participated with the ABiH, that they be interrogated

Page 575

 1    for war crimes.  That act, actually, and part of our Defence is, shows

 2    that in fact there was activity, that people were put down on a list,

 3    people were interrogated, people were investigated.  We think that all

 4    comes home for the Defence.  Now the Prosecution promised you something

 5    also.  They said there is no evidence that anyone was interrogated.  We

 6    are going to call a Dutch witness, we believe, who will tell the Court

 7    contrary.  He saw it.  He observed it.  He even participated in it during

 8    the critical time period.

 9            I didn't think it was necessary to share every aspect, but quite

10    frankly, I can, I think, and we will.  But this is a critical thing, so

11    what we are trying to show before, during, and after, I think it's an

12    enormously relevant document, a document that should not be ignored by the

13    Prosecution as well.

14            JUDGE AGIUS:  All right.  I thank you, Mr. Ostojic.

15            MR. OSTOJIC:  Thank you.

16            JUDGE AGIUS:  I thank you, Mr. Ostojic.  I now give the floor to

17    the Defence team for Mr. Nikolic.  Mr. Bourgon.

18            MR. BOURGON:  Good morning, Mr. President, good morning --

19            JUDGE AGIUS:  Good morning to you.  We will have a break at 10.30.

20            MR. BOURGON:  Mr. President, if I could suggest that we have a

21    break right now.  I need just to do a little technical set-up and change

22    seats because I have presentations.

23            JUDGE AGIUS:  Certainly.  We'll have a 20-minute break starting

24    from now, thank you.

25                          --- Recess taken at 10.08 a.m.

Page 576

 1                          --- On resuming at 10.35 a.m.

 2            JUDGE AGIUS:  Yes, Mr. Bourgon.  You reckon you'll be speaking for

 3    how long?

 4            MR. BOURGON:  Thank you, Mr. President.  I anticipate that I will

 5    need the two hours, even though I will try to cut down on some parts of my

 6    presentation which have been covered by my colleague representing the

 7    Accused Beara.  I would maybe propose that we start for one hour, take a

 8    short break, and then continue for a second hour and I will finish for

 9    sure within the two-hour limit.

10            JUDGE AGIUS:  Okay.  And all know that it's not a question of

11    restricting the time limit.  We will need about ten minutes at the end of

12    this sitting to address -- to discuss something with you which is pretty

13    much urgent that relates to the planning, the scheduling of witnesses.

14    Thanks.

15            Yes, Mr. Bourgon.

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

17            Before I begin this opening statement, I would like to make two

18    apologies before this Trial Chamber.  The first one to my colleagues on

19    the Prosecution for what I said on Monday when I was introducing a motion

20    for reconsideration when I was convinced that we had not received --

21            JUDGE AGIUS:  Okay.  Go straight to your opening.

22            MR. BOURGON:  The second thing, Mr. President, is simply to say

23    that I have been informed by the people who work behind the windows that I

24    spoke very fast on Monday.  I will try to speak slower but I have a little

25    more than five minutes this time.

Page 577

 1            JUDGE AGIUS:  I think the interpreters should be thankful that

 2    you're speaking English and not French because my experience with you is

 3    that when you speak French, you speak it even faster.  Anyway, yes, thank

 4    you, Mr. Bourgon, and please do try to keep that -- the -- in the back of

 5    your mind all the time because the interpreters' job is extremely,

 6    extremely difficult.  So if we try to cooperate, cooperate with them as

 7    much as we can.  Thank you.

 8            MR. BOURGON:  Thank you, Mr. President.  Plein de la cour,

 9    Mr. President, Honourable Judges, it is both an honour and a privilege for

10    me to stand up before you this morning in this courtroom.  As you know,

11    I've been associated with this Tribunal for many, many years - not as many

12    as my colleague from the Prosecution, but quite close - and I believe in

13    the work of this Tribunal.  Of course there have been and there continues

14    to be frustrations in working before this Tribunal.  And I'm sure you will

15    agree with me, Mr. President, that it is not easy to be a Defence counsel

16    before the ICTY.  I think this is due mostly because of the nature and the

17    objective gravity of the charges and the accusations which are adjudicated

18    before the ICTY.

19            What I can say, however, without any hesitation is that I am proud

20    to be here this morning.  And the main reason why I am so proud is because

21    I believe in the work I do.  I believe in the necessity of this work, and

22    I believe that there is an absolute requirement for Defence counsel.

23    Contrary to popular belief, it is not because you are accused before the

24    ICTY that you are guilty.  It must be, and it is, possible for an accused

25    to be acquitted of charges if these charges are not proven beyond a

Page 578

 1    reasonable doubt.

 2            Today it is my duty to introduce the case for the Defence of 2nd

 3    Lieutenant Drago Nikolic, and I'm accompanied for this purpose this

 4    morning by Ms. Jelena Nikolic and by Bojan Stefanovic.  You heard me

 5    right, Mr. President, when I said 2nd Lieutenant Drago Nikolic.  I did not

 6    say general.  I did not say colonel.  And I did not say lieutenant

 7    colonel, major, or captain.  In fact, I did not even say lieutenant.  I

 8    said 2nd Lieutenant Drago Nikolic, a man accused of conspiracy to commit

 9    genocide.  Now, this is significant.

10            As you may also know, I spent many years in the military - more

11    than 20, as a matter of fact - and I have no doubt in telling you this

12    morning that there is very little a second lieutenant can do in any army

13    of the world in terms of deciding the course of action of this army.

14            My aim in presenting this opening statement this morning, of

15    course, is to provide you with an overview of what can be expected to be

16    presented and what we will hear during this trial in relation to 2nd

17    Lieutenant Nikolic.

18            To begin, there are two preliminary issues I would like to raise,

19    the first one being the Prosecutor's address before my colleague took the

20    floor from the Prosecution.  Now, Mrs. Del Ponte, what did she say?  Well,

21    she said something that cannot be denied as we begin this trial, and that

22    is that many persons were killed in the Srebrenica area in July, 1995, and

23    that what happened in that region can be described as anything -- cannot

24    be described as anything less than a tragedy.

25            Now, we don't agree that this is a genocide, and we don't agree

Page 579

 1    with the numbers of unlawfully killed persons or victims as alleged by the

 2    Prosecutor.  But a tragedy it was.  That is undisputable, and we offer our

 3    most sincere condolences and support to the families which were broken as

 4    a result.  In this, Mr. President, Honourable Judges, we fully agree with

 5    Madam Prosecutor Del Ponte.

 6            Where we also agree with her is that the crimes associated with

 7    Srebrenica must not be imputed on the Bosnian Serbs as a people, nor on

 8    the army of Republika Srpska as an organisation, nor on any other entity

 9    or group, but solely on individuals. Individual criminal responsibility is

10    the business of this Tribunal and it is also the aim of this Tribunal.

11    And at the end of the day, at the end of this trial, none of the accused

12    who stand here before you should be held accountable unless it is proven

13    beyond a reasonable doubt - and I weigh my words - that they personally

14    and individually committed the crimes they are charged with.

15            Proof beyond a reasonable doubt.  Words highly familiar, highly

16    familiar to anyone who has studied law in any way.  But also, regrettably,

17    Mr. President, words the meaning of which is often misunderstood, if not

18    forgotten, by many jurists, and that is for various reasons.

19            Now, unfortunately in this case, despite the Prosecutor's

20    statement or reassurance that no organisation is on trial here, this is

21    not what stems from the Prosecution's strategy, nor from the Prosecution's

22    opening statement.

23            I'll get back to this a little later when I address the issue of

24    joint criminal enterprise, which, strangely, yes, but understandably, was

25    not even mentioned once by my colleague from the Prosecution during his

Page 580

 1    opening statement.

 2            Allow me, Mr. President, simply to make a quick reference to the

 3    opening statement where my colleague from the Prosecution stated, "We

 4    don't believe the Serbs' story."  That was when he was discussing the

 5    alleged involvement of one of the accused in this case and there was a

 6    story about somebody grabbing a gun and getting his hands burnt.  It's not

 7    the witness that the Prosecution doesn't believe.  Unfortunately, it is

 8    the Serbs' story.  That is significant, and this is not right.

 9            The second preliminary issue I wish to address at this time is the

10    reason why we decided to address Your Honours this morning at the

11    beginning of the trial and not to wait until the end of the Prosecution's

12    case.

13            Of course this is our choice and we exercise our option to do it

14    today.  But why do we decide to do so?  We debated the issue.  It's a

15    matter of strategy, our many theories, and it is not an easy decision to

16    decide to do this opening statement today.

17            The fact that we are appearing before professional Judges is, of

18    course, a major consideration.  I'd like to share with you the two

19    governing factors that made us decide to go before you today with this

20    opening statement.

21            The first one is the unique character of this case.  Why is this

22    case so unique?  Well, it's unique because it has received world-wide

23    media attention.  Maybe using the word "this case" is not the right word

24    to use, but the events in Srebrenica have certainly received world-wide

25    media attention.  Two previous trials have been held in which a general,

Page 581

 1    commander of the Drina Corps, General Krstic, was found guilty; and a

 2    second trial was held during which the commander of the Bratunac Brigade,

 3    Colonel Blagojevic, and the chief of the engineers within the Zvornik

 4    Brigade, and that is Jokic, were both found guilty.  The Prosecutor has

 5    labelled this -- the events of Srebrenica as a largest killing operation

 6    in Europe.

 7            What we want to avoid is simply to consider that because there

 8    have been past trials, this trial will be the same and that its result

 9    will be the same.  I mentioned in the pre-trial brief the SALT principle,

10    or guilt based on Same As Last Trial.  Unless guilt has been proven in

11    this case, in this trial, then there is no guilt.  This is a different

12    trial.

13            My colleague from the Prosecution also mentioned that no one will

14    be left untouched by the proceedings here, and I agree with him.  We will

15    see horrible pictures and we will hear some pretty ugly stories.  But it

16    is our duty, everyone here in this courtroom, to get over these pictures

17    and to assess what we are here to assess, and that is the alleged

18    responsibility of the people who stand accused before you.

19            Now, there are a number of co-accused in this case and that also

20    makes this case quite unique.  Beyond any doubt the Prosecution would like

21    to sit there and to watch the co-accused in this case take on each other

22    and fight each other and he can just sit and wait for a guilty verdict.

23    It is probably the strongest aspect of his case, at least in his view, but

24    it would not be right for the Prosecution to try and prove its case in

25    this manner.  The onus and the burden is on the Prosecution to prove this

Page 582

 1    case.  Now, these are the things that make this case unique and this is

 2    the first governing factor why we decided to go today.

 3            The second one is that we want or we decided to alert the Trial

 4    Chamber from the beginning of the case on the following:  First, the other

 5    side of the story.  This will be a long trial.  Much of the evidence for

 6    the Defence will come in during the Prosecution phase.  It will come in

 7    through cross-examinations and it will come in by the Prosecution's own

 8    witnesses.  There are weaknesses in the Prosecution's case and there are

 9    potential traps to be avoided by all.  That is why we decided that it was

10    necessary for us to alert you of these issues before the beginning of the

11    trial.

12            Now, I was listening, of course, as you were to my colleagues from

13    the Prosecution on Monday and Tuesday.  And it is clear when you listen to

14    the Prosecution that it has lost its objectivity.  Every bit of evidence,

15    every document, is being seen, analysed and interpreted against the

16    accused without any consideration for the opposite view.  But this is not

17    surprising.  It's the Prosecution's duty, as Madam Del Ponte said, on

18    behalf of the international community, to prosecute persons alleged to be

19    the most responsible.  Now, even though we will again and again hear from

20    the Prosecution that they are here to establish the truth, we should not

21    be misled.  This is not so.  The Prosecution is here to prosecute and it

22    will do everything in its power to ensure that the persons who stand

23    before you today are found guilty.

24            MR. McCLOSKEY:  Your Honour, I object -- this is a direct attack

25    on the ethics of the Prosecution.  I object at this time because if this

Page 583

 1    kind of personal attacks are allowed to continue, this trial will become a

 2    travesty and a circus.  And if it's allowed now, it will continue and

 3    continue and continue, and it's just completely unsubstantiated and

 4    uncalled for.

 5            JUDGE AGIUS:  I take it that the word you're taking objection at

 6    is the misled, that you're being -- the Prosecution is being attributed

 7    misleading --

 8            MR. McCLOSKEY:  He said we are not looking for the truth, we are

 9    looking to mislead you and prosecute people with no regard for the truth.

10    That's what he said.  And that is outrageous.  If it's allowed to

11    continue, it will corrupt this system and it will become a circus.

12            JUDGE AGIUS:  Okay.  Let's have a consultation.

13                          [Trial Chamber confers]

14            JUDGE AGIUS:  Mr. Bourgon, it's the agreement here, unanimous

15    agreement, that you should approach your criticism of the Prosecution in a

16    completely different manner.  We wouldn't like you to repeat what you have

17    said, basically that the Prosecution is deliberately seeking to mislead

18    the Trial Chamber by -- and also not being interested in seeking the

19    truth.  I think that's an attack on the integrity of the Prosecution which

20    should be avoided.  And I'm sure that you are capable of avoiding and

21    addressing the -- avoiding these -- addressing these issues the same way

22    you did.

23            MR. BOURGON:  Thank you, Mr. President.  I would like simply to

24    say that I do not believe that I've said anything outrageous.  I did not

25    say that the Prosecution is trying to mislead.  I said that we should not

Page 584

 1    be misled in what the role and the duty of the Prosecution was, and I also

 2    said that the Prosecution would do everything in its power.  I did not say

 3    that the Prosecution was doing something illegal.  I did not say that the

 4    Prosecution was not having integrity.  And I don't really appreciate, as

 5    was said by my colleague, being interrupted by Mr. McCloskey during my

 6    opening statement when I did not say anything wrong.  However,

 7    Mr. President, if you believe that I did go beyond what is proper for this

 8    opening statement, I gladly accept your ruling and will refrain from any

 9    further comments in this way in the future.

10            JUDGE AGIUS:  We are sure you will, Mr. Bourgon.  Let's proceed.

11    Thank you.

12            MR. BOURGON:  Thank you, Mr. President.  I continue my opening

13    statement simply by saying that facing the Prosecution nonetheless, you

14    have the Defence.  And the aim of the Defence, of course, is to try and

15    balance things out.

16            But more importantly, Mr. President, there is you, the Trial

17    Chamber, whose duty it is to assess and weigh the evidence with a view to

18    deciding if the accused before you today, if 2nd Lieutenant Drago Nikolic

19    bears any criminal responsibility for what happened in Srebrenica area in

20    1995.

21            And that's why we decided to do our opening statement, to ensure

22    that every bit, every iota of evidence as it is admitted in this trial,

23    whether in the form of documents, witness testimony or other, is assessed

24    in full knowledge that there are two opposing theories in this case.

25            Now, I refer you to this picture on your screen.  This,

Page 585

 1    Mr. President, is the boring figure.  It's a drawing dating back to 1915.

 2    You may have recognised the young lady on this drawing.  Unless, of

 3    course, you recognise the old lady with her chin down in her collar.  This

 4    picture, which really contains two images, was made to show that the human

 5    brain can only recognise one of the two images at a time.  But just as for

 6    the Prosecution's theory, there is another story behind what the

 7    Prosecution would like you to see exclusively.

 8            Whenever the Prosecution will show you the young lady, we

 9    respectfully submit that we must also be looking for the old.  And when

10    the Prosecution will be attempting to show you the old lady, we

11    respectfully submit that we must also look for the young.  This is a

12    critical aspect of this case.

13            With this in mind, I now turn to the outline of my opening

14    statement which is displayed on the screen before you, divided into two

15    parts.  In the first part I would like to address some of the highlights

16    in the Prosecution opening statements, to discuss the accused, Drago

17    Nikolic, who he is, and to look at the case against Drago Nikolic so that

18    we are clear about what the issues are in this case.

19            In the second part, after a brief break, if you allow for such a

20    break, then we will look at the applicable law, we will look at the

21    Prosecution's theory and the case for the Defence, and finally I will

22    conclude by looking at the evidence which you will hear in this case from

23    both parties.

24            Moving straight on to the first topic, highlights of the

25    Prosecution's opening statement.  It's not my intention to spend too much

Page 586

 1    time on the Prosecution's opening statement, but there are some issues

 2    which must be mentioned before we hear the first witness.  Firstly,

 3    although my colleague spoke for some hours, I would not be surprised in

 4    this case if the Trial Chamber was somewhat worried as the Prosecution's

 5    statement appears, with all due respect and at least in our view, rather

 6    thin.  Even though I suspect that my colleague may have done this on

 7    purpose, this is nonetheless revealing at this stage.  The Prosecution

 8    does have a theory, but very little relevant evidence was referred to in

 9    support of this story.  This is very much like its pre-trial brief; the

10    telling of a tragedy, supported by exhibits which were presented in other

11    cases but without reference to exhibits in this case.

12            Not surprisingly, the interpretation offered at this stage is very

13    much one-sided, and in this I join my colleague representing the accused

14    Beara that there are indeed other reasonable and more plausible

15    interpretations to these documents as the evidence will show.

16            Strikingly, other than to say that one of its witnesses is a bald

17    faced liar and warning the Trial Chamber that witnesses will go back and

18    forth, not telling the truth, very little reference has been made to

19    witness evidence.  More importantly, the theme of the Prosecution's case

20    was described on the basis of a document as being the success of the VRS

21    in Srebrenica, Zepa, and other fronts.  While this has little to do with

22    2nd Lieutenant Nikolic as an individual, it certainly has something to do

23    with him as a member of the VRS.  Simply put, Mr. President, the evidence

24    will show that the success of the VRS from a military standpoint is not a

25    joint criminal enterprise.

Page 587

 1            Amazingly, and as mentioned earlier, these words, "joint criminal

 2    enterprise," the focus and the skeleton of the Prosecution's theory,

 3    without which this trial would be entirely different, have been omitted

 4    altogether from the opening statement.  As we will see, this is

 5    significant.

 6            As for other highlights which we believe the Trial Chamber must be

 7    made aware of at this stage, these include the following:  First, the

 8    importance of the operational logs has been underscored at length, yet the

 9    Prosecution has only translated a very limited number of pages of these

10    logs.  We wish to take this opportunity to inform the Trial Chamber that

11    we will object to any request to have selected entries of these logs

12    entered in evidence out of context.

13            The importance of the intercept material has also been highlighted

14    by the Prosecution in its opening statement.  We also take this

15    opportunity that even though these are, at least to this day -- or there

16    are, sorry, at least to this day and to your knowledge, no intercept

17    material involving 2nd Lieutenant Nikolic, this material will be contested

18    and that this will require that intercepts not be considered a la piece

19    but in the proper context.

20            In its opening the Prosecution has referred to the differences

21    between the functions of commander, deputy commander, assistant commander,

22    staff officer.  The Prosecution has also made reference to the duties and

23    responsibility of the security branch as well as to the military functions

24    of intelligence and counter-intelligence.  We take this opportunity to

25    inform the Trial Chamber that the evidence in this case will portray a

Page 588

 1    situation which is different from that described by the Prosecution.

 2            And we believe that this is important for the Trial Chamber to

 3    know this before the testimony of any witness employed in such functions

 4    testify.

 5            Lastly, under this topic, in its opening statement, the

 6    Prosecution has made reference to documents not available because they

 7    have been destroyed.  This is significant.  In fact, we agree that some

 8    documents are missing because they have been destroyed.  Furthermore, as

 9    regards 2nd Lieutenant Nikolic, we will go as far as to say that the

10    missing documents in this case will be more important than some of the

11    exhibits on the record, especially when the time comes to assess and draw

12    inferences regarding the conduct of 2nd Lieutenant Nikolic.  Simply put,

13    the evidence presented in this case will show that many of the documents

14    from the Zvornik Brigade available have been carefully selected by one of

15    the Prosecution witnesses, and that other documents which are important

16    for the understanding of this case have been disposed of we don't know

17    how.

18            I now move on to my second topic of the first part, which is the

19    identity and the character of the accused, 2nd Lieutenant Drago Nikolic.

20    Again in this regard I join my colleague representing the accused Beara in

21    stressing the fact and the importance of knowing the background of the

22    accused when considering the evidence related to his conduct.

23            So who is Drago Nikolic?  To provide but a summary at this stage,

24    it is our submission that the evidence will show the following regarding

25    Mr. Nikolic:  Born in 1957 in the village of Brana Bacici - sorry for the

Page 589

 1    pronunciation - in the municipality of Bratunac.  That means that he was

 2    37 years old at the time in July, 1995.

 3            He has two brothers -- well, actually he has three, because one

 4    died very young.  At the age of 14, Drago Nikolic, unlike his brothers,

 5    was sent to secondary military school.  That is from 1972 to 1976.  He did

 6    not go to college.  Immediately following high school, he began serving in

 7    the infantry.  That is in 1976.  Having served eight years in the

 8    infantry, he requested to attend a basic policing course at the military

 9    security training centre in Pancevo.  That's a short course of three and a

10    half months.  And that is why in 1985 he was appointed to the position of

11    assistant in the military police with the rank of senior sergeant.  As

12    senior sergeant, this is a non-officer rank.  Three years later, because

13    he was a good senior sergeant, he became a 1st class sergeant.  And in

14    1991, he served as a member of the military security branch at the

15    Sarajevo garrison.

16            Drago Nikolic is married and the father of two daughters.  In

17    1990, shortly before the war, he lost his son, who died at the age of

18    eight, which was a very difficult event.  Due to the war, Drago Nikolic

19    was sent to Zvornik where he became assistant commander for security, a

20    post normally occupied by an officer at the rank of major.  Way above his

21    level of responsibility at the time.  Because this was an officer's

22    position, he was given the rank of 2nd lieutenant, which he retained

23    throughout the war, and when he retired in 1998 he still had not been

24    promoted to a higher rank.  Today, Drago Nikolic has three granddaughters.

25            We respectfully suggest to you, Mr. President, Honourable Judges,

Page 590

 1    that this information will be highly relevant as you set out to assess

 2    whether he should bear any responsibility for the events that unfolded

 3    during the three days for which he has been charged by the Prosecutor.

 4            Of course, Mr. President, it's also important to look at the

 5    duties and responsibilities assumed by Drago Nikolic during this period.

 6    The evidence in this case will show the difference between an assistant

 7    commander and the chief of a department such as, for example, the chief of

 8    communications.  The evidence will also show the difference between the

 9    functions of intelligence and counter-intelligence.  To provide an idea,

10    the intelligence officer in any military unit is there to gather

11    information and to assess the actions of the enemy with a view to

12    interpreting this information and providing the commander with an

13    assessment of the strength, the weaknesses, and the likely actions of the

14    enemy.  Intelligence is a vital function in any army, as well as a highly

15    specialised trade.

16            As for the counter-intelligence function, as indicated by its

17    name, this refers to the measures taken to frustrate the gathering of

18    intelligence by the enemy.  It implies the search for sources used by the

19    enemy to gather information and to take measures to try and put an end to

20    such information gathering.

21            We respectfully suggest, Mr. President, that the difference

22    between intelligence and counter-intelligence is highly relevant here.

23    Why is this so?  Well, simply because the two functions can, in some

24    cases, be performed by the same persons, depending on the type and size of

25    the unit or formation.

Page 591

 1            This was the case, for example, as the evidence will show, for

 2    Momir Nikolic.  Within the Bratunac Brigade, Momir Nikolic was a security

 3    officer and he took care of intelligence and he took care of

 4    counter-intelligence.  This was not the case for Drago Nikolic.  As

 5    assistant commander for security, he performed the counter-intelligence

 6    function but not the intelligence function.  This is significant because,

 7    in this capacity, Drago Nikolic had limited information at his disposal

 8    with regard to what was going on elsewhere within the Drina Corps.  This

 9    is also significant because, as mentioned by the Prosecution in its

10    opening, counter-intelligence officers do not have subordinates or

11    personnel.

12            Expert evidence in this trial will show and explain in detail the

13    responsibility of security officers.  Expert evidence -- expert witness

14    evidence will confirm that, contrary to the Prosecution's assertions,

15    security officers do not command, direct, or manage military police

16    resources within the unit or formation.  Their role is to advise the

17    commander on the employment of the military police resources, but the

18    commander, or in his absence the deputy commander, as was often the case

19    in Zvornik Brigade, retains full authority to employ the military police

20    resources as he sees fit.  In this regard, orders can be issued directly

21    to the commander of the military police company without informing the

22    assistant commander for security.

23            Simply put, Drago Nikolic had no authority over the military

24    police company and could not issue orders to a man called Jasikovac, the

25    commander of the military police company.  This, we take the view, is

Page 592

 1    highly relevant here and will be shown by the evidence.

 2            In its opening statement, or maybe it is in the pre-trial brief,

 3    the Prosecution stated that Drago Nikolic was responsible for all

 4    prisoners within the zone of responsibility of Zvornik Brigade.  At this

 5    time, suffice it to say that we will challenge this assertion and expert

 6    witness evidence will demonstrate that the concept of zone of

 7    responsibility is not a term which finds application in this regard.

 8    Expert witness testimony will also establish clearly for which prisoners

 9    or persons detained the chief of security of the Zvornik Brigade could be

10    responsible.

11            I now move on to part 3 -- or, sorry, topic 3 of part 1, which is

12    the Prosecution's case against Drago Nikolic.  Now, no matter how we look

13    at the latest amended indictment, it appears evident that the

14    Prosecution's case against Drago Nikolic can be found in paragraphs 42 and

15    80 of the indictment.  To save some time I will not quote these paragraphs

16    but I will simply indicate to you that they are highly similar.  Paragraph

17    42 would be the actions of Drago Nikolic with respect to the first joint

18    criminal enterprise, while paragraph 80 would be the actions of Drago

19    Nikolic much the same for the second joint criminal enterprise.

20            It is on this basis - two paragraphs - that the Prosecution is

21    asking you, or will be asking you, after the presentation of its case, to

22    convict Drago Nikolic for all charges in the indictment because he was

23    allegedly a member of a joint criminal enterprise to transfer the

24    population of both Srebrenica and Zepa and a second joint criminal

25    enterprise to kill a number of men and boys from Srebrenica.

Page 593

 1            As we will explain a little later, and as the evidence will

 2    demonstrate in this case, even if the evidence established paragraphs 42

 3    and 80 beyond a reasonable doubt, which we respectfully submit will not be

 4    the case, Drago Nikolic could not be found to be a member of the two

 5    alleged joint criminal enterprises.  The Prosecution's shotgun approach

 6    must also be addressed in this regard.  As mentioned in our pre-trial

 7    brief, it is simply not right for the Prosecution to allege all possible

 8    forms of liability pursuant to the statute without stating clearly what

 9    its case is.

10            As we can see from a number of indictments before this Tribunal,

11    Drago Nikolic's case is not an isolated event in this regard.  This is

12    like if the Prosecution took a number of pieces of one euro, threw

13    everything in the air, and then tried to catch them.  Hoping, of course,

14    that something will fall in the end.  We respectfully ask you,

15    Mr. President, Honourable Judges, to be critical in your analysis of the

16    evidence as it will be produced by both parties, with a view to seeing

17    through the overcharging policy of the Prosecutor in respect of Drago

18    Nikolic.

19            I've been speaking for about 45 minutes and I'm about to go into

20    part 2.  Maybe --

21            JUDGE AGIUS:  It's up to you, Mr. Bourgon, but if you prefer a

22    break now, we'll grant you a break now.  If you can move to --

23            MR. BOURGON:  I can begin on the second part, and once we hit one

24    hour, then I suggest we stop.

25            JUDGE AGIUS:  You started your intervention at 10.35, so regulate

Page 594

 1    accordingly.

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

 3            So moving on to part 2, the first topic is the applicable law in

 4    this case.  The Prosecution has not addressed the applicable law in its

 5    opening statement but it has done so in its pre-trial brief.  Without

 6    spending too much time on this topic, there are indeed legal issues which

 7    we believe must be brought to the attention of the Trial Chamber at this

 8    stage.

 9            The Trial Chamber will not be surprised that the first of these

10    issues is the joint criminal enterprise form of liability as alleged and

11    pleaded by the Prosecution.  In its opening statement, Prosecution said:

12    "We are all familiar with the crime of drugs and the crime of bank

13    robbery."  Even though this was not mentioned, it is our understanding

14    that the joint criminal enterprise is what my colleague had in mind when

15    saying this.  And I must agree with him, which, as the Trial Chamber may

16    have appreciated, is not something which happens to me too often, that

17    drugs and bank robbery are indeed crimes well suited to the application of

18    the joint criminal enterprise doctrine.

19            This is the classical example:  Three persons set out to rob a

20    bank.  They each have a loaded gun.  They each perform a different task or

21    function which is part of the bank robbery.  One of the three encounters a

22    security guard, even if that was unexpected, and he shoots him.  As a

23    result, the three are convicted of bank robbery pursuant to JCE category

24    1, and the three are also convicted of murder under joint criminal

25    enterprise category 3, because even though murder was not part of the

Page 595

 1    original plan, it was a natural and foreseeable consequence of the

 2    implementation of the plan.

 3            Now, of course, there can be many variables added to this example,

 4    such as, upon setting out to implement the joint criminal enterprise of

 5    robbing a bank, the three had an unloaded gun, and this was confirmed by

 6    the three of them before they set out, and it's only after they left each

 7    other that one of the three, without telling the others, loaded his gun.

 8    In this example, it could be argued that the murder was not a natural and

 9    foreseeable consequence of the joint criminal enterprise.

10            I take the time to go -- to mention this, Mr. President, because

11    the difficulty is trying to apply the same doctrine to a much more complex

12    situation and to make everyone or all members of the VRS guilty, whoever

13    they are and whatever they do, if they happen to be present in the

14    Srebrenica area or in the Zvornik area in July, 1995.

15            When the joint criminal enterprise or common purpose doctrine was

16    first used before the International Tribunal, that was in the Tadic case,

17    even though this was more complex than a bank robbery, it could be

18    understood why Tadic was found guilty of murder committed during an

19    operation conducted in a village despite the fact that there was no

20    evidence as to who had committed these murders.  The joint criminal

21    enterprise doctrine was born.  The problem is that ever since the

22    Prosecution has been pushing the envelope again and again to expand the

23    joint criminal enterprise liability concept to ensure that all members of

24    any group are found guilty.  In this case, it appears on the Prosecution's

25    pleading that if you are a member of the Main Staff, you are automatically

Page 596

 1    guilty; or with respect to Drago Nikolic, if you are a member of the

 2    security branch or of the Zvornik Brigade, you are also guilty.  In fact,

 3    Mr. President, it appears as though we are getting into strict liability,

 4    and this simply cannot be.  Not surprisingly, in Prosecution circles, the

 5    joint criminal enterprise liability concept is referred to as the

 6    just-convict-everyone liability concept.  This is why as we begin this

 7    trial, it is important to establish clearly what elements have to be

 8    established beyond a reasonable doubt for Drago Nikolic to be found guilty

 9    pursuant to a joint criminal enterprise mode of liability.

10            I suggest, Mr. President, that we stop here and then I will

11    continue to finish in less than one hour in the second part.

12            JUDGE AGIUS:  Certainly, Mr. Bourgon.  We'll have a 20-minute

13    break starting from now.

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

15                          --- Recess taken at 11.24 a.m.

16                          --- On resuming at 11.50 a.m.

17            JUDGE AGIUS:  Yes, Mr. Bourgon.  You have the floor.

18            MR. BOURGON:  Thank you, Mr. President, Honourable Judges.  I will

19    continue where I left off and that was in the overview of the joint

20    criminal enterprise form of liability.

21            Now, in its decision on the form of the indictment issued on, I

22    think it was 12 or 13 July, the Trial Chamber partly addressed this issue

23    and confirmed that pursuant to this mode of liability, it is not

24    compulsory for the perpetrator to have been involved in the actus reus of

25    the crime.  We agree.  However, there are other elements which must be

Page 597

 1    established not the least being the clear identification of the joint

 2    criminal enterprise, or common purpose, the participation of the accused

 3    in this common purpose, and more importantly, the mens rea, and that it

 4    must be shown that the accused himself intended the crime at issue to be

 5    committed.

 6            With this in mind, we respectfully suggest that the evidence will

 7    demonstrate that the joint criminal enterprise to forcibly transfer all

 8    Muslims from Srebrenica and Zepa, as alleged and pleaded by the

 9    Prosecution, does not fulfil these requirements.  Moreover, in the event

10    that a similar joint criminal enterprise was established, or was focused

11    on a right common purpose, the evidence will show that Drago Nikolic was

12    never a party to this joint criminal enterprise and certainly never

13    intended to further the alleged common purpose of forcibly transferring

14    the Muslim population from Srebrenica and Zepa.

15            The Trial Chamber has ruled -- sorry.  Furthermore, Mr. President,

16    we need to address the category 3 of joint criminal enterprise, and we

17    respectfully submit that the evidence offered in this trial by the

18    Prosecution and the Defence alike will demonstrate that the opportunistic

19    killings as pleaded by the Prosecution were not the natural and

20    foreseeable consequences of carrying out both common purposes as alleged.

21            Now, this is linked, as you probably recall, Mr. President, to a

22    previous decision of the Trial Chamber for which certification was not

23    granted, and the issue at stake was whether a joint criminal enterprise

24    requires the physical perpetrator has an agreement with the accused who is

25    charged as a participant and whether the physical perpetrator has to be a

Page 598

 1    participant in the joint criminal enterprise himself.  The Trial Chamber

 2    has ruled that the latter is an issue that will have to be addressed at

 3    trial.

 4            While we are confident that this issue will soon be determined in

 5    other proceedings before the International Tribunal, we consider it

 6    important to respectfully state, as we begin this trial, that in our view

 7    there must be an agreement and that the physical perpetrator must be a

 8    participant himself because this is the only way to avoid strict

 9    liability.

10            The Defence of 2nd Lieutenant Nikolic does not dispute -- that's

11    moving on to another topic, which is genocide -- the essential elements of

12    genocide as they have been developed by the Appeals Chamber of this

13    Tribunal.  However, we do dispute the manner in which these elements have

14    to be applied to the facts not only of this case but of every case with a

15    view to determining whether or not a genocide was committed.

16            We do not believe that the Srebrenica events amount to a genocide

17    and we will be calling on expert witness evidence with the aim of

18    providing the Trial Chamber with the necessary frame of analysis to assist

19    it in determining whether a genocide has taken place or not.

20            Of course, we can't speak about genocide without looking at the

21    charge that was laid for conspiracy to commit genocide against 2nd

22    Lieutenant Drago Nikolic.  As was mentioned before, this is not an

23    accusation that is a regular before the International Tribunal, and in

24    this sense we are somewhat entering new territory.  Conspiracy to commit

25    genocide has been -- is a charge which has been laid and has been

Page 599

 1    addressed before the International Criminal Tribunal for Rwanda, so we

 2    have some kind of reference, although the situation that took place in

 3    Rwanda in 1994 is far different from the Srebrenica events.

 4            Regarding Drago Nikolic, we are of the view that whether or not a

 5    conspiracy to commit genocide is established by the evidence, the evidence

 6    will show that he could not, did not, and certainly did not have the

 7    necessary mens rea to have anything to do with such a conspiracy.

 8            At this stage there is only one last legal issue I wish to address

 9    before moving on to my next topic, and that is the apparent confusion

10    which the Prosecution is making between what is known as jus ad bellum and

11    jus in bello.  It can be anticipated that during this trial, again and

12    again, the Prosecution will be driving home the issue of joint criminal

13    enterprise and the allegation that all members of the VRS were part of it.

14    We are of the view, however, Mr. President, that a distinction must be

15    made between the strategic and military objectives of the VRS, which may

16    potentially be seen as violations of the right to use force in Bosnia in

17    1995, but that such violations of public international law, or jus in

18    bello -- sorry, are not violations of humanitarian law or jus in bello and

19    cannot be the basis of a joint criminal enterprise.  To us, this

20    distinction -- will be necessary to maintain this distinction throughout

21    this trial.

22            I now move on to the second topic of my second part, and that is

23    the Prosecution's theory of the case regarding Drago Nikolic.  As

24    mentioned, on the basis of the allegations in paragraphs 42 and 80 of the

25    indictment, the Prosecution has charged Drago Nikolic and will ask you,

Page 600

 1    after introducing its evidence, to find him guilty of the following:  As a

 2    participant in the joint criminal enterprise to forcibly transfer the

 3    population from Srebrenica and Zepa; secondly, to find him guilty of all

 4    the crimes beyond this joint criminal enterprise alleged as being the

 5    natural and foreseeable consequences of this common purpose; thirdly, as a

 6    participant in the joint criminal enterprise to kill thousands of men and

 7    boys from Srebrenica; and finally, of all the crimes beyond this joint

 8    criminal enterprise which were the natural or alleged to be the natural

 9    and foreseeable consequences of accomplishing this common purpose.

10            With all due respect for my colleagues from the Prosecution, it is

11    our submission today, as the evidence will show, that this is simply a

12    leap too far.  More importantly, that such a conclusion does not match,

13    nor fit, the Prosecution's theory of the case even before we set out to

14    hear the first witness.

15            It must be recalled in this regard some of the assertions made by

16    the Prosecution in its opening statement.  First, the fact that the

17    strategic objective of the VRS were developed and remained unchanged since

18    1992.  Secondly, that the plan to kill the men from Potocari would have

19    been adopted by Mladic on the night of the 11th July.  Thirdly, that the

20    plan to kill all of the other prisoners would have been adopted on 12

21    July, and that the executions would have begun on 13 July in the morning.

22    Number 5:  That the initial decision to perform some of these executions

23    in the Zvornik area would have been made in the afternoon of 13 July.  And

24    6, that the information related to these killings would have reached

25    Zvornik not before the night of 13 July.

Page 601

 1            These are assertions that we will say will not be demonstrated by

 2    the evidence.  But for the sake of argument, let's say they are.  It is

 3    our submission today that these assertions, as a minimum, defeat the

 4    Prosecution's case that Drago Nikolic was a participant in the first joint

 5    criminal enterprise.  It is also our submission that whoever committed

 6    these killings in the Zvornik area, the evidence will show that this was

 7    not a Zvornik Brigade-led operation, even though the evidence will show

 8    that some resources from that brigade were indeed used.

 9            More importantly, regarding Drago Nikolic personally, the evidence

10    will show that he was not a participant in these events.  More

11    specifically, it appears that the Prosecution's case, when we look at what

12    the case is, what we've heard from my colleague on Monday and Tuesday, to

13    find him guilty of all crimes in the indictment, appears to be as follows:

14    A telephone conversation with the deputy commander of Zvornik Brigade, of

15    which there is no intercept evidence; a decision by the deputy commander

16    to relieve him from duty at the forward command post on the night of 13

17    July so that he could participate.  There is only one witness who will say

18    that, and it's the person who says he was relieved from duty.  The fact

19    that he was seen in Orahovac by some witnesses, a vehicle log which shows

20    that a vehicle from the security travelled to some of the execution sites.

21    But the Prosecution has said they cannot and will not be able to show that

22    Drago Nikolic was ever in that vehicle.  Finally, an entry in the Zvornik

23    Brigade log where the name of Drago Nikolic appears close to that of the

24    accused Beara.

25            Of course, this is not an exhaustive list of the evidence which

Page 602

 1    will be presented in this trial against Drago Nikolic, but very close to

 2    it, and it is on this basis that they will ask you to find Drago Nikolic

 3    guilty of all crimes in the indictment.  There is, as I've mentioned at

 4    the beginning, another side to this story and this will be revealed by the

 5    evidence which will leave you no choice but to conclude that Drago Nikolic

 6    is not the man the Prosecution would like you to believe he is.

 7            The case for the Defence will show that there was no telephone

 8    conversation between the deputy commander of Zvornik Brigade and Drago

 9    Nikolic, and the evidence will show that Drago Nikolic was not relieved

10    from his forward command post duty on the night of 13 July to participate

11    in these events.  The evidence will also demonstrate that Drago Nikolic

12    was not informed of the infamous plan, if I may refer to the plan this

13    way, on the night of 13 July by Momir Nikolic from Bratunac Brigade.  The

14    case for the Defence will also provide information on the whereabouts of

15    Drago Nikolic during the three days for which he is now charged with

16    genocide.  Was he in the Zvornik Brigade area?  Yes, he was, and the

17    evidence will show that.  Will you hear some witnesses saying that he was

18    in Zvornik Brigade area?  Yes, you will hear that.  We will have to assess

19    where he was at what time.

20            Having said this, I now turn to the last topic of the second part

21    which is exactly looking at the Prosecution evidence in this case.

22    Looking at documentary evidence, I have already addressed this issue

23    earlier, and I've informed the Trial Chamber that we will be contesting

24    the reliability of the intercept material as well as the danger of drawing

25    inferences from such material.

Page 603

 1            To provide but one example:  While the Trial Chamber in the Krstic

 2    case, on the basis of one intercept, concluded that Krstic was involved in

 3    the killing operation, the Appeals Chamber reversed this finding on the

 4    basis that the intercept used could have another meaning and that this was

 5    not enough.  This applies to the interpretation of many documents, as

 6    suggested by the Prosecution.

 7            We respectfully ask you, Mr. President, Honourable Judges, to keep

 8    in mind the other reasonable and often more plausible interpretations

 9    possible.  I also take this opportunity to reiterate once again the

10    importance of the missing documents, as well as why these documents are

11    missing, which brings me to the witness issue, the witness who will be

12    called by the Prosecution in this case.

13            Of course, there are many types of witnesses that you will hear.

14    You will hear victims.  And it is our undertaking before you today that we

15    will show the greatest of respect for witnesses who are victims of the

16    events in Srebrenica.  We will try to show compassion as best as we can

17    and we will try to limit our cross-examination of these witnesses.

18    Nonetheless, the tendency of a victim to inflate numbers, something quite

19    normal, and to say more than what really happened is something we have to

20    be careful with.

21            You will hear expert witnesses from both the Prosecution and the

22    Defence.  That's not a problem.  Expert witnesses may be required to

23    assist the Trial Chamber in performing its adjudicating function, as long

24    as those expert witnesses stay within the confines of their area of

25    expertise, and the Defence will see to it that witnesses or expert

Page 604

 1    witnesses from the Prosecution remain within the confines of their

 2    expertise.

 3            We will hear investigators, members and staff members of the

 4    Prosecution who will testify.  We think that this is somewhat of a

 5    contentious issue.  Then again, if these witnesses remain within the

 6    confines of providing evidence, there will not be a problem.  If they try

 7    to step outside of the boundaries of evidence, then for sure the Defence

 8    will be there to object.

 9            There are, of course, more important categories of witnesses.  And

10    these are, first of all, the witnesses who in some way were involved and

11    the insiders.  Let's look at the witnesses who were involved.  Prosecution

12    has said my own witnesses will be -- will come and go.  One of them is a

13    bald faced liar.  The Prosecution says the bald face liar witness can

14    bring good evidence that we should keep and we should reject what -- the

15    evidence that does not fit the Prosecution's case.  Well, we disagree.

16    The Prosecutor will have to live with the evidence as it comes in.

17            Many people in the Zvornik area were close to what happened.  You

18    will hear this from witnesses.  Some people may actually have seen what

19    happened.  Some people, then again, were personally involved.  They are

20    not accused but they were personally involved in these events.  To provide

21    but one example, some people, some witnesses will come and say, "I buried

22    those people."  It's tough for these witnesses to come and say that.  But

23    all of these witnesses, Mr. President, Honourable Judges, have something

24    in common:  They are scared beyond any imaginable way because, whether or

25    not they were involved, they are scared that they may be the next people

Page 605

 1    accused to appear in Sarajevo.  There is a cloud which hangs over the

 2    Zvornik area today.  Something which makes it that witnesses who were in

 3    the Zvornik area in 1995 are people who would like to forget what they

 4    saw, if they were eye-witnesses, what they learned from others, if it's

 5    just hearsay, or what they did if they were involved.  All of these people

 6    are likely to have personal reasons for saying what they will say, whether

 7    it is exonerating evidence or inculpatory evidence.  It will be a most

 8    difficult task for the Trial Chamber to try to make the choice or to weigh

 9    the evidence that will be provided by these witnesses.

10            It may be that the Prosecution will have to go through the hostile

11    witness procedure with some of these witnesses.  If it does, there are

12    consequences to using such a procedure.  The potential use of evidence

13    provided by such witnesses cannot have the same weight and cannot be

14    evaluated in the same way as a witness who testifies without going through

15    this procedure.

16            What I'd like to mention at this time is why is it that the

17    Prosecution knows that some of these witnesses might come and go, to use

18    the exact words of my colleagues?  I'd like to show you a couple of

19    examples simply of how these people are being interviewed when they meet

20    the Prosecution.  Let me go through one example that you have on your

21    screen.  That's Witness 142, and this is what we see:  "I'm going to ask

22    you questions about the killing and about organisation for killings of

23    many thousands of men but I want you to understand some things.  We have

24    part of witnesses to the killing.  We have survivors who were part of the

25    execution, who were shot at.  We have aerial images.  We have seized

Page 606

 1    records from the Zvornik Brigade.  We've had many people from those

 2    brigades and Drina Corps interviewed.  We have your MP logs.  What I want

 3    you to understand is that it's very important for you to tell the truth.

 4    If you try and hide what happened or hide your part in what happened, or

 5    your knowledge of what happened, I can prove that you're lying, and I want

 6    you to understand this, that this is your chance to tell me the truth

 7    right here and now."

 8            I let the Trial Chamber read the rest of this interview.  And, of

 9    course, I'd like -- where he concludes:  "I'd like to give you the

10    opportunity of telling me what happened, remembering that I have all those

11    things, all that knowledge.  We even have your vehicle logs.  Now, can you

12    tell me what you know to have happened."

13            Let's try to imagine for a minute how a witness, whether he was

14    involved or not, whether he saw something or not, whether he learned

15    something by a member of his family or a neighbour, how he feels after an

16    interview like this and how he will feel when he will appear before Your

17    Honours to testify.

18            Let's look at another example.  This is Witness 125.  The witness

19    says, and I go to the part in bold:  "Because at my first interview it was

20    my first time, I was not aware fully of what this regards, and also there

21    have been some pressures on my during my first interview so many things

22    have been left unsaid or incomplete.  Quite a lot of things will repeat

23    themselves."  And then it goes on.

24            The investigator says:  "I'll explain my position now.  When you

25    were interviewed, it was put to you that you had some knowledge of the

Page 607

 1    execution.  Not that you were directly responsible, but that you had

 2    knowledge of them, that some of your assets assisted in taking the men to

 3    the dump.  We have vehicle records that show vehicles, effectively going

 4    from where the prisoners were held to where the prisoners were executed.

 5    And that's not to say that you executed those men.  That's to say that

 6    your troops participated in that and I believe and we believe you had

 7    knowledge of that."

 8            Again, how does a witness behave, what does a witness feel when he

 9    goes to an interview like that?  In some cases, witnesses were pressured

10    as suspects, in some cases they were not.  But we will see how the

11    Prosecution tried to obtain the evidence.  And this, Mr. President, we

12    tell you, will be an important factor in assessing whether these people,

13    these witnesses, how they will react before the Trial Chamber.

14            JUDGE AGIUS:  Mr. Bourgon, could you please confirm whether when

15    you said Witness number 125 or previously Witness number 140, whether

16    these are witnesses or prospective witnesses in this trial or whether they

17    were witnesses in some other trial.

18            MR. BOURGON:  Mr. President, these are witnesses that are

19    scheduled on the Prosecution's list of expected witnesses.

20            JUDGE AGIUS:  Okay.  For this trial.  Okay.  Thank you.

21            MR. BOURGON:  And I had two more examples I wanted to show you.

22    Maybe we can quickly go through the next one just to show -- not this one,

23    another one.  Next one.  Okay.  This one.  If I can go just before we see

24    where we have number 132, and where the investigator says:  "But if you're

25    not telling me the truth and if you're not telling me exactly where you

Page 608

 1    went and what you saw, it's difficult for me to believe that you weren't

 2    further involved, that you weren't deeper involved.  I'll ask you again:

 3    Did you go where the bodies were?  I'm only asking you if you were there

 4    and saw them.  Let's be truthful and honest."

 5            I'll leave it at that and move on to my next issue, which is that

 6    of, as we hear these witnesses, there are things that we will have to be

 7    very careful, potential traps to be avoided.  And as the Defence for Drago

 8    Nikolic, we will try to do our best to ensure that we avoid these traps.

 9    And those include opinion evidence, hearsay, and witnesses being led.

10            All these things in some form are admissible before the

11    International Tribunal.  It's a Tribunal that is different from many

12    others in this respect.  However, whether it is for hearsay, whether it is

13    for opinion evidence - I'm talking opinion of an ordinary witness and not

14    of an expert witness - or whether it is a procedure in leading a witness,

15    there are procedures established in the case law of this Tribunal, and the

16    Defence will do its best to assist the Trial Chamber in ensuring that

17    these procedures are respected.

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24            I personally, where I come from, I'm a fan of guilty pleas.  They

25    are a good way to administer justice in many respects.  However, in this

Page 609

 1    case, where we have a multiple-accused case, I'm really not convinced any

 2    more that accepting guilty pleas in such trials is a very good way to

 3    proceed.  Simply because - and we will demonstrate this when these

 4    witnesses appear before the Trial Chamber - we will demonstrate that they

 5    had an interest in pointing fingers at others who were not there, and we

 6    will show the inconsistencies, the many inconsistencies and the stories

 7    that do not hold the road in their testimony.

 8            These witnesses have used the guilty plea to their advantage and

 9    they have provided information which the Prosecution was looking for,

10    which the Prosecution needed, and which the Prosecution indeed obtained in

11    exchange for leniency towards sentencing.  Evidence in this case will

12    reveal that these witnesses did not tell the truth, and that such evidence

13    cannot be used as evidence -- as reliable evidence in this case.

14            Now, as I end this opening statement, I think you will agree with

15    me, Mr. President, that I -- there is no surprise.  There is no tactics.

16    The Prosecution knows exactly what our case will be:  What we say did not

17    take place and what we say took place, and what we will be contesting.

18    There is no surprise, no tactic, no strategy.  Straghtforward, we will try

19    to look at the evidence as it comes in, and we are confident that at the

20    end, after, the Trial Chamber will be able to conclude that Drago Nikolic

21    is not the man that the Prosecution would like you to believe he is.

22            In conclusion, Mr. President, Honourable Judges, first I'd like to

23    thank you very much for my patience.  If I did go through some of the law,

24    it certainly was not to try to tell you what the law is but simply to

25    alert the Trial Chamber to some of the areas of the law that will be

Page 610

 1    critical in this case.

 2            You've seen again this young lady, or maybe the old lady.  I'm not

 3    so sure myself when I look at this image.  By the time this trial ends, I

 4    believe, Mr. President, that you will see one of the two pictures, and

 5    that this picture will be a not guilty verdict concerning Drago Nikolic.

 6    And if today, if I have accomplished one thing, of alerting you to look at

 7    the evidence from a critical standpoint as it comes in, and not to wait

 8    for the Defence case, then I will have accomplished what I set out to do

 9    in doing an opening statement at this stage.

10            Mr. President, Honourable Judges, thank you very much.

11            JUDGE AGIUS:  I thank you, Mr. Bourgon.

12            Thank you.

13            Mr. Gvero, you asked the Trial Chamber to give you the opportunity

14    to address it.  Please go ahead.

15            THE ACCUSED GVERO: [Interpretation] Thank you, Your Honour.

16            Your Honours, distinguished ladies and gentlemen, I feel the need

17    as a human being to make several observations on what are, in my view,

18    blatantly unfounded charges.  I wish to reassure those who know me well

19    that they were right to have had and still have faith in me.  I wish to

20    tell my students, cadets, and others attending the military schools to

21    whom I transferred knowledge from the humanities that I did that out of

22    profound humane convictions without even a trace of hypocrisy or double

23    standards.  I believed then and I firmly believe now that our system of

24    values and knowledge was on the highest civilisational level.

25            How one treats them is quite a different matter.  I hereby wish to

Page 611

 1    let the Trial Chamber and the public know that I have been and am an

 2    honourable man who expresses goodwill towards all ordinary people

 3    unburdened by religious and nationalist distinctions, that I have been and

 4    am a person who, by his education, occupation, values, convictions, and

 5    mind-set finds it unthinkable even to contemplate a crime let alone commit

 6    one or participate in one, especially a war crime.  No, and no again.

 7            Finally, another purpose of this statement is to address all those

 8    persons I spoke to through the mass media and who still remember me,

 9    judging by the numerous messages of support of late, and tell them that I

10    told the truth in my public statements and that I fought for the truth

11    insofar as the truth was available to me, even though these were difficult

12    times of war when the truth is normally the first casualty and when, under

13    the standards, positive biases are allowed and understandable.

14            Your Honours, when in February, 2005, I learned of the indictment

15    against me, I truly believed it to be an administrative error.  When I

16    realised that this was not the case, I immediately decided to appear

17    before this Tribunal on a voluntary basis and I wished for the trial to

18    commence as soon as possible.  I didn't even make any particular inquiries

19    as to what the charges were for because I knew that nothing they contained

20    could be true, that I didn't do anything unlawful, dishonourable and

21    inhuman.  I was only apprehensive of false testimonies and dishonourable

22    manipulations which were mentioned here today.

23            A popular saying in my people says, two persons without a soul may

24    cost a third person his life.  I have been and am still reassuring myself

25    that this Tribunal will not allow this.

Page 612

 1            On my prompt arrival in The Hague, I had time to read various

 2    material and to bring back memories about the events that transpired.  The

 3    material led me to conclude with certitude that I was accused of a crime

 4    that I did not even contemplate let alone commit, and which took place in

 5    a place I had never been to.  I stand accused of being part of a criminal

 6    enterprise with persons I had never known or who I never set eyes on in

 7    passing and only some of whom I used to meet in the course of professional

 8    duty.  I stand accused of having been a member of a criminal enterprise

 9    together with those persons who I had been permanently in conflict with

10    ever since the start of the unfortunate war in Bosnia-Herzegovina.  I

11    believed that the trial would not take long and that my innocence would be

12    proven quickly and easily.  That was why I was extremely disappointed when

13    I saw the joinder of the indictments, because this meant that the trial

14    would take longer and that the decision about my innocence would be

15    deferred.

16            As for the indictment which has an evident shortage of arguments

17    and excess of will to accuse me, even on a stretched and uncertain basis,

18    I want to share only some thoughts of mine.  I didn't think I would ever

19    speak about this in public and I feel like I'm in a sort of a confession

20    booth.  All that I will discuss here can be found in the material which

21    this Tribunal possesses about myself, others, and the events.  I'm nearly

22    70 years old.  When I was 13 I left my home town of Mrkonjic Grad, never

23    to live there permanently again.  And never to live, in fact, in Bosnia

24    and Herzegovina itself except for occasional visits.

25            First, I came to Banja Luka without any means whatsoever.  I spent

Page 613

 1    the first night in a park in front of the monument to the Krajina tribune

 2    Petar Kocic.  For about 100 times that night, I read the following

 3    inscription on the monument:  "Whoever sincerely and passionately

 4    cherishes the truth, freedom and homeland is free and fearless like God

 5    and despised and hungry like a dog."

 6            At that point I swore that I would cherish the truth, freedom and

 7    homeland above all else all my life.  This became my firm life motto which

 8    I believe I have adhered to all my life.

 9            I also wish to state the following in reference to the

10    indictment:   Apart from the initial officers duty of a platoon commander,

11    I had never held a commanding duty, nor did I wish to do.  After the

12    military academy, I also graduated from the political sciences on the

13    integrational processes in the modern world.  Therefore my preoccupation

14    focus of interest was the people values and not separation or any such

15    processes.  After the studies, I taught humanities in military schools and

16    was a principal of a military high school which prepared young people of

17    all ethnicities to become officers.  I was assistant for moral guidance at

18    the corps in Titograd and in the centre for graduate military schools, and

19    I spent several years carrying out moral guidance duties at the SSNO.

20            The Brotherhood Unity Military High School in Belgrade was

21    officially the best in Yugoslavia, and for that I received an award.

22    Brotherhood and unity is the Yugoslav term for some sort of a melting pot,

23    a concept of bringing together nations and ethnicities.  I was awarded a

24    medal bearing the same name for my achievements in that process.

25            JUDGE AGIUS:  Slow down a little bit because you're rendering the

Page 614

 1    interpreters' life difficult.  Thank you.

 2            THE ACCUSED GVERO: [Interpretation] Your Honours, Honourable

 3    Judges, when I came to the territory of the former Republic of Bosnia and

 4    Herzegovina, armed confrontations were already quite advanced there.  I

 5    believed that I could give even a small contribution aimed at speedy

 6    termination of these conflicts, at least before the fascist spectre and

 7    ideas from the recent past were resurrected again.  And previously they

 8    had produced a lot of casualties.

 9            As a result of that, in all negotiations with the opposing side, I

10    readily and convincingly proposed cessation of armed confrontation and

11    conclusion of peace, honourable peace.  I knew very well that it was the

12    military who created conditions and the politics who decided on war and

13    peace.  I have stubbornly been reiterating my position that the Serbian

14    nation and army in Bosnia-Herzegovina was not -- were not fighting against

15    any nation but, rather, against ideologies and their blinded followers

16    against -- who were against the Serbian people.  In your material you have

17    plenty of documents supporting this position of mine.  Throughout the war,

18    in the most difficult situations, I did my utmost to act in accordance

19    with my life motto and to preserve, to the extent possible, personal

20    integrity and my own view of events.  And I think that I was successful in

21    that.

22            However, many persons of power and influence attempted to exclude

23    me from the public life and even compromised me publicly.  In your

24    material, gentlemen, I learned that an attempt on my life was being

25    prepared by those who I now stand accused together with for being in a

Page 615

 1    joint criminal enterprise.  It is up to you to decide.  I wish to tell you

 2    that for the duration of four or five years of war, I never once received

 3    a special or fast-track promotion.  I did not receive an apartment or any

 4    other material gain.  I came out of the war poorer than I was when the war

 5    started.  Your Honours, my entire activity in the war was directed at our

 6    army and its people.  This was my essential involvement.  All my other

 7    activities were subordinated to this main activity, including information,

 8    legal affairs, religious affairs, contacts with civilians and

 9    international representatives and everybody else.

10            Morale is an almost immeasurable category.  There are no

11    instruments capable of measuring it, and it is quite variable, especially

12   in combat.  The morale of a soldier is affected by how he's dressed to what

13    type of food he receives, what is his security status.  The morale of a

14    soldier is affected by what care his family receives, what is the

15    possibility for educating his children, and what is the medical care they

16    receive.  Also, lack of weapons and ammunition and success of military and

17    political negotiations, and thousand other things affect morale.  People

18    are often quick to judge morale and there are very few of those, even

19    among professionals, who know a lot about it.

20            Your Honours, I wish to clearly state that in this indictment

21    against me, the only true facts are my first name, last name, date and

22    place of birth, my rank and position.

23            It is not true that I was a member any joint criminal enterprise

24    and that I conspired with anyone to commit a crime.  It is not true that I

25    instigated anyone to do that or provided direct or indirect assistance.

Page 616

 1    It is not true that I was a perpetrator or co-perpetrator in the

 2    commission of a crime and that I was in any way involved in the commission

 3    of war crimes.

 4            I feel sincere pain for any futile loss of life or every innocent

 5    victim, regardless of religious, racial, or national affiliation of

 6    victims.  I think it is impermissible to speak of victims of one side

 7    while keeping silent about the others who fell in the same area at the

 8    same time.  I think that in the long term, this will not contribute to

 9    harmony and cohabitation.  But we need to seek the real culprits, which

10    are those who wanted this war, planned it, and who persistently rejected

11    cease-fires and peace negotiations.  I did not commit a single crime in

12    war.  I literally didn't fire a single bullet or any other type of round.

13            I followed the opening statement of the Prosecutor attentively and

14    I was able to observe that, in relation to the majority of shown documents

15    which are attributed to me, they said that they were truthful, authentic.

16    As a response to that, I have to wonder:  Is it a crime to tell the truth?

17    Is it a crime to treat representatives of peacekeeping forces frankly and

18    friendly, and is it a crime to try to protect them?  By doing so, I

19    incurred the wrath of some of the powerful individuals from the leadership

20    of Republika Srpska.  Based on the documents shown to you by the

21    Prosecutor yesterday or the day before yesterday, it emerges clearly that

22    I was prohibited from engaging in that activity and the ultimate result

23    was an absolute ban on any public appearances of mine which ensued later

24    and which are supported by evidence in the possession of the Prosecution.

25            Your Honours, when I was shown the documents on criteria for war

Page 617

 1    crimes, they said that this army had very good lawyers.  It wasn't the

 2    lawyers who prepared that.  It was myself.  There were very clear rules

 3    and we know later on how they were applied.  It was beyond my control.

 4            Your Honours, I'm convinced that I'm innocent and it is up to you

 5    to make the judgement on innocence or guilt.  Please don't take it against

 6    me, but it is my position that we shall all be judged by somebody above us

 7    and we shall also be judged on how we judge the others.  Your Honours, my

 8    defence in this trial will be based on the following principle:  I do not

 9    wish to shift the blame for my acts on anyone else.  Similarly, I do not

10    wish to take responsibility for the acts of others.  I expect from this

11    Trial Chamber a just and fair trial and a just decision.  Nothing more and

12    nothing else.

13            Your Honours, thank you for listening to me.  I have concluded my

14    statement.

15            JUDGE AGIUS:  I thank you, Mr. Gvero.  You may sit down.

16            So I  informed you earlier on that there was one remaining issue

17    that I wish to discuss very briefly with you.  It will only engage us for

18    a couple of minutes because I am pretty sure that we already have the

19    framework of cooperation in place and that you will only have to act on

20    what I'm going to say.

21            We now have - and I thank both parties for this - an updated

22    Prosecution witness/exhibit list, and as per our guidelines, also a joint

23    Defence notice of the estimated cross-examination time required by each of

24    the co-accused for the witnesses scheduled for the week of 21st of August.

25            Please don't misread me, I'm not criticising either party, but

Page 618

 1    when I look at the Prosecution witness/exhibit list, I notice that the

 2    first witness, Witness number 38, scheduled to start tomorrow, you

 3    anticipate to examine him in chief for about two and a half hours, but

 4    then we have an indication that the following day we start immediately

 5    with Witness number 41, for whom you are asking three hours

 6    examination-in-chief.  Now, the meantime, the Defence position has been

 7    communicated to us and to you, and it transpires that with the first

 8    witness it's the intention of the Defence to request three hours 30

 9    minutes.  With the second witness, it's their intention to request four

10    hours, particularly because there is one Defence team that requires twice

11    as much as any of the other, which we are going to honour for the time

12    being because that's the agreement that we have.

13            However, the thing is that on the short haul like this week, okay,

14    I mean, we are there because you can still say, if you require two and a

15    half hours for the first witness, then the Defence teams can start on

16    -- start tomorrow after you finish with your in-chief, and then, however,

17    they will continue on Friday, and that would practically mean that there

18    will be very little time left, if at all, to have the second witness come

19    on Friday and commence his or her testimony, not to give an idea of

20    whether we are talking of a male or a female here.

21            I think you already got the gist of my message.  I think we have

22    decided, agreed to experiment to see how this works.  I think it has every

23    indication that it should work well, but take this as one instance which

24    would prompt you to coordinate somewhat better and closer so that the plan

25    for the arrival of witnesses and the commencement of their testimonies is

Page 619

 1    prepared somewhat better.  This is the problem.  I think I have made

 2    myself understood.

 3            The reason is that you will understand with us that we have a

 4    responsibility to try and economise as much as we can on the resources of

 5    this Tribunal, and if it is not necessary to have a witness come two,

 6    three, four days before, we'll try and cooperate together to avoid that

 7    happening.  I understand that this should not present you with any

 8    particular problems.

 9            Yes, Mr. McCloskey?

10            MR. McCLOSKEY:  Yes, Mr. President, I understand what you're

11    saying.  The good news is that, as you know, we are on schedule.  All of

12    us have, so far, done well.

13            JUDGE AGIUS:  Yes.

14            MR. McCLOSKEY:  I think you're correct, we have been a bit

15    ambitious or optimistic if you start adding up the witness time.  We just

16    got their estimates yesterday.  When I did this witness before I was on

17    the SALT principle, the first witness was able to do it quicker than two

18    and a half hours, and I've challenged my colleague to try to do it in less

19    than two and a half hours, but as you know, the first witness, he wants to

20    give, naturally, some leeway.  Same thing for the second witness.

21            So we will try to coordinate it, but if I could say one thing on a

22    continuing issue, I think, as you know, we agree with the programme of

23    providing material for cross-examination.  And I believe you left the

24    issue of how long Defence counsel take on cross up to them at this point.

25    I would like to, as a guiding principle, look to the one-to-one ratio

Page 620

 1    which other Chambers have done with, of course, the flexibility of going

 2    beyond that in the appropriate scenario.  If Mr. Nicholls takes two hours

 3    on a crime base witness, then it would be appropriate to take two hours on

 4    the Defence, not three and a half for a crime base witness that through

 5    every step of his way is corroborated.

 6            Mr. Bourgon is correct:  Victims like this sometimes exaggerate,

 7    sometimes they will say the enclave was not demilitarised, and this will

 8    be brought out very clearly and concisely by either in the direct or in

 9    the cross, but an hour and a half extra?  I know you'll look to that and

10    you'll make the right decision, because these issues are not contested.

11    They really are not, and they won't be and we'll probably agree with the

12    Defence on most issues of exaggeration or demilitarisation, so if --

13    that's all I wanted to say on that point.

14            One other reminder before I don't forget, I've heard two accounts

15    of where accused -- I think General Gvero said he'd never been to

16    Srebrenica.  It's part of our case that he was there.  If there is an

17    alibi Defence, we could again ask them, as they are obligated to, to

18    provide us with an alibi.

19            Mr. Bourgon said that while his client was in the Zvornik area, it

20    appears he's not going to acknowledge that he was at Orahovac, as he knows

21    our case is.  So if there is an alibi out there, which appears there is, I

22    would again ask counsel to provide the alibi.  It's a bit late in the day,

23    but --

24            JUDGE AGIUS:  There is already a decision in place, which we

25    handed down months ago.  Of course, at the time the composition was

Page 621

 1    different, but we had established a deadline for the intimation,

 2    indication of alibis.  So please do take up what has just been mentioned

 3    by Mr. McCloskey.  Of course, I cannot commit myself to anything because

 4    these are matters that need to be discussed collectively before they are

 5    decided.  But if there are alibis that are coming to the surface or which

 6    you intend to bring to the surface now, do come forward with the necessary

 7    relative motions and we'll act upon them.

 8            The other thing is I want to make it clear that we are extremely

 9    appreciative of the cooperation that already exists between the two

10    parties in trying to lay out a proper schedule for the presentation and

11    examination of witnesses.  For the time being, we are not looking into

12    whether there should be a one-to-one ratio or whether there should be a

13    one-to-two ratio, or I think the -- I just repeat what we had discussed

14    earlier and incorporated in our guidelines; namely, that for the time

15    being this is being experimented, we are taking the word, the commitment

16    of the Defence teams that they will use profitably the time that they seek

17    for cross-examination.  We have no reason to doubt that.  And we will just

18    see how it goes.  But for the time being, we are not prepared to say with

19    the first witness, three hours 30 minutes is more than sufficient.  We'll

20    be able to conclude on that after we have gone through each and every

21    cross-examination that there will be.  But we are not surprised at the

22    moment, at least for the time being, that starting with the first witness

23    each Defence team would like to make its presence felt and proceed with

24    some kind of cross-examination.  Of course, we will use our powers to

25    control cross-examinations according to the procedural rules that we have

Page 622

 1    and that have been in use in this Tribunal.

 2            Is there anything else that you would like to address?  Yes,

 3    Mr. McCloskey?

 4            MR. McCLOSKEY:  Very small point:  We have some map books that we

 5    want to give to the Defence and they got away from us yesterday.  So come

 6    by and get the map books.  We also have them for the Court, but of course,

 7    Defence -- I don't think they will object, but I know that they will want

 8    to see them first.

 9            JUDGE AGIUS:  One final thing before we adjourn.  There was one

10    issue that Madam Fauveau had raised some two days ago, I think on Monday.

11    I just want to make sure that the revised amendment has now been provided

12    to your client, at least, because that would basically mean that it has

13    been provided to the others as well.  Yes, Madam Fauveau?

14            MS. FAUVEAU: [Interpretation]  Your Honour Mr. President, yes,

15    indeed, we have received the copy in Serbo-Croat on Monday.  I passed it

16    on to my client on yesterday morning, and I think that was done also by

17    the other teams.  Thank you.

18            JUDGE AGIUS:  I thank you.  I thank you so much.  If there is no

19    further business to transact, then we adjourn and we will reconvene

20    tomorrow morning with the first witness.  The protective measures decision

21    will be handed later on today, but there shouldn't be any problems with

22    the first witness.  Thank you.

23                          --- Whereupon the hearing adjourned at 12.54 p.m.,

24                          to be reconvened on Thursday, the 24th day of

25                          August, 2006, at 9.00 a.m.