Page 21224

 1                          Thursday, 14 February 2008

 2                          [Open session]

 3                          [Rule 98 bis]

 4                          [The accused entered court]

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

 6            JUDGE AGIUS:  Good morning.

 7            Madam Registrar -- good morning, everybody.  Could you call the

 8    case, please.

 9            THE REGISTRAR:  Good morning, Your Honours.  This is the case

10    number IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

11            JUDGE AGIUS:  Thank you, ma'am.

12            For the record, all the accused are present, and I think Defence

13    teams are -- we have a full house.  The prosecution, it's Mr. McCloskey.

14            Today, as scheduled, we will start with the Rule 98 bis

15    submissions, starting with Defence, of course.

16            You are aware of our scheduling order, that we gave you a time

17    limit, and you are requested not to exceed that time limit.

18            Who is going first?

19            Mr. Meek?

20            MR. MEEK:  Yes, Your Honour.

21            We're going to split our argument.  I'll take the first part, and

22    Mr. Ostojic will take the last part.

23            JUDGE AGIUS:  Yes, yes, certainly.

24            Madam Registrar, if you could start timing now, please.  Thank

25    you.

Page 21225

 1            And before you start, Mr. Meek.

 2            Mr. McCloskey, is there any part of the indictment that you

 3    concede hasn't been proven at all or that you would like to withdraw?  I'm

 4    asking you this question so that in that eventuality it would facilitate

 5    the proceedings.

 6            MR. McCLOSKEY:  We don't intend to drop any counts, but I do

 7    believe, and I think we've discussed this before, there were -- one of the

 8    paragraphs relating to nine bodies in Potocari, there was no evidence on,

 9    and that's the main one that I recall right now.

10            JUDGE AGIUS:  Okay, all right.

11            Mr. Meek.  You have started at 9.00 and eight minutes.

12            MR. MEEK:  Thank you, Your Honours.

13            Good morning, Your Honours.

14            JUDGE AGIUS:  Good morning.

15            MR. MEEK:  Good morning to my colleagues from the Prosecution, all

16    the Defence teams, all of the accused.  I welcome you here.

17            I want to say firstly that it has been a great honour and a

18    privilege for me to represent Ljubisa Beara.  This may well be the last

19    time that I'm able to address this Chamber, and I hope that whatever I

20    might be able to say today might help Your Honours in your deliberations

21    on this case as we have seen it so far.

22            Now, Your Honours, I would just like to talk a little bit about

23    what has transpired in this courtroom the past 20 months and why there is

24    no case, we feel, for Ljubisa Beara to answer.

25            Your Honours, W.K. Clifford said "It is wrong always, everywhere

Page 21226

 1    and for everyone, to believe anything upon insufficient evidence."

 2            While the evidence adduced thus far in this trial must be viewed

 3    in a light most favourable to the OTP, is respectfully submitted that no

 4    reasonable, neutral and detached finder of fact, after deliberating and

 5    analysing the evidence, can, with a clear conscience, find that there is

 6    evidence that my client, Ljubisa Beara, also known as "the empty vessel,"

 7    has been filled.  In other words, why is there no evidence capable of

 8    supporting a conviction?

 9            We know, from the record and from months and months and years ago,

10    that Ljubisa Beara was an empty vessel.  We found this out after both

11    sides had rested in the Blagojevic case in 2004, and Mr. McCloskey, a

12    senior trial attorney, who by the way as we all know had been intimately

13    involved in the Srebrenica cases, Krstic and Blagojevic, stated to that

14    Court, on 29 September 2004, in his closing argument, page 12377 and 378,

15    he said:

16             "Beara is an empty vessel.  Until Mladic gives him those orders,

17    he doesn't have the right to command troops, he doesn't have any troops."

18            29 months later, we're here today in the instant trial, and on

19    February 28th of 2007, at page 7927 of this transcript, line 24 and 25,

20    the very same Prosecutor, Peter McCloskey, admitted once again in open

21    court, in front of Your Honours, that Beara is an empty vessel, which is

22    true, until he is filled with the orders of his commander, General Mladic.

23            Your Honours, we believe that explicitly and implicitly, there is

24    a promise by the Prosecution that they would bring forth evidence that

25    would show that this empty vessel, Ljubisa Beara, would be filled, by

Page 21227

 1    evidence from the Prosecution side of direct orders from General Ratko

 2    Mladic.  Your Honours, these are the words of the Prosecutor, and we

 3    believe they are a party admission that the OTP case against Ljubisa Beara

 4    is based on these purported mysterious orders, but we would like to know

 5    and we question where, when, how, and by which witnesses or exhibits was

 6    this allegation and promise fulfilled.  Where, we ask, in the entire

 7    record is there any such evidence?

 8            We respectfully submit, Your Honours, that the record in this case

 9    thus far is devoid of any such orders from General Ratko Mladic to Ljubisa

10    Beara, either directly, circumstantially, or otherwise.

11            Ljubisa Beara stands charged before this Tribunal with eight

12    counts, pursuant to the consolidated amended indictment.  My lead counsel,

13    Mr. Ostojic, will address in a moment the counts as they are set out in

14    the indictment.  Your Honours, the mere fact that we may not argue every

15    count does not mean in any way, shape, or form that we believe the Office

16    of the Prosecutor is correct or has met its burden under the Rules of

17    Procedure and Evidence.  As professional judges, you are, we know, aware

18    of this position.

19            The first thing that is very clear from all the evidence adduced

20    by the Prosecution thus far is that the record is devoid of any evidence

21    that Ljubisa Beara was anywhere in or around Srebrenica from the 1st of

22    July to the 12th of July, 1995, except -- except for the testimony of

23    Witness Zlatan Celanovic.  His testimony, Your Honours, was uncorroborated

24    by any other evidence including the evidence of the OTP analyst, Richard

25    Butler, who on the 23rd of January, 2008, in this courtroom, at page 20230

Page 21228

 1    of the record, line 17 through 24, stated basically that as far as he

 2    knew, there was no evidence of Mr. Beara's presence during those dates, in

 3    those times, at that place.

 4            Further, Your Honours, this witness, Celanovic, could not even be

 5    sure on which dates these purported sightings of Ljubisa Beara took place.

 6    And even assuming, for the sake of argument, that Witness Celanovic was

 7    not one of the bold-faced liars that Mr. McCloskey promised us, I submit

 8    and we submit, Your Honours, that the mere presence of Ljubisa Beara at a

 9    certain location is not in any way evidence of wrongdoing, culpability,

10    complicity, let alone guilt of any criminal conduct.

11            Furthermore, Your Honours, no evidence whatsoever has been brought

12    before this Trial Chamber that Ljubisa Beara was anywhere in or around

13    Potocari on 11 July -- from 11 July to 13th July 1995.  Your Honours, not

14    one iota of evidence has been brought forth that Ljubisa Beara was in

15    Bratunac at the Fontana Hotel during the critical meetings held between

16    Mladic and Dutch-Bat and later between Mladic and other higher officers

17    from the VRS, including General Krstic, General Zivanovic, Colonel

18    Jankovic, MUP officers including Vasic, some civilian leaders such as

19    Deronjic, the Dutch-Bat representatives and the Muslim representatives.

20    Your Honours, as a result of these meetings, it was that the evacuation of

21    civilians was agreed.  The agreement was reached between the

22    representatives of the parties at those meetings who were negotiating at

23    the Fontana Hotel on the 11th and the 12th of July, 1995.

24            Your Honours, I must confess that it took many hours to debate and

25    brainstorming before we actually made the decision to address Your Honours

Page 21229

 1    today under Rule 98 bis.  At the end of the day, we jointly decided that

 2    an argument should be made pursuant to Rule 98 bis. However, having

 3    reviewed the jurisprudence of this Tribunal, it became brutally apparent

 4    that our chance of gaining much advantage by arguing this 98 bis motion

 5    was realistically merely a chance for the Office of the Prosecutor to

 6    understand the theory of our Defence and to understand the shortfalls in

 7    their case in chief.  We submit most respectfully, Your Honours, that all

 8    of this, taken together, will help the OTP or could help the OTP in the

 9    preparation of their rebuttal case, even though, I submit, they could have

10    called or brought forth the very same witnesses in their case in chief.

11    However, having made the decision to give an argument, we are here.

12            I have, throughout this Prosecution case, wondered a few things,

13    not only directly related to my client, but to all of the accused.  We

14    wonder why the OTP and the Chief Prosecutor, who has been involved fully

15    in the first two Srebrenica cases, all involving the same facts, can, in

16    good faith, change the Prosecution theory to suit its needs.  Further,

17    Your Honours, we wonder why the OTP is allowed to do so.  And, more

18    importantly, we wonder how the Trial Chamber can determine which theory

19    the OTP honestly believes is true.

20            In the first two trials, the theory of the Defence was, as I

21    understand, that security did it, there was a separate chain of command

22    and security was the culprit behind this.  However, as I understand it,

23    Your Honour, the Prosecution that those cases took the opposite stance,

24    insofar as their theory was very simply that these defences in the Krstic

25    and Blagojevic cases were wrong.  The Trial Chamber and the Appellate

Page 21230

 1    Chambers agreed in those cases.

 2            Further, Your Honours, we seriously wonder why such a learned

 3    prosecutor as my learned friend Mr. McCloskey has, from the beginning of

 4    this trial and even prior to that, at the 65 ter conference on 13 July

 5    2006, at page 316, line 5 to 7, stated on the record his offence to an

 6    innocuous comment by co-counsel Julie Condon, quote, Mr. McCloskey said:

 7             "I would prefer her to come by me before she makes statements and

 8    statements that are going to go to my integrity."

 9            We wonder, Your Honour, just how it is that the Prosecutor, while

10    pointing out his integrity and rejecting any notion of questioning of his

11    ethics, truthfulness, veracity, honesty and legal character, can now argue

12    that my client, Ljubisa Beara, also known as "the empty vessel," is some

13    major player in the same events, trithing Krstic and Blagojevic.  Your

14    Honours, in relation to this issue, we've done much heavy thinking and we

15    are hopeful and are sure that the Trial Chamber has likewise done so. In

16    our respectful opinion, Your Honour, the notion that the Prosecution can

17    shift theories from one case to the other, when the exact facts underlying

18    them are the same, is not proper and is alien to us.  Your Honours, we

19    believe that dog won't hunt.

20            Throughout this trial, we have wondered why the Office of the

21    Prosecutor never used their in-house handwriting expert to examine those

22    pages of the Zvornik officers' logbook, Exhibit 377, which had such

23    notations as:   "Colonel Beara, pass on the message," page 127 of that

24    exhibit, English, and:   "Colonel Beara is coming," page 129, English

25    version.  "Beara to call 155," page 156, English version.  And once

Page 21231

 1    again:   "Beara is coming," page 137.

 2  (redacted)

 3  (redacted)

 4  (redacted)

 5  (redacted)

 6  (redacted)

 7  (redacted)

 8  (redacted)

 9  (redacted)

10  (redacted)

11  (redacted)

12  (redacted)

13  (redacted)

14    We wonder, Your Honours, why it is that no one in the Office of the

15    Prosecutor, with their massive staff, analysts, investigators, why they

16    didn't bother to have the handwriting analysed or even thought about

17    having it analysed.

18            Your Honours, we wonder why the OTP never once showed witnesses or

19    suspect/witnesses proper photo lineups, except one, or live lineups when

20    it came to our client, Mr. Beara.  We believe that the one incident where

21    a photo was shown to a witness, which Mr. Ostojic will go into in greater

22    detail, was totally worthless, from a legal standpoint.

23            Your Honour, we wonder why the OTP witnesses who claim to have

24    sighted Ljubisa Beara all gave the same general vague description, a

25    description, Your Honours, which would fit numerous VRS officers at that

Page 21232

 1    time.  A mere review of the film of General Zivanovic's retirement party

 2    will confirm this fact.

 3            Your Honours, we wonder why, during certain witness interviews,

 4    the interviewee had his status changed from witness to that of suspect in

 5    the middle of the interview, and then after the witness had given

 6    incriminatory information concerning Ljubisa Beara, his status was changed

 7    back to that of a witness.

 8            Your Honours, we further wonder why there were off-the-record,

 9    unrecorded conversations with these suspect/witnesses who suddenly changed

10    their story and, we believe, changed their story to fit the Prosecution's

11    new theory in this case.

12            Your Honours, all of these interviews that I've just talked about,

13    we believe and have unsuccessfully argued, were in violation of Rule 43 of

14    the Rules of Procedure and Evidence.

15            Your Honours, if Ljubisa Beara is who they say he is, a planner,

16    close to or part of Mladic's inner circle, why is Ljubisa Beara not seen

17    in any video, any clips, any photos, with Mladic, Krstic, Zivanovic, Vasic

18    and others?  Why is that, we wonder.  Your Honours, if Ljubisa Beara is

19    who they say he is, why was Ljubisa Beara not at General Zivanovic's

20    retirement party, along with Mladic and other high-ranking VRS officers?

21            Your Honours, we wonder why OTP investigators threw away and/or

22    destroyed their field notes, especially, Your Honour, field notes of an

23    unrecorded four-day interview with PW-168, the Prosecution's star witness,

24    at a time that he was still a suspect, and this investigator, the record

25    reflects, kept those notes for approximately two years before he departed

Page 21233

 1    this Tribunal, and didn't think they were needed, so he just destroyed

 2    them.

 3            The OTP, Your Honour, are going to tell you, when it comes their

 4    time to speak, that PW-168 is a credible witness.  We submit,

 5    respectfully, that PW-168 is as crooked as a dog's hind leg.  Make no

 6    mistake about it.  Please don't be fooled, like the Prosecution was

 7    fooled, by his slick lies and deceptions.  We ask that you think about

 8    that.

 9            Your Honours, I fortunately or unfortunately have grown up

10    surrounded by lawyers, judges, and politicians.  A bad combination,

11    without any doubt.  My father was a lawyer and then a trial judge.  My

12    grandfather, two aunts and an uncle were also lawyers, plus an uncle by

13    marriage who is a lawyer and a politician.  I thus learned about the law

14    at a very early age, and in that process I was always taught that there is

15    a right and there is a wrong, that it's wrong to presume a person charged

16    with a crime is guilty, that it's wrong to not allow an accused person the

17    right to a fair and public trial and to effective assistance of counsel.

18    Frankly, Your Honours, my father taught me not to believe anything I heard

19    or read and only half of what I saw.

20            Your Honours, you know, I was also taught that bad facts make bad

21    law.  This truth I really didn't fully understand until I started

22    practicing law and trying cases in 1979.  And, Your Honours, no one who

23    has followed this trial, the Blagojevic trial or the Krstic trial, or has

24    even read the indictment in this case, can dispute that there are bad

25    facts in this case.

Page 21234

 1            I have been reminded during this trial on several occasions that

 2    hope springs eternal, and being the optimist that I am, I pray that what

 3    flows from the bad facts of this case is not bad law.

 4            Your Honours, I must confess that I am, truthfully and very

 5    respectfully, disillusioned by the conduct of these trials in this

 6    Tribunal.  I believe that history will judge all of us in these

 7    proceedings, and I believe that ultimately it will not be whether the

 8    accused were found guilty or not guilty, nor the sentences given to those

 9    convicted, but whether those accused, those human beings, like each of us,

10    received a fair trial before they were convicted and sentenced to live

11    behind bars in a steel cage for years and years.  Your Honours, liberty is

12    a lucre that the OTP has to barter with for their witness testimony.

13    Liberty, the most precious commodity of all.  I ask:   Who would not trade

14    a year's salary for their liberty for that same period of time?  I bring

15    this up only for your consideration when you are analysing the testimony

16    of Prosecution witnesses to determine if it is capable of supporting a

17    conviction.  We submit it is not.

18            Your Honours, my learned friend Peter McCloskey told you, on the

19    24th of August, 2006, in this very courtroom, that in the course of

20    testimony, some ten years after these events, there's more people willing

21    to talk, more people who will directly implicate one or more of the

22    accused, and he also said that at the end of the OTP witness list, there

23    are a long list of VRS and MUP people.  But a word of caution here, he

24    said, "Many of these witnesses will not be telling you the full truth.

25    Many will be going back and forth."  He said, however, he was confident

Page 21235

 1    that you would be able to glean the truth from these witnesses, and he

 2    told you:   "... and in fact, even in the lies, you can find the truth."

 3    We submit, Your Honours, that even a half truth is a lie.

 4            Further, Your Honours, my learned friend Mr. McCloskey told you,

 5    "I think there is something to be had from this witness, even though he is

 6    a bold-faced liar, and I think we glean something from his bold-faced

 7    lie."

 8            Your Honours, we glean something different from these bold-faced

 9    liars that Mr. McCloskey was speaking about in his opening statement. We

10    glean that these liars are not credible witnesses, and it would be a

11    travesty of international justice to base any part of a guilty verdict on

12    their lying testimony.

13            Your Honours, these witnesses that the Office of the Prosecutor

14    brought forth, many, many of them came here not to testify, but they came

15    here to test a lie.  And we respectfully submit that they surely did.  We

16    ask Your Honours that when analysing the testimony of the OTP witnesses,

17    keep in mind that the OTP put forth witnesses it knew would lie.  This

18    practice, once again, is alien to my lead counsel and myself, and we

19    believe that in most jurisdictions, if not all, it is barred and

20    forbidden.

21            Your Honours, the OTP put forth witnesses that had made deals with

22    them for a lesser sentence, for their liberty, and keep in mind that

23    common sense tells you that if you're eating a bowl of beef stew and you

24    bite into a rotten piece of beef, a rotten piece of meat, you don't throw

25    out that one rotten piece of meat and keep on eating the stew, do you?

Page 21236

 1    Common sense tells you you throw out the whole bowl.  However, the Office

 2    of the Prosecutor would have you throw out the rotten meat, the rotten

 3    lies in their witness testimony, and keep on listening, hoping to find

 4    some truth.  We believe, Your Honours, this is illogical, unfounded, and

 5    ludicrous.

 6            In analysing the evidence given by the OTP witnesses, even in a

 7    light most favourable to the Prosecution, bear in mind that many of them

 8    the Prosecution did not tell us exactly which ones lied or were going to.

 9    We respectfully submit that more than a few fit the category described by

10    my learned colleague Mr. McCloskey in his opening statement.  For example,

11    Your Honours, for inter alia PW-168, PW-102, Witness Celanovic [Realtime

12    transcript read in error "Silanovic"], PW-161, PW-162, Bircakovic, Babic,

13    Peric, these are a few examples.  Your Honour, these witnesses --

14            JUDGE KWON:  Just a second.  For the sake of the record, can I get

15    the correct spelling of "Celanovic"?

16            JUDGE AGIUS:  It's definitely spelled out wrongly here in the

17    transcript, but it's "C" for "Charlie," "E" for "Echo" --

18            MR. MEEK:  B-I-R-C-A-K-O-V-I-C, I believe Your Honour.  These are

19    just a few examples.  And, Your Honours, in our humble opinion and

20    analysis, these witnesses were nothing more or nothing less than walking,

21    talking pieces of deception.  We merely ask Your Honours, in your

22    deliberation and analysis, to take these submissions into account, and the

23    testimony, when you look at it, evaluate it, analyse it, don't forget

24    there's a motive to lie and point the finger at others in many instances.

25            Your Honours, courts over time have always looked at an

Page 21237

 1    accomplice's testimony with caution.  In a 1680 case from England, one

 2    hailing pleas of the Crown, the judge stated:

 3             "The Defendant admonishes us to heed the lessons of history by

 4    skewing the corrupt bargain that produces accomplice testimony.  He

 5    invokes vintage authority with the observation, 'Truly it is hard to take

 6    away the life of any person upon such a witness that swears to saves his

 7    own.'"

 8            That was 1680, Your Honour.

 9            Your Honours, we submit that criminals are likely to say and do

10    almost anything to get what they want, especially if what they want is to

11    get out of trouble.  This willingness to do anything includes not only

12    truthfully spilling the beans on friends and relatives, but also lying,

13    committing perjury, manufacturing evidence, soliciting others to

14    corroborate their lies with more lies.  How many times have we seen that

15    in this case.  Double-crossing anyone with who they come in contact with,

16    including and especially the Prosecutor.

17            Your Honour, one of the basic tenets of the jurisprudence of any

18    civilised nation is that a trial is a search for the truth, and by that it

19    is not meant the purchased truth, the bartered-for truth, but the

20    unvarnished truth.  It may well be that we must live sometimes with

21    bargained-for pleas of guilty, but we don't have to give a receipt stamp

22    "paid in full for your damning testimony," or, "You will be paid according

23    to how well you can convince, even though it may be in the face of lies."

24            Your Honours, we submit trustworthiness is a keystone and hallmark

25    of any judicial system that seeks recognition for its role in a civilised

Page 21238

 1    society, and we believe, Your Honours, that it is time for this

 2    International Tribunal to announce boldly and firmly that the judicial

 3    search for the truth here cannot be reconciled with the virtual purchase

 4    of perjury.

 5            It is respectfully submitted, Your Honours, that there is

 6    something to be had from these lying witnesses only if the Trial Chamber

 7    totally ignores the simple truth, that in life you can bargain for and buy

 8    almost anything.  You can bargain for and buy mansions, villas, priceless

 9    works of art, you can bargain for and buy all the creature comforts you

10    can conjure up in your mind, but thank God there is some things you can't

11    buy or some things you can't bargain for. You can't buy or bargain for

12    wisdom.  You can't buy or bargain for justice, because if you do, what you

13    get is injustice.  You can't buy or bargain for love, because if you do,

14    it isn't love that you get, and you can't buy or bargain for truth,

15    because it isn't truth that you get.  It's testimony, with a cloud of

16    suspicion hanging over it.  You can't buy and you can't bargain for

17    testimony, and that is, we submit, what the OTP has done in this case,

18    especially with their star witness, PW-168, and that's why their case, we

19    believe, is in the state it is at the present time.

20            Your Honours, hanging on the one of the walls in the oldest

21    courthouse in England are the words:   "In this hallowed place of justice,

22    the Crown never loses, because when liberty of an Englishman is preserved

23    against false witnesses, the Crown wins."

24            Your Honour, I learned many years ago that the prosecution never

25    loses.  My father explained to me because if they get a conviction,

Page 21239

 1    they've won.  If they get an acquittal, they've won also because justice

 2    is done.  So the prosecutor never win, and they can win both ways.

 3            On 21 of August, 2006, Carla Del Ponte said in her opening

 4    statement page 381, line 235:

 5             "The surviving victims of Srebrenica crimes yearn for justice,

 6    not vengeance."

 7            We say to you that we agree with this sentiment, that the

 8    surviving victims yearn for justice, not vengeance, and we also submit

 9    that to convict the guilty is not necessarily the end of the game, is not

10    what the OTP should be looking for.  What the victims, we believe, do not

11    want to see is an innocent man convicted, as this would, Your Honours, do

12    a disservice and an injustice to the victims.

13            Again, Your Honours, to convict an innocent man would do

14    disservice to the victims of Srebrenica and is not, Your Honours, in any

15    manner, as Ms. Del Ponte told us, an important step towards a cause and a

16    cause for hope.  We believe that only contributes to the pain and

17    suffering of the surviving victims.

18            Your Honour, a review of the wrongful conviction cases throughout

19    the world indicate that those who are wrongfully convicted were victims of

20    these problems:  Inaccurate eyewitness identifications, unreliable

21    jailhouse informants or snitches, failure of police and prosecutors to

22    disclose exculpatory evidence and faulty forensics.  We've seen some of

23    the faulty forensics through our cross-examinations in the OTP's case, and

24    we believe that in the Defence cases, should there be any, that we will

25    prove not only faulty mathematics but faulty DNA submissions also.

Page 21240

 1            Centred on wrongful convictions, the Northwestern University

 2    school of Law in Chicago, Illinois, identified four types of false and or

 3    unreliable evidence, false testimony by informant or snitch witnesses,

 4    two, incorrect eyewitness identification, three, false confessions which

 5    tend to point the finger at others, four, false or unreliable forensic

 6    evidence or junk science.

 7            In closing, Your Honours, I would like to say that it has been an

 8    honour to be in front of this Trial Chamber and a privilege, and it's been

 9    a greater privilege to represent Ljubisa Beara as a client.

10            I would just like to share with you something that Justice

11    Jackson, who was a Justice of the United States Supreme Court, one of the

12    architects of Nuremberg, and you may have heard it but I'll say it again.

13    He said:

14             "If good-faith trials are sought, that is another matter.  All

15    experience teaches that there are certain things you cannot do under the

16    guise of judicial trial.  Courts try cases, but cases also try courts.

17    You must put no man on trial before anything that is called a court under

18    the forms of judicial proceedings if you're not willing to see him freed

19    if not proven guilty."

20            I want to lastly thank everyone here, the staff, the Registry, the

21    UN security people, the technical people, especially the interpreters for

22    putting up with my accent and my cadence, and likewise, Your Honours, for

23    putting up with me, and your struggle and your patience, Your Honours.  I

24    also want to thank my lead counsel, John Ostojic, for his guidance, his

25    leadership, his direction and his counselling.  The two of us have spent

Page 21241

 1    quite a bit of time, two years, brainstorming, bouncing things off of each

 2    other's heads, and I've got to admit, Your Honours, it's been a long,

 3    strange, and interesting trip.

 4            I would like to just, in further closing, quote from a great

 5    American, Martin Luther King.  Martin Luther King said:

 6             "In justice anywhere is a threat to justice everywhere.  We are

 7    caught in an inescapable network of mutuality, tied in a single garment of

 8    destiny.  Whatever affects one directly affects all directly."

 9            He wrote that in a letter from the Birmingham jail on the 16th of

10    April, 1963.

11            I thank you Your Honours very much.  It's been my pleasure.

12            JUDGE AGIUS:  Do I take it you are leaving us, Mr. Meek?

13            MR. MEEK:  Pardon me?

14            JUDGE AGIUS:  Do I read your intervention meaning that you will be

15    leaving us?

16            MR. MEEK:  Anything is possible, Your Honour, and we can certainly

17    address that at a later stage.

18            JUDGE AGIUS:  All right, thank you.

19            MR. MEEK:  Thank you.

20            JUDGE AGIUS:  Mr. Ostojic.  You are starting at 9.51.

21            MR. OSTOJIC:  May it please the Court, Mr. President, honourable

22    Judges, fellow colleagues and Mr. Beara, we respectfully submit that

23    despite the rigid and inflexible rules of Rule 98 bis, that indeed, based

24    on the evidence that is presented, that this honourable Trial Chamber

25    should acquit on specifically counts 7 and 8 of the second amended

Page 21242

 1    consolidated indictment.  Permit me to share with you why.

 2            By way of background, we have seen the allegations, we have heard

 3    the promises, and we have seen and heard the evidence, and we now know and

 4    respectfully submit that the promises were unfulfilled and the allegations

 5    indeed unsubstantiated.

 6            The allegation that Mr. Beara planned, organised, assisted,

 7    supervised, or facilitated, or otherwise aided and abetted in the

 8    transportation of civilians in either Srebrenica or Zepa, was not proven.

 9    Ljubisa Beara is not criminally responsible, and therefore an acquittal is

10    warranted.

11            I hope to walk through with you some of this evidence.  First I

12    would like to address Zepa and the allegations both in count 7 of forcible

13    transfer as well as count 8, deportation.

14            We've heard, in essence, from I believe ten witnesses in

15    connection with the movement of people involved in Zepa.  The key

16    questions, I believe, that we have to ask ourselves in determining whether

17    Mr. Beara was involved is:  First, when did the transportation begin?

18    Paragraph 71 of the indictment suggests that the movement and

19    transportation of people from Zepa commenced on July 25th, 1995.  OTP

20    analyst Mr. Butler claims that it was the 26th, and admittedly he said he

21    was going off memory.

22            The next critical question, we submit, that must be asked in

23    connection with Zepa is:  How long did the movement of these civilians

24    last?  It lasted, as Mr. Butler suggested, one, two days maximum, which

25    would end approximately on the 28th or 29th of July.  When you review the

Page 21243

 1    evidence on whole, you'll find that there was no evidence of Ljubisa

 2    Beara's involvement, either from documents, orders, intercepts, logbooks,

 3    or personal diaries, suggesting that he was near or around the area of

 4    Zepa when there was a commencement of the movement of the civilian

 5    population.  The only evidence that even Mr. Butler could find that may

 6    remotely suggest any involvement by Mr. Beara with respect to Zepa in

 7    general were three intercepts that purport to have been captured with his

 8    voice, two on the 1st of August and one on the 2nd of August, 1995.  We'll

 9    deal with that specifically in a moment, but when we deal with planning of

10    the movement of people, Mr. Butler, on the 23rd of January, 2008,

11    specifically on page 20217, lines 13 through 20, stated:

12            "I have no evidence that he, Mr. Beara, was part of it."

13            With respect to organisation, assistance, supervision, or

14    facilitation of the movement of those civilians from Zepa, again we turn

15    to Mr. Butler, and on the same page, 20217, lines 21 through 24, on the

16    23rd of January, 2008, he says:

17             "I give you the same answer.  I have no information.  Therefore,

18    you know, on a lack of information, I agree with you."

19            Butler agrees, indeed, that there was no evidence whatsoever that

20    Ljubisa Beara was involved in the forcible transfer or deportation of the

21    civilian population in Zepa.  In fact, and I believe it is undisputed,

22    that there is not a shred of evidence inferring or establishing Ljubisa

23    Beara's purported involvement in Zepa.  Butler continues, when he tells us

24    on page 20213, lines 9 through 10:

25             "I don't believe we have any intercepts or any other information

Page 21244

 1    pertaining to Ljubisa Beara, his whereabouts during that period, namely,

 2    July 16th through the 31st, 1995."

 3            We didn't need to ask Mr. Butler what he meant when he said "any

 4    other information," but we can logically and predictably understand that

 5    that meant no intercepts, no documents, no orders, no logbooks, no

 6    personal diaries, no Bosnian Muslim witnesses, not even the liars that the

 7    OTP from time to time paraded in this courtroom, no evidence we suggest

 8    mandates an acquittal.

 9            OTP, throughout witnesses -- through their witnesses, they indeed

10    concede that there was no evidence Ljubisa Beara on these two counts. If

11    forcible transfer and deportation -- and/or deportation of Zepa population

12    began on July 25th or 26th and ended on the 28th or 29th, it is rather

13    plain that the OTP, through its witnesses and in summary fashion, concede

14    that there is no evidence against Mr. Beara relating to either of these

15    two counts with respect to Zepa, and therefore, under the prevailing law,

16    as rigid and inflexible as it may be, no reasonable trier of fact could

17    ever find, respectfully, against Ljubisa Beara on these two counts, and

18    therefore must dismiss the same.

19            The Court asked Mr. President a question during some of our

20    cross-examinations, and you wondered about joint criminal enterprise.

21    Since there is no evidence, documents, intercepts or witnesses which

22    remotely link Ljubisa Beara to any involvement in the movement of

23    civilians from Zepa at any time from start to finish, this discussion, we

24    submit, is not relevant, unnecessary and unwarranted.  But what about the

25    intercepts?  The three intercepts, as I've identified, were from the 1st

Page 21245

 1    of August and the 2nd of August, 1995.  With respect to these two

 2    intercepts -- with these three intercepts, they clearly were captured well

 3    after the forcible transfer and/or deportation was planned and organised

 4    and facilitated and completed.  You cannot and should not, respectfully,

 5    consider them in relation to counts 7 and 8 of the second amended

 6    consolidated indictment.

 7            However, not knowing what the Trial Chamber will do, if we assume

 8    that the Trial Chamber accepts these intercepts in some fashion as some

 9    sort of link with the movement or transportation of civilians, we believe

10    that a close review of these intercepts do not reflect or reveal criminal

11    conduct, and in fact support that Mr. Beara, if he was the one that was in

12    these intercepts, indeed conducted himself in a very legal and

13    professional manner in discussing prisoners of war and trying to make sure

14    that they were being registered with the International Red Cross and other

15    organisations.

16            In a nutshell with respect to Zepa, there's only three intercepts

17    that may even be considered.  I suggest that they shouldn't, and even if

18    they are considered, they are indeed exculpatory and do not prove that

19    Ljubisa Beara in any instance was involved in the movement or transfer of

20    the civilian population in Zepa, and therefore we once again request that

21    with respect to counts 7, forcible transfer, and count 8, deportation, as

22    it relates to Zepa, that they be dismissed.

23            Your Honours, in the interests of time, I'm going to move to the

24    movement of people from Srebrenica.  That allegation is set out in count 7

25    of the second amended consolidated indictment, forcible transfer.  The key

Page 21246

 1    paragraphs, we suggest, that you should review, among others, is

 2    specifically paragraphs 61 through 64.  I think the same questions that we

 3    asked about Zepa are pertinent for Srebrenica.  When did the

 4    transportation or movement of people commence?  The movement of the

 5    civilian population from Srebrenica commenced on the 12th of July and

 6    ended on the 13th of July, 1995.  In fact, that is undisputed, and we can

 7    refer to the adjudicated facts, specifically fact 203 and 219.  The

 8    threshold question that we've asked from time to time, through witnesses,

 9    is whether it was forcible transfer or an evacuation.  We contend that it

10    was an evacuation, given the presence, assistance, and participation of

11    Dutch-Bat, among others, and not forcible transfer.  We do not rely solely

12    on the presence, assistance and participation of Dutch-Bat.  We believe

13    other factors may further assist this Trial Chamber in reaching the proper

14    conclusion that it was not forcible transfer, but rather an evacuation.

15            If we examine the testimony of Mr. Kingori, who was here recently

16    with us from Kenya, and specifically look at Exhibit P00493, it clearly

17    states that the inhabitants of Zepa -- I mean of Srebrenica, 80 to 85 per

18    cent were refugees themselves, taking another factor that the Bosnian

19    Muslim men, both military and non-military men, voluntarily abandoned the

20    civilians and formed a long column, seeking to go through the dark forest

21    one day before the evacuation even started.

22            Analysis as to whether it was evacuation or forcible transfer. We

23    suggest that the movement of the civilians from Srebrenica was an

24    evacuation, not a forcible transfer, and we must place it in context with

25    the full and complete picture as to what the civilians of Srebrenica

Page 21247

 1    desired or decided at that time.  Given that 80 per cent or more of the

 2    population in Srebrenica, in July of 1995, were refugees or displaced

 3    persons, they never considered Srebrenica their home, but rather

 4    temporarily an intermittent residence.  Given that the Bosnian Muslim

 5    military and non-military males, for whatever reason, abandoned the

 6    enclave voluntarily, and the civilians could not and would not have

 7    decided anything other than to leave and permit the evacuation with

 8    Dutch-Bat to commence.

 9            In a general sense, that's the movement of the civilian population

10    in Srebrenica.  To relate it specifically as it relates to Ljubisa Beara,

11    despite what you may decide, and even if you decide that there was

12    sufficient evidence to find forcible transfer at this stage of the

13    proceedings, respectfully, we nonetheless suggest that you must acquit

14    Ljubisa Beara on this count.  Why?  The evidence that was brought forth

15    here, both the video evidence, the documentary evidence, the evidence from

16    the witnesses themselves, we saw who the participants were, we saw where

17    the participants met, and we know from witnesses what was said at those

18    meetings prior to the actual evacuation or transfer or movement of the

19    population from Srebrenica.

20            Where was Mladic with regard to the events leading up to the

21    movement of the people from Srebrenica?  We saw Mladic in Bratunac, Hotel

22    Fontana, on three occasions at least.  We saw Mladic in Srebrenica.  We

23    saw Mladic in Potocari, and we saw Mladic in Sandici.  Never, ever was

24    Mladic near or even in the presence of Ljubisa Beara at any of those

25    locations, places, or times.

Page 21248

 1            We submit that those are concrete facts that the Court must take

 2    into consideration when evaluating Mr. Beara's culpability with respect to

 3    this count involving the movement of the population in Srebrenica.  Never,

 4    ever was there evidence of any kind to suggest, infer, or establish that

 5    Ljubisa Beara was near or present at the locations when purportedly

 6    decisions to evacuate or forcibly transfer the population was made.

 7            Butler exposed himself on this issue when we asked him

 8    specifically, "Did you have any evidence of Mr. Beara being at Bratunac in

 9    the Hotel Fontana?"  It's a classic example, in my opinion, of how the OTP

10    and its former staff member analyst make unsubstantiated leaps of faith,

11    misguided interpretations and erroneous conclusions.  When I asked

12    Mr. Butler, on the 23rd of January, 2008, to confirm that in fact there

13    was no evidence whatsoever that would place Mr. Beara at the Hotel Fontana

14    in Bratunac for any of those three meetings on the 11th or 12th of July,

15    1995, Mr. Butler could have been honest.  Instead, he chose to make it up

16    as he went along.  First he said, at page 20232, line 6 through 14:

17             "I believe there are some records that place him, Mr. Beara, at

18    the Hotel Fontana, that he'd had a room there during the relevant period,

19    but he's not listed as one of the participants in any of the meetings."

20            Mr. Butler went so far afield and said not only that he believed

21    Ljubisa Beara was at the Hotel Fontana, he suggested and stated explicitly

22    that he had a room there.  Upon further questioning, Mr. Butler seemingly

23    realised his mistake, and for the second time, instead of just being

24    honest, he chose to waffle and to keep things vague.  He said, on pages

25    20232, lines 20 through 21:

Page 21249

 1             "I don't recall whether or not Colonel Beara was one of those

 2    listed officers.  I mean, we have those records, but I just don't recall

 3    at the moment whether he was one of those officers who had a room or not

 4    there."

 5            Meaning at the Hotel Fontana.

 6            Indeed, as we know, based on my conversation with my learned

 7    friend after that testimony, and based on a review of the records and

 8    documents from the Hotel Fontana, Mr. Beara was not listed as a

 9    participant in that meeting, and Mr. Beara never had a room for that

10    entire month at any time at the Hotel Fontana in Bratunac.

11            Those, in our opinion, were the critical meetings, as the

12    Prosecution suggests, where some planning and organising was done to

13    conduct the transportation of the civilian population from Srebrenica.

14    Ljubisa Beara unequivocally, I suggest, was not present at any of those

15    meetings and was not present on or around the area when those decisions

16    were being made or implemented.

17            When we look at the allegations in the indictment, I have no doubt

18    and I am confident that the OTP will concede that Ljubisa Beara is in no

19    way involved in the forcible removal of the civilian population from

20    Srebrenica.  Ljubisa Beara is not even mentioned or referenced in

21    paragraph 61, 62, or 64 of count 7, which involves forcible transfer in

22    the second amended consolidated indictment.  Those are the four

23    paragraphs, and I've mentioned three.  With respect to paragraph 63, there

24    is a reference to Mr. Beara.  Paragraph 63, in my submission, does not

25    belong in count 7 of this document.  It deals not with civilians; it deals

Page 21250

 1    with Bosnian Muslim military and non-military men from the column.  The

 2    Bosnian Muslims from the column who left, they left on their own volition

 3    and were not, theoretically or practically, forcibly removed.

 4            If this Trial Chamber, respectfully, in my view, unreasonably

 5    finds that the Bosnian men from the column were indeed forcibly

 6    transferred out of Srebrenica, it nonetheless, in our view, must acquit

 7    Mr. Beara of the allegations in count 7 of the indictment.  The questions

 8    remain:  Did the OTP prove, through the witnesses such as Egbers, that

 9    Ljubisa Beara was in Bratunac, as alleged?  Why did they not call Zoran

10    Modric, who was also there, who they have interviewed, who they have taken

11    statements from?  Why did they not call other members of the 65th

12    Motorised Protection Regiment?  Why didn't they call other Dutch-Bat

13    witnesses who were with Mr. Egbers on the dates he claims he saw Mr. Beara

14    at Nova Kasaba?

15            In addition to failing to provide or calling corroborating

16    evidence on the purported presence of Mr. Beara at Nova Kasaba, Egbers's

17    testimony is nothing more than speculative, conjecture, and a

18    misidentification.  The description was erroneous, the time period too

19    short for him to evaluate.  Egbers himself never confirmed or hinted that

20    Ljubisa Beara was involved in the purported forcible transfer of the

21    captured Bosnian Muslim males at Nova Kasaba on July 14th, 1995.

22            Needless to say, if we examine all the evidence put forth by the

23    Prosecution on this issue, we must look to three other witnesses.  One,

24    Milorad Bircakovic; two, (redacted), and, again, three, again Egbers.  If

25    we draw up a timeline in respect of these three witnesses, you'll find

Page 21251

 1    that this Court cannot accept their testimony because it is in conflict.

 2    Each claim to have seen Mr. Beara and had a purported meeting with him on

 3    July 14th, 1995.  Bircakovic claims that it was at approximately 8.30 in

 4    Zvornik.  (redacted) claims that it was at approximately 9.00 or 9.30 in

 5    Bratunac. Egbers claims it was at 9.30 or 10.00 at Nova Kasaba.

 6    Impossible.

 7            This Court should and indeed must dismiss all three witnesses on

 8    the basis that they're not credible, that they are not believable.

 9            Despite what I believe are these blatant defects and obvious

10    flaws, the Trial Chamber may at this stage somehow view the testimony as

11    believable.  It should respectfully, nonetheless, acquit Mr. Beara,

12    because the removal of the Bosnian Muslim civilian population from

13    Potocari and Srebrenica was completed on the evening of July 13th by 2000

14    hours, 1995.

15            JUDGE AGIUS:  Be careful when you are mentioning names.  This is

16    not just you, Mr. Ostojic, but all the others, please, to make sure that

17    you are not mentioning any protected witnesses by their name.

18            MR. OSTOJIC:  I've worked hard to try to avoid that,

19    Mr. President.

20            JUDGE AGIUS:  No, it should be easy, actually.  You should have

21    had a list of these ready at hand.  Anyway, let's proceed.  We are making

22    the redaction.

23            MR. OSTOJIC:  Thank you.

24            We believe that the testimony of these witnesses, be it

25    Bircakovic, PW-162, and Egbers, were not corroborated with any other

Page 21252

 1    witnesses.  All occurred the day after the completion of the movement of

 2    the civilian population from Srebrenica.  All three of these individuals,

 3    we believe, it is impossible to suggest that they and only they saw

 4    Mr. Beara at that given time.  There was absolutely no one else who saw

 5    Mr. Beara but these three individuals.  Is it possible that he could

 6    travel from one point to the next point and then the third point in such a

 7    short time, and yet have meetings with these people from anywhere from 10

 8    minutes to 30 minutes?  I suggest that if we plainly look at a map, you'll

 9    find that it is indeed impossible.

10            None of the paragraphs relevant to count 7, forcible transfer, 61,

11    62, 63 and 64, have been proven, and thus an acquittal is appropriate and

12    warranted as it relates to Mr. Beara.

13            This honourable Chamber is asked from time to time about joint

14    criminal enterprise, and the Prosecution, as reflected in the indictment,

15    has selected to declare themselves with the third form, extended joint

16    criminal enterprise.  We believe the evidence, when you weigh it, not at

17    this time, but when you examine the evidence at this stage as it relates

18    to Mr. Beara, what they've proven is perhaps collective guilt, but they've

19    not proven any joint criminal enterprise or any participation of that

20    joint criminal enterprise by Mr. Beara.

21            We've tried to establish, through some of our questions, a

22    timeline for Mr. Beara.  He was not, as we've heard, noticed by anyone,

23    including their analyst, who thoroughly seemed to have examined evidence

24    to find some culpability of accused, he couldn't find any evidence from

25    the 1st through the 12th of July, 1995.  He couldn't find any evidence, as

Page 21253

 1    it relates to Mr. Beara, from the 17th through the 31st of July, 1995.

 2            When we discussed this third variant of extended joint criminal

 3    enterprise, we speak of knowledge, and if we look at the intercepts to

 4    determine what, if anything, Mr. Beara knew or should have known at that

 5    time, you'll find that there's only two options for us to really examine.

 6    If you accept or believe the OTP evaluation, analysis, and interpretation

 7    with respect to the intercept evidence relating to Mr. Beara, the two

 8    logical options are as follows:  One, that Mr. Beara did not have any

 9    knowledge of the events that were going on at that time.  If we take, for

10    example, the intercept 65 ter 1177, a purported conversation with

11    Zivanovic, or that Beara allegedly is calling for Zivanovic on the 15th of

12    July, 1995, the question that Mr. McCloskey should have asked is:  Why

13    would Ljubisa Beara, if he knew what was going on at that time, why would

14    he call General Zivanovic?  Mr. Beara should have known, as everyone knew,

15    that at that time there was a replacement for the Drina Corps Command from

16    General Zivanovic to General Krstic. If this was Beara at the intercept,

17    as they allege, Mr. Beara had no knowledge.  If it wasn't Mr. Beara, then

18    we shouldn't use the intercept at all to determine whether he was involved

19    or had knowledge of any joint criminal enterprise or the involvement of

20    criminal conduct based on that.

21            We discussed and we found another issue relating to this extension

22    155.  Now, Mr. Butler, in an attempt to be genuine with us, he coined it

23    "a little anomaly."  When asked how could Mr. Beara, if this indeed, as

24    they allege, is an extension for the Main Staff, if this is Mr. Beara

25    calling on this intercept, how could he not know the extension 155 was for

Page 21254

 1    the Main Staff?  Butler calls it a little anomaly, but indeed all it is is

 2    prosecutorial parlance for saying there is reasonable doubt, and he

 3    couldn't say that to us.

 4            If Mr. Beara was not on that intercept, then you must not consider

 5    those intercepts against him relating to joint criminal enterprise and the

 6    third variant.

 7            One other example, although we have many that we'll share with the

 8    Court, was again 65 ter 1178.  What no one wanted to discuss in that

 9    interview was that purportedly Mr. Beara was there with a gentleman by the

10    name of Lukic.  The Prosecution claims that it was a man by the name of

11    Milan Lukic from Visegrad who was not a commander, not an assistant

12    commander, but a mere soldier in a battalion or brigade.  If we look

13    closely at that intercept, you'll find that the person who captured the

14    conversation and purports that it was Mr. Beara says that, "Lukic is here

15    with his driver.  I dare say that there are two things we have to discuss

16    here:  One, it's impossible that a soldier such as Milan Lukic, at the age

17    of 23 years at that time, if not younger, had his own driver. He was

18    neither a commander, assistant commander, in charge of not even a troop.

19    The prosecution offers these suggestions, but fails to explain them

20    thoroughly.

21            In the brief moments that we have, I'd like to talk about

22    Mr. Celanovic which I think was an open witness.  Mr. Celanovic testified

23    here and he claimed that he saw Mr. Beara in or around Bratunac.  The

24    testimony, we believe, is not reliable.  And I understand under Rule 98,

25    you have to determine whether you should believe it and consider it in the

Page 21255

 1    light most favourable to the Prosecution.  There's no corroborating

 2    evidence as it relates to Mr. Celanovic, but if you really read his

 3    testimony, he suggested that he basically had an encounter with Mr. Beara,

 4    and they basically took a walk, and they took a walk from one building all

 5    the way across town to the next, unseen by anyone.  No one came up to

 6    them, no assistants, no other colleagues, no other soldiers or members of

 7    the Bratunac Brigade.  Mr. Celanovic was walking supposedly across town.

 8    He inspected, allegedly, the POWs, and they were planning, purportedly,

 9    where the POWs would go next.  There is no corroboration that Mr. Beara

10    was there at the time suggested by Mr. Celanovic.

11            Was the town empty?  And I'm sorry for using that word, because I

12    know my friend is sensitive with it.  Was the town vacant or desolate?  Of

13    course not.  He's suggesting to us that there were buses there, that there

14    were many soldiers there, many officers there, that we can draw from many

15    different witnesses.  No one, other than Celanovic, saw, purportedly,

16    Mr. Beara there.

17            Even if this Court accepts and believes Mr. Celanovic, despite the

18    fact that his testimony was vague and, in my view, inconsistent and truly

19    unbelievable, given the circumstances that he described it, we believe

20    that that encounter does not involve any criminal culpability on the part

21    of Mr. Beara.  Here's why:  If we recall his testimony, he said the

22    conversation was short and to the point.  The conversation, in all

23    respects, was about the screening and the interrogation of POWs.  There

24    was no conversation about doing anything other than what's legally

25    prescribed both under the former Yugoslav and the VRS laws as well as that

Page 21256

 1    which is indicated in the Geneva Conventions in dealing with POWs.

 2            So either way, if we accept Mr. Celanovic's testimony, although I

 3    don't because we believe Mr. Beara was not there at the time that he

 4    claims, it nonetheless doesn't provide any scintilla of evidence for any

 5    of the counts or allegations in my learned friend has asserted against

 6    Mr. Beara.  We are focusing, indeed, on count 7 with this testimony, and

 7    we believe that even if you accept Celanovic, you must still acquit

 8    Ljubisa Beara on this count.

 9            There are two other brief issues that I'd like to discuss.  There

10    were very few identifications, proper identifications, performed by the

11    Office of the Prosecutor.  One we do have that they conducted, and that

12    was with the witness who I understand was in open session, Drazen

13    Erdemovic.  With respect to Drazen Erdemovic, my learned friend and I were

14    able to come --

15            JUDGE AGIUS:  Go ahead.

16            MR. OSTOJIC:  There was some confusion with other testimony and

17    witnesses with this regard.

18            With respect to Drazen Erdemovic, we're really focusing on the

19    Branjevo Military Farm and Pilici.  My learned friend and I made a

20    stipulation in that regard, and we filed it on the 7th of May, 2007.  If

21    we closely look at that stipulation, the Court will find that it was

22    significant Drazen Erdemovic did not identify or recall ever seeing

23    Mr. Beara where others claim he may have been, but what's important to

24    note is the energy that the Prosecution used in trying to confirm that

25    Mr. Beara was there.  They got word from Mr. Erdemovic that he saw the

Page 21257

 1    individual, a lieutenant colonel or colonel, from some BBC television show

 2    while he was in prison.  They immediately sent their team over there, got

 3    a copy of that tape, got additional copies of that tape, showed it to him,

 4    and he did not confirm that that was Mr. Beara.

 5            Subsequently, for the first time, they showed him a picture of

 6    Mr. Beara, and it's attached as an exhibit or an annex to our filing of

 7    the 7th of May, 2007, and Mr. Erdemovic confirmed at that time that that

 8    individual in that picture, who is Mr. Beara, was not the individual he

 9    saw at any time at either Branjevo Military Farm or at Pilici.

10            We've chosen --

11            MR. McCLOSKEY:  Just to confirm and get our facts straight, which

12    I think is important, Mr. Erdemovic never said it was a colonel.  He's

13    always said "Lieutenant Colonel."

14            JUDGE AGIUS:  Go ahead.

15            MR. OSTOJIC:  Yes.

16            The Court has heard the testimony of other Prosecution witnesses

17    who have said that they don't know if it was a lieutenant colonel or

18    colonel at any given sighting.  Whether Erdemovic said it was a colonel or

19    lieutenant colonel, I believe that the Prosecution sought to implicate

20    Mr. Beara by showing he was present at that site, they would not have

21    shown him the picture of Mr. Beara had they not at least believed or

22    wanted to believe or wished to believe that it was Mr. Beara.  They showed

23    him the picture, and Mr. Erdemovic rejected them.  They did not do that

24    with any of the other witnesses that were brought before you who they

25    claim had encounters with Mr. Beara.

Page 21258

 1            We've chosen, Your Honours and Mr. President, to selectively

 2    isolate with respect to counts 7 and 8.  By no means do we suggest they've

 3    proven or met their burden of proof with respect to the other six counts.

 4    We do ask that Your Honours use your discretion and decide whether other

 5    counts can also be dismissed, which we believe they can.

 6            We strongly feel that if this Court outlines the timeline of both

 7    the evacuation and movement of people in Zepa, as well as the evacuation

 8    and movement of the civilian population in Srebrenica, you'll find that

 9    Ljubisa Beara not only was never near those areas, did not participate in

10    any of the meetings to plan or organise any such either evacuation,

11    forcible transfer, or deportation.

12            I humbly thank Your Honours for listening to us and for giving us

13    the opportunity address you, and we believe the evidence will speak for

14    itself that these two counts should and indeed must be dismissed as it

15    relates to Mr. Beara.

16            Thank you.

17            JUDGE AGIUS:  I thank you, Mr. Ostojic.

18            We'll have a break now.  I allowed us to go beyond the time.

19            Who is going next?  Okay.  We'll have --

20            MR. BOURGON:  I will, Mr. President.

21            JUDGE AGIUS:  We'll have a 25-minute break, starting from now.

22    Thank you.

23                          --- Recess taken at 10.32 a.m.

24                          --- On resuming at 11.04 a.m.

25            JUDGE AGIUS:  Yes, Mr. Bourgon.  You're starting at 11.02.

Page 21259

 1            MR. BOURGON:  Good morning, Mr. President.  Good morning, Judges.

 2    Good morning, colleagues.

 3            As usual, my colleagues representing the accused Beara are a tough

 4    act to follow, but that being said, I will endeavour to keep my

 5    submissions both interesting and as short as possible.

 6            Mr. President, the Prosecution closed its case on 6 February, and

 7    I have the honour today of addressing the Trial Chamber in accordance with

 8    the order issued on 29 November 2007.  Going straight to the point, my aim

 9    today is to respectfully request that Drago Nikolic, the accused I

10    represent in this case, along with Mrs. Nikolic, be acquitted at this

11    stage for counts 7 and 8, as well as count 2, pursuant to Rule 98 bis.  My

12    submissions today will last no more than 90 minutes, as authorised by the

13    Trial Chamber, hopefully shorter.

14            Turning to the law applicable to Rule 98 bis submissions, a

15    procedure unknown to most continental law systems, I do not intend to

16    spend much time.  That being said, the applicable standard for Rule 98 bis

17    submissions is well established in the case law of the International

18    Tribunal, and I refer the Trial Chamber to the latest decision in the case

19    the Prosecutor versus Milutinovic in Rule 98 bis. In that case,

20    Mr. President, the Trial Chamber held that the test to be applied is

21    whether there is evidence upon which, if accepted, a tribunal of fact

22    could be satisfied beyond reasonable doubt of the guilt of the particular

23    accused on the count in question.  The Trial Chamber went on to say:

24            "Therefore, where there is no evidence to sustain a count, the

25    motion will be granted."

Page 21260

 1            Furthermore, where there is some evidence but it is such that,

 2    taken at its highest, a Trial Chamber could not convict on it, the motion

 3    will also be granted.

 4            While I won't spend much time on the applicable law to Rule 98

 5    bis, I do wish to stress, Mr. President, the importance of the Rule 98 bis

 6    procedure, which is directly related, in our view, to the presumption of

 7    innocence.

 8            If there is no case to answer at the end of the presentation of

 9    the case for the Prosecution, it would be contrary to the presumption of

10    innocence and it would be unfair to require an accused to present a

11    defence.  That is why, Mr. President, the language in Rule 98 bis refers

12    to the word "shall."  For any count for which there is no evidence at the

13    close of the Prosecutor's case, the Trial Chamber shall enter a judgement

14    of acquittal.

15            Consequently, Mr. President, although my submissions today deal

16    only with counts 7, 8 and 2, we -- it is our understanding that it is the

17    duty of the Trial Chamber, if it finds that there is no evidence to

18    sustain the other counts, that the accused should also be acquitted of

19    these further counts.

20            I move directly to count number 7, forcible transfer.  Quickly,

21    the background to this count is as follows:

22            In our response to the Prosecution motion to amend the

23    indictments, that was on 21 July 2005, as well as in our motion alleging

24    defects in the form of the consolidated amended indictment on 29 December

25    2005, we argued, Mr. President, that the alleged joint criminal enterprise

Page 21261

 1    to forcibly remove the Bosnian Muslim population from the Srebrenica

 2    enclave and to forcibly remove the population from the Zepa enclave were

 3    distinct from each other.  We also argue that the Prosecution should not

 4    have been authorised to add a count of forcible transfer from the Zepa

 5    enclave to the charges laid against Drago Nikolic at that time.

 6            Our submission, Mr. President, rested on the fact that Drago

 7    Nikolic never set foot in Zepa and never had any involvement whatsoever in

 8    the events which led to the forcible transfer of the Zepa population.  To

 9    be more precise, the alleged forcible transfer of the Zepa population.  At

10    that time, the Trial Chamber ruled that proof of the allegation of the

11    existence of one joint criminal enterprise to forcibly remove the Bosnian

12    Muslim population from both the Srebrenica and Zepa enclave, was a matter

13    to be of evidence to be determined at trial.

14            Well, here we are, Mr. President.  We've heard the Prosecution

15    evidence.  And to us, the conclusion will remain the same.

16            In the decision I was referring to, of course, was a Trial Chamber

17    decision on the indictment of 31 May 2006, at paragraph 54.  In that same

18    decision, the Trial Chamber held at paragraph 52 that in the indictment,

19    the Prosecution had pleaded with enough detail the time periods of the

20    existence of the two alleged joint criminal enterprises, the two GCE being

21    first the joint criminal enterprise to forcibly remove the Bosnian Muslim

22    population from the Srebrenica and Zepa enclaves, and the second JCE, the

23    joint criminal enterprise to kill the able-bodied men of Srebrenica.

24            In our submission, Mr. President, it follows from the above that a

25    distinction must be made between the two joint criminal enterprises

Page 21262

 1    alleged in the indictment, and I refer here to attachment A, paragraphs 96

 2    and 97.  Again, I repeat, the first one -- or the first joint criminal

 3    enterprise being the forcible transfer or deportation of the Muslim

 4    population of Srebrenica and Zepa, and the second joint criminal

 5    enterprise being or referring to the killing of the able-bodied men from

 6    Srebrenica.  The distinction between the two is highlighted in various

 7    paragraphs of the indictment, including, amongst others, paragraph 34,

 8    related to count 2, conspiracy to commit genocide.

 9            The second consideration arising from the indictment is that the

10    joint criminal enterprise related to forcible transfer, as well as the

11    Trial Chamber's decision and the indictment, all confirm that its aim was

12    to remove the population from both the Srebrenica and Zepa enclaves. Both

13    of these considerations, Mr. President, we submit are highly relevant for

14    the Trial Chamber's adjudication of our submissions pursuant to Rule 98

15    bis.

16            I now move to the precise wording of count number 7 found in

17    paragraph 49 of the indictment.  Pursuant to this paragraph, Drago Nikolic

18    is charged, together with others, for being a member of and knowingly

19    participating in a joint criminal enterprise, the common purpose of which

20    was to force the Muslim population out of the Srebrenica and Zepa

21    enclaves, to areas outside the control of the RS from about 8 March 1995

22    through the end of August 1995.  For the Trial Chamber to return a guilty

23    finding against Drago Nikolic for count number 7, forcible transfer, it is

24    our submission that the Prosecution must prove beyond a reasonable doubt

25    each of the following essential elements of the offence.

Page 21263

 1            If I may have 3D304 on e-court, please, page 1.

 2            It is our submission, Mr. President, that the following essential

 3    elements must be proved --

 4            JUDGE AGIUS:  One moment.  It's still not up yet.

 5            Yes, it is now.  Thank you.

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

 7            From about 8 -- now, we have applied these essential elements to

 8    the facts of the case so that we can best present our submissions

 9    specifically as they apply to Drago Nikolic.

10            From about 8 March through the end of August, 1995, the Bosnian

11    Muslim population was unlawfully forced to leave the Srebrenica and Zepa

12    enclaves.  Number 2, such forcible transfer was committed willfully,

13    meaning with the intent to permanently remove the population, which

14    implies the intention that they should not return once the situation has

15    normalised or had normalised in the area.

16            Regarding the permanent character of the removal of the

17    population, we wish to draw the attention of the Trial Chamber to the

18    commentary to the Geneva Conventions -- the commentary to Geneva

19    Convention 4, to be more precise, at page 280, which states that unlike

20    deportation and forcible transfer, evacuation is a provisional measure.

21    So what must be proved is that the measure was permanent and that it was

22    not evacuation.  A distinction must be made between forcible transfer and

23    evacuation.  And as we will see later, this is another important

24    consideration.

25            The third element being the forcible transferred after -- during

Page 21264

 1    an armed conflict, and the forcible transfer occurred, according to the

 2    fourth element, in the context of a widespread, systematic attack against

 3    any civilian population.

 4            With respect to the fourth essential element, the Defence

 5    emphasizes the importance of the victim group being a civilian population.

 6            We refer the Trial Chamber to the judgement in the Sljivancanin --

 7    the Prosecutor versus Sljivancanin in this regard.

 8            The fifth element, Mr. President, I'm sure we can see it -- yes we

 9    have it on the screen, there's a nexus between the forcible transfer and

10    the attack on the civilian population. And finally, of course, the accused

11    incurs individual criminal responsible pursuant to Article 7(1) of the

12    Statute, and that is for committing, planning, instigating, ordering, or

13    otherwise aiding and abetting in the planning, preparation, or execution

14    of the forcible transfer.

15            Regarding this last element, Mr. President, the Defence recalls

16    the Prosecution's theory in this case is that Drago Nikolic was a member

17    of a joint criminal enterprise which, in the Prosecutor's view, is a way

18    of committing forcible transfer.

19            Mr. President, it is our submission that there is presently no

20    evidence on the record that Drago Nikolic either participated or had any

21    involvement in the alleged forcible transfer from both the Srebrenica and

22    Zepa enclaves.  It is also our submission that there is no evidence that

23    Drago Nikolic had the required mens rea, in other words, the intent to

24    permanently remove the Bosnian Muslim population from the Srebrenica and

25    the Zepa enclaves.  In fact, Mr. President, it is our submission that

Page 21265

 1    there is no evidence on the record on the basis of which a reasonable

 2    trier of fact could conclude at this stage that Drago Nikolic was a member

 3    of a joint criminal enterprise to forcibly remove the Bosnian Muslim

 4    population from both enclaves.

 5            Moreover, even though the indictment comprises no specific

 6    allegations to this effect, it is our submission that there is no evidence

 7    on the record on the basis of which a reasonable trier of fact could

 8    conclude that Drago Nikolic aided and abetted in any way the forcible

 9    transfer of the Bosnian Muslim population from both enclaves.  I will now

10    explain why this is so, and I will begin by the alleged forcible transfer

11    of the Bosnian Muslim population from Srebrenica.

12            In order to understand the forcible transfer count, it is

13    necessary, in our submission, to view the persons living in the Srebrenica

14    enclave at the time as comprising three different groups; firstly, the

15    women, children, and elderly who allegedly went from Srebrenica to

16    Potocari before being transported by bus to Kladanj; secondly, the

17    able-bodied men who were separated from the group that made its way from

18    Srebrenica to Potocari before being allegedly transported to and detained

19    in Bratunac; thirdly, the members of the Muslim 28th Division, the

20    able-bodied men, and any other persons accompanying them who decided to

21    leave the Srebrenica enclave with a view to reaching the territory under

22    the control of the 2nd Corps of the Muslim Army in Tuzla.

23            It is our submission, Mr. President, that count 7, forcible

24    transfer, applies only to the first of these groups, namely, the women,

25    children and elderly who allegedly went from Srebrenica to Potocari before

Page 21266

 1    being transported by bus to Kladanj.  This submission, in our view, is

 2    confirmed by the fact that, on one hand, the able-bodied men allegedly

 3    separated in Potocari, and of course the soldiers and able-bodied men who

 4    intended to reach Muslim territory, are those targeted by the second joint

 5    criminal enterprise, which was allegedly to kill the able-bodied men from

 6    Srebrenica that were captured or surrendered after the fall of Srebrenica

 7    on 11 July 1995.  These able-bodied men, Mr. President, are, in our view,

 8    not included in the Bosnian Muslim population allegedly forcibly

 9    transferred from Srebrenica.  This submission is also confirmed by the

10    fact that the able-bodied men who were allegedly separated and detained in

11    Bratunac, that this did not amount to forcible transfer, but that it was

12    rather a detention issue, albeit possibly related to the joint criminal

13    enterprise to kill the able-bodied men from Srebrenica.

14            It is our submission that there was certainly no intention to

15    transfer the able-bodied men separated in Potocari to an area outside the

16    control of the Republika Srpska.

17            As for the third group, the first consideration is that their

18    departure from Srebrenica is not forcible transfer, as these persons did

19    have a genuine choice to remain in Srebrenica.  Most of them were armed,

20    and they could remain in Srebrenica in order to fight.  It was their

21    decision to depart to reach the territory under the control of the 2nd

22    Corps of the Muslim Army.

23            Moreover, Mr. President, while this group was on its way to Tuzla,

24    it represented a threat to the VRS and the Serb population in the area.

25    This was confirmed by the evidence, and this is what led to the use of

Page 21267

 1    force by the VRS and the special police, first, to stop their progression

 2    towards Tuzla, and to detain them as prisoners of war.  Once again,

 3    Mr. President, the capture and/or surrender of the members of the column

 4    did not amount to forcible transfer.  This was rather legitimate military

 5    action possibly related, albeit, to the joint criminal enterprise to kill

 6    the able-bodied men from Srebrenica.  And once again there was certainly

 7    no intention to transfer the able-bodied men from the column to an area

 8    outside the control of the Republika Srpska, which is alleged in this

 9    joint criminal enterprise.

10            In any event, Mr. President, as will be seen later, even if it was

11    considered that count 7, forcible transfer, does apply to the able-bodied

12    men separated in Potocari and to the soldiers and able-bodied men who were

13    in the column, it is our submission that the conclusion would be the same;

14    that is, based on the evidence on the record at the close of the

15    Prosecution case, there is no evidence which could allow a reasonable

16    trier of fact to conclude that Drago Nikolic was a member of a joint

17    criminal enterprise, the purpose of which was to forcibly transfer these

18    able-bodied men to an area outside the control of the Republika Srpska.

19            I now move quickly to factual allegations in the indictment in

20    relation to count 7, forcible transfer.  These allegations are divided in

21    two categories:  Firstly, paragraphs 50 to 60, which concern the forcible

22    transfer of the Bosnian Muslim population both from the Srebrenica and

23    Zepa enclaves; secondly, paragraph 61 to 64, which deal specifically with

24    the following:  The alleged forcible transfer of the Muslim population

25    from Srebrenica; the alleged separation of the able-bodied men from the

Page 21268

 1    group which assembled in Potocari; and, three, the capture and/or

 2    surrender of the soldiers and able-bodied men from the column after the

 3    fall of Srebrenica on 11 July.

 4            Having reviewed the totality of the evidence on the record,

 5    including both the witness testimony and the documentary evidence, and

 6    focusing specifically on the intercept evidence as well as all of the

 7    logbooks admitted on the record, and I refer to the four logbooks, the

 8    operations duty officer logbook, the barracks duty officer logbook, the

 9    Zvornik Brigade forward command post duty officer logbook, as well as the

10    Zvornik Brigade war diary, and having considered this evidence at its

11    highest value in accordance with Rule 98 bis, it is our respectful

12    submission, firstly, that there may be some evidence on the record which

13    could allow a reasonable trier of fact to conclude beyond a reasonable

14    doubt that the Bosnian Muslim population from Srebrenica was transferred

15    to Kladanj, an area outside the control of the Republika Srpska.  But what

16    is more important, Mr. President, there is no evidence on the record which

17    could allow a reasonable trier of fact to conclude beyond a reasonable

18    doubt that Drago Nikolic either had any involvement in the events and/or

19    activities described in these paragraphs or that he was a member of a

20    joint criminal enterprise, the aim of which was to transfer the Muslim

21    population from the Srebrenica enclave.

22            Regarding the first group, the group that we say was targeted by

23    the first joint criminal enterprise, namely, the women, children, and

24    elderly allegedly forcibly transferred to Kladanj, there was no

25    involvement, Mr. President, of the Zvornik Brigade in this forcible

Page 21269

 1    transfer, leading to the conclusion that Drago Nikolic was also not

 2    involved.  This was confirmed by the Prosecution military expert, Richard

 3    Butler, pages 20388-389.  I would like to now address why this is so and

 4    what supports this conclusion.

 5            Firstly, regarding the 1st Battalion, which was assembled or put

 6    together from personnel taken from various units of the Zvornik Brigade, I

 7    refer to the group which participated in Operation Krivaja-95 under the

 8    command of Vinko Pandurevic, while this group may have been involved in

 9    the forcible transfer of the Bosnian Muslim population, this battalion was

10    at the time under the command and control of the Drina Corps commander,

11    General Zivanovic, and no longer under the command and control of the

12    Zvornik Brigade, per se, as revealed by the evidence.  In any event, there

13    is no evidence on the record which could allow for the conclusion that

14    Drago Nikolic was either a member of this battalion or involved in any way

15    in the planning and/or preparations leading to the deployment of this

16    battalion to take part in Operation Krivaja-95.  Moreover, it stems from

17    the evidence on the record and the testimony of Witness PW-168 that the

18    Zvornik Brigade was not informed in any detail of the activities of this

19    battalion while deployed on Operation Krivaja-95.

20            Another issue which might be of interest to the Trial Chamber

21    pertains to buses which would have been provided by the Zvornik Brigade.

22    While there is some evidence on the record that the Drina Corps requested

23    the Zvornik Brigade to provide buses and minibuses for its use on 12 July

24    1995, and that the Zvornik Brigade would have provided two buses and four

25    trucks in response to this request, it is our submission that there is no

Page 21270

 1    evidence on the record which could allow a reasonable trier of fact to

 2    conclude that the Zvornik Brigade was thus knowingly involved in the

 3    forcible transfer of the Bosnian Muslim population from Srebrenica or in

 4    any other related criminal activity.  This conclusion stems from the

 5    following:

 6            Firstly, Witness PW-168 testified that he knew that these vehicles

 7    were needed for the evacuation, and I stress the word "evacuation," of

 8    residents of Srebrenica pursuant to an agreement that had been reached,

 9    and that it was their wish to be transferred to Kladanj.

10            Secondly, the request from the Drina Corps, I refer to Exhibit

11    110, referred to the evacuation from the Srebrenica enclave, a legitimate

12    purpose pursuant to the Geneva Conventions.

13            Thirdly, the Drina Corps request was considered legitimate, from a

14    military standpoint, by the Prosecution military expert, Richard Butler.

15    Page 20389.

16            Next, the drivers of these vehicles, once they left the Zvornik

17    Brigade, they were under the command and control of the requesting party,

18    namely, the Drina Corps commander, confirmed by Richard Butler, page

19    20398.

20            Next, once the Zvornik Brigade was informed that Srebrenica had

21    fallen, there is no evidence on the record that anyone from the Zvornik

22    Brigade was aware that forcible transfer of the Muslim population from

23    Srebrenica was taking place.

24            In any event, on that day, 12 July 1995, the evidence reveals that

25    Drago Nikolic was not present.  This was confirmed by Witness PW-168, by

Page 21271

 1    the -- by Witness Richard Butler, pages 20338-20339, as well as Exhibit

 2    3DP311.  The evidence also reveals that Drago Nikolic was not involved in

 3    sending vehicles to the Drina Corps; Butler, pages 20398-20399.

 4            Another issue which might be of interest to the Trial Chamber is

 5    that there is some evidence on the record that the Drina Corps requested

 6    the Zvornik Brigade to provide a squad of military policemen to perform

 7    traffic control duties at the Konjevic Polje intersection.  I refer to

 8    Exhibit 157.  Of course, in response to this request, there is some

 9    evidence that the Zvornik Brigade sent four or five military policemen, as

10    many as could fit in one car according to Witness PW-168, to Konjevic

11    Polje to perform traffic control duties.  There is no evidence on the

12    record which could allow a reasonable trier of fact to conclude that the

13    Zvornik Brigade was thus, by sending four or five military policemen for

14    traffic control duties, knowingly involved in the forcible transfer of the

15    Muslim population from Srebrenica or in any other related criminal

16    activity.  This conclusion stems from the following:

17            Witness PW-168 testified that he was in Memici when the order was

18    received and the military policemen were sent.  He did not speak to Drago

19    Nikolic on this issue; page 17049.  He does not know who sent the military

20    policemen.  The squad was either under the command and control of the

21    Drina Corps or of the protection regiment; page 15823.  And Witness PW-168

22    knows that Drago Nikolic had a day off on 12 July.

23            Richard Butler testified that the order to send military policemen

24    was, in his word, standard military order and that there was nothing

25    improper about it; page 20392, and that Drago Nikolic was not involved in

Page 21272

 1    sending those military policemen; pages 19807, 19809.  In any event, on

 2    that day, again the 12 July 1995, the evidence reveals that Drago Nikolic

 3    was not present.  Again, this was confirmed by Witness PW-168, by Richard

 4    Butler, and by Exhibit 3DP311.

 5            Mr. President, it follows from the above that there is no evidence

 6    on the record on the basis of which a reasonable trier of fact could

 7    conclude, and I refer specifically here to the first group, the women,

 8    children and the elderly, that anyone in the Zvornik Brigade, including

 9    Drago Nikolic, was knowingly involved in the forcible transfer of the

10    Muslim population from Srebrenica.  Furthermore, there is no evidence on

11    the basis of which a reasonable trier of fact could conclude that Drago

12    Nikolic had any involvement whatsoever in the forcible transfer of the

13    Muslim population, group 1, from the Srebrenica enclave.

14            So what is the situation concerning the other two groups, the

15    able-bodied men separated in Potocari and the soldiers and able-bodied men

16    from the column?  Should the Trial Chamber conclude that count 7, forcible

17    transfer, also applies to them.  As mentioned earlier, it is our

18    submission that the conclusion remains the same; that is, there is still

19    no evidence on the record on the basis of which a reasonable trier of fact

20    could conclude that Drago Nikolic was a member of a joint criminal

21    enterprise to forcibly transfer the Muslim population from the Srebrenica

22    enclave to an area outside the control of RS.  This conclusion stems now

23    from the following:

24            First, there was no involvement of the Zvornik Brigade.  The 1st

25    Battalion deployed on the Operation Krivaja-95, referred to earlier, was

Page 21273

 1    neither involved in fighting the column, nor in the capture or surrender

 2    of the members thereof.  In fact, there is no -- based on the evidence on

 3    the record, no element of the Zvornik Brigade was involved in the capture,

 4    surrender and detention, that is, both in Bratunac and other sites along

 5    the Bratunac-Konjevic Polje road of the able-bodied men from the column.

 6    Moreover, looking at the information available to the Zvornik Brigade

 7    concerning the capture, surrender and detention of soldiers and

 8    able-bodied men from the column, there is some information in this regard

 9    in the duty officer's -- in the duty operation officer's logbook.  There

10    is, nonetheless, no evidence on the record on the basis of which a

11    reasonable trier of fact could conclude that the Zvornik Brigade had any

12    knowledge that anything other than proper military activity was being

13    conducted with respect to the column.  Moreover, there is no evidence on

14    the record on the basis of which a reasonable trier of fact could conclude

15    that Drago Nikolic had any knowledge or was involved in any way in the

16    capture, surrender, and detention of able-bodied men from the column.

17            I now move, Mr. President, to forcible transfer from the Zepa

18    enclave.  I begin with the factual allegations in the indictment, which

19    are found at paragraphs 65 to 71.  These paragraphs deal specifically with

20    the alleged forcible transfer of the Muslim population from Zepa.

21            Once again, Mr. President, having reviewed the totality of the

22    evidence on the record, as mentioned earlier, focusing on the intercepts

23    and the logbooks, witness evidence and documents, and having considered

24    this evidence at its highest value, it is our respectful submission that

25    there may be some evidence on the record which could allow a reasonable

Page 21274

 1    trier of fact to conclude beyond a reasonable doubt at this stage that the

 2    Bosnian Muslim population from Zepa was forcibly transferred to an area

 3    outside the control of RS, but what is more important, once again, there

 4    is no evidence on the record which could allow a reasonable trier of fact

 5    to conclude beyond a reasonable doubt that Drago Nikolic either had any

 6    involvement in the events and/or activities described in these paragraphs,

 7    or that he was a member of a joint criminal enterprise, the aim of which

 8    was to transfer the Bosnian Muslim population from the Zepa enclave.  In

 9    our submission, this conclusion stems from the following:

10            While there may be some evidence that the 1st Battalion of the

11    Zvornik Brigade, or, sorry, the 1st Battalion assembled from members taken

12    from units of the Zvornik Brigade may have been involved in preparations

13    leading to attacks on the Zepa enclaves.  The evidence reveals that this

14    battalion was withdrawn from the area of Zepa and returned to the area of

15    Zvornik before any force or threat of the use of force was applied on Zepa

16    with the aim of forcibly transferring the Muslim population from that

17    enclave.

18            Moreover, as mentioned earlier, Drago Nikolic was not a member of

19    this battalion and he was not involved in the planning or preparations

20    leading to the deployment of this battalion.

21            In any event, until this battalion was returned from Zepa, this --

22    it was under the command and control of the Drina Corps commander, General

23    Zivanovic.

24            Furthermore, there is no evidence on the record that Drago Nikolic

25    was ever involved in the events which took place in Zepa or ever informed

Page 21275

 1    of the events which took place in Zepa.  This was our conclusion before

 2    the beginning of this case, and there is no evidence on the record, now

 3    that the Prosecution has closed its case, which would allow for a

 4    different conclusion.

 5            It follows from the above, Mr. President, that there is no

 6    evidence on the record on the basis of which a reasonable trier of fact

 7    could conclude that anyone in the Zvornik Brigade, including Drago

 8    Nikolic, was knowingly involved in the forcible transfer of the Bosnian

 9    Muslim population from Zepa, and there is no evidence on the record on the

10    basis of which a reasonable trier of fact could conclude that Drago

11    Nikolic had any involvement whatsoever in the forcible transfer of the

12    Bosnian Muslim population from the Zepa enclave.

13            While in our view, Mr. President, this demonstration is sufficient

14    to justify a verdict of acquittal at this stage for count 7, forcible

15    transfer, there is yet one more area we need to look at, namely, paragraph

16    80 of the indictment, which comprises the alleged role and actions of

17    Drago Nikolic in furtherance of the joint criminal enterprise to forcibly

18    transfer the Srebrenica and Zepa Muslim population.

19            Firstly, pursuant to paragraphs 80(a)(i) and (ii), it is alleged

20    that Drago Nikolic was in control of the movement of the Muslim population

21    out of the enclaves from 13 and 16 July by first assisting in the

22    planning, organising, and supervising of the transportation of Muslim men

23    from Bratunac and, two, supervising, facilitating, and overseeing the

24    transportation of Muslim men once again from Bratunac to detention sites

25    in the Zvornik area, always for the period from 13 to 16 July.

Page 21276

 1            Now that the Prosecution has closed its case, it is our respectful

 2    submission that there is no evidence on the record on the basis of which a

 3    reasonable trier of fact could conclude that Drago Nikolic was involved in

 4    controlling the transportation of Muslim men from Bratunac at any time.

 5    Moreover, should the Trial Chamber conclude that Drago Nikolic was in some

 6    way involved or that there is some evidence that could lead to this

 7    conclusion that Drago Nikolic may have been involved in the transport of

 8    prisoners during the period from 13 [Realtime transcript read in error

 9    "15"] To 16 July 1995, it is our submission that any such involvement of

10    Drago Nikolic is related to the alleged joint criminal enterprise to kill

11    the able-bodied men from Srebrenica, those that were captured or who

12    surrendered after the fall of Srebrenica on 11 July 1995.  Any such

13    involvement is not related in any way to the joint criminal enterprise to

14    forcibly transfer the Muslim population from the Srebrenica and Zepa.

15            Secondly, pursuant to paragraph 80 and paragraph 80(a)(iii), it is

16    also alleged that in furtherance of the joint criminal enterprise to

17    forcibly transfer the Srebrenica and Zepa Muslim population, firstly, that

18    Drago Nikolic committed the acts comprised in paragraphs 30.6 to 30.12,

19    30.14, 30.15, 31.4, 32, and 34 to 37.  It is also alleged that Drago

20    Nikolic failed to ensure the safety and welfare of prisoners, which would

21    have been his duty.  Now, we don't know what area is covered by this

22    paragraph, although it appears that it would be in the area of Zvornik.

23            Should the Trial Chamber conclude at this stage that there is some

24    evidence leading to the conclusion that Drago Nikolic may have been

25    involved in any of these acts or omissions, it is our submission that any

Page 21277

 1    such involvement of Drago Nikolic is once again related to the joint -- to

 2    the alleged, sorry, joint criminal enterprise to kill the able-bodied men

 3    from Srebrenica, those who were captured or who surrendered after the fall

 4    of Srebrenica on 11 July 1995, and accordingly that any such involvement

 5    of Drago Nikolic is not related in any way to the joint criminal

 6    enterprise to forcibly transfer the Srebrenica and Zepa Muslim population.

 7            These acts, Mr. President, were either committed after 13 July, at

 8    a time when the forcible transfer of the Muslim population from Srebrenica

 9    would have been completed, and before the alleged forcible transfer of the

10    Muslim population from Zepa would have taken place.

11            As mentioned at the beginning, the Prosecution's theory in this

12    case is based on the existence of two joint criminal enterprise, and it is

13    crucial not to mix the two in all fairness to the accused.  In this

14    regard, it is our submission that the analysis to be performed by the

15    Trial Chamber in order to adjudicate on our application pursuant to Rule

16    98 bis, is to assess whether there is any evidence on the record on the

17    basis of which it could conclude beyond a reasonable doubt that Drago

18    Nikolic was a member of the joint criminal enterprise to forcibly transfer

19    the Muslim population from the Srebrenica and Zepa enclaves.

20            Pursuant to the case law of the International Tribunal, membership

21    in a joint criminal enterprise depends on the following requirements.

22            If I can have in e-court, please, 3D304, page 3.

23            Mr. President, I take this opportunity to highlight an error in

24    the transcript.  At page 53, line 16, there's is a mistake.  It is my

25    understanding, from what I'm given, is that it says lines 13 to 16, and --

Page 21278

 1    it's not 15, it's 13 to 16.

 2            The following requirements must be met for somebody to be found to

 3    be a member of a joint criminal enterprise:  First, a plurality of persons

 4    participated in the forcible transfer of the population from the

 5    Srebrenica and Zepa enclaves; second, the existence of a common plan,

 6    design, or purpose to forcibly transfer the Bosnian Muslim population from

 7    the Srebrenica and Zepa enclaves; three, that the accused participated in

 8    the common plan, design, or purpose, the aim of which was to forcibly

 9    transfer the Bosnian Muslim population from the Srebrenica and Zepa

10    enclaves, and, four, the accused shared the purpose of the alleged joint

11    criminal enterprise; that is, the accused intended to forcibly transfer

12    the Bosnian Muslim population from the Srebrenica and Zepa enclaves.

13            Applying these elements to the evidence on the record at this

14    stage, it is our submission that there is no direct evidence on the record

15    that Drago Nikolic shared the purpose of the forcible transfer, joint

16    criminal enterprise, and that he intended to forcibly transfer the Bosnian

17    Muslim population from the Srebrenica and Zepa enclaves to an area outside

18    the control of the Republika Srpska.  Moreover, even if the Trial Chamber

19    was to conclude that at this stage there is some evidence which could

20    allow the Trial Chamber to conclude that Drago Nikolic may have been a

21    member of the joint criminal enterprise to kill the able-bodied men from

22    Srebrenica, those that were captured or who surrendered after the fall of

23    Srebrenica, a conclusion of course we contest and we are confident will

24    not be shown beyond a reasonable doubt at the end of the trial, it would

25    not allow for the conclusion or the inference, whether direct or from

Page 21279

 1    circumstantial evidence, that Drago Nikolic intended to forcibly transfer

 2    the Bosnian Muslim population from the Srebrenica and Zepa enclaves.

 3            Moreover, looking at the participation component of "joint

 4    criminal enterprise," that is, joint criminal enterprise category 1, one

 5    of the following must be proved beyond a reasonable doubt to support a

 6    finding that the accused participated in the joint criminal enterprise to

 7    forcibly transfer the Muslim population from the Srebrenica and Zepa

 8    enclaves.  Either the accused personally committed the forcible transfer

 9    as a principal offender.  There is absolutely no evidence of this on the

10    record.  Either the accused assisted or encouraged the principal offender

11    in committing the forcible transfer.  There is no evidence of this,

12    either.  Or, three, the accused acted in furtherance of the common plan to

13    forcibly transfer by reason of his position of authority or function, with

14    knowledge of the nature of that system of forcible transfer and the intent

15    to further it.

16            It is our submission that there is no evidence on the record at

17    this stage on the basis of which a reasonable trier of fact could conclude

18    that Drago Nikolic met any of these three forms of participation in the

19    joint criminal enterprise to forcibly transfer the Muslim population from

20    the Srebrenica and Zepa enclaves.  Consequently, Mr. President, if the

21    participation of Drago Nikolic in the joint criminal enterprise to

22    forcibly transfer the Muslim population from the Srebrenica and Zepa

23    enclaves is not a possible conclusion at this stage, the final question

24    then is:  Could a reasonable trier of fact conclude, on the basis of the

25    evidence on the record, that Drago Nikolic aided and abetted the forcible

Page 21280

 1    transfer of the Bosnian Muslim population from the Srebrenica and Zepa

 2    enclaves?  It is our submission that the answer to this question is,

 3    "No."

 4            If I can have 3D304, page 4, on e-court, please.

 5            These elements of aiding and abetting are well established in the

 6    case law of the Tribunal.  I only put it up on e-court to highlight that

 7    any acts committed by an accused would have to amount to practical

 8    assistance which had a substantial effect on the forcible transfer of the

 9    Bosnian Muslim population.  Pursuant to the evidence on the record, it is

10    our submission that there is no evidence of any acts committed by Drago

11    Nikolic which had a substantial effect on the forcible transfer of the

12    Bosnian Muslim population from the Srebrenica and Zepa enclaves.

13            It is significant, in this respect, that neither Dragan Obrenovic,

14    the chief of staff of the Zvornik Brigade, nor Dragan Djukic, the chief of

15    the Zvornik Brigade, were indicted for the forcible transfer of the

16    Bosnian Muslim population from the Srebrenica and Zepa enclaves.

17            While the Prosecution's decision to indict or not these

18    individuals for the forcible transfer of the Bosnian Muslim population

19    from Srebrenica and Zepa, is of course discretionary in nature, the fact

20    that they were not charged for forcible transfer is nonetheless a powerful

21    indicator that Drago Nikolic was not involved in any way in these

22    activities.

23            One last consideration, Mr. President.  At the time the idea of

24    forcible transfer first came up, that is, in Potocari earlier in July,

25    Drago Nikolic was not even -- sorry, the evidence on the record is silent

Page 21281

 1    regarding either the presence or the activities of Drago Nikolic at that

 2    time.  This alleged plan or common purpose, if it was elaborated at such a

 3    time, Drago Nikolic was not at that time involved in any event.  It is

 4    simply, Mr. President, a further consideration.

 5            I now move, Mr. President, to count number 8, deportation of the

 6    Muslim population from Zepa.  I will go quickly, in light of the arguments

 7    and submissions presented with respect to count 7, forcible transfer, it

 8    is our respectful submission that there is presently no evidence on the

 9    record that Drago Nikolic either participated or had any involvement in

10    the alleged deportation from Zepa, and there is no evidence that Drago

11    Nikolic had the required mens rea, in other words, the intent to deport

12    the Bosnian Muslim population from Zepa.  In fact, it is our submission

13    that there is no evidence on the record on the basis of which a reasonable

14    trier of fact could conclude at this stage that Drago Nikolic was a member

15    of a joint criminal enterprise to deport the Bosnian Muslim population

16    from Zepa.

17            Furthermore, it is our submission, even though the indictment

18    comprises no specific allegations to this effect, that there is no

19    evidence on the record on the basis of which a reasonable trier of fact

20    could conclude that Drago Nikolic aided and abetted in any way the

21    deportation of the Bosnian Muslim population from Zepa.

22            Mr. President, regarding deportation, it is my understanding that

23    counsel representing other accused in this case will be presenting legal

24    arguments, showing that a deportation count simply cannot hold.  And

25    without going into these arguments, we simply say that we join the

Page 21282

 1    arguments which will be presented by counsel representing other accused in

 2    this regard.

 3            In conclusion, Mr. President, regarding counts 7, forcible

 4    transfer from the Srebrenica and Zepa enclaves to areas outside the

 5    control of the RS, and count 8, deportation of the Muslim population from

 6    the Zepa enclave, we submit, Mr. President, that there is no case to

 7    answer for Drago Nikolic and that he must be acquitted at this stage of

 8    both of these counts in full.

 9            I now move quickly to count number 2, conspiracy to commit

10    genocide, alleged in paragraphs 34 and 35 of the indictment.

11            Pursuant to paragraph 34, Drago Nikolic would be responsible for

12    having entered into an agreement with several others, firstly, to kill the

13    able-bodied men from Srebrenica that were captured or surrendered after

14    the fall of Srebrenica on 11 July 1995, and, secondly, to remove the

15    remaining Muslim population of Srebrenica and Zepa from the Republika

16    Srpska, thirdly, with the intent to destroy those Muslims.

17            The background to this charge, Mr. President, is as follows:

18            In the Prosecution's motion for amendments to the indictments,

19    dated 28 June 2005, the Prosecution requested to remove the charge of

20    complicity in genocide and to add a new count of conspiracy to commit

21    genocide.  The Prosecution justified the new count of conspiracy to commit

22    genocide on the basis of developments in the law regarding conspiracy and

23    the fact that the law on joint criminal enterprise at the time, in any

24    event, was in a state of flux.  The conspiracy to commit genocide charge

25    is a first before the International Tribunal.

Page 21283

 1            Moreover, even though the Prosecution cites a number of cases in

 2    its pre-trial brief where conspiracy to commit genocide charges were laid

 3    before the International Criminal Tribunal for Rwanda, in most of these

 4    cases, and I refer here to footnote 585 of the Prosecution's pre-trial

 5    brief, the charge of conspiracy to commit genocide has been removed from

 6    the indictment and thus is not discussed at all in those decisions.

 7            Strikingly, in its discussion on the count of conspiracy to commit

 8    genocide, the Prosecution omitted in this footnote and in his arguments

 9    the following two cases in which the accused was acquitted of conspiracy

10    to commit genocide at the Rule 98 bis stage, even though they were later

11    convicted of genocide.  Case ICTR 99-54, Alpha-Trial, Jean de Dieu,

12    Kamuhanda; the second case, ICTR 99-46-Trial, Samuel -- and I apologise

13    for my pronunciation, Imanishimwe.  It is our submission that these cases

14    are especially relevant to this case and the situation of Drago Nikolic.

15            We also refer the Trial Chamber to the following three cases in

16    which the accused were acquitted of conspiracy to commit genocide, this

17    time in the final judgements.  The Prosecutor versus Alfred Musema, the

18    Prosecutor versus Elizaphan and Gerard Nrakirutimana, and the Prosecutor

19    versus Juvenal Kajelijeli.

20            For the Trial Chamber to return a guilty finding against Drago

21    Nikolic for count number 2, conspiracy to commit genocide, the Prosecution

22    must prove beyond a reasonable doubt each of the following essential

23    elements of the offence.

24            If I can have 3D304, page 5, in e-court, please.

25            The first element:  The accused entered into an agreement with

Page 21284

 1    others to kill the able-bodied Muslim men of Srebrenica that were captured

 2    or surrendered after the fall of Srebrenica on the 11 July 1995 and

 3    removed the remaining population of Srebrenica and Zepa from the Republika

 4    Srpska.  The second element:  The accused had the required mental element

 5    for genocide.

 6            As a preliminary consideration, Mr. President, I wish to state for

 7    the record that our submissions in relation to count 2 at this stage are

 8    not related in any way to the genocide count, nor to the essential

 9    elements of genocide which must be proved beyond a reasonable doubt for an

10    accused to be convicted of that charge.  At this stage, our application,

11    pursuant to Rule 98 bis, does not address genocide.  It only addresses

12    conspiracy to commit genocide, and taking into consideration the essential

13    element of this count, conspiracy to commit genocide, and as mentioned

14    earlier, having reviewed the totality of the evidence on the record,

15    including the witness testimony and the documentary evidence, and

16    considered this evidence at its highest value, it is our respectful

17    submission that there is absolutely no evidence on the record on the basis

18    of which a reasonable trier of fact could conclude that Drago Nikolic

19    entered into an agreement with others to commit genocide.

20            Our submission rests on the following:

21            There is some evidence on the records concerning wrongdoings or

22    alleged wrongdoings of Drago Nikolic.  We simply say that we take all of

23    the evidence and we take it at its highest value.  We simply cannot

24    conclude that Drago Nikolic entered into an agreement to commit genocide

25    with others.

Page 21285

 1            If we look at the two cases before the International Criminal

 2    Tribunal for Rwanda in which the accused were acquitted of conspiracy to

 3    commit genocide at the Rule 98 bis stage, and we invite the Trial Chamber

 4    to look at the specific involvement of these two accused, the conclusions

 5    of the Trial Chamber regarding their involvement, when they were found

 6    guilty of genocide later on, this was evidence on the record at the Rule

 7    98 bis stage, yet those Trial Chambers could not conclude, on the basis of

 8    evidence related to such involvement of these two accused, that they had

 9    entered into an agreement to commit genocide. Consequently, our submission

10    is that -- or our submissions are geared towards the actus reus of

11    conspiracy to commit genocide, the agreement part.  If we compare any

12    evidence on the record concerning alleged wrongdoings of Drago Nikolic

13    with the type of involvement upon which Trial Chambers in ICTR could not

14    find that there was an agreement or that those accused had entered into an

15    agreement, our submission is simply as follows:   It simply cannot be

16    concluded, based on any of these alleged wrongdoings of Drago Nikolic,

17    that he did enter into an agreement to commit genocide, and we focus here

18    on the actus reus of the conspiracy to commit genocide.

19            In conclusion, Mr. President, it is our submission that there is

20    no case to answer concerning conspiracy to commit genocide regarding

21    specifically Drago Nikolic.  There's lots of evidence that can be taken

22    into consideration to justify this conclusion, such as the level of the

23    accused as a junior officer and second lieutenant, such as the knowledge

24    of the accused of either directive 7 or directive 7-1, so not only what he

25    may allegedly have done wrong, but also the over all context of this case,

Page 21286

 1    and it is our submission that you simply cannot conclude that he entered

 2    into that agreement, and that he must be acquitted of this count at this

 3    stage.

 4            In conclusion, Mr. President, we invite you to return, at the end

 5    of these Rule 98 bis proceedings, a verdict of acquittal for counts 2, 7,

 6    and 8, and order that the trial can continue on the basis of counts 1, 3,

 7    4, 5 and 6.

 8            And I take this opportunity to mention that we are confident that

 9    at the end of this trial, it will not be possible for the Trial Chamber to

10    conclude beyond a reasonable doubt on the guilt of the accused for any of

11    these other counts.

12            Thank you, Mr. President.

13            JUDGE AGIUS:  Thank you, Mr. Bourgon.

14            Who would be going next?  Mr. Lazarevic, and how long do you

15    think --

16            MR. LAZAREVIC:  Yes, that would be me, Your Honour.  Well,

17    according to my best estimation, it would take approximately 40 to 45

18    minutes, so if I could kindly ask now for the break --

19            JUDGE AGIUS:  The break now.

20            MR. LAZAREVIC:  -- earlier break.

21            JUDGE AGIUS:   Yes, fair enough.

22            Let's have a 25-minute break.  The time now is, according to this,

23    12.21.

24            Thank you.

25                          --- Recess taken at 12.21 p.m.

Page 21287

 1                          --- On resuming at 12.50 p.m.

 2            JUDGE AGIUS:  So you're starting at 12.50, Mr. Lazarevic.

 3            Go ahead.

 4            MR. LAZAREVIC:  Thank you, Your Honour.

 5            [Interpretation] Your Honours, in the oral arguments under Rule 98

 6    bis, Mr. Borovcanin's Defence will abide by the standards established in

 7    the jurisprudence of the present Tribunal, avoiding the repetition of the

 8    arguments presented by my learned colleague Mr. Bourgon related to the 98

 9    bis jurisprudence.

10            In light of the limited scope of the analysis under this Rule and

11    the fact that it is impossible to present detailed allegations for all the

12    counts of the indictment in the time that we have for our presentation,

13    Mr. Borovcanin's Defence will limit itself only to counts 2 and 8 of the

14    indictment.

15            Mr. Borovcanin's Defence would like to stress that there is no

16    direct evidence proving that Mr. Borovcanin, first, entered into any kind

17    of agreement with any person about the commission of crimes; second,

18    ordered anyone to commit any crime; and, third, personally committed any

19    crime or instigated or in any other way aided and abetted the planning,

20    preparation and commission of the crimes he has been charged with under

21    the indictment.

22            Conspiracy to commit genocide is an agreement on the part of two

23    or more persons with the aim of committing the crime of genocide.  This

24    definition is quoted from the Niyitegeka and others case, the appeals

25    judgement, case number ICTR-99-46A.  The date is the 7th of July, 2006,

Page 21288

 1    paragraph 92.

 2            The actus reus of this crime is the entering into the agreement

 3    itself.  As for the mens rea of this crime, it is the intention to enter

 4    into such agreement.  This is a quote from the Nahimana et al case, the

 5    appeal judgement.  The case number is ICTR-99-52- A, the date is 28th of

 6    November, 2007, paragraph 894.  And another case, the Bagosora et al case,

 7    the number is ICTR-98-41-T.  It is the decision on Rule 98 bis.  The date

 8    is the 2nd of February, 2005.  Paragraph 12.

 9            In count 2 of the indictment, laid out in greater detail in

10    paragraphs 34 through 37, Ljubomir Borovcanin is charged with the crime

11    conspiracy to commit genocide, punishable under Article 4(3)(b) of the

12    Statute.  In paragraph 34 of the indictment, it is alleged that

13    Mr. Borovcanin entered an agreement with several other persons, including

14    Radovan Karadzic, Milenko Zivanovic, Radislav Krstic, Zdravko Tolimir, and

15    the other accused in the present case, whose names are listed in Annex A

16    to the indictment, to kill able-bodied Muslim men from Srebrenica who had

17    been captured or had surrendered after the fall of Srebrenica on the 11th

18    of July, 1995, and to remove the remaining Muslim population of Srebrenica

19    and Zepa from Republika Srpska in order to destroy those Muslims.

20            Further, in the same paragraph, it is alleged that the facts --

21    the underlying facts for this count of the indictment are the same as the

22    facts alleged in the indictment in relation to the joint criminal

23    enterprise.  And in the next paragraph, paragraph 35, it is further

24    alleged that the agreement was entered with the intent to destroy, in

25    part, the Bosnian Muslims as a national, ethnic, racial or religious

Page 21289

 1    group, as such.

 2            In paragraph 36 of the indictment, it is alleged that Ljubomir

 3    Borovcanin, together with the other officers in units of the VRS and the

 4    MUP, listed in annex A of the indictment, actually implemented the

 5    conspiracy and the joint criminal enterprise, and that he was a conscious

 6    participant in the enterprise which was aimed at the summary execution and

 7    burial of thousands of captured Bosnian Muslim men and boys.  It is

 8    alleged further that the initial plan was to execute summarily more than

 9    1.000 Muslim men aged between 16 and 60 who were separated from the rest

10    of the population on the 12th and the 13th of July, 1995.  But on the 12th

11    or the 13th of July, the plan encompassed the summary execution of more

12    than 6.000 Muslim men and boys taken prisoner from the column in which

13    they tried to flee the Srebrenica enclave in the period between the 12th

14    of July and the 1st of November, 1995, or about that date.

15            Further, in paragraph 37, it is alleged that Mr. Borovcanin and

16    the other participants in the enterprise could have envisaged that in the

17    course of and after the joint criminal enterprise, the VRS and MUP forces

18    would commit isolated, opportunistic murders and persecutions described in

19    paragraphs 31 through 48 of the indictment.

20            The indictment further alleges that the alleged plan to murder

21    hundreds of Muslims in Potocari had been elaborated by Mladic and others

22    in the evening hours of the 11th of July and in the morning of the 12th of

23    July, 1995, and this plan was allegedly extended or amended to include a

24    large number of Muslim men who had started surrendering to the Serb forces

25    in other locations on the 12th of July.  I'm quoting from paragraphs 27

Page 21290

 1    and 29 of the indictment.

 2            The Defence would like to note that there is no specific

 3    information in the indictment as to where and, in particular, with which

 4    other persons this agreement was entered into, and whether this was an

 5    explicit or an implicit, tacit agreement.  In the pre-trial brief

 6    submitted by the Prosecution, we find no additional details regarding this

 7    issue.

 8            The Defence would like to state that in the course of its case,

 9    the Prosecution failed to adduce any evidence that would show where or

10    indeed when Mr. Borovcanin allegedly entered into this agreement.  Even if

11    the Prosecution believes that it did call some circumstantial evidence,

12    Mr. Borovcanin's Defence would like to show this Trial Chamber the ruling

13    standard and the jurisprudence of this Tribunal and the Rwanda Tribunal

14    regarding reliance on circumstantial evidence; to wit, in the appeal

15    judgement in the Nahimana et al case, the so-called "media case," the

16    number is ICTR-99-52-A, the date is the 28th of November, 2007, this is

17    how the Appeals Chamber commented on the use of indirect or circumstantial

18    evidence used to prove conspiracy to commit genocide:

19             "The question at this stage for the Appeals Chamber is to know

20    whether, insofar as such institutional coordination has been established,

21    a reasonable trier of fact could conclude thereof that the only reasonable

22    inference would be to say that this institution coordination was a result

23    of a resolution to act with a view to commit genocide, but there is no

24    doubt that all these factual findings are compatible with the existence of

25    a common goal, aiming at committing genocide.  Nonetheless, we are not

Page 21291

 1    only providing here the only reasonable inference."  Paragraph 910.

 2            This test, applied by the Appeals Chamber, is similar to the

 3    standard that should be applied at this stage in the proceedings, in

 4    accordance to Rule 98 bis, which reads:

 5             "Would any reasonable trier of fact be able to convict on the

 6    basis of the evidence presented?"

 7            Revising the conclusion of the Trial Chamber regarding the

 8    conspiracy, the Appeals Chamber in the Nahimana et al case stressed the

 9    following:

10             "The Appeals Chamber holds that even if these elements can

11    coincide with a degree of agreement between the participants with a view

12    to committing genocide, nevertheless it is not enough to just establish

13    that such an agreement has been made beyond any reasonable doubt."

14    Paragraph 906.

15            The conspiracy requires the existence of an actual real agreement

16    entered into by several persons.  Although this agreement may be implicit

17    or tacit, it has to be a real agreement, and its objective must be the

18    commission of a crime.  The importance of this criterion stems from the

19    fact that the crime was committed by the very dint of entering into an

20    agreement.  Unlike the joint criminal enterprise in this case, the

21    perpetrators need not actually succeed in committing the crime, the

22    underlying crime, in order to -- for their guilt to be established, their

23    guilt for conspiracy.  And here I quote the Nahimana et al case, Appeal

24    Judgement 894, that's the judgement from 2007, Bagosora et al,

25    ICTR-98-41-T, the 98 bis decision, the decision dated the 2nd of February,

Page 21292

 1    2005, paragraph 12; Bizimungu et al, the case number is ICTR-99-50-T, a 98

 2    bis decision dated the 22nd of November, 2005, paragraph 23; the

 3    Niyitegeka case, the number is ICTR-96-14, the date is the 16th of May,

 4    2003, the paragraph is 423.

 5            In summary, the agreement itself constitutes a crime.

 6    Mr. Borovcanin's Defence claims that no reasonable trier of fact would be

 7    able to conclude, on the basis of circumstantial evidence presented in

 8    court, that Mr. Borovcanin entered into any kind of agreement to commit

 9    genocide with anyone.  This allegation, I'm talking about the allegation

10    that he actually entered into an agreement, is indeed quite incredible for

11    the following reasons:

12            If this alleged plan to kill able-bodied Muslims from Srebrenica

13    is a result of an agreement, in the opinion of the Prosecution,

14    Mr. Borovcanin's Defence would like to stress that in the course of the

15    Prosecution case, no evidence was called to corroborate in any way the

16    claim that Mr. Borovcanin had actually entered into such an agreement in

17    any way.  To support this argument, the Defence would like to invoke the

18    fact that in the course of its case, the Prosecution failed to prove that

19    Mr. Borovcanin had been present at any meeting where such an agreement

20    might have been reached.  It likewise failed to call any evidence to prove

21    that if any such agreement existed, that Mr. Borovcanin was in fact aware

22    of it.

23            As for this fact, the Defence relies on the evidence of Witness --

24    Prosecution Witness Zoran Petrovic, a journalist with Studio B Independent

25    Television, who during the course of his stay in the Srebrenica and

Page 21293

 1    Bratunac area on the 13th of July 1995 accompanied Mr. Borovcanin at

 2    almost all times.  So if the position taken by the Prosecutor and

 3    expressed in the indictment is correct, that is, that in the night between

 4    the 11th and the 12th July 1995, Mr. Borovcanin entered into an agreement

 5    with other participants to commit genocide, which alleged agreement was

 6    extended at a later stage on the 13th of July, a logical question is:  Why

 7    would Mr. Borovcanin, if he had known of such an agreement and accepted

 8    it, have allowed a journalist from an independent TV channel to come to

 9    this area and to film everything that he considered to be of interest?

10    The fact -- the very fact that this reporter, Mr. Petrovic, was present in

11    this area where, on the 13th and 14th of July, 1995, the fighting was

12    still going on, and the footage that he made on that occasion and that

13    this Trial Chamber has had an occasion to see in the course of the

14    Prosecution case several times, and the fact that the footage taken by

15    Mr. Petrovic was broadcast on Studio B, a Belgrade TV channel, confirm

16    that Mr. Borovcanin did not know and could not have known what would

17    actually be happening in this period.  All of this confirms that

18    Mr. Borovcanin did not enter into any kind of agreement for the commission

19    of the crime of genocide, as alleged in the indictment.

20            In this respect, the Defence would like to quote short excerpts

21    from the transcript of Mr. Petrovic's testimony which best serve to

22    illustrate the claim that Mr. Borovcanin did not know at all what would be

23    happening in those days.

24            In the examination-in-chief, answering the Prosecution questions,

25    Witness Petrovic stated, at transcript page 18811, on the 5th of December,

Page 21294

 1    2007, the following:

 2            [In English] "As far as I know, he was physically and mentally in

 3    good health.  Otherwise, only a madman would work against himself to his

 4    own detriment to film something if you know that your own lot are planning

 5    to kill somebody or do something improper.  This is something I think is

 6    only proper of me to tell you.  I think it's a rare thing that somebody

 7    would allow you to do something like that, even in the US Army."

 8            [Interpretation] Furthermore, in the examination-in-chief on the

 9    5th of December, 2007, the same witness, at transcript page 18804, stated

10    the following, and I quote:

11            [In English] "Now, did Mr. Borovcanin ever try to censor what you

12    were filming, or,  tell you to 'film this, don't film that,' or were you

13    completely freelance independent in what you took video of?"

14            Answer:  "Now we are coming to what I wanted to ask you.  Do you

15    think that anyone -- anyone who is in their right mind would allow a

16    journalist to film war crimes and to leave him alive?  Do you think

17    it's -- it would be a normal thing for me to sit here, as I do sit today,

18    had this indeed happened?  Did you ever see, and let's refer to this most

19    recent war in Iraq, did you ever see anyone film anything from 2003

20    onwards, anything of the sort?  Did you ever see a journalist, especially

21    an embedded one, film anything of the sort?  So why should this army react

22    differently?  All the rules of the military are the same.  He permitted me

23    to work, and I didn't have any reason to tell the untruth, and that was

24    reason enough for this individual to let me film this.  Perhaps some

25    others wouldn't have allowed me to.  It was down to mutual respect."

Page 21295

 1            [Interpretation] And, finally, Mr. Borovcanin's Defence would like

 2    to quote another segment of the evidence provided by this witness in the

 3    cross-examination on the 6th of December, 2007.  The page reference is

 4    18858 and 18859:

 5            [In English] "I was just interested in your assessment and

 6    impression, so that will suffice as far as I'm concerned for the moment.

 7    And now just one more question with regards to the meadow in Sandici. You

 8    were free to film.  Mr. Borovcanin never told you not to film the people

 9    in the meadow.  He didn't say, 'Don't film what's going on there, don't

10    film the people in the meadow,' nothing like that.  Can you confirm that

11    that was so?"

12            Answer:   "Of course he did not.  Well, let me remind you, as I

13    told Mr. Nicholls earlier on, I had two experiences with that unit during

14    the war, and I conducted myself professionally.  I did my job

15    professionally, so there was no need for anybody to supervise me in any

16    way, absolutely no need for them to supervise and see what I was filming

17    if they had already given me permission to film."

18            [Interpretation] So bearing in mind the standards that we've

19    already presented, Mr. Borovcanin's Defence claims that the possibility or

20    the probability that Mr. Borovcanin actually enter into an agreement to

21    commit the crime of genocide is much less probable than the possibility

22    that Mr. Borovcanin had no knowledge of the existence of any kind of

23    agreement for the commission of this crime.  And Mr. Borovcanin's Defence,

24    therefore, proposes to this Trial Chamber to acquit Mr. Borovcanin on

25    count 2 of the indictment, pursuant to Rule 98 bis.

Page 21296

 1            I am about to move on to our part of the presentation which has to

 2    do with count 8 of the indictment.

 3            Count 8 of the indictment charges Mr. Borovcanin with the crime of

 4    deportation as a crime against humanity, punishable under Article 5(d) of

 5    the Statute.  Similar to forcible transfer, deportation is a forced

 6    displacement of civilians from an area in which they lawfully reside, in

 7    which case there is no basis allowed or envisaged within the framework of

 8    international law.  Under the basis allowed by international law, we

 9    understand the basis provided in the Geneva Convention number 4 and

10    protocol 2, the crime of deportation is different from forcible transfer,

11    since in the case of deportation, it is necessary that the population is

12    being displaced outside the territory it resides in, whilst with the

13    transfer, this element does not exist.  In all other elements, both crimes

14    are identical.

15            The crime of deportation, as envisaged by Article 5(d) of the

16    ICTY's Statute, and according to the appeal judgement in the Stakic case,

17    number IT-97-24-A of the 22nd March 2006, in paragraph 278 it states:

18             "The actus reus of deportation is forcibly displacing persons by

19    expelling them or using other types of force out of an area in which they

20    lawfully reside across the djura, state boundary, or in certain situations

21    across the de facto border, without the existence of the basis allowed by

22    international legal regulation.  The Appeal Chamber believes that it is

23    not necessary that in order to have the required mens rea, the perpetrator

24    intends to permanently displace these persons across the boundary.

25    Forcible transfer, which can be seen as an underlying act in relation to

Page 21297

 1    other inhumane acts, pursuant to Article 5(i) of the Statute, is defined

 2    as a forcible displacement of persons which can take place within state

 3    boundaries, and I refer to the Stakic case appeal judgement and Naletilic

 4    appeal judgement, which is case IT-98-34-A of the 3rd of May, 2006,

 5    paragraph 154.

 6            Going by the title just above paragraph 50 of the indictment and

 7    all the way down to paragraph 71, one concludes that the Prosecution

 8    believe that the enterprise of forcibly removing the Muslim population

 9    from Srebrenica and Zepa is a unified criminal enterprise.  No evidence

10    was adduced to that effect during their case.  It is quite the contrary.

11    It is the position of this Defence that during the Prosecution case, it

12    was clearly established that the decision to execute a military attack

13    against the Zepa enclave was made only after VRS forces had taken over the

14    enclave of Srebrenica, and that up until that point, the only aim of the

15    military operation of the VRS was to physically separate the two enclaves

16    and to prevent communication between them, which was fully justified in

17    military terms.

18            Paragraph 84 of the indictment contains a Prosecution position on

19    the fact that Mr. Borovcanin, together with the accused Popovic, Beara,

20    Nikolic, Miletic, Gvero, and Pandurevic, allegedly committed the crime of

21    deportation in the following way and by using the following means:  By

22    forcibly moving men, Bosnian Muslims, out of Zepa, across the Drina, into

23    Serbia, due to unbearable conditions being imposed upon the enclave

24    through limiting the supply of aid to the enclave and intimidating and

25    terrorizing the population by shelling civilian areas and carrying out

Page 21298

 1    attacks on the enclave, as described in paragraph 71 of the indictment.

 2            Mr. Borovcanin's Defence will analyse this Prosecution hypothesis

 3    contained in paragraph 84(a) of the indictment and will analyse each of

 4    the alleged ways and means used to commit the crime of deportation, with a

 5    special focus on Mr. Borovcanin and the units he commanded.

 6            The first way which was used to allegedly commit the crime of

 7    deportation as a crime against humanity, the indictment states the

 8    creation of unbearable living conditions in the enclave of Zepa by

 9    limiting the supply of aid into the enclave.  Not a single piece of

10    evidence adduced during the Prosecution case points to the fact that

11    either Mr. Borovcanin or any of his subordinate units had any direct or

12    indirect influence on the distribution of aid to the enclave, and

13    therefore they had no ability to limit it.

14            When talking about forwarding aid to the Zepa enclave, it can only

15    be viewed during the time period prior to the military operation, during

16    which time neither Mr. Borovcanin nor any of his subordinate units were in

17    the area of Srebrenica and Zepa.

18            Something that was not in dispute from the outset of this

19    proceedings between the Prosecution and Mr. Borovcanin's Defence is the

20    fact that on the 11th of July, 1995, he arrived in the territory of

21    Bratunac Municipality and that only after his arrival the units he

22    commanded began arriving in the territory.  Therefore, it is clear that

23    Mr. Borovcanin had no ways to influence any alleged forwarding of the aid

24    to the enclave.

25            As another way or as the second way of committing the crime of

Page 21299

 1    deportation of the Bosnian Muslims from Zepa is the intimidation and

 2    terrorizing of the population by shelling civilian areas and carrying out

 3    attacks on the enclave, as described in paragraph 71 of the indictment.

 4    During the Prosecution case, not a shred of evidence was adduced that

 5    would point to the fact that either Mr. Borovcanin or any of his

 6    subordinate units participated in the shelling of any part of the enclave

 7    of Zepa, including, of course, the civilian areas of it, or that they

 8    participated in any attacks on the enclave.

 9            Concerning the aforementioned allegations of the indictment,

10    namely, that the forcible removal of the Muslim population from the

11    enclaves of Srebrenica and Zepa presents a joint criminal enterprise,

12    Mr. Borovcanin's Defence wishes to point to Exhibit P00181, which is an

13    order of the Main Staff of the VRS of the 10th of July, 1995, sent to the

14    Command of the Drina Corps and the 65th Protection Motorised Regiment.  In

15    item 4 of the order, it is stated that offensive combat operations against

16    the enclave of Zepa should begin on the 12th of July, 1995.  It is obvious

17    that the decision on such offensive operations, which could potentially

18    lead to the military occupation of the Zepa enclave, was made only after

19    the VRS forces managed to take over the enclave of Srebrenica, and until

20    that time or, rather, before that, there could have been no plan in

21    existence to occupy the Zepa enclave.

22            From the same document, we can also see that none of the units

23    commanded by Mr. Borovcanin was included in this order.  This order was

24    not sent to Mr. Borovcanin, even by way of information.  In particular,

25    Mr. Borovcanin's Defence wishes to point out that during the Prosecution

Page 21300

 1    case, there was no dispute between the Defence and Prosecution concerning

 2    some of the units commanded by Mr. Borovcanin participating in the combat

 3    at Baljkovica, which is in a different direction to the enclave of Zepa,

 4    and it is some 100 kilometres away from it.  Therefore, during the

 5    Prosecution case, not a single piece of evidence was adduced which could

 6    point to the fact that Mr. Borovcanin in any way participated in any

 7    potential planning of attacks on the enclave of Zepa.  Also, no evidence

 8    was adduced which would point to the fact that Mr. Borovcanin was informed

 9    of it or consulted by anyone within the VRS.

10            Finally, this Defence would like to invoke the Prosecution's

11    military expert's testimony, Mr. Richard Butler, of the 25th of January,

12    2008, page 20500.  I quote:

13            [In English] "When you were analysing the documents and as you

14    were preparing your expert reports about the Zepa operation, you did not

15    come by any proof about the participation of any units under the command

16    of Mr. Borovcanin or his participation in the Zepa operation; is that

17    true?"

18            Answer:  "Yes, sir, I have no information pertaining to

19    Mr. Borovcanin's role in what we would call the Zepa operation."

20            [Interpretation] Therefore, this Defence asserts that as regards

21    Mr. Borovcanin, the Prosecution did not present a single piece of evidence

22    which would corroborate count 8 of the indictment, this being the crime of

23    deportation as a crime against humanity.  Therefore, the Defence

24    respectfully requests that Mr. Borovcanin, in keeping with Rule 98 bis, be

25    acquitted on this count of the indictment.

Page 21301

 1            Nearing the end of our presentation, we would briefly like to

 2    refer to paragraph 31.1 of the indictment.  The reason for it is the

 3    Prosecution motion which has to do with paragraph 31.1(b) of the

 4    indictment, submitted on the 25th October 2006; namely, in paragraph 31.1

 5    of the indictment, under (a) and (b), we see the murder of nine Bosnian

 6    Muslims.  Under (a), it is stated that their bodies were found in the

 7    woods near the UN compound on the Budak side of the main road, whereas

 8    under (b) it is stated that the bodies were found in a creek near the

 9    white house, some 700 metres from the UN compound.

10            As I just said, the Prosecution, in its Prosecution motion

11    regarding paragraph 31.1(b) of the indictment of the 25th of October,

12    2006, state that it is their position that this is one and the same event

13    and that they will agree to a motion to issue a judgement of acquittal

14    concerning subparagraph 31.1(b), which can be seen on page 2 of the

15    motion.

16            In addition to that, in paragraph 31.1(c), it is stated that in

17    the morning of the 13th of July, the bodies of six Bosnian Muslim women

18    and five Bosnian Muslim men were found in a stream near the UN compound in

19    Potocari.  Concerning this allegation of the indictment, not a single

20    piece of evidence was adduced or tendered during their case.  Therefore,

21    Mr. Borovcanin's Defence respectfully suggest that the Chamber, in

22    relation to paragraphs 31.1(b) and (c) issues a judgement of acquittal

23    under Rule 98 bis.

24            Your Honours, although Mr. Borovcanin's Defence decided to present

25    its position only in relation to the aforementioned counts of the

Page 21302

 1    indictment, it in no way means that this Defence believes that the

 2    Prosecution proffered sufficient evidence based on which a reasonable

 3    trier of fact could ascertain the guilt of Mr. Borovcanin for any of the

 4    crimes he was charged with.  Therefore, this Defence appeals to the

 5    Chamber to use its discretion and authority in making their decision

 6    whether a judgement of acquittal can be issued in relation to 98 bis as

 7    well as in relation to other counts of the indictment.

 8            Thank you.

 9            JUDGE AGIUS:  Thank you, Mr. Lazarevic.

10            Let's try and figure out how long the other submissions are

11    expected to take.

12            Mr. Zivanovic, will you be making submissions?

13            MR. ZIVANOVIC:  No, Your Honours, we will not have a submission on

14    Rule 98 bis.  Thank you.

15            JUDGE AGIUS:  Thank you.

16            Madame Fauveau, if you are going to make submissions, how long do

17    you expect?

18            MS. FAUVEAU: [Interpretation] [No interpretation]

19            JUDGE AGIUS:  No translation, but it's an hour, an hour and 15

20    minutes, yeah.

21            Mr. Josse or Mr. Krgovic.

22            MR. JOSSE:  Your Honour, we are going to make a submission.  I'm

23    assuming that the Court are rejecting our request for a right of reply.

24            JUDGE AGIUS:  You have to work on the assumption that we are not

25    granting any replies, so -- that's the assumption, and then we'll see --

Page 21303

 1            MR. JOSSE:  Then I'm going to attempt to use up exactly my 90

 2    minutes, because in those circumstances I clearly need to say as much as I

 3    can.

 4            JUDGE AGIUS:  Okay.  And that leaves you, Mr. Haynes.

 5            MR. HAYNES:  The model of my submission has -- will be

 6    substantially similar to that of Mr. Bourgon's and has thus this morning

 7    got very much shorter.  I'll be about 20 minutes, I would say.

 8            JUDGE AGIUS:  So we might finish tomorrow, basically, if you put

 9    Ms. Fauveau and Mr. Josse together, that may take a maximum of three

10    hours, which would still leaves us the 35 minutes -- 45 minutes, sorry,

11    for Mr. Haynes to finish his, which means that you're being put on notice

12    that on Monday, you will be starting with your response.

13            MR. McCLOSKEY:  Thank you, Mr. President.

14            And just in the event that someone decides to change their

15    strategy, if we could just have a guarantee that we could start on Monday,

16    to have the weekend to gear up and cut, I think we should be able to get

17    done in one day and maybe a morning.  We're not going to take the whole --

18    the whole time, certainly.

19            JUDGE AGIUS:  Okay.

20            All right.  We stand adjourned until tomorrow morning at 9.00.

21    Thank you.

22            Sorry, Mr. Bourgon, I thought you were --

23            MR. BOURGON:  Mr. President, I'd just like to at this time take

24    this opportunity to seek leave from the Trial Chamber, pursuant to Rule

25    126, to reply to the response which was filed by the Prosecution to the

Page 21304

 1    joint Defence motion challenging the admissibility of the report of

 2    Richard Butler.

 3            JUDGE AGIUS:  Okay.  All right, granted.

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

 5                          --- Whereupon the hearing adjourned at 1.39 p.m.,

 6                          to be reconvened on Friday, the 15th day of

 7                          February, 2008, at 9.00 a.m.

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