Page 21305
1 Friday, 15 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, could you call the case, please.
8 THE REGISTRAR: Good morning, Your Honours.
9 This is the case number IT-05-88-T, the Prosecutor versus Vujadin
10 Popovic et al.
11 JUDGE AGIUS: Thank you, madam.
12 All the accused are here. I think Defence teams are also a full
13 house. Yes. And Mr. McCloskey is appearing for the Prosecution.
14 I see Mr. McCloskey on his feet. Yes.
15 MR. McCLOSKEY: Just briefly, Mr. President.
16 Mr. Lazarevic had identified another small section relating to the
17 indictment, and those two, where there was no evidence on. And would you
18 like me to just acknowledge that orally, or we can file something as well.
19 JUDGE AGIUS: I think you can file something. I think it will be
20 useful. Or else you make a passing reference to it on Monday, when you
21 start your --
22 MR. McCLOSKEY: We can file something very simply. Thank you.
23 JUDGE AGIUS: Thank you.
24 So it's, I think, your turn, Madame Fauveau.
25 MS. FAUVEAU: [Interpretation] Yes, Mr. President.
Page 21306
1 Mr. President, Your Honours, the question today is whether the
2 Prosecution has adduced evidence such as to warrant convicting General
3 Miletic for the counts alleged in the indictment. We say, no, they did
4 not bring this evidence.
5 First of all, I shall review the evidence pertaining to crimes
6 against humanity, deportation. Crimes against humanity, the Prosecutor
7 did not bring all the constitutive elements of that crime.
8 Then, concerning General Miletic in particular, the Prosecution
9 did not bring any evidence -- sufficient evidence of his taking part in
10 the joint criminal enterprise and of his intention to justify -- to
11 justify his conviction should have been criminal. I am therefore pleading
12 for the acquittal of General Miletic of all counts concerning him; in
13 particular, 4, 5, 6, 7 and 8.
14 First of all, I will look at count number 8, the crime against
15 humanity of deportation.
16 In paragraph 84 of the indictment, the Prosecution alleges
17 deportations were perpetrated, the forced displacement of Muslim men from
18 Zepa who had to cross the Drina River to Serbia. This displacement of
19 population by restricting the aid and bombardments and attack, but the
20 only thing which could distinguish this from the forced transfer in count
21 number 7 is the crossing of the Drina River, passing the border. In the
22 indictment, the only people who crossed the river were the Muslim men of
23 Zepa. Therefore, the only victims of this deportation would have been
24 Muslim men of Zepa.
25 Following Article 5 of the Statute of the Tribunal, crimes against
Page 21307
1 humanity must have been committed during an armed conflict, whether
2 international or domestic, and directed against a civilian population,
3 whatever is this population. In his report of the 8th May 1993, paragraph
4 47, the Secretary-General of the United Nations wrote that crimes against
5 humanity are directed against a civilian population. Those are those
6 specific crimes against civilian population.
7 In the Blaskic case, the Appeals Chamber considered, on its
8 judgement of the 29th of July, 2004, at paragraph 107, that both the
9 status of victim as a civilian, as a scale on which it's committed, or the
10 level or organisation involved characterize a crime against humanity;
11 therefore, it is not enough that the attack itself be directed towards the
12 civilian population, it is not enough that civilian zones be bombarded and
13 attacked, shelled. Victims have to be civilians.
14 Now, in this case, we are talking about deportation. Therefore,
15 it would have been necessary that the victims of deportation, those who
16 crossed the River Drina, should have been civilians -- have to be
17 civilians.
18 Now, in the case at hand, we know that the individuals who were
19 allegedly deported were men and able-bodied men of military age. Nobody
20 may reasonably presume that these men were civilians, since a reasonable
21 presumption would rather suggest that these men were considered as
22 military. The fact of a victim being a civilian is one of the elements
23 which constitutes the crime against humanity, and it is for the
24 Prosecution to prove all the elements of the crime, including the status
25 of individuals who fell victim to such action. Now, we have no evidence
Page 21308
1 that these men were civilians. The Prosecution never deduced the
2 slightest evidence that these men were not military. We have heard
3 Witness PW-155, who crossed the Drina after the fall of Zepa. On the 5th
4 of February, 2007, page 6831 of the transcript, this witness acknowledged
5 and admitted that he was on the defence line, that he took part in the
6 defence of Zepa, and this amounts to being a combatant.
7 Then we heard Witness 49, who stated, on the 2nd of April, 2007,
8 at page 9826, when talking about the brigade of Zepa, that part of these
9 troops were armed and some of them succeeded in making it to Serbia.
10 On 7th of November, 2007, at page 17633, speaking about military
11 forces of Bosnia-Herzegovina in Zepa, General Smith stated that these
12 continued to fight in the area and that in most cases they crossed the
13 Drina into Serbia. Therefore, those who crossed the Drina, who left for
14 Serbia, were members of military forces, those who were fighters and were
15 continuing to fight.
16 Last, the military expert, Richard Butler, stated on the 17th of
17 January, 2008, and this is at page 19945, that the members of the Army of
18 the Republika Srpska were speaking about what they were actually seeing,
19 i.e., Muslim soldiers who, rather than to surrender to the Army of
20 Republika Srpska, were trying to cross the River Drina and to go to
21 Serbia. Therefore, we know that an individual who took part in the
22 defence of Zepa crossed the River Drina, that part of the armed troops
23 belonging to the Zepa Brigade, the military forces of Bosnia-Herzegovina,
24 those who continued to fight and the Muslim soldiers. There can be no
25 doubt about that. There are no civilians among those who passed the River
Page 21309
1 Drina.
2 The Prosecutor never adduced the slightest evidence that these
3 men, who fled Zepa towards Serbia, were not military, while in order to
4 prove a crime against humanity, he should have done so. Since the
5 Prosecutor has not given any evidence that the men who crossed the River
6 Drina were civilians, he failed to furnish the proof of the existence of
7 the crime against humanity, which is deportation, and therefore General
8 Miletic should be acquitted of that count.
9 I will now speak about the alleged participation of General
10 Miletic in a criminal -- joint criminal enterprise aimed at expulsing --
11 deporting the population from Zepa, Muslim population from Zepa.
12 General Miletic is accused of having taken part in a joint
13 criminal enterprise to deport the population -- Muslim population from
14 Zepa. According to the Prosecution, this criminal -- joint criminal
15 enterprise was aimed to force transfer and deportation of the Muslim
16 population from this enclave for individual murders, such as
17 assassination, murder against humanity, and murder, a violation of the
18 laws and customs of war, and persecution. This crime would have been the
19 aim of this joint enterprise.
20 The Appeal Chamber Judge decided, in the Brdjanin case in its
21 judgement on the 3rd April, 2007, paragraph 365, that in order to be
22 sentenced for taking part in the first form of the joint criminal
23 enterprise, the accused must have had the intention to commit this crime
24 and the intention to take part in the joint plan with the goal -- the goal
25 of which was to commit this crime.
Page 21310
1 Liability founded on the participation of an accused in a joint
2 criminal enterprise requires the participation of the accused himself.
3 Further to the judgement made in the Brdjanin case, paragraph 424, this
4 participation may take the form of assistance or helping or contribution
5 to the implementation of the common goal, but the Appeal Chamber decided
6 in the same judgement, at paragraph 427, that any sort of behaviour does
7 not equate to contribution sufficiently important to make the accused
8 criminally liable. If the Appeal Chamber observed that this contribution
9 shouldn't be substantial, nevertheless it decided at paragraph 430 that it
10 has to be significant so that the accused may be judged as guilty. The
11 Prosecutor, therefore, had to adduce the evidence of a significant
12 participation of General Miletic in the joint criminal enterprise and of
13 his intention to commit the crime and to take part in the joint plan to
14 commit the forced transfer and deportations.
15 What would be the evidence of General Miletic's participation to
16 the joint criminal enterprise? Only his position in the General Staff of
17 the Republika Srpska in 1995. And yet this position remains more than
18 fuzzy, woolly. The Prosecutor tells us in the indictment, in French, that
19 General Miletic was the chief of staff per interim, which is probably one
20 of the possible translations of "standing in for."
21 Now, all the witnesses, without any exception, including the
22 military expert of the Prosecutor, stated that General Milovanovic was the
23 chief of staff during all the war including in 1995, including in July
24 1995. General Milovanovic himself stated, on the 29th of May, 2007 - this
25 can be read at page 12146 - that he was the head of -- the chief of staff
Page 21311
1 of the Republika Srpska all along the war of -- in Bosnia-Herzegovina, and
2 he repeated this on the 31st of May, 2007, at page 12303.
3 The other officers of the Army of Republika Srpska confirmed that
4 General Milovanovic was, in July 1995, the chief of staff of the Army of
5 the Republika Srpska. For instance, Mirko Trivic, on the 22nd of May,
6 2007, page 11937; Bogdan Sladojevic on the 27th of August, 2007, page
7 14388; Nedeljko Trkulja on the 10th of September, 2007, page 15074.
8 Miomir Sakic on the 13th of September 2007, page 15323; Petar Skrbic on
9 the 17th of September, 2007, at 15507.
10 The officers of UNPROFOR also stated that General Milovanovic was
11 the chief of -- was the chief of the Army of Republika Srpska and General
12 Smith, commanding the armed forces for Bosnia-Herzegovina in 1995 stated
13 the same on the 7th of November, 2007, at page 17619. And General
14 Nikolai, who was chief of staff, UNPROFOR, confirmed this on the 29th of
15 November, 2007, page 18448. Edward Joseph also stated this on the 22nd of
16 August, 2007, page 14148.
17 Finally, the military expert of the Prosecutor, Richard Butler,
18 also stated this during the hearing on the 23rd of January, 2008, pages
19 2240 to 241, that General Milovanovic was the general chief of staff --
20 the main chief of staff in July 1995.
21 General Milovanovic is indeed the chief of staff of the Republika
22 Srpska Army in 1995. He performs the duties, the obligations, and tasks
23 as chief of staff. We have seen the documents he signed during all this
24 period between March and July 1995, and we may mention P2687, a document
25 concerning the convoys of the 7th of April, 2007, and also Exhibit P2669A,
Page 21312
1 an order signed by General Milovanovic on the 27th of May, 1995.
2 The Prosecutor shows the documents designating General Miletic as
3 representative of the chief of staff. There is no doubt that his name is
4 and features on these documents and that his duties are described as being
5 the representative of the chief of staff, only nobody really knows what
6 this term really means and what exactly is exactly the functions and
7 duties of the representative of the chaff, what are his powers and what is
8 his authority. The fact is that when General Milovanovic was physically
9 absent from the staff, and I have to underscore "physically" because his
10 absence was only physical, some of his duties, which he couldn't perform
11 by reason of his physical absence, were performed by other generals.
12 In his capacity as chief of staff, General Milovanovic had contact
13 with UNPROFOR. General Nikolai stated on the 29th of November, 2007, at
14 page 18448 that his principal contact was General Milovanovic, and he
15 added that when General Milovanovic was not present, he spoke to other
16 generals. Only General Miletic does not feature among the generals with
17 whom General Nikolai had contacts.
18 General Milovanovic, in his capacity of the General Staff, was
19 going in the field. He did indeed go to Zvornik in April and May 1995,
20 which is shown by Exhibits P2891, 5D714, and we know that General Miletic,
21 in 1995, did not only even once go to check the status of the units on the
22 ground, in the field. Other officers went there.
23 On the 31st of May, 2007, and this is to be seen at page 12309,
24 General Milovanovic said that General Miletic would put in for him for
25 daily activities, and he added that General Miletic never had the
Page 21313
1 powers -- all the powers which he, General Milovanovic, held. And on the
2 28th of January, 2008, at page 20548, the military expert of the
3 Prosecutor stated that he did not believe that General Miletic had the
4 authority or the powers enabling him to perform the duties which had been
5 those of General Milovanovic.
6 Based on all the evidence which we have seen, on the base of all
7 the documents which bear the name of General Miletic as the representative
8 of the chief of staff, nobody could reasonably conclude that General
9 Miletic had totally replaced General Milovanovic in his capacity of chief
10 of staff of the Army of the Republika Srpska. At most, these documents
11 and evidence presented lead to a conclusion that General Miletic did sign
12 some documents, and I say "some documents," when, for a reason or another,
13 General Milovanovic was prevented from signing them. Once again, none of
14 these documents bear the famous letters "SR" which means that it was
15 personally signed by the person named in the document. According to the
16 explanation given by the expert witness Richard Butler on the 17th of
17 January, 2008, at page 19871 of the transcript.
18 And If we follow the indictment, we can read that for the
19 Prosecution, General Miletic would have been the principal adviser of
20 General Mladic. There, again, there is no evidence. Indeed, during his
21 statement of the 21st of August, 2006, at page 383, the Prosecutor quoted
22 the names of four generals, including General Miletic, who would have been
23 the closest adviser or closest officer of General Mladic. The only thing
24 is that this thesis is supported by no evidence. Differently from all
25 other generals of the staff and differently from all the commanders of the
Page 21314
1 corps, who were all subordinated directly to General Mladic, General
2 Miletic was not even a direct subordinate. He was subordinated to General
3 Milovanovic.
4 General Milovanovic stated on the 31st of May, 2007, page 12303,
5 as well as Richard Butler on the 28th of January, 2007, at page 20547,
6 stated that because General Mladic was not a direct superior of General
7 Miletic, General Miletic had no reason to have direct contacts or regular
8 contacts with General Mladic. Besides, General Milovanovic affirmed on
9 the 31st of May, 2007, at page 12311 that General Mladic did not
10 particularly like General Miletic.
11 We have heard, on the 5th and 6th of November, 2007, General Smith
12 speak of a lot of meetings he had with General Mladic in 1995, and we saw
13 minutes or reports of these meetings. Those are Exhibits P2933, P2934,
14 P2942, P2943, P2747, P2947. We can only notice total absence of General
15 Miletic at these meetings. No trace of his presence, no evidence that
16 General Mladic would have consulted him before such meetings or even would
17 have had transmitted the results of the meetings after those. No, nothing
18 much.
19 The Prosecutor will certainly say that General Miletic was not in
20 charge of these meetings, in particular with UNPROFOR or with
21 international organisations. Agreed. But in that case, how could he have
22 had the central pivotal role in the distribution of humanitarian aid? I
23 shall come back on this point later. For the moment, let us accept that
24 his role was not to deal or prepare meetings, but to help General Mladic
25 in military operations.
Page 21315
1 During the Srebrenica operation in July 1995, General Mladic came
2 in the field, on the ground, and we know that he is present on the 11th of
3 July, 1995. General Mladic is at Srebrenica, but without General Miletic.
4 Several meetings took place on the 11th and 12th of July in Bratunac. I
5 shall not speak of the meetings in the Hotel Fontana, but I note that
6 General Miletic is not present.
7 What is most significant is that on the 11th or 12th of July,
8 1995, is that a meeting would have taken place in Bratunac, where the
9 continuation of military actions towards Zepa was decided and planned,
10 elaborated. Mirko Trivic stated on the 21st of May, 2007, at page 11841
11 to 842 that General Mladic was present at least for part of the meeting,
12 for part of the meeting, but General Miletic did not -- was not present,
13 did not attend. No proof -- no evidence exists that General Mladic
14 consulted the general before this meeting or that he informed him of the
15 conclusions or decisions made in this meeting, after it had taken place.
16 Simply, there is no evidence that at the time, General Mladic would have
17 contacted General Miletic or that General Mladic wanted to contact, not
18 even that he tried to contact him.
19 We also know that General Mladic went to Zepa. Many witnesses
20 confirmed this point. General Smith, on the 6th of November, 2007, page
21 17556; Edward Joseph on the 23rd of August, 2007, page 14160; Thomas Dibb
22 on the 15th of October, 2007, page 16293; Witness 49 on the 30th of March,
23 2007, page 9729 and 9732, and as well as reports such as P2946 and P2944.
24 As for General Miletic, he did not go to Zepa in 1995, not even
25 once before that, during or after the military actions which happened
Page 21316
1 there. He did not help General Mladic either in Zepa nor in conducting
2 military action, nor in the negotiations which he, himself, Mladic, had
3 conducted on the spot.
4 We also know that General Mladic took part in the departure of
5 General Zivanovic on the 20th of July, 1995, in the Jela Restaurant,
6 accompanied by his chief of staff, General Milovanovic. General
7 Milovanovic confirmed this on the 29th of May, 2007, page 12206, as well
8 as Mirko Trivic on the 21st of May, 2007, at page 11876. Once again,
9 General Miletic was not present.
10 We finally know that all the generals of the Main Staff were
11 present at Banja Luka at the beginning of August 1995 to sign the letter
12 which was supporting General Mladic, and this is Exhibit P1026. Once
13 again, General Miletic was not present.
14 Isn't this a strange adviser, who never accompanies the one he
15 should be advising? Obviously, General Miletic is not accompanying
16 General Mladic. This is not all. No element of the case file indicates
17 that General Mladic ever contacted General Miletic to ask him some advice.
18 Once again, there is absolutely nothing.
19 In the indictment, the Prosecutor sustains that General Miletic
20 was the main officer in charge of transcribing the intentions, orders, and
21 directives of the commander. Agreed, but then one had to prove that he
22 had done so for Srebrenica and Zepa, and this is not at all the case.
23 Indeed, we have directive number 7, but directive number 7 is not even a
24 directive from the commander. It is from the Supreme Command, President
25 Karadzic. Let us examine this directive number 7, which is Exhibit P5,
Page 21317
1 for its face value without entering a possible interpretation of what it
2 means or what is the meaning of the sentence concerning civilian
3 population in the enclaves.
4 We do not deny that General Miletic had taken part in its
5 drafting, the drafting of this directive, but he did not actually conceive
6 it. He did not formulate it. This text is not his text. It is the text
7 of the Supreme Command, President Karadzic.
8 In his statement on the 21st of August, 2006, page 399, the
9 Prosecutor stated that General Miletic, in person, had drafted the
10 sentence concerning the civilian population in the enclaves of Srebrenica
11 and Zepa, but during the presentation of evidence, he did not show in any
12 way that General Miletic had written or drafted this sentence. He in fact
13 carefully avoided this matter.
14 Now, on the 30th of May, 2007, at page 11277, General Milovanovic
15 stated that President Karadzic may have added this sentence against the
16 will and wish of General Miletic and that, anyway, even if General Miletic
17 had opposed this, this opposition would have led to nothing.
18 On the 29th of January, 2008, pages 20585 to 586, the military
19 expert of the Prosecution confirmed that Radovan Karadzic may have
20 modified or amended certain parts of the directive before he signed it,
21 and that he may have added this sentence against the will of the members
22 of the staff.
23 The question of knowing who wrote or drafted this sentence remains
24 completely open. Was it General Mladic who after his meeting with General
25 Smith on the 5th of March, 1995, where he announced there would be a
Page 21318
1 restriction on the convoys General Smith spoke about it on the 6th of
2 November, 2007, at page 17478, and indeed what General Mladic said was
3 reported in an UNPROFOR report dated 6th March 1995, Exhibit P2933. Was
4 it President Karadzic who added this sentence for some reason or another?
5 We do not know. But the Prosecution gave us no evidence, and also he
6 furnished no evidence that General Miletic would have written it or
7 drafted it.
8 Now, the onus probandi is for the Prosecutor. He should have
9 furnished his evidence for his argument according to which General Miletic
10 would have written this sentence, and he has not done so. The fact that
11 the name General Miletic features on this directive is no evidence,
12 because this directive was not his. It emanates from President Karadzic.
13 At most, what can be concluded from this directive is the fact that
14 General Miletic would have known about the general policy concerning the
15 enclaves, knowledge, but not the fact that he would adhere to this policy.
16 And further to this directive, we also have directive 7.1, Exhibit
17 361, a directive in which the sentence in question does not feature. If
18 General Mladic wrote this sentence concerning the civilian population at
19 Srebrenica and Zepa, he may have thought again and changed his mind, if it
20 was President Karadzic who had written it. General Mladic may probably
21 have decided not to follow these directives.
22 Whatever the case may be, on the basis of the evidence presented
23 in this case file, this sentence cannot be put at the door of General
24 Miletic.
25 The Prosecutor wants us to believe that directive 7 and 7.1 were
Page 21319
1 the starting point -- the cause of the future events which took place in
2 Srebrenica and Zepa, and besides the date of directive number 7 on the 8th
3 of March, 1995, is the date of the creation of the joint criminal
4 enterprise which is alleged. The Prosecutor did not bring any evidence
5 that those directives had as an aim to attack Srebrenica or Zepa. He
6 adduced no evidence of a nexus of causality between this directive and the
7 elements which took place in the eastern enclaves of Bosnia, in the
8 enclaves of eastern Bosnia in 1995. The orders of General Milovanovic
9 initiating military action around Srebrenica, which referred to the
10 directives, do not countenance the taking of the enclaves. The taking of
11 the enclaves was a sudden decision made on the 9th of July, in the
12 evening, and I will express myself on this a bit later.
13 None of these two directives, 7 and 7.1, mentions an attack
14 against the enclaves. Directive 7.1 does not even speak of the enclaves.
15 The directive just speaks about the separation of the enclaves. And since
16 this directive indicates that the enclaves have to be separated, obviously
17 it does not envisage to deport the Muslim population, because without the
18 Muslim population, the enclaves would not have existed, and therefore
19 separating them would have had no reason.
20 The separation of the enclaves, which is envisaged in the
21 directive, did not envisage the transfer of population. This is not a
22 crime. This is a military objective, an objective which was actually
23 consistent and consonant with the agreement signed in 1993 between the
24 Army of the Republika Srpska and the Army of Bosnia-Herzegovina and
25 UNPROFOR.
Page 21320
1 The Prosecutor needs directive 7 for -- in this case. He thinks
2 that this directive, mentioning humanitarian convoys, may tie up General
3 Miletic to the events which took place in July 1995 at Srebrenica and
4 Zepa, but do we have evidence that the restriction to humanitarian aid
5 increased after the directive? A great number of orders concerning the
6 passage of convoys show that this policy, this controlled policy, already
7 existed since the beginning of the war. Besides, do we have any evidence
8 that humanitarian aid was particularly restricted in the case of
9 Srebrenica and Zepa? No, we do not have any. The policy towards convoys
10 was the same for all the enclaves.
11 Do we have any evidence that the humanitarian situation in the
12 enclaves was a consequence of the restrictions imposed on the convoys?
13 No, we don't have any. We know or saw that there were some foul play
14 taking place. Exhibits 5D31 and 5D509 affirm this. But whatever the
15 case, the situation in Srebrenica, as such, could very well be a
16 consequence of this foul play of the Bosnian authorities locally and for
17 which General Miletic is not at all responsible.
18 The Prosecutor brought evidence that the restriction to
19 humanitarian aid was the cause of the humanitarian situation at
20 Srebrenica, but he did not do so. We have about 50 reports of the
21 Zvornik Brigade which show the number of convoys which went through to go
22 to Srebrenica and Zepa during the period from March to July 1995, and we
23 have the document of UNPROFOR, Exhibit 5D728, which states that in March,
24 93 per cent of the humanitarian aid provided for Srebrenica reached,
25 indeed, Srebrenica. 93 per cent is practically the total.
Page 21321
1 Yes, the name of General Miletic does appear on the documents,
2 which are only information sent to the subordinated units to inform them
3 that convoys may pass and to tell them what -- where the convoys for whom
4 the passage was not allowed or authorised. Yes, his name does feature on
5 this document, he was the chief of the administration in charge of
6 operational matters, and he was therefore in charge of transmitting this
7 type of information to the subordinated -- the units subordinated to the
8 Main Staff.
9 If one looks very carefully at these documents, one can see that
10 for most of them, those were the United Nations UNPROFOR convoys, the
11 passage of which were limited. Convoys of UNPROFOR did not transport
12 humanitarian aid, and General Miletic is accused exclusively to have taken
13 part in the restriction of humanitarian aid to the Muslim population.
14 In his statement of the 21st of August, 2006, page 442, the
15 Prosecutor declared that General Miletic played a very important role in
16 the organisation of convoys and that he decided which were the convoys who
17 could leave and those who couldn't. But he adduced no evidence that
18 General Miletic decided anything concerning the convoys. The only element
19 of evidence, just a shred of evidence which, by the way, does not confirm
20 at all the argument of the Prosecutor, are two conversations, P1237 and
21 P1266, which show that General Tolimir, together with General Mladic, were
22 deciding about the passage. The Exhibit P1266 also shows that the
23 coordinating organ gave the authorisations.
24 We know that Colonel Djukic, an officer of the staff, was a member
25 of this coordination unit. We have Exhibit 6D7, which lists the members
Page 21322
1 of that organ. The military expert of the Prosecution, Richard Butler,
2 confirmed on the 1st of February, 2008, on page 20950 that General
3 Djordjic [realtime transcript read in error "Djukic"] was not subordinated
4 to General Miletic. Besides, a great number of orders, Exhibit P2749,
5 5D372, 5D374, 5D378, 5D605, 5D725, signed by General Mladic, General
6 Milovanovic, and even General Tolimir, which were given much before
7 directive number 7, determined what were the lines concerning the
8 procedures applied to the convoys.
9 We have seen about meetings concerning humanitarian aid where
10 General Miletic did not attend. We have seen orders concerning the
11 passage of convoys signed by some generals, but none was signed by General
12 Miletic. We have discovered that there was a unit or organ in charge of
13 humanitarian aid presided by Professor Koljevic, whose role has not been
14 elucidated.
15 Finally, Exhibit 5D615 shows that the Ministry of Internal Affairs
16 was also taking part in matters concerning the passage of convoys, and of
17 course we do not know exactly what was the role of this Ministry.
18 In all this, there is no evidence that General Miletic had any
19 other role than to transmit information concerning the passage of convoys
20 to the subordinated units. Beyond the fact that we have no evidence that
21 General Miletic had personally signed these documents, the Prosecution
22 himself, referring to -- in his statement of the 21st of August, 2006, at
23 page 444, one of these documents which became later Exhibit P2497, stated
24 that none of this was criminal, and indeed there is nothing criminal about
25 these documents, nothing illegal or illicit. Humanitarian aid was partly
Page 21323
1 used for the needs of the Muslim army. The convoys were a means of
2 illegally bringing weapons in the enclaves, as is shown by Exhibits 5D518
3 and 5D519, and therefore certain restrictions were imposed and a control
4 was performed.
5 As the Prosecutor stated, this procedure does not contain any
6 criminal elements.
7 We can take it one step further. This procedure complies with the
8 Geneva Conventions, Article 23, paragraph one of the 4th Geneva Convention
9 provides as follows:
10 "Each high contracting party shall allow the free passage of all
11 consignments of medical and hospital stores and objects necessary for
12 religious worship intended only for civilians of another high contracting
13 party, even if the latter is its adversary. It shall likewise permit the
14 free passage of all consignments of essential food stuffs, clothing and
15 tonics intended for children under 15, expected mothers, and maternity
16 cases."
17 Furthermore, paragraph 2 of Article 23 of the Geneva Convention
18 stipulates:
19 "The obligation of a high contracting party to allow the free
20 passage of the consignments indicated in the preceding paragraph is
21 subject to the condition that this party is satisfied that there are no
22 serious reasons for fearing, (a), that the consignments may be diverted
23 from their destination; (b), that the control may not be effective, or,
24 (c), that a definitive advantage may accrue to the military efforts or
25 economy of the enemy."
Page 21324
1 Indeed, when a warring party may have serious grounds for thinking
2 that the scope and frequency of the consignment can foster the military
3 efforts or the economy of the adversary, or if it has reasons to believe
4 that the humanitarian aid is used for military purposes, it is entitled to
5 deny the free passage.
6 We have the judicial notice in this case that part of the
7 humanitarian aid was used for the needs of the Army of Bosnia-Herzegovina.
8 Even if we admit that for the sake of the argument, the passage of
9 the consignments was restricted and that the situation, from a
10 humanitarian standpoint in the enclaves, was bad, nonetheless the
11 Prosecutor has not demonstrated that the policy that applied to the
12 convoys was a consequence of directive number 7, and the consequence was
13 due to the restriction imposed on the convoys. The Prosecution did not
14 demonstrate what the part -- what part was played by General Miletic in
15 the implementation of such a policy, other than he sent information to his
16 subordinates. Other than that, the Prosecution did not demonstrate that
17 the procedure that applied to the convoys, which was fully compliant with
18 the Geneva Convention, was aimed at driving out the Muslim population from
19 the enclaves.
20 I shall now address the situation on the ground.
21 What knowledge did General Miletic have of the situation on the
22 ground, not only during the period when these events took place, but also
23 before that, the events in Srebrenica and Zepa?
24 In his opening statement on the 21st of August, 2007, the
25 Prosecution stated the chief of operations is someone that is involved in
Page 21325
1 the military operations of the corps and the brigade. This is not someone
2 who is in charge of logistics. This is not someone who is in charge of
3 technical matters. This is someone who truly operates on the ground. I
4 shall not address this issue as to whether the Prosecutor attributed the
5 right role to the person in charge of operations and whether this was his
6 true role. I shall just say that at the time, the war was waged on all
7 fronts in the Republika Srpska, in the areas of the 6th Corps and by a
8 hundred or so brigades and other units. And the Prosecutor admits in its
9 opening statement on the 21st of August, 2006, page 396, that in July
10 1995, the Sarajevo front line was a main front line for Serbs. Indeed,
11 this is not Western Bosnia [as interpreted], but the Sarajevo front line
12 and the Bihac front line, that concerned the Main Staff at the time.
13 Line 23, we should read not "Western Bosnia" but "the Sarajevo
14 front line and the Bihac front line." One should read "Eastern Bosnia"
15 and not "Western Bosnia."
16 JUDGE AGIUS: Thank you for that. Go ahead.
17 MS. FAUVEAU: [Interpretation] Whatever the case may be, it was
18 simply impossible for the chiefs of operations of the Main Staff to
19 operate on the ground and to take part in any military operation led by
20 all the corps and brigades. Besides, the military expert of the
21 Prosecutor contradicts this theory, for he restricts intervention of the
22 Main Staff in military operations to very specific cases. He stated at
23 the hearing of January 29, 2008, page 20587, and I quote:
24 "It is only when several corps commanders needed to intervene
25 that the issues were complex and that the relationships between the
Page 21326
1 various commanders needed to be addressed, and that it was only then that
2 the Main Staff intervened."
3 But let's address the Prosecutor's case and see whether there is
4 any evidence to show that the chief of operations did take part in some of
5 these military operations. This is what we are interested in, but the
6 answer is quite a simple one. There was none.
7 During the presentation of its case, the Prosecutor provided no
8 evidence to show that in 1995, General Miletic was on the ground in
9 Western Bosnia during -- before, during and after the operations in
10 Srebrenica and Zepa, and General Milovanovic ascertained, on the 31st of
11 May, 2007, page 12311, that General Miletic was assigned on the front line
12 for the last time when he was lieutenant colonel, so we are very far now
13 from 1995.
14 We know that some Main Staff officer did go to the area of the
15 Drina Corps in the period running from March to July 1995, and amongst
16 others General Milovanovic, the person who should have been in Western [as
17 interpreted] Bosnia. General Milovanovic goes in April and then again in
18 May 1995. Exhibits P2891 and 5D714 confirm that. General Milovanovic went
19 there --
20 JUDGE AGIUS: Yes, Mr. --
21 MR. McCLOSKEY: I'm sorry, but you may want to clear up. I think
22 there's been some translation issues that probably should be cleared up
23 now. I hate to interrupt you, but I think you meant "1993" when you
24 said -- it says "we are far from 1995."
25 MS. FAUVEAU: [Interpretation] I did say it, we are very far from
Page 21327
1 1995. I did say that.
2 MR. McCLOSKEY: I apologise, and I think we've got "Western" and
3 "Eastern" mixed up too, but --
4 JUDGE AGIUS: What we have in the transcripts now, that there is
5 no evidence from the Prosecution that General Miletic, in 1995, was ever
6 on the ground in Western Bosnia, before, during, or after the operations
7 in Srebrenica and Zepa; lines 20, 21 and 22 of page 22.
8 MS. FAUVEAU: [Interpretation] Line 18 should be read as "Eastern
9 Bosnia."
10 JUDGE AGIUS: All right. Having said that, I think we can
11 proceed, and then we can change whatever needs to be changed.
12 Yes, Madame Fauveau.
13 MS. FAUVEAU: [Interpretation] Thank you very much.
14 Therefore, General Milovanovic went to Eastern Bosnia in 1995, but
15 General Miletic did not go there. We have no evidence that General
16 Miletic went there before the Srebrenica operation to observe the state of
17 the Muslim forces or the units of the Army of Republika Srpska. Besides,
18 the observation of Muslim forces was not part of his assignment. This was
19 the role of the intelligence services, and if these services in some
20 armies belong to the same one -- the same department as the operations, as
21 is the case in the British Army, where General Smith was in charge of the
22 operations as well as security matters, as he stated on the 5th of
23 November, 2007, pages 17462, 17463, this is not the case in the Army of
24 the Republika Srpska, where, at the Main Staff level, these two
25 departments are totally separate. Richard Butler confirmed this on the
Page 21328
1 28th of January, 2008, page 20581, that intelligence services and security
2 matters are a separate branch under the responsibility of General Tolimir.
3 But whatever the case may be, contrary to the other officers of the Main
4 Staff, namely, General Milovanovic, who went several times during this
5 period to the area under the responsibility of the Drina Corps, General
6 Miletic in 1995 did not go there. Consequently, as far as the situation
7 in the area of Srebrenica and Zepa is concerned, he can't have seen
8 anything whatsoever.
9 During this period, the Prosecutor mentioned several incidents.
10 The Bratunac Brigade purportedly shelled Srebrenica on the 25th of May,
11 1995, following an order from the Main Staff. We do not dispute the
12 shelling of the 25th of May, 1995, only we have never seen an order given
13 by the Main Staff to that effect, and the Prosecutor provided no evidence
14 of this order or that the order existed. We have no order from the Main
15 Staff concerning this bombing, and we have no report informing the Main
16 Staff that the shelling actually took place. We have no evidence to show
17 that any information relating to this shelling ever reached the Main
18 Staff.
19 And once again General Miletic is not on the ground and can have
20 no knowledge of these events, if the latter were not reported to the Main
21 Staff.
22 Then there was the takeover of the observation post by UNPROFOR,
23 the Post Echo. Once again, we have no detailed information that could
24 establish a connection between this and General Miletic.
25 The Prosecutor would like us to believe that this action is a
Page 21329
1 direct consequence of the order given by General Milovanovic on the 27th
2 of May, 1995, but this is not the case. The two exhibits referred to by
3 the Prosecutor on the 1st of February, 2008, at the testimony --
4 additional testimony of Mr. Butler, Exhibit P3161, and the Zvornik Brigade
5 Exhibit P3162, only concerns UNPROFOR members who were deployed in
6 Gorazde. Neither of these exhibits have any connection whatsoever with
7 the Post Echo.
8 However, P2894, which is the order of General Zivanovic, which
9 relates to the operation that led to the takeover of the Post Echo, does
10 not refer to any order or action on the part of the Main Staff. However,
11 if we were to accept the theory of the Prosecution; i.e., that the events
12 that took place at the Post Echo have anything to do with General
13 Milovanovic, this theory is not inculpatory for General Miletic. Quite
14 the contrary, it is exculpatory, because he is not solely in charge of
15 Western Bosnia, he is there to give orders to the Drina Corps.
16 General Miletic does not personify the Main Staff. He cannot be
17 held responsible for the acts or conducts of other members of the Main
18 Staff or other members of the army, and especially he cannot bear the
19 responsibility for the orders of his superiors, which he did not carry out
20 and which he probably was not even aware of. And we have no evidence that
21 General Miletic purportedly took part, in one way or another, in the
22 drafting of the order provided by General Milovanovic or that he would
23 have had a hand in its implementation.
24 The Srebrenica operation had been planned within the Drina Corps,
25 and all the preparation work had been done by the Drina Corps. No
Page 21330
1 document, no testimony, involves the Main Staff of the Army of the
2 Republika Srpska; namely, the planning and preparation of this operation.
3 Quite the contrary, Mirko Trivic confirmed on the 22nd of May, 2007, page
4 11194, that this was an operation led by the Drina Corps. The military
5 expert of the Prosecution, Richard Butler, on the 29th of January, 2008,
6 stated on page 20587, and I quote:
7 "As far as Krivaja-95 is concerned and the entire planning
8 process that it involves, this could really have been carried out by the
9 corps or the corps chief of staff. It was, therefore, not necessary for
10 the Main Staff to plan every detail of this operation."
11 True to fact, on that same day, the 29th of January, 2008, page
12 20588, Richard Butler ascertained that it was not before the evening of
13 the 9th of July that the Main Staff intervened in the Srebrenica
14 operation. A lot of things happened in the course of that evening of the
15 9th of July, 1995. President Karadzic orders the operation to continue
16 and to enter Srebrenica. This order given by President Karadzic
17 profoundly changes the meaning of the Srebrenica operation.
18 Richard Butler, the military expert, confirmed this on the 29th of
19 January, 2008, page 20588, that the primary objective was the separation
20 of the enclaves, and that the objective was changed during that evening on
21 the 9th of July, 1995. This order, given by President Karadzic, was
22 passed on by General Krstic to General Tolimir. This is Exhibit number
23 P89 [as interpreted].
24 The document forwarding the order of President Karadzic is a
25 document which, normally speaking, should have been written and signed by
Page 21331
1 the officers who were part of the Operations Department.
2 The military expert, on the 29th of January, 2008, stated at page
3 20590 that this document, P849, is exactly the type of document that the
4 operations body would prepare, but this particular document, P849, the key
5 document involving the Main Staff in the Srebrenica operation, did not
6 leave the Operations Administration. It is not General Miletic who
7 drafted it. It is not General Miletic who signed it. It is not General
8 Miletic who sent it off. There is no evidence, either, that General
9 Miletic had any knowledge of the fact at the time.
10 Nobody explained why General Miletic and the administration in
11 charge of military operations were not involved in the forwarding of this
12 document to the Drina Corps, so we can only speculate on the matter.
13 Either General Miletic was simply not present at the Main Staff at that
14 time, which does not tell us why another officer in his administration did
15 not draft this document or for one reason or another General Miletic and
16 his administration were excluded from this part of the operation.
17 Let me emphasise once again that logically, according to the
18 military organisational structure of the Main Staff of the Army of
19 Republika Srpska, General Miletic should have, to all intents and
20 purposes, been involved in the drafting of this document. Once again, I
21 would like to stress this. The document is self-explanatory. General
22 Miletic was not involved. This document proves, as clearly as not, that
23 one cannot rely on someone's position to ascertain his responsibility.
24 Material evidence need to be shown to -- that go to the acts and the
25 conduct of a particular person.
Page 21332
1 In the course of this trial, the Prosecutor insists on the duties
2 of General Miletic, not his acts, and hoping thus that the Chamber would
3 be convinced that his position was such that nobody could do without
4 General Miletic within the Main Staff of the Army of Republika Srpska.
5 The Prosecution is so convinced of the importance of the position held up
6 by General Miletic that it forgot to show the proof of his acts, the only
7 proof that would sustain a conviction of General Miletic.
8 This document, however, proves -- disproves the theory of the
9 Prosecution. Indeed, the name of General Miletic is mentioned in the
10 reports that pertain to the situation on the ground, but once again none
11 of these reports mention "SR," which according to the report means "on
12 behalf of" or should be signed by him personally.
13 We know that during at that time, General Nikolai tried to contact
14 someone, a general, never mind which one at the Main Staff, and we know
15 that this happened on the 8th and 10th of July and that the reply came
16 back saying that there was no one authorised to talk to him. Perhaps --
17 P2750 [Realtime transcript read in error "P2790"], P976 [as interpreted].
18 Perhaps General Miletic was not authorised to speak to the head of
19 the Main Staff or UNPROFOR, or perhaps he just simply was not at the Main
20 Staff. There are, at any rate, only these two possibilities; there isn't
21 a third.
22 These reports that bear the name of General Miletic and that were
23 sent to President Karadzic, are the reports which were sent on a daily
24 basis. These reports have no link whatsoever with Srebrenica. These
25 reports were sent every day at the same time, whatever happened, no matter
Page 21333
1 whether there was fighting or not.
2 Since the beginning of the war, since the first day the Republika
3 Srpska was formed, every day an officer in charge of the administration of
4 military operations summarises and collates the information which is sent
5 off to the 6th Corps and to the president of the corps -- of the Republic
6 and to the corps.
7 Following the order of President Karadzic, the order is completely
8 unknown to General Miletic and his administration, and that is when the
9 Army of the Republika Srpska entered Srebrenica.
10 We then have the Main Staff document, that of General Mladic.
11 None of these orders stem from General Miletic.
12 We also have the order dated 11th of July, 1995, P3038, and then
13 on the 13th of July, 1995, Exhibit 5DP35. Both bear the letters "SR." So
14 two of these documents should have been signed by General Mladic
15 personally.
16 On the 11th and 13th of July, General Mladic was not at the Main
17 Staff. General Miletic was there neither on the 11th and the 13th [as
18 interpreted] . And General Mladic -- and there is no prove that General
19 Miletic at the time had knowledge of these orders. Once again, the
20 Prosecutor shows no evidence that General Miletic was purportedly
21 involved, in one way or another, in the events in Srebrenica. All the
22 knowledge that General Miletic may have had about the events in Srebrenica
23 before and during the fighting, as well as after the Army of Republika
24 Srpska entered Srebrenica, stem from the reports he received. These
25 reports did not tell us much, and very often they were inaccurate. We are
Page 21334
1 very far from the Prosecution's theory according to which General Miletic
2 would have observed the status of the Muslim forces before, during, and
3 after the attack on Srebrenica and Zepa, would have observed the surrender
4 of the Muslim forces after the fall of Srebrenica and Zepa; would have
5 observed the surrender, the activities of the VRS in the areas of
6 Srebrenica and Zepa; would have followed up on the transfer of the
7 civilian population from Zepa and Srebrenica. Besides, he was unable to
8 observe or follow up on these activities for the simple reason that he
9 wasn't there, neither he nor his subordinates were on the ground, besides
10 other officers were present.
11 How much does General Miletic know about the fall of Srebrenica
12 and the transfer of the population? The only information that arrived was
13 on the 12th of July, 1995. This reached the Main Staff and pertained to
14 the transfer. This is contained in a report which was mentioned over the
15 telephone from Potocari to Panorama. The code name is "Main Staff." This
16 is recorded in the intercept of the 12th of July at 12.40. This is a
17 short conversation, Exhibit number P1112, and the relevant part deserves
18 to be read in its entirety.
19 [In English]" We are starting the relocation of those who want to
20 go toward Kladanj and entering force with trucks and buses, and a water
21 tank should be sent to give them water and food. This morning, we
22 organise it here. We will give them everything. I talked with them, and
23 we will accept all of civilians who want to -- who want to and they can
24 stay. Those who don't want to can choose where they will go."
25 [Interpretation] Indeed, there is another intercept recorded ten
Page 21335
1 minutes later that states the contrary, but this does not involve the Main
2 Staff.
3 The only information that reached the Main Staff and that General
4 Miletic could therefore have had access to stated that everything had been
5 organised, the water, the food, and those that wished to stay could stay,
6 and those that wished to go could go and could choose where they wanted to
7 go. A report indicates that the Geneva Conventions were fully respected,
8 for if Article 49 of the 4th Geneva Convention prohibits forced transfer,
9 paragraph 5 also prohibits forced retention.
10 The involvement of General Miletic in the Srebrenica operation and
11 the ensuing events are clearly stipulated in the conversation that was
12 recorded on the 12th of July at 12.40, when two people, discussing the
13 question of fuel, referred to a certain Miletic. The Miletic in question
14 does not know where to find the fuel, and he does nothing to try and find
15 it.
16 The Prosecutor ascertains that the man in question is General
17 Miletic. Well, so be it, in that case the Prosecution should accept that
18 once again General Miletic has no knowledge of anything that he should
19 have known about. And the impact of this conversation is even greater.
20 General Miletic does nothing to try and find the fuel. He does not get
21 involved. This is none of his business and he does not get involved. Of
22 course, he is in charge of drafting the report, and he does. He drafts it
23 on the basis of the reports he gets. He has no direct knowledge of what
24 is happening on the ground.
25 The Prosecutor will say that some documents were addressed to
Page 21336
1 General Miletic, asking him for information or additional orders. Yes,
2 there are some. We have Exhibit number P192, 13th of July, 1995, signed
3 by Lieutenant Colonel Siromir Leftic [phoen], commander of the military
4 police of the 65 Regiment of Protection, Zoran Malinic, should have
5 contacted General Miletic, but we have no evidence that Zoran Malinic did
6 anything, according to the document.
7 Whatever the case may be, we do not even know whether General
8 Miletic had occasion to see this document, which, by the way, was not
9 addressed to him. Nobody has yet been convicted on the basis of what
10 someone else asks him or her to do without the acts and conducts of the
11 person in question --
12 THE INTERPRETER: Interpreter's correction: Without establishing
13 the acts of the person in question.
14 MS. FAUVEAU: [Interpretation] Yes, we do have documents stating
15 that -- P2754. General Miletic informed the Drina Corps and the Zvornik
16 Brigade that a unit of the 1st Krajina Corps was going into the area, but
17 what is strange about this document, the Prosecution admitted in its
18 opening statement on the 27th of August, 2006, page 461, when it said,
19 speaking about the document, that it was only a matter of sending in extra
20 troops to the fighters.
21 The Prosecution stated that General Miletic was observing the
22 Muslim forces, that General Miletic only reacted and received the reports.
23 He still is a person who does not take any decisions. It is General
24 Mladic. This is stated by the expert on the page 1618. If the report of
25 the Zvornik Brigade addresses the issue of prisoners, these reports do not
Page 21337
1 reach the Main Staff. They are sent to the Drina Corps.
2 The military expert, Richard Butler, was quite clear when he said,
3 on the 1st of February, 2008, on page 20971:
4 "When we go up the chain of command, we do not address the issues
5 that relate to the separation of people or that kind of thing."
6 There is indeed a report which was sent to the Main Staff on the
7 13th of July, 1995, Exhibit PP113, but I would like to say that this was
8 specifically sent to the intelligence services, and if by any chance
9 General Miletic did see this report, and I do say "if by any chance he did
10 see it" because this was not sent to him, he may have understood
11 that an exemplary evocation was taking place in Potocari. Adequate
12 medical care was provided, with addition to water and food which had
13 reached the refugees, according to the report of the 12th of July, at
14 12.40, information forwarded over the telephone.
15 The reports which reached the Main Staff contain so little
16 information and are so far removed from reality that General Mladic went
17 to see -- that General Mladic had to go on the ground to check what was
18 happening [as interpreted]. This order by General Mladic is P927 on the
19 record.
20 When these officers come back to -- from the Zvornik Brigade, they
21 have not much to say. In 2007, we have Bogdan Sladojevic who testified in
22 2027, page 14373. In replies to Zepa, that generals of the Main Staff on
23 the ground, General Tolimir and General Mladic, and these are the men who
24 are on the ground who observe how the Muslim forces are moving and their
25 surrender. They conduct the search operation. They are observing the
Page 21338
1 movements of the units of the Republika Srpska in the area, and they are
2 the people who follow up on the transfer of the population. Those are the
3 people on the ground, not General Mladic, not General Miletic. Not
4 General Miletic.
5 General Tolimir does send documents, reports, to General Miletic,
6 but we have no evidence that Tolimir's proposals were ever implemented.
7 We know that General Tolimir had asked UNPROFOR people not to come
8 on the ground, and we know that they did come. We know that General
9 Tolimir asked for chemical weapons to be used, but we have never heard
10 anything to that effect. General Krstic also writes to General Miletic
11 and informs him, on the 5th of July, 1995, document P3015, that Zepa had
12 been freed. We know that on the 20th of July, 1995, Zepa had not been
13 liberated. Why did such erroneous information reach General Miletic? We
14 don't know.
15 The military expert of the Prosecutor stated on the 29th of
16 January, 2008, page 20648, and I quote:
17 "Looking at the overall information on the subject, in many cases
18 the VRS felt that the situation was going one way, whereas they discovered
19 afterwards that this was not the case. Was it someone's intention or were
20 these mistakes? We don't know."
21 General Miletic has no other information about the situation on
22 the ground, other than what he gets from the officers who are in the
23 field, and none of this information tells anything about anything that
24 might be criminal, irregular, or unusual.
25 So where is General -- why -- how can one establish General
Page 21339
1 Miletic's responsibility here? He was part of the army. The army is not
2 a criminal body, as such. The mere fact that General Miletic belonged to
3 this army and the Main Staff does not turn him into the person responsible
4 for the acts committed in Srebrenica and Zepa, and the Prosecution showed
5 no evidence that he, himself, was involved in one way or another in what
6 happened in and around these two enclaves.
7 The Prosecutor showed no evidence of the fact that General Miletic
8 knew, before the Army of the Republika Srpska entered Srebrenica, that the
9 enclave had been taken [as interpreted]. He provided no evidence that the
10 intention of General Miletic was to drive out the Muslim population from
11 the enclaves, to forcibly transport them, and provided no evidence that
12 such an inference can be drawn and that that would be the sole reasonable
13 conclusion.
14 Therefore, I request the acquittal of General Miletic on all
15 counts of the indictment.
16 Thank you.
17 JUDGE AGIUS: Merci, Madame Fauveau.
18 It's time for the break, in any case, Mr. Josse.
19 [Trial Chamber confers]
20 JUDGE AGIUS: Mr. Josse, I suggest we have the break now, 25
21 minutes, and then --
22 MR. JOSSE: Could I briefly mention one matter which you might
23 want to consider during the break?
24 JUDGE AGIUS: Yes.
25 MR. JOSSE: And that relates to timing.
Page 21340
1 Now, Your Honour, I hope I'm going to be no more than the 90
2 minutes I'm permitted, but could I invite the Chamber to consider what it
3 said on the 9th of November of last year at page 17837, when Your Honour,
4 the learned Presiding Judge, stated:
5 "We are not going to intervene or interfere as to who should go
6 first amongst yourselves, and I think that we can safely say that you can
7 also agree amongst yourselves to make use of any disposable, leftover time
8 that remains, excepting that you will have an hour and a half each."
9 Bearing in mind that my learned friend Mr. Zivanovic has not made
10 a submission, Mr. Lazarevic has not used up all his time, am I permitted
11 to do use in excess of 90 minutes if I need to?
12 JUDGE AGIUS: How much more? We need to finish today, basically,
13 once we have arrived at this stage, so that next week, Monday and Tuesday,
14 we'll have the responses. I think with your experience, Mr. Josse, you
15 can conclude in an hour and a half.
16 What I can offer is perhaps Mr. Haynes might entertain the idea of
17 going first, not exceeding, say, 20 minutes that he said yesterday and
18 that he mentioned yesterday, and then you can have the rest, but --
19 MR. JOSSE: I'll discuss that with him, Your Honour, but I
20 think --
21 JUDGE AGIUS: Okay. But let's make an effort to conclude the
22 submissions -- the Defence submissions today, once we have arrived at this
23 stage, rather than have them continue on Monday, and then Monday and
24 Tuesday Mr. McCloskey will finish. He said he will finish Tuesday
25 morning.
Page 21341
1 MR. JOSSE: My difficulties will become clear as I proceed.
2 JUDGE AGIUS: Yes, okay, thank you.
3 Twenty-five minutes. And the time now is 10.31.
4 --- Recess taken at 10.31 a.m.
5 --- On resuming at 11.01 a.m.
6 JUDGE AGIUS: Yes. I understand you are going first, Mr. Josse.
7 MR. JOSSE: May it please Your Honours.
8 JUDGE AGIUS: Yes, and you have an hour and a half.
9 MR. JOSSE: Thank you.
10 Over the last two days --
11 JUDGE AGIUS: You're starting at 11.00. Yes, go ahead.
12 MR. JOSSE: -- this Trial Chamber has heard some excellent and
13 dare I say it thought-provoking submissions which we trust will give the
14 Chamber something to mull over. Thereafter, of particular note, you might
15 think, was the first address from my learned friend Mr. Meek. If it is to
16 be his swan song, then it's a performance that those of us who had the
17 good fortune to hear it will long remember. He reminded us, rather
18 conveniently, bearing in mind he set the ball rolling on these 98 bis
19 submissions, of why we were here and some of the central tenets of a fair
20 criminal justice process. Some of his assertions, in particular his
21 quotations, most -- perhaps everyone in this room will agree with and
22 cannot argue with. Other of his remarks were perhaps a tad more
23 controversial.
24 General Gvero's lawyers look forward, with genuine relish, to our
25 opportunity to address this Chamber on the merits of the case, and we look
Page 21342
1 forward to our opportunity to make submissions on his behalf as to why we
2 contend the Prosecution have failed singularly and lamentably to prove the
3 case against him, and we say that bearing in mind what has been said
4 against our client, and in particular we note recently two rather strong
5 attacks on our client by my learned friend Mr. Thayer, in particular, who,
6 in these submissions, gave what we would characterize as a ranting type of
7 argument more akin to a closing speech than one that was appropriate for a
8 submission in the middle of a trial.
9 But, Your Honour, the result of all this is that we, the general's
10 lawyers, realise that this is not the opportunity for us to proclaim our
11 client's innocence and it's not our opportunity to say why Mr. Thayer is
12 wrong and why his rants should be rejected by this Trial Chamber. We do
13 assert strongly that General Gvero is an innocent man in relation to the
14 allegations made against him so far as both Srebrenica and Zepa are
15 concerned, but we appreciate that our time to deal with these particular
16 matters, our time for rhetoric, for speeches, for assertions of that sort,
17 will come later. And as I've already said, we look forward to our
18 opportunity to make those submissions in due course and to tell this Trial
19 Chamber why the Prosecution case is so wrong.
20 In the course of the submissions I make in the next 88 minutes or
21 so, nothing should be read by this Trial Chamber as an acceptance on the
22 part of my learned leader Mr. Krgovic or myself that the Prosecution have
23 discharged their ultimate and heavy burden against General Gvero.
24 Before I turn to my main submission, which is going to relate to
25 count 8, could I say a word or two about count 7.
Page 21343
1 We make no submission today in relation to count 7, but something
2 that Mr. Bourgon said yesterday is of concern to us. At page 21265 of the
3 proceedings, Mr. Bourgon broke down the forcible transfer count and,
4 paraphrasing, he said that it fell into three different groups; firstly,
5 the women and children, secondly the able-bodied men, and thirdly the
6 members of the Muslim 28th Division. He went on to say that in his
7 submission, count 7 applies only to the first of these groups, namely, the
8 women, children and elderly.
9 Now, Your Honour, let me make it clear. We wholeheartedly support
10 that submission on behalf of General Gvero. I dare say virtually all the
11 Defence lawyers are going to support that submission. But the reason I
12 draw it to your attention at this stage is to ask you to consider whether
13 now is the appropriate time to make a finding in relation to that. I'm
14 not making a submission on count 7. Others have not made a submission on
15 count 7. In effect, those of us who are not submitting on count 7 are
16 deprived of an opportunity to make further submissions on what could be an
17 important issue in the case, and our concern is that the Court will reject
18 Mr. Bourgon's submission, which as I say we wholeheartedly support, and we
19 will be hamstrung with that ruling for the rest of the case. And, of
20 course, we say that our opportunity to address that important issue should
21 come at the close of the evidence, when you consider count 7 in relation
22 to General Gvero.
23 Now, how that impacts on Drago Nikolic is not a matter for me to
24 address, nor a matter for me to concern myself with, and I make no
25 comments so far as that's concerned. I'm only concerned so far as General
Page 21344
1 Gvero is concerned. But in relation to him, we submit now is not the time
2 to make that particular ruling, in particular since we are not making any
3 submissions upon it.
4 Now, having said what I'm not going to talk about, namely, count
5 7, let me begin my address on count 8, the deportation count. And some of
6 what I have to say has already been covered by Madame Fauveau in the
7 submissions that she made this morning. I'm going to go into the matter
8 in a little more detail, if I may, but forgive me if I cover ground that
9 she has already dealt with or alluded to.
10 The offence is contrary, as we know, to Article 5(d) of the
11 Statute of this Tribunal, and it's a crime against humanity, and the
12 central thrust of the submission I'm going to make, and as I say, Madame
13 Fauveau has already made it, is that the victims, if I could use that
14 word, in that count have to be civilians, and if they're not civilians,
15 the count will fail.
16 Now, the issue of crimes against humanity and what victims of
17 crimes against humanity amount to has been extensively reviewed recently
18 at this Tribunal by the Trial Chamber in the case of Mrksic and others,
19 and the rather large tomb which I asked Madam Registrar to hand you at the
20 beginning of my submissions, is that judgement, and the reason is I'm
21 going to go through a number of paragraphs of it in some considerable
22 detail. I've also handed a copy to my learned friend Mr. McCloskey.
23 Those of my colleagues co-defending with me will perhaps forgive the fact
24 that we haven't provided copies to them, but they can find this judgement
25 on the internet which they can access at any time.
Page 21345
1 Now, if Your Honours would turn to section B of this judgements
2 which is jurisdiction under Article 5 (crimes against humanity), it deals
3 with the chapeau requirements, it then deals with issues to deal with
4 widespread or systematic attacks, a nexus to the attack, and I'm going to
5 go straight to the section headed "C" directed against any civilian
6 population, and paragraph 440, please. There, it says the attack must be
7 directed against any civilian population. 442, the term "civilian
8 population" must be interpreted broadly and refers to a population that is
9 predominantly civilian in nature.
10 "A population may qualify as civilian even if non-civilians are
11 among it, as long as it is predominantly civilian. The presence within a
12 population of members of armed resistance groups or former combatants who
13 have laid down their arms does not, as such, alter its civilian nature."
14 This jurisprudence is in line with Article 50(3) of Additional
15 Protocol 1, and I'm paraphrasing here, going on, which states that:
16 The presence within the civilian population of individuals who
17 do not come within the definition of civilians does not deprive the
18 population of its civilian character.
19 Then it goes on, Your Honours, at paragraph 443 in a section
20 headed "Applicability of Article 5" to non-civilian victims. I beg your
21 pardon, I said -- I've got it right, 443. I was right.
22 A related but distinct legal issue arises in the circumstances of
23 the present case. While it has been clarified by the jurisprudence of the
24 Tribunal that mere presence of non-civilians among what is a predominantly
25 civilian population does not alter the civilian character of the
Page 21346
1 population for the purposes of this chapeau requirement of Article 5, the
2 jurisprudence of the Tribunal has not yet been called upon to pronounce
3 the question whether the notion of crimes against humanity is intended to
4 apply to crimes listed in Article 5, when the individual victims of such
5 crimes are not civilian.
6 And then the Trial Chamber deals with the question it posed to the
7 parties. It then deals with the submissions made by the parties. I'm not
8 going to deal with that. I'm really going to turn perhaps to the answer
9 and the discussion. Paragraph 448, please.
10 At the outset, the Chamber would observe that all parties appear
11 to be in agreement that the victims of a crime against humanity must be
12 civilians. The Defence for each of the three accused, by explicitly
13 advancing this proposition, and Prosecution implicitly by accepting that
14 all victims of the crime charged under Article 5 of the present indictment
15 qualify as civilians.
16 The issue in dispute appears to be the definition of "civilians"
17 that should be applied. And thereafter, in the succeeding paragraphs, I
18 can inform this Chamber that the judgement sets out the history of the
19 matter. I'm not going to deal with that in any great detail, but we can
20 go to paragraph 451, please, where it says:
21 "This approach, however, was rejected by the Blaskic Appeals
22 Chamber in 2004, when it overturned the Trial Chamber's decision. The
23 specific status of the victims at the time of the crime may be
24 determinative of his civilian or non-civilian status."
25 Basing itself on Article 51 of Additional Protocol 1, the Appeals
Page 21347
1 Chamber held that members of the armed forces or members of militias or a
2 volunteer corps forming part of such armed forces cannot claim civilian
3 status, and neither can members of organised resistance groups.
4 Going on, if I may, to the next paragraph, it says that the
5 jurisprudence was later followed by the Appeals Chamber in Kordic, which
6 says that the term "civilian" needs to be defined in accordance with
7 Article 50 perhaps I should say "(1)" of Additional Protocol 1.
8 Moving on to 453, it says in some, the jurisprudence of the
9 Tribunal consistently refers to Article 50 of Additional Protocol 1 when
10 interpreting the term "civilian" in Article 5 of the Statute. It accepts
11 that the mere presence of non-civilians among what it is predominantly a
12 civilian population does not alter its characteristic. Again
13 paraphrasing, Likewise it adopts the definition of "civilian" in Article
14 50(1) which has to be reflective of the customary international law.
15 If I may move to paragraph 555, please, the judgement then deals
16 with the submission that the Prosecution had made in relation to Blaskic.
17 In the middle of that paragraph, it says:
18 "This is precisely why the Blaskic Appeals Chamber overturned the
19 Blaskic Trial Chamber. The criterion is not the position of the victims
20 at the time of the crime, but their status as civilians under Article 50
21 of Additional Protocol 1, together with Article 4 of Geneva Convention 3,"
22 and then Article 43 of additional Protocol 1.
23 Paragraph 457 deals with a terminological evaluation, which might
24 be important, and basically it says that whether the conflict is
25 international or non-international, it amounts to the same. That's how
Page 21348
1 it's summarised, that paragraph, and we can then move on to 458, please,
2 which is particularly important in the context of this case.
3 In addition to the reasons set out above, there is yet another
4 reason why the Chamber cannot accept the Prosecution's proposition that
5 the definition of "civilian" under Article 5 of the Statute is broad and
6 includes all persons who are not participating in hostilities, including
7 combatants who order combat. Certain crimes listed in Article 5 of the
8 Statute can only be committed against civilians, not against combatants.
9 For example, deportation, under Article 5(d), cannot be committed against
10 prisoners of war.
11 And the paragraph then, Your Honours, goes on and deals with a
12 brief analysis of the historical origins of the crimes against humanity
13 dealing with 6(c) of the Nuremberg Charter, goes on and deals with the
14 requirement about an attack being widespread or systematic, and then
15 importantly, towards the bottom of the paragraph, in that jurisprudence a
16 preponderance criteria has been developed. The population must be
17 preponderantly civilian, inspired by Article 50(3) of Additional Protocol
18 1, but this does not have the effect of abandoning the underlying
19 principle, i.e., the crimes against humanity as opposed to war crimes, are
20 directed against civilian victims.
21 Paragraph 460 really deals with the importance of the Tribunal not
22 filling the gap, if there be a gap, in the law through what's described as
23 the telelogical interpretation, and I draw that to the Chamber's attention
24 and what the Mrksic judgement said in that paragraph.
25 461 says:
Page 21349
1 "In view of the above, the Chamber concludes that the term
2 'civilian' in Article 5 of the Statute has to be interpreted in accordance
3 with Article 50 of Additional Protocol 1, and therefore does not include
4 combatants or fighters or the combat."
5 462 says that the Chamber is aware, and I'm paraphrasing, that the
6 Tribunal hadn't yet decided this particular issue. The jurisprudence
7 accepts that the attack requirement for crimes against humanity allows for
8 the presence of non-civilians in the population. That is, the target of a
9 widespread or a systematic attack. There is nothing to suggest that a
10 crime listed under Article 5 of the Statute would qualify as a crime
11 against humanity if the victims were non-civilians.
12 Excuse me.
13 [Defence counsel confer]
14 MR. JOSSE: Your Honours, you'll be glad to hear I'm very near the
15 end of my review of this particular judgement, because we get to the
16 conclusion, which is paragraph 463 and 464, so the conclusion in this
17 judgement was:
18 "The Chamber therefore concludes that for the purposes of Article
19 five of this Statute, the victims of the underlying crime must be
20 civilians. If the victims are non-civilians, the more appropriate charge
21 is war crimes. In the view of the Chamber, this is a proper and specific
22 requirement for the application of Article 5, which takes into account the
23 historical origins and developments of crimes against humanity as a
24 category distinct from war crimes. In reaching this conclusion, the
25 Chamber does no more than to interpret Article 5 of the Statute in the
Page 21350
1 context of the factual situation in which it is called upon to apply the
2 article, which is without precedent in the Tribunal's jurisdiction.
3 "The analysis above leads the Chamber to conclude that in order
4 for a crime in Article 5 to constitute a crime against humanity, it is not
5 sufficient for that crime to be part of a widespread or systematic attack
6 against the civilian population. The victims of the crime must also be
7 civilians. Accordingly, a crime listed in Article 5, despite being part
8 of a widespread or systematic attack against the civilian population, does
9 not qualify as a crime against humanity if the victims were
10 non-civilians."
11 Finally, paragraph 464 says there is no case law defining the
12 required mens rea. The jurisprudence has only considered the mens rea in
13 relation to the armed conflict, the nexus requirement and the attack. And
14 then the remaining words are extremely important, and I'm going to analyse
15 those in detail in a few moment's time:
16 "As the civilian status of the victims is only a jurisdictional
17 requirement and not an element of the crime, the Chamber believes that it
18 is sufficient for the perpetrator to have been aware of the factual
19 circumstances that established the status of the victim."
20 And the Chamber might wish to look at the footnote there, which is
21 1722, which says:
22 "The Chamber does not consider this to be an element of the crime
23 that needs to be established by the Prosecutor. Under International
24 Humanitarian Law, the civilian status of a victim is presumed, absent
25 evidence to the contrary."
Page 21351
1 And then it quotes Article -- Additional Protocol 1, Article
2 50(1), where it says:
3 "In case of doubt whether a person is civilian, that person shall
4 be considered to be a civilian."
5 And, Your Honour, that may have some practical implications in
6 this case, which I'm going to come to in a moment.
7 The Defence for General Gvero accept and respectfully endorse
8 everything stated in that judgement, except that bit at the very, very end
9 which relates, of course, to the burden of proof. And as I say, I'll come
10 to that in a moment.
11 It might be worth, at this juncture, a very quick look, in terms
12 of the framework of this legislation, for the Chamber to have in front of
13 it both Article 50 from Additional Protocol 1, I think it is, and also
14 Article 4, Geneva Convention 3. We've got copies of those, if that's of
15 assistance to the Chamber, and perhaps we could hand those out.
16 JUDGE AGIUS: Thank you, Mr. Josse.
17 MR. JOSSE: And I know it's being handed up, and since you're
18 going to have it in front of you, it's going to save me quite a lot of
19 time. But basically the Chamber will see how Article 50(1) of Protocol 1
20 defines "civilian" in relevant part by exclusion from the category of
21 combatants, and then, in conjunction with that, the Chamber can look at
22 Article 4 of Geneva Convention 3, which defines at some length what a
23 combatant is.
24 As I say, I'm not going to go through that now, but that might be
25 useful for later.
Page 21352
1 What the Defence do say is that the men who crossed the Drina, or
2 certainly to adopt the words, in fact, of the Trial Chamber in the Mrksic
3 judgement, the preponderance of those men were undoubtedly members of an
4 armed forces, they were combatants. Exactly which category of Article 4
5 they fit into is not something we suggest we need to concern ourselves
6 with, but the legislation is there -- or the convention is there, perhaps
7 I should say, if it's of assistance to the Trial Chamber. We contend it's
8 certainly not our duty, that is, those defending, at this stage or indeed
9 any stage of the case, to say which of the criterion Article 4 these men
10 fitted into.
11 Now, Your Honour, I said I was going to deal with this issue of
12 the burden of proof, because it's quite seriously problematical, we
13 suggest, what is stated in that -- in paragraph 464 and footnote 170 of
14 1722 of the judgement we've just been through in some detail.
15 It appears, we would suggest, from a reading of the Mrksic
16 judgement, that the status of the victims in question in that case was not
17 actually in dispute, bearing in mind the concessions made by the parties,
18 so it probably didn't matter who or in what manner the burden of proof
19 actually lay in that case.
20 In this case, as will become apparent when we look at the evidence
21 in a few moments' time, it probably does matter, and the Defence
22 emphatically reject any submission that the burden of proof on this issue
23 shifts to the Defence.
24 We have had an opportunity to, for example, have a cursory glance
25 at the international edition of Archbow, and at no point does that
Page 21353
1 textbook suggest that the burden ever shifts in international criminal
2 law. Were it to do so, we would suggest, it would have to shift by an
3 express provision in a statute. It can't shift in any other manner. In
4 short, if it's a requirement of Article 5 of the Statute that the victims
5 be civilians, then we contend that the Prosecution need to prove that in
6 the normal way.
7 We can advance some brief explanation as to why we think the Trial
8 Chamber in Mrksic ended up with the conclusion that it did. If one looks
9 at footnote 1722, we see the reference to International Humanitarian Law,
10 and under International Humanitarian Law, it might well be right, in case
11 of doubt whether a person is a civilian, that person shall be considered
12 to be a civilian. Indeed, I have no reason to suppose it's not right.
13 That is correct in International Humanitarian Law, but that is not to say
14 that that is the position in international criminal law. And we submit
15 that International Humanitarian Law needs to be read in the light of
16 international criminal law and, in particular, the golden thread of
17 criminal justice, which is the burden of proof, and therefore we suggest
18 the Mrksic judgement, exemplary as it is, in that regard simply can't be
19 right, because the reality is, if it's right, the burden on this quite
20 important issue shifts, and if the burden shifts, then it's undermining
21 what I've already described as a golden thread of criminal justice.
22 Now, the importance of that is going to become clear, I hope, in
23 the next ten minutes or so, when I briefly review the evidence on this
24 particular topic.
25 What is the evidence in regard for the combatant or civilian
Page 21354
1 status of the men who crossed the Drina? Well, Your Honour, there are a
2 significant number of documents in evidence, we would suggest, which
3 indicate that this was an armed brigade, and I'm going to summarise them
4 fairly quickly, I hope; first of all, 6D83, which doesn't need to be put
5 into e-court and anyway shouldn't to be broadcast, but it's a document
6 from Avdo Palic to the 1st Corps of the Armed Forces of the Sarajevo,
7 dated the 2nd of February, 1994, giving some background to the Zepa
8 military detachments. There's 6D73, dated the 17th of February, 1995,
9 which deals with helicopter flights and the arming of the Zepa Brigade by
10 the ABiH. There's 5D265, which in fact is a document dated 28th of May,
11 1996, but dealing with events a year earlier, and again the supply of the
12 Zepa Brigade. There's evidence from Witness 49 of weapons and ammunition
13 being delivered to Zepa by helicopter in the second half of 1994 and early
14 1995, at pages 9722 and 9783 of the transcript. There's the development
15 of the arsenal of the Zepa Brigade described by the witness Savcic at
16 15330. There's evidence, Your Honours, of coordination between the ABiH
17 and the 1st Zepa Light Brigade; for example, 6D73, dated the 17th of
18 February of 1995, 5D228, dated the same day, an order from Brigadier
19 General Hadzihasanovic to, amongst others, the 1st Zepa Brigade Command,
20 6D75, an instruction dated the 2nd of June, 1995; from a Captain Bektic to
21 the Zepa Brigade giving military instructions. There's 6D77, dated the
22 29th of June, 1995; a report from Ramiz Becirovic to both Tuzla and to
23 Zepa. There's the evidence of Mirko Trivic as to what he discovered, in
24 terms of opposition, military opposition, that is, when he arrived in Zepa
25 on the 13th of July, and what he saw thereafter. That's at page 11903.
Page 21355
1 MR. McCLOSKEY: If I could maybe save you some time, I will
2 stipulate that significant numbers of those men that went across the
3 river, perhaps even the majority, would be considered part of the army, if
4 that will help. I think the facts are clear about that.
5 MR. JOSSE: Well, Your Honour, I smile, because that's why I
6 wanted a right of reply. You see, the whole issue here was I, of course,
7 have never known exactly how the Prosecution were going to respond to this
8 submission.
9 JUDGE AGIUS: Please proceed. Forget the reply. If there is a
10 real need for a reply, we might consider that then, but for the time being
11 we have no intention of doing that.
12 MR. JOSSE: No, I understand, and in which case I'm going to go
13 on, if I may.
14 JUDGE AGIUS: Yes, please, please, go ahead. But do take into
15 account what Mr. McCloskey has just said.
16 MR. JOSSE: Yes. Well, as best I can.
17 There's 6D104, which is similar evidence, dated the 13th of July,
18 1995. I will deal with this very quickly, because I want to put it on the
19 record. 5D275, 6D34. And then 6D107 I'll deal with in a little more
20 detail. That's dated the 18th of July, and it's from Mr. Izetbegovic to
21 General Delic. Number 2 in that document, it says:
22 "Perhaps in this case we could insert a brigade or battalion of
23 soldiers to Zepa across the forest path and thus continue the combat with
24 more success. These men from Zepa say they could find between 500 and
25 1.000."
Page 21356
1 Similarly, the following day, 6D36, a letter from the president of
2 Zepa to Mr. Izetbegovic, where he says, amongst other things, the troops
3 continue to resist.
4 And, Your Honour, my final point in relation to this is rather
5 ironic, bearing in mind Mr. McCloskey's helpful intervention, was a
6 similar intervention that he made when I think it was me but it may have
7 been another counsel was cross-examining Mr. Dzebo at 9635 of the
8 transcript, where Mr. McCloskey says:
9 "Just to remind counsel these issues are not in contest. We've
10 gone over this issue and the policy of the Bosnian army, and these have
11 been part of this Prosecution's case for a long time. So this witness is
12 answering his question, we could go on forever with this issue, which is
13 really not in context."
14 If I could mention briefly Ms. Palic, because she doesn't help the
15 Prosecution in relation to this particular issue. At 6918 of the
16 transcript, she says:
17 "I knew there were negotiations on the surrender of Zepa,
18 surrender of the army, evacuation of civilians."
19 And then at 6964, she's talking about 26th-27th of July:
20 "Avdo of course refused to surrender at that time. He received
21 reports that General Smith was heading to Zepa to arrange to negotiate
22 about the fate of the troops and that's what I also heard from Visoko."
23 So we obviously rely heavily on her use of the word "troops" in
24 that context.
25 We would invite the Chamber to examine in this regard the evidence
Page 21357
1 of Witness 49 at page 9819, where he was commenting on an UNPROFOR
2 document to Lieutenant General Janvier, which talks about there being
3 1,500 BiH troops remaining in Zepa, and Witness 49 confirmed that.
4 General Smith's evidence was of a similar tenor at 17633 of the
5 evidence and a few pages thereafter. General Smith's clearly of the view
6 that he was dealing with the men in the hills, and they were military men.
7 Now, Your Honour, one of the issues that we are not sure we need
8 to deal with at this particular juncture, but feel we better, well,
9 embrace it, is the position of the SJB and Territorial Defence of Zepa.
10 Now, again, if Mr. McCloskey is going to concede that they are combatants,
11 then I don't need to develop this particular submission. But unless he's
12 prepared to do that, I'm going to have to go on and try and submit that
13 they clearly did form part of the combatant body. I should say, in fact -
14 the thought only occurs to me now - that in fact there is no evidence, as
15 such, that anyone from the SJB or the TO actually crossed the Drina. I'm
16 going to turn in a few moments to the one witness we've heard from.
17 That's PW-155.
18 JUDGE AGIUS: Yes, Mr. McCloskey.
19 MR. McCLOSKEY: Yes, I think the one witness you're referring to
20 was a police officer. I will look over the weekend, but it strikes me
21 that a police officer is not a civilian. But I would also remind counsel
22 that the other witness said that he was a civilian, and at this stage, at
23 the 98 bis stage, taking that in the light most favourable to the
24 Prosecution and the inference that this group is much like the Srebrenica
25 column, there are going to be civilians in it, at this stage -- this is a
Page 21358
1 fascinating argument, but at this stage I believe it's not appropriate,
2 because the evidence, as it sits, is in our favour. But, again, that's so
3 you know our position. Perhaps that will help you.
4 MR. JOSSE: That's very helpful.
5 When Mr. McCloskey talks about the other witness, does he mean
6 other than 155? Was he talking about Mr. Dzebo.
7 MR. McCLOSKEY: I can get you -- it's the fellow who did actually
8 go across the river.
9 MR. JOSSE: That's 155, and I'm going to turn to his evidence in
10 some detail.
11 We had always anticipated that the Prosecution response in this
12 submission was likely to rely on 155, and I'm going to address that,
13 square on, in a few moments' time.
14 JUDGE AGIUS: Yes, go ahead.
15 MR. JOSSE: Your Honour, I think in the light of what
16 Mr. McCloskey has just said, the Chamber will be relieved to hear I'm not
17 going to go through the competence status of the SJB and the TO. It
18 appears that he has basically conceded that.
19 JUDGE AGIUS: So you'll take less than the 90 minutes?
20 MR. JOSSE: Well, I'm very keen to say a few other things about
21 one other topic, but we'll see.
22 MR. McCLOSKEY: You know, I wouldn't take it as conceding that.
23 Whether a police officer is acting under his authority, a police officer
24 is a big issue, but I --
25 JUDGE AGIUS: You'll have a right to respond, Mr. McCloskey.
Page 21359
1 MR. JOSSE: Could I -- I'll perhaps deal with that in passing when
2 I look at 155 in a few moments' time.
3 Your Honour, could we next turn to the issue of the mens rea of
4 this offence, because we go back, in our submission, to paragraph 464 of
5 the Mrksic judgement, because I am trying to have my cake and eat it,
6 because having criticised that part of the judgement where it deals with
7 the burden of proof shifting, by the same token we do rely on what that
8 judgement says in terms of the mens rea for this offence, because it
9 states, and I've read it before:
10 "It is sufficient for the perpetrator to have been aware of the
11 factual circumstances that establish the status of the victim."
12 This, we would suggest, indicates that the mens rea is that the
13 perpetrator needs to know that the status of the victim is, in fact, a
14 civilian rather than a combatant, bearing in mind everything that we've
15 hitherto said about Article 5.
16 In relation to the mens rea, in this case we contend that the
17 Serbs who collectively for this purpose can be described as the
18 perpetrators, consistently referred de facto to this group of men in its
19 entirety as combatants. They expressed, that is, the alleged
20 perpetrators, their willingness to afford POW status to these men and also
21 to participate in prisoner exchange. By way of example, we'd invite the
22 Chamber to look at 6D103, a document dated the 19th of July, where it
23 talks at number 4 about a Serb condition, a list would be compiled of
24 these men by the Red Cross, and they would be taken to a holding centre
25 for processing and they would be exchanged after an agreement is reached
Page 21360
1 "with our government." Number five talks about all-for-all exchange, and
2 so on, looking at that document.
3 JUDGE AGIUS: Mr. Josse, please always keep a distinction between
4 Serbs, that is, Serbs from Serbia, and Serbs, Bosnian Serbs, because we
5 would like to know exactly where, to limit or distinguish between the two
6 ethnicities.
7 MR. JOSSE: Yes, of course I'll do that, and I appreciate that
8 particularly bearing in mind the facts of this count, that is important
9 because of where these men indisputably ended up. The document I was
10 referring to clearly refers to the Bosnian Serbs, in our submission, but
11 the Chamber will perhaps need to read it for themselves. I mean,
12 paragraph 5 talks about Mladic and Tolimir, immediately before the bit
13 that I just read out.
14 JUDGE AGIUS: Thank you.
15 MR. JOSSE: Witness Tom Dibb, at page 16371 of the transcript,
16 said that Mladic would like to get into a prisoner swap with ABiH troops
17 from Zepa and BSA prisoners. And on the other side he was commenting that
18 word from Sarajevo was to hang on, and they wanted an all-for-all
19 exchange.
20 6D108, which is a Baxter document dated the 26th of July, 1995,
21 says at one point:
22 "Secondly, that the Bosnian fighters will lay down their weapons
23 and accept POW status on the basis of a putative POW exchange."
24 And it goes on about those sort of negotiations.
25 It says later on that Torlak stated that Mladic still supported
Page 21361
1 the proposals for an all-for-all POW exchange, that is, 1,500 to 2.000 men
2 of military age from Zepa, in exchange for the BSA POWs held by the
3 Bosnian government. And then later on it goes on about guarantees that
4 Mladic was giving in relation to this POW exchange.
5 Similarly, P2496, an undated document also from Lieutenant Colonel
6 Baxter, talks about a POW exchange, and we suggest that if one looks at
7 these documents, it's quite apparent that as far as the Bosnian Serbs were
8 concerned, the alleged perpetrators, these men were military men, were
9 combatants, and were not civilians, and therefore another hurdle the
10 Prosecution need to get over at this juncture is that of the mens rea of
11 this offence as it is defined in the Mrksic judgement.
12 Perhaps I should also add, in relation to this argument, we'd
13 invite the Chamber to look at the evidence of Colonel Trivic at page 11903
14 in this regard, his belief that these men were combatants.
15 And at paragraph 480 of the Mrksic judgement - perhaps you could
16 turn to that for a moment - the situation, in fact, in that case, in
17 relation to this issue, appears quite similar. If I could go to the
18 middle of that paragraph, it says:
19 "Given the evidentiary difficulties, the absence of adequate
20 evidence before this Chamber to establish a role of a few of those victims
21 in the Croat forces in Vukovar does not establish that these victims had
22 no such role or that the Serb forces acted in error in some cases. These
23 matters cannot be resolved on the available evidence. It is established
24 by the evidence, however, and the Chamber finds that the member of the
25 Serb forces who had custody of the victims on 20th November 1991 and those
Page 21362
1 who executed them that evening and night at Opcara acted in the knowledge
2 and belief that the victims were involved in the Croatian forces at
3 Vukovar. In their awareness of the factual circumstances, the victims
4 were prisoners of war, not civilians. That, we say, is akin to the
5 situation so far as count 8 is concerned and the mens rea of the alleged
6 perpetrators of that alleged crime.
7 Now, Your Honour, we had prepared further submissions on the
8 history of Article 5, in effect, and of the necessity for victims of
9 crimes against humanity to be civilians. Now, I'm going -- the Court will
10 be grateful relieved to know I'm going to hugely summarise that by simply
11 saying that if one looks at the juxtaposition of Article 147 in Geneva
12 Convention number 4, and Article 4 -- excuse me --
13 JUDGE AGIUS: Do you contest that, Mr. McCloskey, that in terms of
14 Article 5 they need to be civilians?
15 MR. McCLOSKEY: Absolutely.
16 JUDGE AGIUS: Okay.
17 MR. McCLOSKEY: And I hope he'll look at the Krstic law.
18 JUDGE AGIUS: I have asked you this question so that no one gets
19 carried with the idea that there is agreement that Article 5 is to be
20 interpreted in that way and then in no other way.
21 MR. McCLOSKEY: And I think everyone knows this is on appeal and
22 this issue will be dealt with.
23 JUDGE AGIUS: Yes, exactly.
24 MR. JOSSE: That's very helpful. I am going to go through it,
25 then, if I may.
Page 21363
1 JUDGE AGIUS: By all means, within the 90 minutes.
2 MR. JOSSE: Indeed.
3 We would -- I am going to summarise it, however.
4 Basically, we suggest that the precursor of Article 5 is Article
5 6(c) of the Nuremberg Charter, which defines a crime against humanity as
6 "committed against any civilian population and includes deportation."
7 That's taken on in Article 5(c) of the Charter of the International
8 Military Tribunal for the Far East, in similar terms. Article 2(1)(c) of
9 (Allied) control council law in number 10 talks about the law in similar
10 terms, and the finding of the United States Military Tribunal in the case
11 of Alfred Krupp et al also deals with this point and was cited approvingly
12 at paragraph 291 of the Stakic appeals judgement in this Tribunal.
13 Going back through the history of it, in effect Geneva Convention
14 number 4 Article -- of 1949 deals with civilian protection. It sets it
15 out, and we submit that the avoidance of any doubt -- could I have a
16 moment?
17 [Defence counsel confer]
18 MR. JOSSE: For the avoidance of any doubt and for the record,
19 Convention 4, Article 4, simply says:
20 "Persons protected by the Geneva Convention, relative to the
21 treatment of prisoners of war of 12th August 1949 shall not be considered
22 as protected persons within the meaning of the present convention," which
23 we say emphatically refers to civilians and proves our point again.
24 Finally in this regard, a recent ICRC study on customary
25 international law, one of 2005, states as follows at Rule 129:
Page 21364
1 "Parties to an international armed conflict may not deport or
2 forcibly transfer the civilian population of an occupied territory, in
3 whole or in part, unless the security of the civilians involved or
4 imperative military reasons so demand."
5 And it says something similar in relation to non-international
6 armed conflict.
7 Your Honour, I said I would move on, and I'm going to, to PW-155,
8 because that is something we need to address head-on, and we concede we
9 need to address that head-on.
10 As is accepted by the Defence, he is the only victim, using that
11 word advisedly, of this crime, or alleged crime perhaps I should say, to
12 have given evidence before this Tribunal.
13 We suspect that the Trial Chamber might want or need, for the
14 purpose of this submission, to scrutinize his evidence very carefully.
15 Much of his evidence does not stand up to much examination or belief.
16 On the essential point, it appears that he actually claimed he
17 crossed the Drina River with one other person only.
18 Again, if I can have a moment, I can give you the citation for
19 that.
20 6836 of his evidence.
21 Leave aside for a moment whether his evidence is truthful or not.
22 Taken at its highest, we suggest that those two people could not possibly
23 be said to be a representative sample of the alleged victims of count 8.
24 If we could move into private session for a moment.
25 JUDGE AGIUS: Yes, let's do that. One moment, Mr. Josse.
Page 21365
1 [Private session]
2 (redacted)
3 (redacted)
4 (redacted)
5 (redacted)
6 (redacted)
7 (redacted)
8 (redacted)
9 (redacted)
10 [Open session]
11 JUDGE AGIUS: We are back in open session, Mr. Josse.
12 MR. JOSSE: What does this amount to? Well, we, of course, submit
13 that the victims of count 8 must be viewed as civilians. We suggest that
14 the preponderance of the evidence overwhelmingly suggests that in fact
15 they were combatants.
16 We go on and submit that, in any event, it's for the Prosecution
17 to prove the opposite, in other words, that they were civilians, and of
18 course remembering the words of the Trial Chamber in Milutinovic and the
19 test at the 98 bis stage of proceedings, "so that a reasonable trier of
20 fact could be satisfied beyond a reasonable doubt" that they were
21 civilians. We suggest that that simply hasn't happened.
22 We've already accepted that there are arguments the Prosecution
23 have in regard to PW-155. We've already said he appears to be the only
24 victim called in relation to count 8, and he describes crossing the Drina
25 with one other person only. He's silent about all the other alleged
Page 21366
1 victims of this particular count. So we suggest that his evidence, in
2 effect, is de minimis on the count and doesn't help the Prosecution at
3 all.
4 We also submit that his evidence, in the light of the vast amount
5 of evidence to the contrary of what he's saying, i.e., that these men were
6 combatants, could not allow a reasonable trier of fact to be satisfied
7 beyond a reasonable doubt at this juncture.
8 We go on and submit this: That even if his evidence was thought
9 at first blush to support the Prosecution case, then he's a classic
10 example of the other limb of 98 bis, where, in the Milutinovic judgement,
11 Judge Bonomy said:
12 "However, if the only relevant evidence is so incapable of belief
13 that it could not properly sustain a conviction, even when the evidence is
14 taken at its highest for the Prosecution, then the motion must succeed."
15 Now, Your Honour, it's all very well Mr. McCloskey saying there's
16 a very low hurdle to cross, but there is a hurdle to cross, and you, as a
17 tribunal of law rather than as a tribunal of fact, do need to make a
18 qualitative judgement. That's what the law says, and you do need to look
19 at this particular evidence. Of course, my submission, we only get to
20 this point, let me emphasise again, if all my previous submissions are
21 rejected, about the fact that he only describes crossing the Drina with
22 one other person, there's no evidence about any of these other men at all,
23 we totally reject Mr. McCloskey's assertion that an inference can be
24 drawn.
25 What inference from where? I mean, why, why, why does it follow
Page 21367
1 that the column in Srebrenica is anything like these men in Zepa? There's
2 no basis. That's pure speculation, not inference at all. The Chamber
3 mustn't speculate, can only infer from evidence, and in fact the evidence
4 suggests the opposite, the inference suggests the opposite.
5 As -- but we submit, as I've already said, that the limb I've just
6 read out from the 98 bis test as annunciated by Judge Bonomy is there for
7 a particular, and it designs to this particular situation where the
8 evidence is so flimsy, where the witness admittedly is so incapable of
9 belief, combined with all the other factors in the case, that it simply
10 can't be right to let a case go to the tribunal of fact on that basis
11 alone.
12 Your Honour, could I make this reference as well to remark in
13 relation to something else that Mr. McCloskey helpfully said. The
14 evidence is one thing, that is, the test as enunciated in Rule 98 bis, and
15 it's accepted, as it must be, by the Defence that the hurdle the
16 Prosecution need to get over is a very low one. But the law is different.
17 The law isn't a case of this Chamber making a determination of law that's
18 most favourable to the Prosecution. The law is either right or wrong.
19 You're being invited by us to make a ruling as to law, so far as this
20 particular count is concerned. What the Chamber can't do, we suggest, is
21 to say, "Well, we're going to give the most favourable ruling of law to
22 the Prosecution because that's in line with the 98 bis test." That's not
23 right.
24 Like any decision of law, you, the Chamber, need to come to a
25 decision, and it's a right-or-wrong answer, or a yes-or-no answer is
Page 21368
1 perhaps the best way for me to put it. It's a heavy duty to perform, but
2 it's one that these accused can expect you to perform, and no doubt you
3 will do so. But we do reject any suggestion that because the law might be
4 equivocal, that favours the Prosecution. That simply isn't the position.
5 Law is completely different to facts.
6 Could I have a moment.
7 [Defence counsel confer]
8 MR. JOSSE: I have very nearly finished on this topic. I've been
9 reminded that I've forgotten to mention something which might be
10 important, particularly so far as PW-155 is concerned, so excuse me if I
11 take this slightly out of turn.
12 But PW-155 conceded -- we'll need to go into private session,
13 please.
14 JUDGE AGIUS: Let's go into private session, please. One moment.
15 [Private session]
16 (redacted)
17 (redacted)
18 (redacted)
19 (redacted)
20 (redacted)
21 (redacted)
22 (redacted)
23 (redacted)
24 (redacted)
25 (redacted)
Page 21369
1 (redacted)
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 (redacted)
15 (redacted)
16 (redacted)
17 (redacted)
18 (redacted)
19 (redacted)
20 [Open session]
21 JUDGE AGIUS: We are now in open session, Mr. Josse.
22 MR. JOSSE: PW-155 confirmed, 6831, that he participated in the
23 defence of Zepa after the fall of Srebrenica, when there was intense
24 shelling and attacks on the lines, and he also accepted that he was at a
25 Stublik [phoen] check-point. He monitored the Drina Canyon to monitor
Page 21370
1 whether Serb soldiers would enter the village and kill civilians. We
2 would suggest that by his own admission there, that categorises him as a
3 combatant.
4 Excuse me for dealing with that in a slightly disjointed manner,
5 but I've rightly been reminded that that was an important piece of
6 evidence, and we would invite the Chamber to consider it.
7 So, Your Honour, broadly speaking, I've got to the end of this
8 part of my submission. I hope that the position is clear. We say that
9 these men were clearly combatants. We've dealt with PW-155. We say the
10 burden is on the Prosecution, it can't and doesn't shift. And we say that
11 based on that, there simply can be no case to answer, in a true legal
12 sense, true strict legal test, exactly what 98 bis is here for, in
13 relation to that particular count for General Gvero and clearly result
14 that the -- all the other accused to meet and to answer.
15 Now, Your Honour, I was going to move on and deal with the issue
16 that was referred to yesterday by Mr. Lazarevic at 21301 of the
17 transcript, where he made submissions in relation to paragraph 31(1)(c) of
18 the indictment.
19 Again, the Chamber will be greatly relieved to know that the wind
20 has been rather taken out of my sails by the concession of Mr. McCloskey.
21 It's an interesting concession, because of course it suggests that counts
22 can be split, contrary to Trial Chamber judgements in Milutinovic,
23 Milosevic, Krajisnik, and perhaps other cases that have suggested that
24 counts can't be split at this particular juncture of a case, because of
25 course if the Prosecution is able to make the concession, then in reality
Page 21371
1 the Prosecution is conceding that part of a count goes at this particular
2 juncture. But on reflection, I'm not going to get into an academic
3 discussion as to whether that's the right thing to do or whether it's
4 possible to do. Clearly, we accept the concession, and we're glad that we
5 don't have to answer that part of the count.
6 There is an argument, we would contend, to say that where a count
7 alleging murder, and in this case multiple murders is set out in this
8 particular way, it simply can't be right to debar a Defence submission on
9 the base that it all forms part and parcel of one count. After a
10 resumption of the offences, these are allegations of multiple murder to be
11 made, and if there is no case to answer in relation to particular multiple
12 murder, then the defendant is surely entitle to do make a submission at
13 this particular stage.
14 However, I repeat that bearing in mind Mr. McCloskey's concession,
15 I'm not going to develop that further, save to say that in the light of
16 that concession, we suggest that the Chamber does need to look at all the
17 alleged murders described in paragraph 31, the opportunistic killings, and
18 satisfy itself, as has been suggested in another context by many of my
19 learned friends who have gone before me, satisfy itself that there is, in
20 fact, a case for each given accused to meet so far as those particular
21 murders are concerned. They're specific crimes, they're different crimes,
22 we suggest, and they shouldn't be lumped together.
23 I've managed it in 75 minutes, Your Honour. You were right, as
24 always.
25 JUDGE AGIUS: Don't expect any rewards from us, Mr. Josse, but we
Page 21372
1 do appreciate your efforts.
2 MR. JOSSE: That's all I needed to hear.
3 JUDGE AGIUS: Thank you.
4 I told Mr. Haynes before we started that I don't know of any
5 British lawyer who requires more than an hour and a half to deal with a
6 Rule 98 bis submission.
7 So, Mr. Haynes, do you prefer to have the break now?
8 MR. HAYNES: I would, actually, because I've informed Mr. Josse
9 that I'd like to see Judge Kwon for once in this case, so I'm going to
10 move to address over there.
11 JUDGE AGIUS: So we'll have a 25-minute break. The time now
12 according to this is 12.16.
13 Thank you.
14 --- Recess taken at 12.16 p.m.
15 --- On resuming at 12.46 p.m.
16 JUDGE AGIUS: Yes, Mr. Haynes.
17 MR. HAYNES: Mr. President, Your Honours --
18 JUDGE AGIUS: You're starting at 12.46.
19 MR. HAYNES: -- learned colleagues, I don't seem to be able to
20 find a happy medium in this case. Either I'm leading from the front with
21 excruciatingly long cross-examinations or I am, as on this occasion,
22 bringing up the rear.
23 I will make submissions on counts 2, 7 and 8, and in bringing up
24 the rear on this occasion, having heard the excellent and well-researched
25 submissions of all of those who have gone ahead of me, I'm bound to say I
Page 21373
1 feel rather like a lonely subleton sitting on a bicycle, about to cycle
2 across the battlefield where the tanks have already passed.
3 I trust you know by now that I am not repetitious by nature, and I
4 will, throughout most of these submissions, simply adopt what has been
5 said ahead of me.
6 I trust you will indulge me to this extent, that if I feel
7 submissions can be improved upon, I will do so, and if I feel multiple
8 submissions can be drawn together, I will do so. I also have a particular
9 duty to my client, and there are specific matters I must address on his
10 behalf.
11 In dealing with counts 7 and 8, as it were, generically, can I
12 make this one general observation at the outset. In my submission, the
13 approach of the Prosecution to this indictment is inconsistent with its
14 historical approach to those said to have been responsible for these
15 crimes in July of 1995. To borrow a point mentioned by Mr. Bourgon, but
16 to expand it, history relates that General Krstic faced no indictment
17 alleging any offence at Zepa, General Zivanovic, despite the fact that he
18 was commander of the Drina Corps until the population were evacuated from
19 Potocari, faced no indictment at all, notwithstanding his regular lunch
20 engagements in Eileen Gilleece and Colonel's Trivic and Andric, who were
21 like my client, commanders in Tactical Group 1, faced no indictment at
22 all. This, of course, is not determinative of any decision you have to
23 make at this stage in this case, but I do submit it is an indication that
24 the Prosecution's approach historically to the Srebrenica and Zepa
25 offences has been zonal, consistent with the advice or the assistance they
Page 21374
1 were being given by their military analyst.
2 On this indictment, absolutely every accused has been charged with
3 counts 7 and 8, irrespective of what position they hold in any chain of
4 command and irrespective of their physical whereabouts at the time those
5 offences were said to have been committed. And I submit that is
6 ill-thought, it's illogical, it's inconsistent with the Prosecution's
7 prior approach, and in relation to my client at this stage, it is
8 unsupportable on the evidence.
9 Forgive me if I deal with things in reverse, but it just seemed
10 simpler to do so, given the way in which things have unfolded.
11 In relation to count 8, I wholly support and identify with the
12 submissions developed by Madame Fauveau and Mr. Josse. In our submission,
13 on the evidence before this Court at this stage, the allegation made in
14 count 8 is incapable of amounting to a crime against humanity. And
15 perhaps I will say no more than that, save this: In our submission, an
16 army has three choices. It can fight to the death, it can lay down its
17 arms and surrender, or it can seek to withdraw, perhaps to another
18 country.
19 I was very much put in mind, when we heard the evidence, such as
20 it was, about the flight of the Muslim forces across the River Drina, to a
21 rather more glorious example of the same thing, which was on the Dunkirk
22 beaches in 1940, when it is often forgotten that amongst the British
23 forces were also General de Gaulle and the French troops who evacuated
24 themselves to Britain. That wasn't a deportation, that was a defeated
25 army retreating to safety, and that is, I submit, precisely what we have
Page 21375
1 heard about to in relation to count 8.
2 Particularly with respect to my client, can I make these few
3 observations. The evidence is really almost beyond dispute. Vinko
4 Pandurevic removed himself and his forces from a position some distance
5 from Zepa on the early morning of the 15th of July. Mr. Bourgon has
6 illustrated the point, but I will give you some references. Pages 12596
7 to 7 and page 12598, the evidence of Miodrag Dragutinovic. There is no
8 evidence in this case that that force, prior to its removal, had carried
9 out any offensive act at all. It had simply moved itself to a position
10 and was to move further forward on the 15th at the time it was with
11 withdrawn.
12 The other evidence in the case I suggest amounts to this: An
13 assault began on the surrounding villages to Zepa, which was ceased on the
14 19th of July. There were a succession of meetings on the 19th and 20th of
15 July, further fighting on the 22nd of July, and a total withdrawal to the
16 hills by the Muslim forces on the 26th of July. The evacuation of the
17 civilian population was completed by the 26th or the 27th of July. I say,
18 for the avoidance of doubt, we have heard not a word of evidence that
19 would support paragraph 67 of the indictment, and therefore there was no
20 provable act against Vinko Pandurevic, that he did anything other than
21 move forces into place prior to an anticipated assault on Zepa.
22 The Prosecution had it within their gift to ask Miodrag
23 Dragutinovic whether that had happened or to ask Colonel Trivic whether
24 that had happened. They chose not to, for their own reasons.
25 Furthermore, the evidence of Colonel Trivic, transcript pages
Page 21376
1 11968 and 11969, on the 23rd of May, is that he was wounded on the 29th of
2 July and that no unit of the Zvornik Brigade had returned to Zepa by then.
3 The evidence of Dragutinovic, transcript reference is 12705 on the
4 15th of July -- sorry, the 15th of June, is that no unit or personnel of
5 the Zvornik Brigade returned to the Zepa operation before the 31st of
6 July, after they had left the area on the 15th, and even if they had, so
7 what? Certainly Vinko Pandurevic did not return with them, and those
8 units were not subject to his command whilst he was in Zvornik and they
9 were under the command of General Krstic at Zepa.
10 Accordingly, I submit that in relation to count 8, whatever your
11 findings as to the merits of the count as a matter of principle, there is
12 no evidence of any act by Vinko Pandurevic which might have given any
13 effect to a joint criminal enterprise.
14 Can I turn now to count 7.
15 I fully endorse and align myself with Mr. Bourgon's impeccable
16 analysis of the interaction of the two concurrent joint criminal
17 enterprises alleged in this indictment. But with respect to Mr. Bourgon,
18 I submit that there is probably no real argument on that point, because I
19 submit that if you read count 7 of the indictment carefully, you will
20 discover that, in truth, it does not aver that the march of the column was
21 a forcible transfer. True, it does mention the movement of the column as
22 background fact, but where the forcible transfer is particularised, and I
23 invite you to look carefully at paragraphs 61 to 64, mention of the column
24 is conspicuous by its absence.
25 It is my submission that this indictment invites no such finding,
Page 21377
1 that the column was forcibly transferred. It is moreover interesting to
2 note that no such finding was made about the column in the Trial Chamber's
3 decision in Blagojevic. Only the women and children bussed through
4 Potocari were said to have been forcibly transferred, and you might want
5 to glance at paragraph 616 to 618 of the Blagojevic judgement.
6 An ancillary point, and I am conscious that I'm just adding
7 seasoning to the mixture here - I take it you have digested the
8 submissions made by Mr. Bourgon on this point, I'm simply adding a few
9 little extras - of course as of the 12th of July, which is the paragraph
10 avered in paragraph 61 of the indictment, none of the population had in
11 fact left the enclave. Whether they were at Potocari, Jaglici, or
12 Susnjari, they were firmly still within the enclave, and you might want to
13 remind yourself of the geography by glancing at Mr. Ruez's map of the OPs
14 to help you establish that fact. It's map 6 in your hard-copy binder. I
15 shan't bother calling it into e-court.
16 It makes an interesting comparison, the way in which the
17 particulars of the indictment are drawn in relation to Srebrenica, with
18 the way in which the indictment is drawn in relation to Zepa, where I
19 submit the military men who swam the Drina are said to have been deported,
20 how so where in count 7 the march of the 28th Division is not avered as a
21 particular of the forcible transfer.
22 About the bussing of the population, because I submit that that is
23 what count 7 is about, again I adopt the submissions of Mr. Bourgon on
24 that topic. The units present at Potocari were under the command of the
25 Drina Corps commander, who at that time was General Zivanovic.
Page 21378
1 Mr. Bourgon has dealt with control of the population leaving
2 Potocari. I have to deal specifically with paragraph 77(a), insofar as it
3 relates to my client.
4 It is alleged in paragraph 77(a) that Vinko Pandurevic supported
5 the joint criminal enterprise to forcibly transfer the population of
6 Srebrenica and Zepa, in that he commanded and ordered forces involved in
7 the attack on Srebrenica and Zepa enclaves from the 6th of July through
8 the 14th of July, 1995, knowing one of the main objectives of the attack
9 was to force the Muslim population to leave Srebrenica and Zepa enclaves.
10 I submit that that sentence is indivisible. You must find both of the
11 averments in that particular paragraph to be proved for that to amount to
12 an act capable of being supportive of a joint criminal enterprise.
13 There is not one word of evidence in this case which would support
14 a finding that Vinko Pandurevic knew one of the main objectives of the
15 attack was to force the Muslim population to leave the Srebrenica and Zepa
16 enclaves. There is not one word of evidence in this case that he had ever
17 seen directive 7 or any document written in similar terms. Again, this
18 was within the gift of the Prosecution. They had PW-168 here, they had
19 Miodrag Dragutinovic here, they had Mirko Trivic here, and neither of
20 those men, those latter men, active in Tactical Group 1, gave any evidence
21 of their understanding of the purpose of the objective of Krivaja or
22 Stucenica-95 [phoen] were.
23 As to Krivaja-95, I submit that the evidence of Richard Butler can
24 leave you in no doubt that its aims were lawful and militarily
25 justifiable. In support of his evidence about that topic, you will recall
Page 21379
1 he produced for you target maps with keys and references, and I do invite
2 you to consider those. He also gave a very useful analogy at page 20356,
3 lines 9 to 23, on Tuesday, the 24th of January, about the applicability of
4 Article 239 of the Criminal Code. There is no evidence, indeed there is
5 evidence to the contrary, that any forces commanded by Vinko Pandurevic
6 ever fired a shell at the town.
7 The Operation Krivaja-95 was concluded by the 9th of July of 1995,
8 and the evidence, I submit, supports the contention that the population,
9 during a period of inactivity, removed itself from the town, but not from
10 the enclave, the following day.
11 There is no evidence, I submit, that Vinko Pandurevic was aware of
12 any wider purpose to the military operation which he conducted and
13 prosecuted by fighting a line towards Zeleni Jadar, according to the
14 evidence of those who fought alongside him.
15 Accordingly, I submit that there is an insufficiency of evidence
16 for you to conclude that he was a party to any joint criminal enterprise
17 to forcibly transfer the population from Potocari out of the enclave.
18 Lastly, can I turn to count 2.
19 I say, by way of commentary, that as a British lawyer, the concept
20 of joint charges of conspiracy and a substantive count together is an
21 anathema. Under British law, it is simply impossible to allege murder and
22 conspiracy to murder. The Prosecution has to elect which one it goes
23 with.
24 I ask this practical, rhetorical question: What does the
25 conspiracy count add to this indictment? How does it help you? If you
Page 21380
1 cannot find, through the multiplicity of variants of culpability offered
2 to you by Article 7(1), three variants of a joint criminal enterprise, and
3 Article 7(3), how on earth are you going to come to the conclusion that my
4 client entered into an agreement which, as has been eloquently laid before
5 you, is the essence of the conspiracy, count two?
6 In fact, and I believe this is a point that Mr. Lazarevic touched
7 upon, and I hope I'm not being repetitive, but I'll take you to it, if I
8 may, it's rather more than a simple conspiracy. The conspiracy is
9 particularised in particular 36 of the indictment. Mr. Lazarevic read it
10 out to you yesterday. I'm not going to do the same today. But in our
11 submission, it really amounts to two separate conspiracies. First, it is
12 said there was an agreement to execute the men of military age found to be
13 at Potocari, and I submit, maybe boldly, that that is not a conspiracy to
14 commit genocide. You simply could not find that a decision to kill the
15 men at Potocari was an agreement to commit genocide. But, it is said, the
16 initial plan was amended. Let me just check the words. Yes. This plan
17 also encompassed the summary execution of over 6.000 other men, and this,
18 it seems to me, is a very significant amendment to the agreement.
19 I make this simple point: Even if you could conclude that an
20 accused was a party to the initial agreement, you couldn't thereby land
21 him with responsibility for an agreement subsequently amended without
22 specific proof that he joined the amended agreement too. It's a bit like
23 a group of people agreeing that they will go to a shop and steal. They
24 might all agree to that, but if then a group of them go off and decide to
25 steal from every shop in the street, without a participant being party to
Page 21381
1 the further agreement, then he could not possibly be convicted of the
2 conspiracy alleged, the wider conspiracy alleged, and that, it seems to me
3 on the wording of count 2, is what the Prosecution seek to do here.
4 In any event, what opportunity did Vinko Pandurevic have to be
5 party to the wider amended agreement, said to have been amended and
6 changed on the 12th or 13th of July? According to Miodrag Dragutinovic,
7 on pages 12690 and 91, Vinko Pandurevic on those days was marching through
8 the night from Viagor [phoen] towards the position to which he ultimately
9 returned. There's not a scintilla of evidence to show that Vinko
10 Pandurevic entered either of those agreements, less still both. In fact,
11 if you wanted some indication of the lack of strength in that assertion by
12 the Prosecution, I invite you to look again at the combat reports of the
13 15th to the 18th of July authored by him and which are Prosecution Exhibit
14 numbers P329 to P334. Those, I submit, are the clearest evidence of a man
15 horrified to find that prisoners had been placed in schools in the
16 municipality of Zvornik, and not evidence of a man who had entered into an
17 agreement to kill thousands of people.
18 I should say formally, if I haven't, that I adopt and endorse all
19 the submissions that have been made by Mr. Ostojic, Mr. Bourgon,
20 Mr. Lazarevic, Ms. Fauveau and Mr. Josse, but in a little over 20 minutes
21 those are my submissions.
22 JUDGE AGIUS: Thank you, Mr. Haynes, which leaves us with this:
23 Do you want to start today or do you wish to start on Monday?
24 MR. McCLOSKEY: I think I can say some --
25 JUDGE AGIUS: One moment. I think we can hear what you have to
Page 21382
1 say, and then I'll come to you, Madame Fauveau. Madame Fauveau needs to
2 make some corrections to the transcript.
3 So you can go ahead, Mr. McCloskey.
4 MR. McCLOSKEY: I think I can say some things today. Might as
5 well. Maybe we'll finish in one day next week.
6 JUDGE AGIUS: Yes, I think we will go for that.
7 Madame Fauveau.
8 MS. FAUVEAU: [Interpretation] Mr. President, with your permission,
9 I have a few corrections, generally from names in the transcript.
10 [In English] Page 8, line 16, the name "Milanovic" should be read
11 as "Milovanovic."
12 JUDGE AGIUS: Can you repeat the reference, please? Page 16?
13 MS. FAUVEAU: Page 8, line 16.
14 JUDGE AGIUS: Page 8, line 16. Yes.
15 MS. FAUVEAU: Then page 15, line 17, "the orders of General
16 Milovanovic" shall be read as "the orders of General Zivanovic."
17 JUDGE AGIUS: Anything else?
18 MS. FAUVEAU: Page 18, line 9, the name "Colonel Djukic" shall be
19 read as "Colonel Djordjic." And then page 27, line 11, the Exhibit P89
20 shall be "P849". Then page 29, line 7, the exhibits P2750 shall be --
21 P2790 shall be P2750, and P976 shall be P2976. On page 30, lines 5 and 6,
22 the sentence: "General Miletic was there neither on the 11th and the
23 13th," shall be read as: "General Miletic was not with General Mladic
24 neither on the 11th and 13th." Page 34, lines 7 -- 6 and 7: "General
25 Mladic had to go on the ground to check what was happening," shall be
Page 21383
1 read: "General Mladic sent officers from Main Staff to check what was
2 happening." And, finally, page 35, line 25: "General Miletic knew
3 before the Army of Republika Srpska --" no, I will start again: "The
4 Prosecutor showed no evidence of the fact that General Miletic knew,
5 before the Army of the Republika Srpska entered Srebrenica, that the
6 enclave had been taken," shall be read: "The Prosecutor showed no
7 evidence of the fact that General Miletic knew, before the Army of the
8 Republika Srpska entered Srebrenica, that the enclave was to be taken."
9 JUDGE AGIUS: Thank you, Madame Fauveau.
10 MS. FAUVEAU: [Interpretation] Thank you very much, Mr. President.
11 JUDGE AGIUS: Mr. McCloskey, you have the floor. And if you could
12 stop at 20 minutes to 2.00 instead of quarter to 2:00, please.
13 MR. McCLOSKEY: Yes, Mr. President. I may -- I may stop before
14 that. I just want to clear up a few things.
15 First of all, I want to just explain to you my intention over the
16 next court days, and that would be I will speak briefly of the forcible
17 transfer and deportation count, and then I will speak about the accused
18 Pandurevic and Borovcanin, and my colleagues Mr. Thayer and Mr. Nicholls
19 will speak about the other accused. Mr. Vanderpuye was going to speak
20 about Popovic. However, any discussions with Popovic will now be given to
21 Mr. Nicholls.
22 And some of what I've heard, we will respond to. Much of what I
23 heard were closing arguments. I think General Miletic's counsel was very
24 detailed, as she is, and much of that, in my view, was a closing argument,
25 and I don't think you want me to go through the kind of detail that she
Page 21384
1 went through, though Mr. Thayer will be dealing with that and will provide
2 you some detail, but we'll stay well within the time frame, and I hope
3 that we can finish on Monday.
4 So I will start by talking briefly about the forcible transfer and
5 deportation charges, and the first thing I want to remind you, and I
6 probably may not need to, but as you've heard repeatedly from the accused,
7 they view the forcible transfer of the Srebrenica population as somehow
8 from on the 12th and 13th mainly, that this is the crime, and that of
9 course is -- can't be -- that's the final leg of this crime, and it's
10 important to know that this crime is first hatched back in the spring of
11 1992, and we see that in the strategic objectives. And then more so in a
12 piece of evidence that I don't know if any tribunal will see anything as
13 clear as directive 4 in history, in that they just spell out, "We will
14 push out the armed forces and along with the Muslim population." November
15 1992. The Drina Corps order that said exactly the same thing, that came
16 out a few days later, near the end of November, was sent to all the
17 brigades, including the Zvornik Brigade.
18 At the time, Vinko Pandurevic was wounded in Visegrad. We won't
19 go into Visegrad at this stage, though we may see it in cross-examination.
20 But he comes on the middle of December. Clearly, that order stood to
21 move out the population. And as you heard, he led -- and his forces,
22 which were one of the best assault forces in the Drina Corps, he led the
23 movement of the military attack and the subsequent movement of the
24 population all the way through 1993 that led to the humanitarian disaster
25 that brought us the Srebrenica enclave in the first place. Vinko
Page 21385
1 Pandurevic is well aware of this plan, of this enterprise, and this is
2 Eastern Bosnia. I won't go into the rest of Bosnia for you. That -- this
3 was just Eastern Bosnia that we're talking about, but it certainly wasn't
4 by itself.
5 Now, for convenience and for simplicity, we've started this
6 indictment with directive 7, March 1995, where again President Karadzic
7 lays out: Make life impossible, make survival impossible for the
8 residents of Srebrenica and Zepa. Here is the joint criminal operation to
9 move those people out of Srebrenica and Zepa. If you're involved in
10 Srebrenica or Zepa, you're part of that joint criminal enterprise to move
11 those people out.
12 And, of course, then the statement a little bit farther down in
13 directive 7, another amazing statement: "Make, by restrictive permits,
14 make the populations dependent on our goodwill, but at the same time not
15 allow us to be condemned by the International Community."
16 And then we see the Dutch and the Muslims' testimony about what
17 that entailed, and I'm not going to go through that, but it was clearly a
18 horror. It was called "convoy terror," starvation, misery. Just what was
19 created there, I've heard that over and over again. I'm not going to --
20 and so have you.
21 And then we get to Krivaja-95, which specifically, as you'll
22 recall, cites directive 7 and says, as Mr. Butler said it did: "Reduce
23 the enclave to its urban area," as well as divide the two enclaves. And
24 as we have always argued, as Mr. Butler has always interpreted, reducing
25 the enclave to its urban area draws to some 30.000 people from the outside
Page 21386
1 of the enclave into a one-by-two-kilometre area and creates the
2 nightmarish situation that we had in 1993. Now, that doesn't say attack
3 the enclave and take it over, but it's clearly an attack on the enclave to
4 reduce the urban area, reduce the population inside that urban area. And
5 then it goes on to say "and create the situation for the elimination of
6 the enclaves."
7 Now, direct for that Krivaja-95 goes to the Zvornik Brigade. You
8 have a copy that went to the Zvornik Brigade while Commander Pandurevic
9 was there. Remember what 168 said, that Pandurevic didn't think the UN
10 would let them get at -- you know, get at the enclaves. Well, he was
11 wrong, but he certainly knew about Krivaja-95, the wording of Krivaja-95,
12 and, from his place in history, knew precisely what the overall objective
13 of that was.
14 We saw this carried out. I'm not going to go over the details of
15 that with you. I think others may, because Mr. Nicholls may talk about
16 the attack on the civilian population, which, as in the cases before, is
17 concentrated mostly, in our view, on the 10th and the 11th and then this
18 pushing of the population up to Potocari and the continuing attacks and
19 the surrounding the population, basically taking them prisoner, disarming
20 the Dutch. This is the principal attack on the civilian population,
21 though as you can see from reviewing Kingori's testimony, there was
22 indiscriminate shelling of the downtown area all throughout the attack,
23 and the one that always sticks out in my mind is when the, probably a
24 mortar, dropped right in the middle of the crowd at the entry to the base
25 in Srebrenica.
Page 21387
1 And Vinko Pandurevic and the Drina Wolves principally led that
2 attack, was the best force involved in that attack, along with Trivic. We
3 had Blagojevic, Trivic, a bit of the 10th Sabotage, but the best guys in
4 that attack were Legenda and Vinko Pandurevic, and that was attack that
5 started pushing the population out of the rural area and into the urban
6 area, and Vinko Pandurevic and his units were in that area on the 12th and
7 didn't leave until the 13th of July, and so were there that entire time.
8 And then Vinko Pandurevic, pursuant to the orders of his
9 commanders, goes to Zepa. You'll see the attack plan. Krstic, still as
10 chief of staff, signs in on the afternoon of the 13th, and there's a role
11 for the Zvornik Brigade and it's laid out, and it's the attack is to start
12 on the 14th, and the attack did start on the 14th. Now, we'll look in the
13 record. Mr. Haynes may be correct about the evidence about what exactly
14 we've provided the -- or proved that the Zvornik Brigade actually did.
15 Did they move forward or not? But an attack -- you can bet that the
16 members of the Zvornik Brigade, and you can absolutely infer, they weren't
17 hanging around Vlasenica bars or Han Pijesak, they were at the positions
18 they were assigned to be on the night of the 13th, they were ready to go,
19 like a chessboard. Clearly, the chessboard started on the morning of the
20 14th, whether Vinko Pandurevic's units moved or whether they stayed
21 stationary, they provided a key part of that operation, so you have
22 absolutely a clear, strong inference at this stage that Vinko Pandurevic
23 played -- and his unit played a significant and substantial role in the
24 initial assault on Zepa the first day. They are there, ready to go. It's
25 not until the next day, in the morning, that they go out to Zvornik.
Page 21388
1 So I would disagree with my colleague on the points he made there.
2 And let me just end by briefly describing to you our view of Zepa
3 and the deportation. We believe that there's a very strong inference that
4 with some 1.000 to 2.000 military-aged men that flee to Serbia, that there
5 are one or more civilians in that group. At this stage, this is an
6 inference that is absolutely appropriate for you to make. It's also
7 appropriate for you to make it because one of those people said he was a
8 civilian and did it. And the -- I like the name of the -- I think it was
9 Mr. Josse who called it the "begs belief" theory, or legal theory, which
10 is part of the law that you look at, and you now will look at testimony
11 and determine whether or not it's so outrageous that it begs belief.
12 Well, this guy was a victim, a man and he came in here and did his best to
13 testify, and he told you he was not a combatant when he left and swam that
14 river. That is enough at this stage.
15 In addition, we believe that an army, that soldiers can be
16 deported. I agree that prisoners of war cannot be deported -- can be
17 deported, excuse me. You can take prisoners of war and you can ship
18 them -- they could have shipped them to Serbia and kept them in camps. But
19 the key element to deportation is the unlawful displacement of the group,
20 and so you've got to see whether or not, when these people drop their
21 weapons and jumped into the river, risking their lives, was that unlawful
22 or not. If it is a retreat of an army, it could be lawful. But don't
23 forget, the overall purpose of the attack -- of directive 7 was to get rid
24 of the people, the Muslim people. That includes everybody, army, women,
25 children, everybody. And that is still in play on August 30th or August
Page 21389
1 1st and the end of July, when this happens. And so the intention of the
2 VRS was to get everybody out of there, army, civilians, no question about
3 it.
4 And then the key point to whether it's unlawful or not is whether
5 or not the person involved has a choice. It all comes down to choice. It
6 was one of the three choices that Mr. Haynes gave us. Do you have -- one
7 of your choices is to surrender. Did the combat arms of the Zepa Brigade
8 have a choice, at the end of July, to surrender? They absolutely,
9 unequivocally did not. They knew, from the Kravica warehouse survivor who
10 told the commander, through the word that had hit the press, through the
11 word that, you know, these enclaves were together, what was going on in
12 Srebrenica. They knew, reasonably so, that if they surrendered, they
13 would die.
14 On August 1st, there's over 7.000 Muslim men dead not far from
15 them, murdered. They knew it. They could not -- no one in their right
16 mind would have surrendered at that point, and you can see that from the
17 evidence. They just refused. They chose instead to risk their lives.
18 You've seen the Drina. It is a tough, cold, hard river. They jumped into
19 that river. Look at the intercepts. They were putting wheelbarrows on
20 rafts and making makeshift rafts, and they had no choice at all when they
21 went, and that, in my view, in our view, can be deportation. Once you
22 have the attack on the civilian population, the jurisdictional attack that
23 we had that began when shelling started indiscriminately falling on
24 Srebrenica town and then started dropping deliberately in the crowds, and
25 then the people get pushed to Potocari, and then get arrested, basically,
Page 21390
1 when that happens, that's the attack.
2 Same thing with Zepa. When those people get surrounded and taken
3 care of and basically forced on buses, that is the attack on the civilian
4 population. And it's the resulting people have always in this institution
5 could be -- they could be combatants or civilians. It never mattered
6 before this recent case that came out, and perhaps the simplest way to
7 deal with that is to offer an amendment in the alternative as a war crime.
8 But that is an issue that will be on appeal for a long time. It's not
9 something that I know this Trial Chamber will use in 98 bis as a sword.
10 If that was the case, all the -- all the combatant victims at Srebrenica
11 would have not been part of these crimes against humanity that form the
12 foundation of this institution, and I don't think you're going to allow
13 that to happen.
14 In any event, I think I'm probably -- I should stop now and make
15 way for my colleagues so that you're not keeping listening to me probably
16 far too much, and I thank you, and we'll be back on Monday morning.
17 JUDGE AGIUS: Thank you, Mr. McCloskey.
18 So we rise now and adjourn until Monday morning at 9.00. Thank
19 you.
20 --- Whereupon the hearing adjourned at 1.32 p.m.,
21 to be reconvened on Monday, the 18th day of February,
22 2008, at 9.00 a.m.
23
24
25