Tribunal Criminal Tribunal for the Former Yugoslavia

Page 34122

 1                           Thursday, 3 September 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.05 a.m.

 5             JUDGE AGIUS:  Good morning.

 6             Mr. Registrar, could you call the case, please.

 7             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 8     everyone in and around the courtroom.

 9             This is case number IT-05-88-T, the Prosecutor versus Popovic et

10     al.  Thank you.

11             JUDGE AGIUS:  Okay, thank you.

12             All the accused are present.  Representation, the only change

13     I can notice today is the presence of Mr. Mitchell.  And it's

14     Mr. Vanderpuye and Mr. McCloskey.  Mr. Thayer is not present today.

15             Incidentally, Mr. McCloskey, when you've come -- the Prosecution

16     has come to the end of its oral -- of its closing arguments, we may have

17     some questions.  And for that purpose, I think the presence of the entire

18     composition might be required because there may be questions which

19     Mr. Vanderpuye will probably need to answer, questions which Mr. Thayer,

20     and so on and so forth.  So please keep that in mind and make the

21     necessary arrangements.

22             The other thing I wanted to say before we give you the floor,

23     Mr. Vanderpuye, is that -- and from this part onwards, Mr. Registrar, it

24     will need to be copied and incorporated in a letter which goes to the

25     President and to the Registrar, one of the problems we had relating to

Page 34123

 1     the final briefs, and reading them, and being prepared for this now final

 2     stage of closing arguments was the fact that one of the final briefs, and

 3     a very detailed one, for that matter, was in French and needed to be

 4     translated into English for most of us to understand.

 5             Now, some time back I had, together with my colleagues, met with

 6     our senior legal officer and also the senior member of the CLSS, and we

 7     had organised the translation to be possibly finished in time to make it

 8     possible for the schedule to be kept.  There were difficulties, of

 9     course, because it's a department which sometimes we are ungrateful to,

10     sometimes it's harshly criticised, but which in my experience has also

11     always done their level best to meet our requirements.  They did the same

12     thing this time, and I think I need to acknowledge it publicly in the

13     courtroom.  They kept the target date, and they came with the translation

14     when expected, on the 24th of August, which made it possible for us and,

15     I assume, for you to read it entirely.  Also, I must say the translation

16     was of a very high standard, barring some very minor, minor mistakes.

17     The rest is perfect.  And I think I owe you -- I owe CLSS a big thanks on

18     behalf of the Trial Chamber, and I would like you, Mr. Registrar, to

19     communicate this part of the proceedings to -- as I said, to the

20     President and to the Registrar for their information.

21             Yes.  Mr. Vanderpuye.

22             MR. VANDERPUYE:  Thank you, Mr. President.

23             Good morning to you and Your Honours.  Good morning to counsel.

24     Good morning to everybody.

25             Yesterday, when I left off, I was talking about evidence -- I'm

Page 34124

 1     sorry, Mr. President.

 2             JUDGE AGIUS:  Go ahead.

 3             MR. VANDERPUYE:  I was talking about evidence as concerns

 4     Mr. Beara's -- Mr. Beara's presence in Zepa.  I won't repeat that, but I

 5     will put on the record, for the benefit of my colleagues and for the

 6     Trial Chamber, a transcript reference, which is the transcript

 7     page 14603, 22, through 14604, line 7.

 8             With respect to the Defence's assertion concerning forcible

 9     transfer, Mr. Beara's participation in that joint criminal enterprise,

10     they assert that there is no proof of contemporaneous or even subsequent

11     knowledge of the civilians, and that's at paragraphs 376 through 379 of

12     the brief.  The claim is that:

13             "Mr. Beara was not in Potocari and not aware of the crimes

14     committed in Potocari, including the transfer of the civilian

15     population."

16             That's at paragraph 401.

17             First, it is clear in the evidence of this case that his

18     subordinates were on the ground in Potocari.  Mr. Popovic concedes that

19     he was present there.  He doesn't contest it.  Momir Nikolic was also

20     there, and they were in the thick of things.  The Main Staff and

21     Drina Corps command structures were also clearly involved.

22             Now, to suggest that Beara had no awareness of the predicament of

23     the population is, to say the least, untenable.  To the contrary, the

24     knowledge and awareness of events, including the crimes perpetrated

25     there, can be reasonably inferred from the conduct of his professional

Page 34125

 1     subordinates.  His knowledge of those events is also implicitly shown in

 2     his interactions with Mr. Celanovic, PW-161, Miroslav Deronjic, as well

 3     as Momir Nikolic.  He knows about prisoners.  He's got to know how they

 4     came to be in Bratunac.  He's got to know that many of them were

 5     separated and the circumstances under which they were separated, and it's

 6     abundantly clear that he knows what will happen to them.  He exercises

 7     specialist control over the security organs and subordinate commands, and

 8     he has to know what they're doing and why.

 9             The Rules of Service indicate, and this is at -- sorry, the

10     exhibit number is P00407.  It's paragraph 12:

11             "Security organs report on their work to their immediate superior

12     and the security organs of superior commands, units, institutions, or

13     staffs in accordance with the provisions of these rules."

14             There's no question that Mr. Beara knows about the predicament of

15     the civilian population in respect of their transfer.

16             I want also to refer the Trial Chamber to P00480, and this is an

17     interview that he gave on 29 October 2002, and in that interview - it's

18     on page 7 - he was asked whether or not he participated in the operation

19     of the Serbian forces entering Srebrenica.  And he responds that he was

20     away, that he was on the Bihac front, but he returned when it was -- when

21     it was over.  And he says:

22             "One day, when I was taking mail to General Mladic, I saw a large

23     number of buses on the road leading from Bratunac to Zepa and Srebrenica.

24     The vehicles were sent from all over Bosnia to transfer the Muslims to

25     Tuzla via Kalesija, an UNPROFOR convoy was providing security."

Page 34126

 1             To suggest that Mr. Beara doesn't have any information

 2     contemporaneous or subsequent with respect to the civilian population and

 3     their forcible removal is, as I say, untenable.

 4             The Defence brief also asserts that there was no ethnic animus

 5     that was part of the character of Mr. Beara, and if he committed any of

 6     these crimes, it wasn't motivated, essentially, by that animus.  I think

 7     you've seen the evidence of that animus at this trial.  You've seen it

 8     evidenced in the intercepts by his persistent and continuous use of

 9     pejorative and derogatory remarks to describe the Muslims.  You've seen

10     it used in official documents that he's distributed to his subordinates

11     and to his contemporaries.  I won't go into all of those, because I think

12     the record is replete with the evidence of that animus, and I would

13     submit that it affected Mr. Beara's behaviour and it affected the motives

14     with which he participated in the commission of the offences that are

15     charged under the indictment.

16             In the Prosecution's opening address, Mr. McCloskey referred to

17     Mr. Beara as an empty vessel.  At paragraph 493 of the Beara brief, the

18     Beara Defence suggests that this means that he had no power or authority

19     to influence the course of events.  Even though Mr. Beara was not a

20     commander, of course he had the power to influence the course of events,

21     of course he did.  Invested with the powers, the authority and under the

22     orders of his commander, he clearly did.  He influenced the course of

23     events, and he significantly contributed to the -- significantly

24     contributed to the JCEs that are charged in the indictment.  Those

25     events, as you know, and as is proved in this case, culminated in the

Page 34127

 1     murders of thousands of people and the genocide.

 2             There has been no evidence of remorse in this case from

 3     Mr. Beara.  I think the evidence actually points to the contrary, and

 4     it's something that we would ask that you consider in determining the

 5     appropriate sentence, should you find him guilty of the charges that are

 6     contained in the indictment.

 7             Again, I will refer you to the interview that he gave on 29

 8     October 2002.  At page 7 of that interview, despite Mr. Beara's clear

 9     involvement in the crimes that are charged in this indictment, he states:

10             "Everyone knew that the Muslims killed their own people in order

11     to accuse the Serbs so that the NATO could launch air-strikes against us

12     because of crimes against civilians.  I am convinced that Markale is a

13     mini Srebrenica and a mini Zepa."

14             He then has the temerity to tell this reporter how the crimes and

15     the murders of thousands could be committed if someone had such an idea

16     to do it; that is to say, if it had actually even happened.  With respect

17     to that, he says -- the question to him is:

18             "Are you trying to say that the VRS did not commit mass crimes in

19     Srebrenica?"

20             And his answer is:

21             "They didn't.  The Hague allegedly has a list of mass grave

22     locations.  They say there are 800 bodies in one mass grave, 2.000 in

23     another, and 3.000 in yet another one.  They claim they are primary and

24     secondary graves, alleging we moved bodies.  What nonsense.  It is not

25     possible to carry out killings on such a mass scale in the presence of UN

Page 34128

 1     representatives, even if someone had such an insane idea."

 2             Your Honours, the evidence in this case establishes Mr. Beara's

 3     involvement and clear responsibility for the crimes that are charged

 4     under the indictment, and we ask that you hold him responsible and you

 5     find him guilty.

 6             This concludes my submissions with respect to Mr. Beara.  And if

 7     I may, I'd like to turn to Mr. Popovic.

 8             The evidence of Mr. Popovic's guilt and involvement in these

 9     horrendous crimes is clear and it is compelling.  As I mentioned before,

10     Your Honours, the Popovic brief challenges the very foundations of the

11     indictment, and because it, like the Beara brief, is diametrically

12     opposed to so many of the fundamental tenets of the Prosecution's case,

13     many of the arguments raised in the Popovic closing brief are dealt with

14     in the Prosecution's final brief.  In particular, the Popovic brief

15     challenges the credibility of several inculpatory witnesses, as it

16     should.  It challenges among them PW-128, PW-101, who they assert

17     knowingly gave false testimony.  The brief similarly attacks the

18     testimony of Momir Nikolic and Miroslav Deronjic, as well as certain

19     other significant inculpatory witnesses.  The credibility of these

20     witnesses are discussed in the Prosecution's final brief and I won't be

21     addressing these.  I will again try to confine my arguments to some of

22     the more fundamental issues that respond to the Defence brief and also

23     highlight Mr. Popovic's involvement in and contributions to the JCEs, as

24     are pled in the indictment.

25             Now, because the Defence has devoted a substantial amount of time

Page 34129

 1     to the viability of the intercept evidence in this case, I think a few

 2     points should be made in that regard, also because the Beara Defence

 3     similarly challenges that evidence.

 4             Now, you heard the evidence of 28 intercept operators in this

 5     case from the ABiH 2nd Corps, Anti-Electronic Warfare Department, the

 6     21st Division, and also the ABiH MUP.  You heard this over several

 7     months, including the testimony of platoon commanders, squad commanders,

 8     and supervisors.  You received testimony on the process of interception,

 9     the mechanics of it, the notebooks, the print-outs, the physical

10     equipment, the training of the operators and their technical backgrounds.

11     You've also heard about the protocols and the standards that were in

12     place and that they employed during the process of interception.  You

13     heard from the Prosecution witness or Prosecution analyst concerning the

14     intercept project that was compiled in order to validate and authenticate

15     the intercept evidence.  You heard about the chain of custody, and you

16     had an opportunity to consider all of these issues in determining the

17     admissibility of this evidence in advance of the Defence case.

18             I submit that all of these witnesses establish beyond question

19     the accuracy, authenticity, and reliability of this evidence, and the

20     witnesses that have been adduced by the Defence do not change this.

21             You heard from Nedjo Blagojevic, the communications officer in

22     the Drina Corps.  He's the one who told you that interception was

23     impossible.  He also confirmed to you, though, that a failure to follow

24     the rules would result in the type of intercept evidence that we have in

25     this very case.  That's at transcript 22333, 18 through 22.

Page 34130

 1             A report that was issued by Mr. Popovic also confirms the

 2     occurrence of sloppy practices in the use of communication equipment

 3     within the VRS ranks.  That's Exhibit 3D00319.  He states in that

 4     exhibit:

 5             "We have obtained information that our units are extremely --

 6     extremely careless when using communications equipment."

 7             You've heard from Defence witness Velo Pajic, and he was -- he

 8     worked with the 67th Communication Regiment.  He acknowledged that it was

 9     possible to intercept along radio relay routes.  He's the one who, in

10     giving an example about being able to change frequencies by moving up or

11     down of a megahertz or two, came up with a number, 783, as an example,

12     which happened to correspond within a frequency -- within a megahertz or

13     two to some 95 of 148 possible RRU-800 intercepts that are in the

14     evidence of this case.

15             And, of course, you heard from Djuro Rodic, who was the principle

16     Defence expert, who testified about the technical capabilities of the

17     ABiH to intercept the VRS.  I want to remind the Trial Chamber that

18     Mr. Rodic conceded that the interception by the ABiH on both RRU-1 and

19     RRU-800 radio relay devices was, in principle, possible.  He stated at

20     transcript 12513, lines 5 through 9.

21             "Q. I think you indicated at the beginning of your testimony that

22     generally it was possible for the ABiH to intercept communications?

23             "A. Yes, this is what I stated with regard to the equipment that

24     covered the frequency range of the RRU-1 and RRU-800.  Under certain

25     circumstances, it could intercept conversations."

Page 34131

 1             He then went on to talk about the circumstances or the reasons

 2     why they could not successfully intercept these communications.  He

 3     reached his conclusions based upon calculations on the technical

 4     specifications of certain equipment that he reviewed, and he even

 5     suggested that one of the reasons they couldn't intercept VRS

 6     communications is because of an improper antenna orientation.  In other

 7     words, he suggested they were pointing their antennas in the wrong

 8     direction.  In light of the evidence in this case, it's clear that this

 9     suggestion is absurd.

10             First, the radio relay networks in the former Yugoslavia were not

11     a secret to any party to the conflict.  It pre-existed that conflict, and

12     they were known to everyone.  Remember, there was a working map that was

13     introduced into evidence in this case, P01468.  It was an ABiH working

14     map concerning radio relay communications.  Mr. Rodic was confronted with

15     this map and conceded that the map correctly depicted the radio relay

16     devices on the route from Vlasenica through Zvornik, which has been

17     contested by the Defence in this case.  The map clearly indicates that

18     they had the ability and certainly had the knowledge as to where to

19     intercept and where to direct their antennas.

20             In addition, there is evidence that the ABiH knew the frequencies

21     that the Defence claimed never changed from 1993.  That's evidenced in a

22     document that's P02822, which reflects a working frequency which

23     corresponded to the frequency plan that was issued in 1993 that was

24     testified to by Mr. Blagojevic and testified to by Mr. Rodic.  That

25     frequency is 680 megahertz, and it corresponds to the route from Veliki

Page 34132

 1     Zep to Vlasenica on that claim.

 2             The conclusion for the Defence arguments can only be that

 3     although the ABiH could clearly identify frequencies on a working plan

 4     from 1993, that for some reason in 1995 they weren't able to identify

 5     that same frequency and they no longer knew where to point their

 6     antennas.

 7             In 1993, Drago Nikolic issued a report, and in his report,

 8     P03425, and it's dated 22 April 1993, in that report he stated:

 9             "We have confirmation that the enemy is intensively intercepting

10     our radio and radio relay communications, and particularly active are

11     their interception centres in Tuzla and in Gorazde."

12             You can see how obviously absurd the Defence position is with

13     respect to the capacity of the ABiH to intercept, and I'll leave it

14     there, Your Honours.  I'm confident that upon a review of all the

15     credible evidence in this case, you will find that this evidence is

16     accurate, you will find that it's highly reliable, and you will find it

17     is extremely probative evidence of the circumstances in this case and,

18     more importantly, of the acts and conduct of the accused.

19             Now, in the case of Mr. Beara, the intercept evidence, in

20     conjunction with other compelling documentary and testimonial evidence in

21     this case, establishes -- just as it established in the case of

22     Ljubisa Beara, it establishes the same hands-on involvement in the crimes

23     that are charged in the indictment for Mr. Popovic, and it establishes

24     his guilt beyond a reasonable doubt.  This evidence can't be reviewed or

25     viewed in fragments.

Page 34133

 1             JUDGE AGIUS:  Mr. Vanderpuye.

 2             MR. VANDERPUYE:  Yes, Mr. President.

 3             JUDGE AGIUS:  I recall, from reading, if I'm not mistaken,

 4     because I don't have it here with me, Popovic's final brief, if I

 5     remember well - that could be Beara, but I think it's Popovic - there is

 6     a submission that there is evidence that up to, if I remember well, 8th

 7     of August of 1995, the antenna of the ABiH for the purposes of

 8     intercepting the antenna were directed towards another region where there

 9     was conflict, too, in such a way that it, therefore, excluded the

10     possibility of intercepting communication inside the Drina Corps area of

11     activity.

12             MR. VANDERPUYE:  That's correct.

13             JUDGE AGIUS:  I don't know if it's Popovic or not.  But what do

14     you have to say about this?

15             MR. VANDERPUYE:  With respect to the orientation of the antenna?

16             JUDGE AGIUS:  And the conclusion, then, that that would have

17     eliminated the possibility of intercepting communications by -- and to

18     the Drina Corps inside the other area to which the antenna were not

19     pointed.

20             MR. VANDERPUYE:  I can answer the question, but I think I may

21     have to go into private session to do it.

22             JUDGE AGIUS:  All right, or if you prefer to leave it until

23     later, when we come to the question stage, you can do that as well.

24             MR. VANDERPUYE:  However you prefer, Mr. President.

25             JUDGE AGIUS:  It's up to you.  I mean --

Page 34134

 1             MR. VANDERPUYE:  Okay.  We can do it now.

 2             JUDGE AGIUS:  Okay.  Then let's go into private session.

 3                            [Private session]

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21                            [Open session]

22             MR. VANDERPUYE:  Thank you, Mr. President.

23             Initially, I wanted to respond to the assertion made by the

24     Popovic Defence in its brief that there was no legal act putting the

25     captured persons in the competence of the security organs, and that's at

Page 34135

 1     paragraph 675.  I guess the suggestion here is that Mr. Popovic had no

 2     responsibility for involvement with the POWs in this case.  Now, although

 3     this has been dealt with in the brief, I think it's important to point

 4     out -- point out that it is addressed in the testimony of Mr. Butler and

 5     it's addressed in his evidence, and in particular the command

 6     responsibility report.

 7             It also bears pointing out at the outset that the involvement of

 8     the Security Administration -- security organs in matters relating to

 9     prisoners is contemplated in relation to their control of the military

10     police.  That's clearly set out in the Rules, and Mr. Butler talked about

11     that at transcript 19638, 1 through 19 -- and, I should say, 19940, 14

12     through 10.  This has been illustrated in terms of the documents that

13     have been produced in this case; that is, the relationship between the

14     security organ and the military police and prisoners, in various

15     documents.  One of these documents is P00196, as an example of the

16     interaction between the security organs and the subordinate security

17     organs as well as concerns prisoners of war.  And that document is signed

18     by Mr. Popovic, and it passes on a Main Staff direction concerning the

19     treatment of prisoners.  It reads that:

20             "All prisoners --"

21             In part, I should say:

22             "All prisoners, members of the enemy army, are to be handcuffed

23     or their hands tied with anything available immediately after their

24     capture.  They are to be searched, and all items are to be seised, apart

25     from their clothing and footwear."

Page 34136

 1             It goes on to say that:

 2             "An official record is to be compiled."

 3             It goes on and says that:

 4             "The location where POWs are collected must be such that the

 5     prisoners are fully secured, as well as the people from the security

 6     organ, from the intelligence organ, and from the military police organ

 7     that engages in the interrogation and guards POWs."

 8             The Defence acknowledges they must -- at paragraph 676 of their

 9     brief, that the commander of the unit is authorised to give any legal

10     order to his subordinates in the security organs.  They assert, however,

11     that there is no evidence that either General Krstic, or

12     General Zivanovic, or the superior commander issued any orders to

13     Mr. Popovic regarding prisoners.  Your Honours, the proof of those

14     orders -- the evidence of those orders is implicit in the conduct of

15     Mr. Popovic and his direct involvement with those prisoners and in the

16     murders and detentions and forcible transfers that were committed in this

17     case.

18             Before I address some of the substantively charged crimes

19     concerning Mr. Popovic, I would like to address some of the claims made

20     in the Defence brief about Mr. Popovic's involvement in the uncharged

21     crime committed in Bisina.  The Popovic brief challenges the evidence of

22     his involvement in the execution of those 39 Muslim men there.  He

23     asserts what might be described as a partial alibi defence.

24             Now, paragraph 654 of the brief, the Defence argues that Popovic

25     was not there during the executions, themselves, but only arrived there

Page 34137

 1     later during the burials of the 39 men that had been shot and executed

 2     there.  They argue that he was elsewhere in Zvornik at the time the

 3     executions were committed and arrived at the time that the burials were

 4     underway.  They introduced three statements pursuant to Rule 92 bis --

 5             THE INTERPRETER:  Please slow down for the sake of the

 6     interpreters, thank you.

 7             MR. VANDERPUYE:  First, they introduce the statement of

 8     Miljenko Koljic, that's Mr. Popovic's brother-in-law I believe, they

 9     introduced the statement of Dragisa Cojic, which is his co-worker, and

10     then the statement of Slavisa Vlacic.  This is an individual who the

11     Defence asserts Mr. Popovic was with that morning, 23rd July 1995.  I

12     would submit that you should reject the alibi for the fundamental reason

13     that neither Mr. Popovic's brother-in-law, Miljenko Koljic, nor any other

14     witness can actually exclude that Mr. Popovic was indeed at the execution

15     site at the time that the killings were carried out, because no one has

16     attested to the date of their purported encounter with him.  Neither is

17     there any precise date ascertainable from the proffered statements.

18             Now, although the Prosecution dispute the veracity or sufficiency

19     of this partial alibi defence, even if you accept it, the fact of

20     Mr. Popovic's presence at all, that is to say, in any respect, at the

21     scene of this uncontested mass execution is powerful evidence of pattern

22     of conduct in this case.  It shows that Mr. Popovic knew about the

23     executions.  It shows that he was fully aware of the commission of these

24     crimes, which he was obligated to put a stop to as a member of the

25     Officer Corps of the VRS, and particularly as one vested with the power

Page 34138

 1     to arrest.

 2             Exhibit P00028 are the Military Prosecutor's Office guide-lines

 3     for determining criteria for criminal prosecution.  At paragraphs 2 and 3

 4     on page 8 of that document, it reads -- I should rather read both:

 5             "If officers merely find out that units of the armed forces of

 6     the Army of Republika Srpska or their members have committed or are

 7     committing such acts and take no measures to prevent the consequences of

 8     the acts, themselves, and expose perpetrators to criminal prosecution,

 9     this, in itself, makes them answerable for those criminal offences.  It

10     follows from the above that officers in all units must accept the

11     obligation to draft reports on all incidents which might be regarded as

12     criminal offences, regardless of whether they have been committed by

13     members of the Army of Republika Srpska or by members of the enemy side,

14     and to report to the Command any information learned about previous

15     incidents."

16             I think I'll stop there, and you have it in evidence and can

17     review it.  What's important about this, though, is that these

18     guide-lines were issued, I believe, in 1992.  1992.  This is something

19     that Mr. Popovic would necessarily have been aware of, and the fact that

20     he didn't take the measures that are prescribed, indeed, required,

21     according to this document, is consistent with his participation in the

22     criminal activities that he was observing.  It tells you about his intent

23     with respect not only to his involvement at this particular execution,

24     but it also tells you about his intent as established by his presence at

25     larger executions that took place earlier in Zvornik.

Page 34139

 1             The evidence concerning Bisina shows the elements of the

 2     Drina Corps military police, over which Mr. Popovic has control

 3     ex officio, as well as the 10th Sabotage Detachment, were principally

 4     involved in carrying out the executions in Bisina.  I will note that

 5     these same elements were involved in the crimes that were perpetrated at

 6     the Branjevo Military Farm on the 16th of July.  You have the testimony

 7     of a member of that 10th Sabotage Detachment who testified also to the

 8     presence of Drina Corps military police that escorted his unit to the

 9     Branjevo Farm the morning that those executions took place.

10             Further, there is evidence that Mr. Popovic had a relatively

11     close relationship with the 10th Sabotage Detachment itself.  There is

12     testimony in the record which indicates that he used to come to the unit

13     and would talk to the commander.  That's at transcript 14013, lines 15

14     and 16.  There is also other evidence concerning this relationship which

15     is set out in the brief and I won't go into here.

16             You had the opportunity to see and evaluate the testimony of

17     PW-172 and PW-175, and both establish the direct involvement of

18     Mr. Popovic at Bisina.  PW-172 places Mr. Popovic at Bisina throughout

19     the executions and the burial operation.  You heard how he described his

20     interaction with Mr. Popovic and what he said to him after the executions

21     were completed.  He says, at transcript 32573, lines 18, through 32574,

22     line 9:

23             "I mustered the strength as much as I could and I approached

24     Vujadin Popovic and what I felt was either fear or pity.  I don't know

25     how to explain.  I rolled the film in my head, the journey that I had

Page 34140

 1     taken and what had happened.  I had never spoken to Vujadin Popovic

 2     before or ever since then.  I never approached him in any way.  There was

 3     no need for me to do that.  However, as I had been listening to the

 4     stories of other soldiers who were talking about officers, they all had

 5     nicknames.  I didn't know how they actually addressed them when they

 6     spoke to them directly, probably calling them by their rank, and I

 7     suppose that I would have done that as well.  In essence,

 8     General Zivanovic was referred to as Zile in soldiers' conversations,

 9     Krstic was referred to as Krle.  Mr. Vujadin Popovic had the nickname

10     Pop.  At that moment, I mustered the strength to approach him.  Something

11     snapped in my head, and I didn't approach him as an officer at that

12     moment.  I approached him and I told him, 'Pop, what has just happened?'

13     And he never replied to me."

14             This testimony leaves no doubt as to either Mr. Popovic's

15     presence at or his hands-on involvement in coordinating, organising and

16     directing the execution of the 39 men that were killed in that remote

17     area.

18             It is unclear why the Defence brief, at paragraph 658, states

19     that PW-172:

20             "... saw Popovic after the events and could only infer that he

21     was there previously."

22             On cross-examination and in response to counsel's questions --

23     Defence counsel's questions, this is at transcript 32958, 11 through 17,

24     he was put the following questions:

25             "Q. Could you please answer whether you were certain about what

Page 34141

 1     you were telling us?

 2             "A. I believe he was there.

 3             "Q. If you say 'I believe' or 'I think,' does this mean that you

 4     are not absolutely certain?  Just let me be more precise.  While the

 5     executions were taking place, while the executions were taking place.

 6             "A. He was there."

 7             There's nothing equivocal about that, there's nothing ambiguous

 8     about that.

 9             As you know, PW-172's presence at the site is confirmed by

10     vehicle logs which demonstrate his trip there.  That's Exhibit P04425.

11     In addition, PW-175 transported the elements of the 10th Sabotage

12     Detachment that formed the execution squad from Dragasevac that morning.

13     His evidence is also supported by vehicle logs and reflects the fact that

14     Mr. Popovic was involved.  You can find this at transcript reference

15     32782, lines 10 through 12.

16             Popovic's involvement in these crimes is further consistent with

17     an intercept connecting him to one of the victims that was later

18     identified in this case by DNA evidence emerging from that grave-site.

19             Your Honours, the only thing that Mr. Popovic was doing in Bisina

20     on 23 July 1995, as the most senior officer present there, was

21     coordinating, organising, and carrying out orders that he would have

22     received from his commands to execute these men.  There is really no

23     other explanation for his presence there, no other explanation.

24             The evidence in this case shows that his knowledge, intent, and

25     conduct were the same concerning the prisoners that were held in the

Page 34142

 1     schools in the Zvornik area; the Orahovac school, where he was present on

 2     14 July, the Rocevic school, where he was present on 15 July, the Kula

 3     school, where he was present on 16 July.  The nature and extent of

 4     Mr. Popovic's involvement in the Bisina executions virtually parallels

 5     the circumstances of his presence and participation in the crimes that

 6     were committed in Zvornik.

 7             And before I address some of the more compelling evidence of

 8     Mr. Popovic's involvement in those executions and his significant

 9     contributions to the murder JCE, I will address his involvement in the

10     forcible transfer JCE.

11             Mr. Popovic's involvement in the JCE to forcibly remove the

12     populations of Srebrenica and Zepa is clear in the record of this case.

13     Mr. Popovic was involved in a discussion with General Krstic just after

14     the Hotel Fontana meeting in which the buses that were used to transfer

15     the women and children from Potocari was discussed.  General Krstic, as

16     you know, was heavily involved in the mobilisation of the transportation

17     and buses from the early morning of 12 July, well in advance of the

18     Hotel Fontana meeting.  The evidence shows that Mr. Popovic was engaged

19     in a discussion with General Krstic which involved security issues for

20     the buses, including the structure of their -- of the column.  That you

21     can find in transcript reference 14590, lines 2 through 5.

22             Mr. Popovic's assignment of Momir Nikolic to assist in and

23     coordinate and organise the separation of Muslim men in Potocari and the

24     transfer of women and children also demonstrates his immediate

25     involvement in that process.

Page 34143

 1             At paragraph 386 of the Defence brief, they assert:

 2             "There were no reasons why Popovic should have thought the

 3     evacuation was being carried out illegally."

 4             First, Your Honours, you have clear evidence in this case as to

 5     the nature of the forcible separations that were carried out, the

 6     brutality of those acts, and the acts that were perpetrated against the

 7     separated men.  I won't repeat that evidence because that, as you can

 8     imagine and as you know, has been extensively addressed in the

 9     Prosecution's final brief.  We know that Mr. Popovic was physically

10     present in Potocari on the 12th and the 13th of July, and he had an

11     opportunity to observe and to become aware of the rampant and serious

12     abuses and crimes that were being and had been committed by VRS forces

13     that were there.  On 13 July, in particular, he was seen near the

14     White House where we know that men were separated -- separated men were

15     detained, they were physically abused, and even some were killed.

16             You'll recall the testimony of DutchBat officer Major Rutten who

17     saw Mr. Popovic there.  He saw him speaking to Serb officers, and he saw

18     them giving them directions, instructions.  Now, Mr. Rutten was an

19     experienced officer himself and observed that Mr. Popovic appeared to be

20     in command and authority.  In other words, he was a clear presence there.

21             There is ample evidence of criminality and illegality in plain

22     view in Potocari.  Mr. Popovic had to have been informed of that, if not

23     had seen it personally.

24             JUDGE KWON:  Mr. Vanderpuye, I don't have the final brief in

25     front of me, but I take it when Mr. Popovic referred to, in his final

Page 34144

 1     brief, this forcible transfer of women and children, but you're now

 2     addressing the separated men?

 3             MR. VANDERPUYE:  I am.  The reason why is because the forcible

 4     transfer of the women and children was facilitated by the separation of

 5     the men, and also Mr. Popovic was involved in the security aspect of the

 6     transportation of the women and children, as I've indicated, as

 7     referenced in the transcript.

 8             JUDGE KWON:  Could you expand the meaning of "facilitated"?  So

 9     with the men, then you are suggesting that would be more difficult,

10     impossible, to transfer the women and children?

11             MR. VANDERPUYE:  No, sir.  No, Your Honour.  I'm not suggesting

12     it would be impossible.  What I'm suggesting is that it creates a

13     situation of insecurity among the people that are being transferred.

14     When you're separated from your loved one and you don't know what's going

15     to happen to them, it makes it easier or it makes a person more complicit

16     or docile in terms of moving them.  It is easier to hold a person, for

17     example, in detention when they don't know what's going to happen to

18     their loved one, and it is easier also to keep a loved one away from a

19     person when they don't know what's going to happen to them when they're

20     held in detention.  The consequences of your actions, when you don't know

21     what the results are going to be, is what influenced and substantially

22     contributed to the climate of fear that facilitated the forcible transfer

23     of the women and the children in Potocari, and the separation of the men

24     was an integral part of that fear, it's an integral part of that -- of

25     the impetus.

Page 34145

 1             JUDGE KWON:  Thank you.  Proceed, please.

 2             MR. VANDERPUYE:  Thank you, Judge Kwon.

 3             In terms of the illegality of the forcible transfer, this is also

 4     underscored in an intercept, P01113.  It's a 12 July intercept at 1250

 5     hours, and it involves General Mladic, and it underscores what

 6     Mr. Popovic must have known.  I will point out, frankly, it's not

 7     addressed to Mr. Popovic, but it is an intercept in which General Mladic

 8     says, when he's told that the buses are rolling in order to pick up

 9     people and transport them out, he says:

10             "They've all capitulated, they've surrendered, and we'll evacuate

11     them all, those who want to and those who don't want to."

12             He then goes on to talk about the security issues concerning the

13     movement and transportation of those -- of those buses.  These are the

14     very same security issues that a witness in this case overheard being

15     discussed by General Krstic with Mr. Popovic.

16             To the same extent that Mr. Popovic knew of the security issues

17     relative to the transfer of the population on those buses, the structure,

18     the clearing of the roads, the mines, et cetera, he must have known of

19     the illegal plan, he must have known of the plan to send those who wanted

20     to and those who didn't want to out.

21             At 9.30 in the morning on 13 July, Mr. Popovic met with

22     General Mladic and General Krstic, as well as Dragomir Vasic at the

23     command of the Bratunac headquarters.  The topic of discussion there was,

24     indeed, the continued evacuation of the remaining civilian population

25     from Srebrenica to Kladanj.  That meeting is memorialised in the dispatch

Page 34146

 1     that was prepared by Dragomir Vasic, and it's P00886.  Mr. Popovic's

 2     presence at that meeting is memorialised -- I should say -- documented, I

 3     should say, in Momir Nikolic's statement of facts at paragraph 8.

 4             I don't believe that the Popovic brief addresses the forcible

 5     transfer of the thousands of separated men from the column who were taken

 6     to Zvornik, where they were executed, but his involvement in the transfer

 7     of these men is amply established in the record of this case.

 8             On 13 July, Mr. Popovic calls Drago Nikolic to tell him that the

 9     prisoners detained in Bratunac were to be transferred to Zvornik, where

10     they were to be killed.  The following day, Mr. Popovic, Mr. Beara, and

11     Mr. Nikolic meet at the Zvornik Brigade headquarters where, based on the

12     events, they both proceeded and followed that meeting, indicates that

13     they clearly coordinated and organised the transfer and detention of

14     those prisoners.  Following the meeting, Mr. Popovic led a column of

15     thousands of prisoners from Bratunac to Zvornik, where they were received

16     by Mr. Nikolic, and they were distributed in the schools in the Zvornik

17     area which had been and were being prepared to carry out their execution.

18     You've heard the testimony of PW-138.  The Defence argue at their brief

19     at paragraph 489 that that witness just wanted to protect himself from

20     the responsibility of leading the convoy by stating that he was

21     travelling behind Popovic, who was in his Golf and leading the convoy.

22             Now, it's unclear exactly how that strategy or that admission

23     would accomplish this end, since in neither event PW-138 would have been

24     admitting that he was participating.  Now, he could simply denied his

25     involvement altogether, but in fact it's his admission of his involvement

Page 34147

 1     that lends to the credibility of his evidence, and it's the detail of his

 2     evidence that bears the hallmarks of the truth.  His testimony shows

 3     Mr. Popovic's hands-on style of involvement in the transfer of these

 4     witnesses, and it is compelling.

 5             If you recall, PW-138 testified how Mr. Popovic told him to meet

 6     him near a bus station in Bratunac on the morning of 14 July.  He told

 7     PW-138 where to park an APC that he had asked him to use.  He appeared in

 8     his blue Golf and directed PW-138 to move up.  He came back and told him

 9     to move some more.  He then told him to refuel the APC, if he needed to

10     refuel it.  He then came back, and after a column of buses that had

11     assembled behind the APC, and Momir Nikolic testified that he estimated

12     it was about one and a half kilometres long, PW-138 testified that he

13     followed Mr. Popovic up to Orahovac and Mr. Popovic set the pace as he

14     followed.

15             The evidence -- I should say this evidence, rather, also ties

16     Mr. Popovic obviously directly to the murder operation itself, and it

17     underscores his essential and significant contribution to its

18     implementation.  It shows his coordination and organisation in the

19     implementation of the orders of the VRS command structures, and together

20     with Drago Nikolic and Ljubisa Beara and the Zvornik Brigade Command, its

21     personnel and resources, it shows how this operation was coordinated.

22             The clearest indication of Mr. Popovic's knowledge and his

23     involvement in the murder operation is demonstrated, as I say, by his

24     blunt statement to Momir Nikolic on 12th July that, All the balija have

25     to be killed.  Momir Nikolic's -- Momir Nikolic suggested potential

Page 34148

 1     detention sites and execution sites with Mr. Popovic, which he says were

 2     discussed.

 3             You then have the call to Drago Nikolic on the evening of the

 4     13th.  Paragraph 244 of Mr. Popovic's brief disputes the evidence that he

 5     called Drago Nikolic to inform him of the plan to transport the Muslim

 6     men held in Bratunac and the Zvornik area -- held in Bratunac to the

 7     Zvornik area in order to be killed, and the reason they give:

 8             "He would never have conveyed it through a telephone conversation

 9     because he had warned of discipline during radio communications in his

10     capacity as a security officer."

11             Now, Your Honours, judging from the sheer volume of the

12     intercepted material in this case, including several significant ones

13     concerning Mr. Popovic directly, this argument is completely vacuous.  As

14     imprudent as it may be, the evidence in this case shows Mr. Popovic on

15     several intercepts.  It even shows him on intercepts with Drago Nikolic.

16     And while this call, in particular, would have been obviously a very

17     sensitive one, it clearly does not preclude the fact -- it clearly does

18     not preclude the fact that it occurred, that it would have been made.

19             The Defence dispute the existence of any plan to kill the

20     detained Muslims and boys before 14 July --

21             JUDGE AGIUS:  Yes, one moment.

22             Yes.

23             THE ACCUSED BEARA: [Interpretation] I really apologise, but I do

24     have to go out for a moment.

25             JUDGE AGIUS:  Security, please escort him.

Page 34149

 1             Shall we proceed, Colonel Beara, or -- I don't think --

 2     Mr. Ostojic, he's not dealing with him at the moment.

 3             MR. OSTOJIC:  I think we can proceed, Mr. President.

 4             JUDGE AGIUS:  Okay, thank you.

 5             Yes, go ahead.

 6             MR. VANDERPUYE:  Thank you, Mr. President.

 7             In their brief, paragraph 457, the Popovic Defence argues that if

 8     such a plan had existed, it would have been implemented immediately on

 9     12-13 July.  Now, clearly there is several reasons why this would not be

10     the case as well.  First, it took time to separate the large number of

11     men in Potocari.  It took time to round up the thousands of prisoners

12     that continued to be captured through the 13th of July.  There is little

13     doubt that the VRS was not prepared for the large number of prisoners

14     that they managed to capture over that period of time.  And also the

15     large number of prisoners that they had custody of by 13 July made it

16     impossible to carry out their murders quietly and efficiently in

17     Bratunac.  International agencies were still operating in the area.

18             Now, in the interview that I referred to before involving

19     Mr. Beara, he states:

20             "It was not possible to carry out the killings on such a mass

21     scale in the presence of UN representatives."

22             And that makes sense.  There's truth to that, given his

23     involvement in these crimes.

24             The evidence shows that Mr. Popovic was present at Orahovac, he

25     was in Rocevic, and he was at Kula.  The Popovic brief, at paragraph 682,

Page 34150

 1     denies that -- states that:

 2             "They deny the prisoners in Orahovac were under the control of

 3     Mr. Popovic."

 4             And it's not clear whether this is in reference to a command

 5     function, control in a command sense, or it is in its colloquial meaning.

 6     In either event, the evidence establishes clearly that he was there.

 7     Aside from PW-138, whose testimony the Popovic Defence impugns directly,

 8     there is evidence from Tanacko Tanic which puts him there.  In addition,

 9     there's evidence from Milorad Bircakovic that puts him there, and in

10     addition to that there's the evidence of PW-101 who described an officer

11     that was at the execution site, that matched Mr. Popovic's description.

12             In respect of the evidence presented -- in respect of this

13     evidence, that is, the evidence of PW-101, who said he saw someone

14     matching Mr. Popovic's description, essentially, that evening, at their

15     brief, at paragraph -- in their brief, I'm sorry, at paragraph 513, the

16     Popovic Defence asserts that he was not in Zvornik on the evening of 14

17     July.  And in respect of that, the Popovic Defence called

18     Gordan Bjelanovic, and I'm sure that the Trial Chamber recalls his

19     testimony because it was completely unreliable and it was completely

20     contrived.  Mr. Bjelanovic testified first of all as an alibi witness and

21     stated that:

22             "When it comes to dates --"

23             I'm sorry:

24             "When it comes to exact dates and times, it's difficult."

25             You may recall that he testified that he did not leave Vlasenica

Page 34151

 1     until after the fall of Srebrenica.  This was completely contradicted by

 2     a prior statement that he had given 9 March 2001 to Mr. Petrusic in

 3     connection with his defence of General Krstic.  In that statement, he

 4     claimed that he was present in Srebrenica from 5 through 12 July.  And

 5     when he was confronted with this contradiction, his explanation was

 6     barely intelligible.

 7             At paragraph 618 of the Popovic brief, the Defence assert that

 8     the testimony of the Zvornik Brigade 2nd Battalion Commander

 9     Srecko Acimovic is not credible.  As the Prosecution has indicated, there

10     were several witnesses in this case who, because of the nature and extent

11     of their involvement in these events, tended to minimise their personal

12     exposure.  Srecko Acimovic was one of those witnesses.  That, of course,

13     does not mean that everything that he says was not true.

14             Mr. Popovic's presence at the school cannot be explained away by

15     some motive that could be attributed to Mr. Acimovic to set him up, to

16     frame him.  There's no evidence of that.  Further, the fact of

17     Mr. Popovic's presence at the Rocevic school is characteristic of his

18     presence in Orahovac, it is also characteristic of his presence at the

19     Kula school, and it is also characteristic of his presence at Bisina, all

20     of which support Mr. Acimovic's testimony concerning his presence in

21     Rocevic.  He testified that he spoke to Mr. Popovic between 8.30 and 9.30

22     on 14 July, the day before Mr. Popovic came to the school.  He spoke to

23     him at the Brigade Command headquarters.  Now, given the contrived alibi

24     defence of Goran -- I think it's Gordan Bjelanovic, it is entirely

25     plausible that Mr. Popovic would have been at the school.  There were

Page 34152

 1     executions that were being carried out in Petkovci on the 14th of July.

 2     There were executions being carried out in Orahovac on that day.

 3     Mr. Nikolic was in that area, Mr. Beara was in that area.  It makes sense

 4     that Mr. Popovic was in that area, and it makes sense that he would have

 5     been at Rocevic on the 14th -- on the 15th, having been in Orahovac on

 6     the 14th and having been at Kula on the 16th.  He was an integral part of

 7     this murder operation, and together with Mr. Nikolic and Mr. Beara,

 8     that's exactly what he was doing, he was implementing the murder

 9     operation.

10             Now, with respect to his presence at Pilica, that's paragraph 683

11     of the Defence brief, the Defence denies that Popovic was at the Kula

12     school at around noon on the 16th of July.  The Defence concede, however,

13     and I quote this, that:

14             "It is possible that there was a person fitting his description

15     there because there were many men fitting the description of Popovic, and

16     also many men with mustaches have been seen on many videos and photos

17     during this trial."

18             Now, I've already gone over some of the reasons why

19     Slavko Peric's identification of Mr. Beara and Mr. Popovic is reliable,

20     but you will recall also that with respect to Mr. Popovic, Mr. Peric

21     testified that he observed someone refer to him as "Pop."  And we know

22     from the intercept evidence in this case and the testimonial evidence in

23     this case that this was Mr. Popovic's nickname.  PW-172 testified to that

24     also.  Now, all the Defence have argued that a subordinate would not

25     refer to Mr. Popovic as "Pop."  PW-172's testimony actually speaks to the

Page 34153

 1     contrary.  In addition to that, there is several instances in which you

 2     can see that officers that are junior to Mr. Popovic refer to him as

 3     "Pop" in the intercept evidence, among them Drago Nikolic.

 4             The Defence's concession that it is possible that somebody

 5     fitting this description -- fitting the description of Mr. Popovic was in

 6     and around Pilica on 16 July at noon, or somebody with a moustache may

 7     have been there, of course, neglects the aspect of Mr. Peric's

 8     identification of Mr. Popovic as "Pop," that somebody referred to him as

 9     "Pop," so the question then is:  While there may have been other men

10     fitting Mr. Popovic's description running around with moustaches in the

11     VRS, how many of them also went by the nickname "Pop," how many of them

12     were actually called "Popovic"?  How many of those would have been

13     hanging around with somebody who just happened to look just like

14     Ljubisa Beara?  How many of those would have happened to have

15     referenced -- been referenced in intercepts corresponding to the events

16     in Pilica on the same day when they happened to have been seen there?

17     And how many of those would have had their names appear on fuel receipts

18     that were directed to Pilica?

19             The evidence that Vujadin Popovic was present at the Kula school

20     and involved in the executions there is supported by independent

21     documentary evidence, and it is established in the case beyond a

22     reasonable doubt.  The corroboration of that involvement is found in the

23     intercept evidence as I've mentioned, which I'll briefly outline.

24             You recall the intercept from 16 July at 1358 hours.  This is an

25     intercept which is a four-part intercept which involves a duty officer of

Page 34154

 1     the Zvornik Brigade, Milorad Trbic, who was attempting to get fuel that

 2     has been requested by Mr. Popovic, and that's the intercept that talks

 3     about the 500 litres of D2 fuel.  And he tells the duty officer that

 4     Mr. Popovic needs it.  He then gets on the phone and talks to

 5     Mr. Basevic, the Technical Services officer of the Drina Corps Rear

 6     Services, and he tells him that he has to -- he conveys the message, 500

 7     litres of D2 are urgently being asked for by Mr. Popovic or else the work

 8     he's doing will stop.  He speaks to Pavle Golic, and he says:

 9             "Pop just called me, told me to contact you.  500 litres of D2

10     have to be sent to him immediately.  Otherwise, his work will stop."

11             And he says:

12             "Yes, 500 litres or else his work will stop."

13             He speaks to another unidentified participants and says:

14             "A bus loaded with oil is to go to Pilica village."

15             There's clear evidence in this case, Your Honours, that connect

16     Mr. Popovic to those executions.

17             You'll recall that there are additional intercepts where

18     Mr. Popovic is referred to as being in the Zvornik area.  There is the

19     duty officer's notebook which indicates, also at 1400 hours, that a

20     request for a bus with a full tank and 500 litres of D2, and that the

21     duty officer and Golic have been informed of that.  It's a prime example

22     of how the security organ and the Security Administration is functioning

23     within the normal command structures of both the brigade and the corps.

24             You've seen the fuel dispatch order that's dated 16 July, which

25     reads:  "For Lieutenant-Colonel Popovic."  And you've heard testimony

Page 34155

 1     that there was, in fact, fuel that was delivered near Pilica.

 2             You've seen the intercept at 2116 hours on 16 July, P01201, where

 3     Mr. Popovic reports to the Drina Corps Command, he speaks to Ljubo Rakic,

 4     actually:

 5             "Tell the general I've finished the job, I've finished the job,

 6     I've finished everything."

 7             And then on 17 July, at 1622, there's another intercept where

 8     Mr. Popovic speaks to his commander, General Krstic, and he says:

 9             "Hello, it's Popovic.  Boss, everything is okay.  That job is

10     done."

11             Further on in the intercept, he says:

12             "That all gets an A, A, the grade is A.  Everything is okay.

13     That's it.  Bye, and take care."

14             Now, at paragraph 590, the Defence brief cites Krstic -- cites,

15     I'm sorry, the Krstic Appeals judgement for the proposition that no

16     reasonable trier of fact could have concluded that this was the only

17     reasonable inference that could be drawn from the evidence; that is, that

18     the job that he was doing concerned the burials and executions on the

19     16th and 17th of July.  They cite the Krstic appeals judgement, and

20     that's at paragraph 115 of that judgement.  I would submit that the

21     record before this Trial Chamber is a different one.  It's different than

22     the record that went before the Krstic Trial Chamber.  You have here in

23     this record eye-witness testimony placing Mr. Popovic and Mr. Beara at

24     the Kula school, and that frames the context of this intercept.

25             On the record before you, the only reasonable inference that you

Page 34156

 1     can draw from this intercept, in view of Mr. Popovic's presence at the

 2     school, is that this is exactly what he's doing, is he's reporting on the

 3     only job that he's doing in the area, and he's reporting on the

 4     successful completion of that operation.

 5             Your Honours, there is only one reason that explains

 6     Mr. Popovic's presence at any one of the execution sites in this case,

 7     let alone the several.  He was there to see that the murder of the Muslim

 8     men and boys of Srebrenica was carried out efficiently, and he was there

 9     to see that it was carried out quietly.  He was there to see it to its

10     completion and to see to its concealment, and he was there pursuant to

11     the orders of his commanders, to galvanise the resources needed to carry

12     out this operation through the command structures of the VRS and

13     especially of the Zvornik Brigade.

14             His guilt as a member of the forcible transfer JCE, as charged

15     under the indictment, is proven to no lesser extent, and based on the

16     record of these proceedings, Your Honours, Mr. Popovic should be found

17     guilty of each count under the indictment.

18             There is no persuasive evidence in this record of any remorse

19     from Mr. Popovic nor of any legitimate mitigation for his conduct, and I

20     would ask you -- we ask that you take this into serious consideration in

21     your judgement on the issue.

22             I thank you for your indulgence, and, more importantly, I thank

23     you for your patience and attention.  And this concludes my submissions.

24             JUDGE AGIUS:  Thank you, Mr. Vanderpuye.

25             I take it you are next, Mr. Mitchell.  We are only five minutes

Page 34157

 1     away from the break.  I suggest that we take the break and you start

 2     immediately after if that is convenient and agreeable to you.  Okay,

 3     thank you.

 4             So we'll have a 25-minute break now.

 5                           --- Recess taken at 10.25 a.m.

 6                           --- Upon commencing at 10.54 a.m.

 7             JUDGE AGIUS:  Yes, Mr. Mitchell.

 8             MR. MITCHELL:  Thank you, Your Honours, and good morning,

 9     everyone.

10             I'm going to respond briefly to some of the arguments raised by

11     the Defence for Drago Nikolic in their final brief.  First, I'd like to

12     address some of their arguments about Drago Nikolic's contributions to

13     the two joint criminal enterprises he's being charged with.  Second, I'll

14     address two discreet legal issues in relation to state policy to commit

15     genocide and conspiracy to commit genocide.  Finally, I'll address the

16     Defence's submissions on mitigation.

17             Before I start, I'd just like to say a few words about the

18     Defence's final brief.  This document contains a number of errors of law,

19     of fact, and of analysis.  It won't be possible to identify all of these

20     errors today, but I would briefly like to highlight a couple up front,

21     and I will address others in more detail as I go along.

22             At paragraph 667 of their brief, the Defence state that:

23             "Another important issue is the fact that Galic," referring to

24     Mihajlo Galic, "was responsible for mobilisation matters, that there were

25     many mobilisation issues which happened during the period of 13 to 15

Page 34158

 1     July 1995, and that Galic denied being involved in any of them."

 2             This isn't a fair representation of Galic's testimony.  At

 3     transcript page 10514, Galic confirmed that he actually met the new

 4     recruits on the morning of 15 July.

 5             Another example appears at paragraph 675 of the Defence brief,

 6     where they claim that three military experts, including Richard Butler,

 7     agreed with the suggestion that Dragan Obrenovic would have personally

 8     selected the officer who would have replaced Drago Nikolic at IKM on the

 9     night of 13th July.  At transcript page 20448 to 20449, Mr. Butler said

10     the exact opposite of what the Defence have quoted.  Mr. Butler said:

11             "I would have expected that Major Obrenovic would have verified

12     that the position was filled.  I don't believe that within the context of

13     the operation staff that it would have been necessary for Major Obrenovic

14     to hand pick the next duty officer."

15             Another misstatement appears at paragraph 574, where the Defence

16     state that Damjan Lazarevic testified that Drago Nikolic was not involved

17     in the reburials.  Again, this isn't a fair reflection of Lazarevic's

18     testimony.  At transcript pages 14507 to 14508, Lazarevic simply said

19     that he didn't see Drago Nikolic during this period.

20             I don't want to belabour this point with any more examples.  We

21     have no doubt that Your Honours will scrutinise the submissions of all

22     parties in this case very carefully.

23             I'd like to turn now to the Defence's arguments about the joint

24     criminal enterprise to murder the men from Srebrenica, and the first

25     argument I'd like to address is the argument that Drago Nikolic was not

Page 34159

 1     relieved from the IKM on the night of 13 July.  It's uncontested that

 2     Drago Nikolic was the duty officer at the IKM during the day and the

 3     early evening of 13 July.  The evidence has shown that at around 7.00 or

 4     8.00 p.m., Drago Nikolic received a call from Vujadin Popovic, who told

 5     Nikolic to prepare for a large number of prisoners who were being brought

 6     to the Zvornik area to be shot.

 7             Later that night, Momir Nikolic personally told Drago Nikolic

 8     that those prisoners were going to be executed.  Drago Nikolic called his

 9     commander and was authorised to leave the IKM and take some Zvornik

10     Brigade military police, and the military police commander, Lieutenant

11     Jasikovac, to organise the detention and the execution of those men.

12     Mihajlo Galic testified that he replaced Drago Nikolic as the IKM duty

13     officer that night, and the IKM log-book, which is Exhibit P347, confirms

14     beyond any doubt that Drago Nikolic was replaced by Mihajlo Galic.

15             We know that the first prisoners arrived at the Orahovac school

16     that night, including PW-169, and we know that Zvornik Brigade military

17     police were deployed to the school, including Stenoje Bircakovic,

18     Dragoje Ivanovic, and PW-143.  At transcript page 6532 to 6533, and 6611

19     to 6612, PW-143 testified that he actually saw Drago Nikolic at the

20     Orahovac school that night.

21             Drago Nikolic was the assistant commander for security.  The

22     arrival of these prisoners and the deployment of the MPs to guard them

23     required his personal presence at the school that night.  He had to be

24     relieved, and he was relieved.

25             Now, the Defence have argued that Drago Nikolic did not leave the

Page 34160

 1     IKM that night.  They argue that the witnesses Mihajlo Galic, PW-168,

 2     PW-143, and Momir Nikolic were not credible.  I don't intend to respond

 3     to this in any detail.  These witnesses were reliable, they were

 4     consistent, and they were strongly corroborated.  And I'd just like to

 5     direct Your Honours to paragraphs 2615 to 2646 for our detailed

 6     submissions about these witnesses.

 7             And the second point that I want to address is raised at

 8     paragraph 680 to 698 of the Defence's final brief, where they claim that

 9     there's evidence that the IKM log-book has been tampered with.  Your

10     Honours, I have the original book here, if you'd like to take another

11     look at it.  But very simply, this book is reliable, it's

12     contemporaneous, there's absolutely no evidence that it's been tampered

13     with, and there's no evidence whatsoever that Mihajlo Galic fabricated

14     the key entry.

15             The Defence's arguments about this book are also contradictory.

16     At paragraph 688 and 690, they suggest that pages may have been removed

17     from the book.  On the other hand, at paragraph 694, they argue that it's

18     suspicious that there are no pages missing from the book.  You can't have

19     it both ways.  There is no credible basis for their arguments about the

20     integrity of this book.

21             Thirdly, Drago Nikolic relies on the evidence of Dragan Stojkic

22     to support his claim that he remained at the IKM that night, but

23     Stojkic's own testimony showed that he can't have been at the IKM on the

24     night of 13 July, as he claimed.  Stojkic was a member of Tactical Group

25     1 which went to Srebrenica and Zepa.  At transcript pages 21971 to 21973,

Page 34161

 1     Stojkic testified that he stated sending Rijeka on the night of 11 July

 2     while he was en route to Zepa.  According to him, he participated in

 3     fighting the next day near Zepa, which would have been 12 July, and the

 4     next day he returned to Zepa and went to the IKM.  That was 13 July,

 5     according to him.

 6             It's clear that Stojkic's testimony and his timeline are two days

 7     out.  Tactical Group 1 stayed at Rijeka on the night of 13 July and

 8     participated in one day of fighting in Zepa on 14 July.  An example of

 9     that evidence came from Dragutinovic at transcript page 12591 to 12592.

10     If Drago Nikolic stayed at Tactical Group 1, it had to have been on 13

11     July and he couldn't have been at the IKM as he claimed.

12             At paragraph 654 of his brief, the Defence also suggests that

13     Stojkic's testimony is corroborated by the fact that a tank company from

14     Tactical Group 1 returned on the 13th of July.  This is completely

15     irrelevant.  Stojkic was not a member of a tank company.  Moreover, if

16     Stojkic had returned on the 13th of July, he could not have participated

17     in that one day of fighting in Zepa on the 14th.

18             Your Honours, Stojkic was clearly mistaken about the dates when

19     he was at the IKM, and his testimony cannot support the Defence's claim

20     that Drago Nikolic remained at the IKM on 13 July.  The totality of

21     evidence on this point proves beyond any reasonable doubt that

22     Drago Nikolic was relieved of duty at the IKM on the night of 13 July.

23             Now, the Defence has also argued that Drago Nikolic thought that

24     the men who were brought to Zvornik were going to be exchanged.  This

25     argument is completely implausible.  First, the evidence has shown that

Page 34162

 1     Popovic and Momir Nikolic explicitly told Drago Nikolic on the night of

 2     13 July that these men were going to be executed.  Secondly, this looks

 3     nothing like an exchange.  As outlined at paragraphs 2647 to 2666 of our

 4     final brief, there is no legitimate explanation for placing these

 5     prisoners in schools in the Zvornik area rather than the Batkovic camp.

 6     These prisoners were kept in appalling conditions.  They had no food, no

 7     medical attention.  They had insufficient water.  Their personal

 8     belongings and their identification were stripped from them.  And, most

 9     importantly, there were no lists made of the prisoners, and there was no

10     one to exchange them for.

11             Drago Nikolic was the assistant commander for security, and the

12     evidence has shown that he had been involved in exchanges since at least

13     1993.  The reference for that is Exhibit 3D -- 7D00454.  Had

14     Drago Nikolic genuinely thought that those prisoners at the Orahovac

15     school were going to be exchanged, the first thing he would have asked

16     when he went to the school was, Where are the list of the prisoners and

17     who are we exchanging them for?  This was no exchange, and Drago Nikolic

18     knew full well that this was no exchange.

19             The Defence have conceded that Drago Nikolic was at the Orahovac

20     school twice on 14 July, and they also concede that he would probably

21     incur some liability on that basis.  However, at paragraph 71 of their

22     brief, the Defence argue that Nikolic did not have any role in directing,

23     supervising, or assisting the preparation or the organisation of the

24     execution of the prisoners there.  And Mr. Nikolic's role in coordinating

25     the events at Orahovac is discussed a great length in our brief, but I

Page 34163

 1     would like to respond to this briefly and highlight the key parts of the

 2     evidence of his coordinating the events at the school and at the

 3     execution site.

 4             Dragoje Ivanovic testified that around 8.00 a.m. on the 14th of

 5     July, Drago Nikolic arrived at the school.  I'd just like to read you a

 6     short section of Ivanovic's testimony on this point from transcript

 7     page 14544:

 8             "In the morning, around 8.00, the brigade chief Nikolic came, and

 9     shortly afterwards some 20 to 30 soldiers arrived as well.  He told

10     Jasikovac that we were free to go but that we should be ready and close

11     by with the mini-bus.  He told that the soldiers that arrived with him

12     were there to take over the civilians."

13             Ivanovic's testimony establishes clearly that Drago Nikolic was

14     coordinating the change-over of security from the MPs who had arrived

15     there the previous night to the soldiers who arrived there that morning.

16     This necessarily means that he was coordinating and overseeing the

17     detention of those prisoners.

18             Now, just to be clear, it's Lieutenant Jasik ovac who gave the

19     order to those MPs to stay around, but it's equally clear that

20     Lieutenant Jasikovac was passing on Drago Nikolic's instructions to the

21     MPs.  This is a perfect example of how the relationship between

22     Mr. Nikolic, Lieutenant Jasikovac, and the military police worked both by

23     regulation and in practice.

24             Later that morning, Drago Nikolic went to the Hotel Vidikovac

25     with Milorad Bircakovic, and he met buses full of prisoners who had come

Page 34164

 1     from Bratunac.  At transcript page 11054 to 11055, Milorad Bircakovic

 2     testified that Drago Nikolic told him to get on a bus and go to Orahovac.

 3     He's put the additional security in place that morning, and now he's

 4     coordinating the arrival of the additional prisoners.  At around 11.00,

 5     Nikolic returned to the Orahovac school, and over the next few hours he

 6     was seen by numerous witnesses, including Milorad Bircakovic, at

 7     transcript 11022; PW-142 at transcript 6451 to 6452; PW-143, transcript

 8     6536 to 6538; Stenoje Bircakovic, transcript 10748; Dragoje Ivanovic,

 9     transcript 14544 to 14548; Tanacko Tanic, transcript 10337; and PW-101 at

10     transcript 7573 to 7534.

11             PW-142 saw Drago Nikolic speaking with senior high-ranking

12     officers at the school.  Dragoje Ivanovic saw Drago Nikolic and

13     Lieutenant Jasikovac speaking with a senior VRS officer.  PW-143 also saw

14     Nikolic speaking with a senior VRS officer who he testified was not from

15     the Zvornik Brigade.  Mr. Nikolic's meeting with Lieutenant Jasikovac and

16     senior VRS officers at the school further established that he was there

17     in a supervisory role.

18             The evidence has also shown that Drago Nikolic and his deputy,

19     Milorad Trbic, were at the Orahovac school after the transport and the

20     execution of the prisoners had started.  That evidence is outlined at

21     paragraphs 2703 to 2716 of our brief.

22             PW-101, in particular, saw Mr. Nikolic coordinating the transport

23     of the prisoners from the school when he went there sometime after 8.30

24     p.m. that night.  This was around the same time that Milorad Bircakovic

25     testified that Drago Nikolic had returned to the Orahovac school just

Page 34165

 1     before dark.  That's at transcript 11023.

 2             I'd also like to briefly touch on the role of the military police

 3     at Orahovac, which is summarised at paragraphs 2696 to 2702 of our final

 4     brief.  Their involvement in the execution process is extremely

 5     significant because, through Lieutenant Jasikovac, their activities at

 6     the school were directed by Drago Nikolic.  The military police guarded

 7     the prisoners, they helped blindfold the prisoners, they placed the

 8     prisoners on trucks that took them to the execution site.  PW-142

 9     testified that on at least one occasion, MPs actually escorted the

10     prisoners to the execution site, and we also heard evidence from MP

11     Milorad Bircakovic, who was Drago Nikolic's driver, that he escorted a

12     number of these trucks to the water point which we know was the second

13     execution site.  And despite their claims to the contrary, these military

14     police must have known that those prisoners were being executed.

15             They even tried to cover up their involvement at Orahovac by

16     doctoring the MP roster and removing the references to Orahovac on 14

17     July and the references to Rocevic on 15 July.

18             The Trial Chamber has also heard credible evidence that

19     Drago Nikolic was at the Orahovac execution site that day.  PW-143 saw

20     Drago Nikolic leave the Orahovac school and drive in the direction of the

21     execution site.  That's at transcript 6614.

22             PW-101 saw Drago Nikolic at the execution site, overseeing the

23     execution process with another senior VRS officer who matched the

24     contemporaneous description of Mr. Popovic.  I'd like to quickly read

25     what PW-101 said about Drago Nikolic's role at the execution site:

Page 34166

 1             "He was there because the men who were escorting prisoners from

 2     the trucks, he was to direct them, because the other men who were there

 3     were executing people, firing at them, and that was their job, whereas

 4     Drago was with these others.  He wasn't yelling at them or anything of

 5     that kind.  He was simply directing them what to do."

 6             At one point during the day on 14 July, Drago Nikolic returned to

 7     the Zvornik Brigade headquarters, where he met with PW-102 and PW-108.

 8     As Your Honours have heard, Drago Nikolic told PW-102 that he had been

 9     executing prisoners at Orahovac.

10             The executions -- or the evidence has shown that the executions

11     continued long after dark.  This evidence is outlined at paragraphs 743

12     to 750 of our brief.  Milorad Bircakovic testified that he and

13     Drago Nikolic drove past the execution site twice just after dark.  The

14     executions must have been ongoing at that time.

15             Your Honours, there's a single compelling story that emerges from

16     the testimony of these witnesses.  Drago Nikolic coordinated the

17     detention, the transport, and the execution of the prisoners at Orahovac,

18     both at the school and at the execution site, and he made sure that those

19     orders to kill the prisoners were carried out.

20             I'd now like to address the Defence's submissions about the

21     inferences that can be drawn from Drago Nikolic's meeting with

22     Mr. Popovic and Mr. Beara on the morning of 14 July and his meeting with

23     Mr. Beara outside the Petkovci school on the afternoon of 14 July.

24             At paragraph 1173 of their final brief, the Defence have argued

25     that Drago Nikolic merely learned of an imminent exchange of detainees at

Page 34167

 1     the meeting with Mr. Popovic and Mr. Beara on the morning of 14 July.

 2     And to put this meeting in context, as outlined in our brief and as

 3     summarised by Mr. Vanderpuye this morning, Mr. Beara and Mr. Popovic

 4     clearly knew about the murder operation at the time of this meeting, and

 5     they were both engaged in it.  Drago Nikolic was their trusted colleague,

 6     and they needed his help.  Even if we completely ignore the evidence that

 7     Drago Nikolic found out on the night of 13 July that the prisoners were

 8     going to be executed, there is no conceivable way that Mr. Popovic and

 9     Mr. Beara would have concealed this information from Drago Nikolic.

10             JUDGE AGIUS:  I hate to interrupt you, but on the LiveNote the

11     transcript has stopped; not on the main monitor, but since, I suppose --

12     shall we move without -- no, okay.

13             Is there any objection from the Defence teams to proceed?

14             No objection.  We proceed.  Thank you.

15             MR. MITCHELL:  Thank you, Your Honour.

16             The events that happened after this meeting also show that the

17     murder operation must have been discussed.  The prisoners arrived from

18     Bratunac that morning.  The preparations for the executions at Orahovac

19     were completed, the blindfolds were prepared, the trucks were obtained to

20     transport the prisoners, and we know that the excavator was sent to

21     Orahovac before noon that day.  PW-104 also testified that Mr. Beara

22     asked the Zvornik civilian authorities to assist in the burial of the

23     prisoners who were going to be murdered.

24             The 1st Battalion and the 6th Battalion also received information

25     from the Zvornik Brigade Command that prisoners were going to arrive at

Page 34168

 1     the Kula school and the Petkovci school respectively.  These prisoners

 2     were killed quickly and efficiently in less than three days.

 3             In all the surrounding circumstances, the purpose of that meeting

 4     on the morning of 14 July could only have been to coordinate the murder

 5     operation.

 6             The same conclusion applies to Drago Nikolic's meeting with

 7     Mr. Beara outside the Petkovci school that afternoon.  This meeting

 8     happened, according to Marko Milosevic, between 4.00 and 5.00 p.m.  This

 9     is after the executions at Orahovac had started and just hours before the

10     prisoners at Petkovci were killed.  It's completely unreasonable to think

11     that Mr. Beara was hiding information about the murder operation from

12     Drago Nikolic at this time.  There can be no doubt that Drago Nikolic

13     knew about the murder operation and was at the very heart of it.

14             Your Honours, the Defence has made detailed submissions about

15     Drago Nikolic's role in the detention and execution of prisoners who were

16     held at the Kula school and the Rocevic school.  I'm not going to respond

17     to those arguments in detail.  They're dealt with at length in our brief.

18     But I would like to just direct Your Honours and the parties to the

19     specific submissions in our brief.

20             Paragraphs 2676 to 2684 outline Nikolic's involvement with the

21     prisoners at Kula and the instructions he gave to Slavko Peric.  The

22     evidence has shown at the time he spoke with Slavko Peric, he knew that

23     those prisoners were going to be killed.  Paragraphs 2738 to 2762

24     outlines the evidence that the Zvornik Brigade could send and receive

25     coded telegrams, that two coded telegrams were sent to the 2nd Battalion

Page 34169

 1     Command in the early morning of 15 July, ordering the formation of an

 2     execution squad, and that Drago Nikolic called the 2nd Battalion Command

 3     on the morning of 15 July to follow up on those telegrams and insist that

 4     executioners needed to be found.

 5             Finally, paragraphs 2770 to 2775 outline the evidence from PW-165

 6     that Drago Nikolic went to the Rocevic school on 15 July with

 7     Milorad Trbic and issued instructions to the MPs who were there.  Again,

 8     at the time Drago Nikolic was at the Rocevic school, he knew that the

 9     prisoners who were held there were going to be killed.

10             The last point I'd like to address in relation to the joint

11     criminal enterprise to murder the men from Srebrenica is the Defence's

12     submissions at paragraphs 1295 to 1301 of their brief, that Drago Nikolic

13     had nothing to do with the interrogation and execution of the four

14     Branjevo Farm survivors.  Now, as outlined at paragraphs 1057 to 1058 of

15     our final trial brief, the evidence has clearly shown that these three

16     Muslim men and one boy survived the mass executions at Branjevo Farm.

17     These four survivors were captured, they were transported to the Zvornik

18     Brigade headquarters, and they were interrogated by military police

19     members, Nebojsa Jeremic and Cedo Jerovic [phoen].  And Nebojsa Jeremic

20     testified that Drago Nikolic oversaw the work of the Crime Prevention

21     Unit.  That means that the interviews with those four survivors had to

22     have taken place with Drago Nikolic's knowledge and his authorisation.

23             Drago Nikolic also personally participated in this investigation

24     by attending a line-up at which the -- at which the four survivors

25     identified the two Zvornik Brigade soldiers who had assisted them.

Page 34170

 1     Nikolic also attended the interview of one of those Zvornik Brigade

 2     soldiers, and he signed the ruling against them for collaborating with

 3     the enemy.

 4             The evidence has shown that after Nikolic found out that these

 5     four prisoners had survived the Branjevo Farm executions, Nikolic spoke

 6     with his commander, Vinko Pandurevic, and the four prisoners disappeared

 7     shortly thereafter.  Drago Nikolic oversaw every aspect of this

 8     investigation.  There is no question that he was involved in the

 9     disappearance and the murder of those four victims.

10             I'd like to turn now to the Defence's submissions about

11     Mr. Nikolic's involvement in the forcible transfer of the Muslim

12     populations of Srebrenica and Zepa.

13             Mr. Nikolic has argued that he had no knowledge and no

14     involvement in the forcible transfer of the Muslim population from

15     Srebrenica.  Your Honours, this argument is both factually and legally

16     incorrect.  The indictment makes it clear that the common purpose of that

17     joint criminal enterprise was to force the Muslim populations out of the

18     Srebrenica and Zepa enclaves.  The reference to the Muslim population

19     clearly includes the men.

20             Now, as we argued in our Rule 98 bis submissions, the language to

21     "outside the control of the RS" which appears in paragraph 49 of the

22     indictment, does not define the purpose and the goal of that joint

23     criminal enterprise.  Now, the evidence shows that most of the Bosnian

24     Muslim population of Srebrenica and Zepa actually were removed to areas

25     outside the RS, but the final destination of those people is not a

Page 34171

 1     material element of that crime.  It's the act of forcing them out of the

 2     enclaves from an area where they were lawfully present, without grounds

 3     permissible under international law, that constitutes the criminal

 4     element of this offence.

 5             The indictment makes it clear that the men -- the Muslim men from

 6     Srebrenica are alleged to be the victims of forcible transfer.

 7     Paragraph 62 of the indictment alleges that the men who were separated

 8     from their families in Potocari were the victims of forcible transfer.

 9     Paragraph 63 of the indictment alleges that the men who surrendered along

10     the road were the victims of forcible transfer.  And paragraph 48(E)

11     specifically states that the forcible transfer of the Muslim population

12     included the forcible bussing of the men up to the Zvornik area where

13     they were ultimately executed.

14             The people who receive and detain these victims of forcible

15     transfer at any point are as much a part of the plan to forcibly transfer

16     these individuals as the people who attacked the Srebrenica enclave

17     physically, the people who carried out the separations in Potocari, and

18     the people who captured those Muslim men along the road.  Mr. Nikolic

19     participated in the coordination of the transport and the detention of

20     those prisoners at a meeting with Mr. Beara and Mr. Popovic on the

21     morning of 14 July.  After that meeting, he went and met some of the

22     buses which were transporting those prisoners, and he directed them to

23     Orahovac.  He also oversaw the detention of these prisoners once they had

24     actually reached the schools in the Zvornik area.

25             Drago Nikolic was a vital link in the chain which had forced

Page 34172

 1     those Muslim men out of the Srebrenica enclave or out of the enclaves and

 2     up to the Zvornik area.  He clearly knew about and was involved in the

 3     forcible transfer joint criminal enterprise.

 4             I'd like to turn now briefly to two legal points which are raised

 5     in the Defence's brief.

 6             Firstly, the Defence have argued that the existence of a state

 7     policy to commit genocide is a necessary element of the crime.  Quite

 8     simply, it's not.  It's not contained in the Genocide Convention, it's

 9     not contained in the Statute of our Tribunal, and the Appeals Chamber in

10     the Jelisic appeals judgement specifically states at paragraph 48 that

11     the existence of a plan or policy is not a legal ingredient of the crime.

12             In relation to conspiracy to commit genocide, the Defence has

13     argued at paragraphs 141 to 187 of their final brief, and paragraphs 1596

14     to 1659, that even if there was a conspiracy to commit genocide, it was

15     concluded sometime on the night of 11 July and Drago Nikolic could not

16     subsequently join it.  The conspiracy is clearly outlined at paragraph 34

17     of the indictment.  It has the same duration and the same underlying

18     facts as the joint criminal enterprise to murder the men from Srebrenica.

19             Now, the law is clear that a person is liable for conspiracy to

20     commit genocide at the moment they enter into an agreement with others to

21     commit genocide, but that doesn't mean that the actual conspiracy stops

22     at that point.  As different people agreed to join that conspiracy on 12

23     July, on 13 July, on 14 July, on 15 July, that is the moment at which

24     they are guilty of the crime to commit genocide.  It's that act of

25     agreement which their criminal liability attaches to.

Page 34173

 1             Your Honours, the moment when Drago Nikolic agreed to join the

 2     conspiracy is clear.  On the night of 13 July, he received a call and was

 3     asked to join in the murder operation.  Shortly afterwards, he called his

 4     commander and asked to be relieved from the IKM, and he was relieved from

 5     the IKM.  The call to his commander and his relief from the IKM are

 6     conclusive proof that Drago Nikolic had agreed with others to commit

 7     genocide.  The last point I'd like to address briefly are the Defence's

 8     submissions on mitigation.

 9             At paragraphs 1334 and 1336, for example, of the Defence's brief,

10     they argue that Drago Nikolic's junior rank, the fact that he was

11     following orders, and the fact that he was engulfed by these events

12     diminishes his responsibility and his importance for sentencing purposes.

13     These arguments should be given no weight whatsoever.  Drago Nikolic was

14     not obliged to commit these crimes.  Drago Nikolic wasn't forced to

15     follow any orders.  He was not engulfed by events beyond his control.  He

16     had a choice.  There's no doubt that it would have taken a lot of moral

17     courage, but he could have chosen to say, No, and it was his legal and

18     his moral obligation to say, No.  Instead, he requested and he received

19     authorisation to leave his post at the IKM and join in that genocidal

20     plan, and every criminal act he participated in during the following days

21     and weeks was by his choice.

22             These are not the actions of a junior officer who was out of his

23     depth or who was pressured into following orders.  These are the actions

24     of a man who knowingly and who intentionally committed the crimes with

25     which he is charged in the indictment.  And on that basis, we ask Your

Page 34174

 1     Honours to find him guilty of all the counts with which he is charged.

 2             Thank you.

 3             JUDGE AGIUS:  Thank you, Mr. Mitchell.

 4             Who is next; Mr. Elderkin?

 5             MR. ELDERKIN:  Good morning, Your Honour.  Yes, I am going to

 6     just move up to the podium and go next.

 7             Your Honours, Counsel, good morning.

 8             Firstly, I'm going to address certain issues in relation to the

 9     opportunistic killings and persecutions charged in the indictment as

10     foreseeable consequences of the two joint criminal enterprises.  The

11     indictment sets out the relevant crime incidents at paragraphs 31 and 48,

12     or paragraphs 37 and 83 charge that such crimes were foreseeable to the

13     members of the murder JCE and the forcible removal JCE.  I'm not going to

14     rehearse the factual details which are covered in the final brief,

15     starting at page 119 for Potocari, Bratunac, and the Kravica supermarket,

16     and starting at page 224 for the Petkovci school.  However, I will deal

17     with specific factual allegations where those have been raised in the

18     Defence briefs.

19             As a preliminary matter, the Prosecution yesterday filed a

20     corrigendum to the final brief which stated that certain opportunistic

21     killings were no longer charged.  As stated in this corrigendum, as well

22     as in the Prosecution's submission of the 15th of February, 2008, the

23     opportunistic killing incidents listed at paragraphs 31.1(b) and (c) of

24     the indictment are not proven.  Therefore, the only opportunistic

25     killings charged at Potocari are the nine bodies found near the UN

Page 34175

 1     compound on the Budak side of the main road, which is paragraph 31.1(a),

 2     and the summary execution of one man near the White House, which is

 3     paragraph 31.1(d).  Although the indictment refers to the nine men being

 4     killed on the 12th of July, the evidence in the case has shown that nine

 5     men were killed on the 13th of July at that location.

 6             Also, the opportunistic killing incident near the Kravica

 7     supermarket listed at paragraph 31.3 of the indictment include the

 8     allegation that, I quote:

 9             "A VRS or MUP soldier placed his rifle barrel into the mouth of a

10     Bosnian Muslim prisoner and summarily executed the man."

11             As stated in the corrigendum, there is insufficient evidence to

12     prove that this man was killed.  However, as detailed in the

13     Prosecution's final brief, the other violence and killings near the

14     Kravica supermarket have been proven.

15             A number of Defence briefs assert that individual accused did not

16     know about the opportunistic killing incidents that actually occurred and

17     did not contribute to those incidents.  I'm referring, for example, to

18     the Beara final brief at paragraphs 487 to 490, the Miletic final brief

19     at paragraphs 497 and 498, the Nikolic final brief at paragraphs 1309 to

20     1312, and the Pandurevic final brief at page 228.  However, these

21     elements are not relevant to a JCE 3 analysis.  What the Prosecution has

22     to prove is that the crimes occurred, that such crimes were the natural

23     and foreseeable consequences of carrying out the JCEs, and that the

24     accused JCE members willingly took that risk.  Based on this framework,

25     many of the points raised in the Defence briefs, supposedly concerning

Page 34176

 1     liability for opportunistic killings, in fact concern matters entirely

 2     outside the scope of the relevant analysis.

 3             I want to make two brief points as to the applicable law.  The

 4     first is the degree of foreseeability.

 5             JUDGE AGIUS:  Mr. Elderkin, before you do so, when referring to

 6     opportunistic killings, you dealt with the ones in Potocari or related to

 7     Potocari and the ones related to Kravica supermarket or Kravica.  You

 8     haven't said anything about the ones alleged to have taken place in

 9     Bratunac and Petkovci.  Do you have a position on those?

10             MR. ELDERKIN:  They -- it's the Prosecution's position that they

11     are proven and the charges are left untouched.

12             JUDGE AGIUS:  All right, okay.

13             MR. ELDERKIN:  I simply didn't mention them, Your Honour, because

14     we weren't making any alterations.

15             JUDGE AGIUS:  Okay, thank you.

16             MR. ELDERKIN:  As to the applicable law, Your Honours, then the

17     first point is the degree of foreseeability, the Appeals Chamber has

18     affirmed in a 25th of June, 2009 decision in the Karadzic case that, I

19     quote:

20             "Plotted on a spectrum of likelihood, the JCE 3 mens rea standard

21     does not require an understanding that a deviatory crime would probably

22     be committed.  It does, however, require that the possibility a crime

23     could be committed is sufficiently substantial has to be foreseeable to

24     an accused.  Second is the fact that the Appeals Chamber has held that an

25     accused JCE member can be guilty of specific intent crimes which are

Page 34177

 1     foreseeable consequences of the JCE, and that's an Appeals Chamber

 2     decision from Brdjanin on interlocutory appeal dated the 19th of March,

 3     2004, and this jurisprudence is on point and it applies to the crimes

 4     charged in this case.

 5             As regards foreseeability, the Gvero final brief argues at

 6     paragraph 48 that, I quote:

 7             "It is the Defence position that as these crimes were, in fact,

 8     carried out for reasons of personal revenge, it would have been

 9     completely impossible for Milan Gvero to foresee their commission, as

10     they bore no relationship whatsoever to the forcible transfer operation."

11             Your Honours, the evidence supports entirely the opposite

12     conclusion.  The circumstances in which the forcible removal JCE and the

13     murder JCE took place was such that spontaneous killings or revenge

14     killings were objectively foreseeable as possible consequences of those

15     operations.  I won't go into great detail in describing this, but as

16     explained throughout the case, retaliatory violence had occurred in and

17     around the Srebrenica enclave from 1992 onwards.  Furthermore, violence

18     towards the Srebrenica Muslims was clearly foreseeable as part of the

19     policy to ethnically cleanse areas claimed as Bosnian Serb land,

20     including the Drina River Valley, and particularly was foreseeable in

21     light of the brutal history of the war.  As well as having to be

22     objectively foreseeable, there is also a subjective requirement, that the

23     crimes were foreseeable to each accused.  However, as all of the accused

24     were officers of the armed forces of Republika Srpska throughout the war,

25     there can be no suggestion that any one of them lacked the necessary

Page 34178

 1     knowledge of the historical build-up, hatred, and policy of ethnic

 2     cleansing that existed prior to July 1995 such that they could not

 3     foresee that serious violence, including murder, might result from the

 4     criminal plan to rid the enclaves of their Muslim population.

 5             As regards what distinguishes opportunistic killings from the

 6     organised mass killings of July 1995, the indictment makes this clear at

 7     paragraph 83, a part of which reads as follows:

 8             "The term 'opportunistic' is used in this indictment to describe

 9     killings and other criminal acts carried out by individual soldiers,

10     acting on their own, likely without orders from superior officers."

11             So these killings were not part of the planned sequence of events

12     of the murder JCE.  They took place at locations other than the chosen

13     execution sites and for reasons other than military orders.  They

14     represent the level of attendant violence that was accepted by the JCE

15     members as the possible consequence of the plan to rid Srebrenica of its

16     Muslim population.

17             Each of the charged incidents fits this characterisation.  The

18     killings in Potocari, Bratunac, near the Kravica supermarket, and at the

19     Petkovci school occurred at locations where they risked discovery by

20     DutchBat or by uninvolved members of the local population.  Furthermore,

21     they did not involve the killing of all the Muslim men who were at those

22     locations, indicating that they were carried out either as spontaneous

23     acts of violence or as acts of targeted revenge.  Even after the murder

24     operation started, these killings occurred in a way that was clearly

25     opportunistic and foreseeable in a way that the vast and organised mass

Page 34179

 1     killings were not foreseeable as a consequence of the forcible removal

 2     JCE.  That is the distinction.  That is why the forcible removal JCE

 3     members are liable for these killings, but not the mass executions.

 4             Next, I'd like to address certain factual allegations

 5     specifically concerning the nine men killed near Potocari.

 6             The Gvero final brief makes a number of arguments about these

 7     victims, with the following proposed as reasonable possibilities:  First,

 8     and this is at paragraphs 75 and 76 of the Gvero brief, it is argued that

 9     the nine bodies were found in the Jaglici and Susnjari area, where the

10     Muslim men formed the column and set off towards Tuzla on the evening of

11     the 11th of July, suggesting that the victims could have been competent

12     members of the column and, I quote:

13             "... and that they may have perished as a result of earlier

14     mutual conflicts or acts of personal revenge committed by individuals

15     within the column."

16             Second, it is argued that the nine men may have been killed by

17     retreating Bosnian Muslim fighters who were seen on the 11th of July, but

18     who had left for the woods by 12th of July, and that's at paragraph 77 of

19     the Gvero brief.

20             Third, it's argued that the nine men may have been killed by an

21     individual seen by Major Rutten fleeing the scene, and that's at

22     paragraph 74 of the Gvero brief.

23             And, fourth, the fact that identification documents were found

24     near the bodies is argued to be inconsistent with the VRS force's

25     practice of confiscating prisoners' IDs immediately, suggesting that the

Page 34180

 1     nine men may not have been killed by VRS forces.  And that's paragraph 78

 2     of the Gvero brief.

 3             These supposed reasonable doubts are, first of all, based on

 4     inaccurate foundations.  It may just be a simple error, but the bodies

 5     were found only a few hundred metres from the main road in Potocari, not

 6     in the Jaglici and Susnjari area, and those villages are more than five

 7     kilometres away from Potocari, over the hills.  I don't need to show you

 8     this in court, but it can be seen, for example, on the Krivaja 95 map,

 9     which is P01463.  So it's not correct to say that they were found in the

10     area where the Muslim men gathered before leaving in the column.

11             Second, it's clear that the nine men were killed only shortly

12     before Major Rutten and Lieutenant Koster saw them on the 13th of July,

13     and Rutten's Krstic testimony, and this is at page 2140, he said the

14     following when he saw the bodies -- he said the following of when he saw

15     the bodies, and I quote:

16             "The blood was still running.  There were no flies on them.  It

17     was very warm that day, so you could easily say that it hadn't been long

18     ago that they were shot."

19             When you compare this with other evidence about how quickly

20     bodies deteriorated in the heat, it's clear that those nine men were

21     killed on the morning of the 13th of July.  For comparison, Muslim column

22     member PW-116, in his witness statement, which is Exhibit P02206,

23     described how he came across bodies in the hills above Kravica and

24     Sandici on the 13th of July, which cannot have been there for more than a

25     day, since the column only set off on the night of the 11th of July from

Page 34181

 1     Jaglici and Susnjari and would have passed through that area on the 12th

 2     of July.  He said, and I quote:

 3             "It was very hot, and flies came to the bodies.  The smell was

 4     terrible.  I could not look at the bodies anymore."

 5             In that kind of heat, Rutten could not have seen the bodies very

 6     long after they were killed.

 7             In response to the other suggested scenarios put forward in the

 8     Gvero brief, the first point is that it is not a reasonable possibility

 9     that Muslim men in civilian clothes, who were alive within a few hundred

10     metres of the main Potocari road on the morning of the 13th of July, were

11     members of the Muslim column or had been killed by the men in the column

12     or by retreating Muslim fighters fleeing to join the column.  That group

13     had gathered far away and was long gone by that time.

14             The next supposedly reasonable scenario, for the Muslim man in

15     civilian clothes seen fleeing from the general area might have killed the

16     nine men, is again simply not credible.  It is not reasonable that a

17     killer would stay around at the murder scene long enough to be seen

18     fleeing from the general area when the DutchBat officers, responding to

19     rumours, arrived to investigate.  Anyway, the only Muslim men in Potocari

20     on the 13th of July were those in the crowd of refugees, and they had no

21     motivation and were not in a position to carry out mass murders of other

22     Muslim men.

23             Lastly, it is not reasonable to draw any conclusion, based on the

24     presence of the victims' identification documents near the bodies, that

25     the murderers may have been -- may not have been members of the Bosnian

Page 34182

 1     Serb forces.  Clearly, not all Muslim men had their IDs taken away when

 2     they were captured or separated by VRS or MUP soldiers, and there are

 3     plenty of cases of IDs being found in the mass graves.

 4             Gvero's arguments that the nine men may have been killed by

 5     fellow Muslims are predicated on they're having been killed when there

 6     were still Muslim fighters in the Potocari area.  The only evidence that

 7     could possibly suggest this is that of Witness PW-114, who saw nine or

 8     ten bodies on what he said was the 12th of July, but he also insisted

 9     that it was the second day of the transport of the Muslim population out

10     of Potocari, which of course was the 13th of July.  Furthermore, PW-114

11     testified that he didn't know when the men had been killed, but on

12     cross-examination answered the question, and I quote:

13             "Q. Can you tell us if you know when these people were killed?

14             "A. No, I don't know the time.  I was there at noon, so it must

15     be maybe on the 11th or on the 12th in the morning."

16             And that's at transcript reference 3164.

17             Either PW-114 saw different bodies from those seen by Rutten and

18     Koster, or he saw the bodies on the 13th of July.  The obvious conclusion

19     is that all three witnesses saw the same bodies on the same day.  This is

20     clear both from their similar testimonies and from the fact that only

21     nine bodies have been exhumed from the field just by the stream where the

22     bodies were seen.  And if you look at Exhibit P03897, this shows clearly

23     how all three eye-witnesses recall seeing bodies within a few metres of

24     where nine bodies were subsequently exhumed.

25             In these circumstances, PW-114's failure to resolve the

Page 34183

 1     inconsistency of seeing the bodies on the 12th of July, but at the same

 2     time on the second day of the transportations, doesn't matter.  It is

 3     clear that the bodies of nine men were found on the 13th, and those men

 4     were killed on the 13th.  However, even if they had been killed on the

 5     12th of July, there is no way that these men could have been killed by

 6     mysterious Muslims carrying out internal revenge killings within only a

 7     few hundred metres of a huge VRS and MUP presence in Potocari on the 12th

 8     and 13th of July, as seen, for example, on the trial video which is

 9     Exhibit P02047.

10             Next, I want to address an argument raised in the Pandurevic

11     final brief, which at page 210 argues that, I quote:

12             "The indictment alleges also that the crime of persecution was a

13     necessary and foreseeable consequence of the plan to transfer the

14     population."

15             The Defence frankly wonder whether this was a mistake in the

16     indictment's drafting.  The particulars of paragraph 48 of the indictment

17     cannot properly be characterised as individual criminal acts when it

18     actually describes the whole alleged murder and forcible transfer

19     operations.

20             Paragraph 83 of the indictment states that it was foreseeable to

21     the accused, I quote:

22             "... that individual criminal acts, such as individual

23     opportunistic killings and persecutory acts, as described in

24     paragraphs 31 and 48 of this indictment, would be carried out by Serb

25     forces during the joint criminal enterprise to forcibly transfer and

Page 34184

 1     deport the populations of the Srebrenica and Zepa enclaves."

 2             Clearly, in addition to the opportunistic killings, points 48(b),

 3     (c) and (d) are the relevant persecutory acts for consideration as

 4     foreseeable crimes pursuant to JCE 3, 48(b) being the cruel and inhumane

 5     treatment of Bosnian Muslim civilians, including murder and severe

 6     beatings at Potocari and in detention facilities in Bratunac and Zvornik,

 7     48(c) being the terrorising of Bosnian Muslim civilians in Srebrenica and

 8     at Potocari, and 48(d) being the destruction of personal property and

 9     effects belonging to the Bosnian Muslims.  These crimes of persecution

10     were the natural and foreseeable consequences of the forcible removal

11     JCE, irrespective of their nature as crimes against humanity.

12             The "Chapeau" requirements for such crimes are fulfilled by the

13     nature of the attack on Srebrenica as a widespread and systematic attack

14     against the civilian population and because the persecutory acts,

15     themselves, had a sufficient nexus with that attack since they were

16     carried out by members of the same attacking forces and were directed

17     against members of the same population.  Once those elements are proven,

18     the remaining question is whether the actual persecutory acts were

19     foreseeable, for the reasons that I've already explained; namely, the

20     violence and hatred against the Muslims and specifically against the

21     Srebrenica Muslims, they were indeed foreseeable.

22             Finally, I want to reiterate what Mr. Mitchell has already said,

23     that the Muslim men who were taken to the Zvornik area did not lose their

24     status as victims of the forcible transfer operation just because at some

25     point they also became the intended victims of the murder operation.  The

Page 34185

 1     men who were separated in Potocari or captured from the fleeing column

 2     were transported away from the Srebrenica enclave.  The possibility of

 3     opportunistic crimes being committed against these men, when they were

 4     moved through Bratunac and through locations in the Zvornik area, was

 5     foreseeable to the members of the forcible removal JCE, just as were the

 6     crimes committed against Muslims in the crowd at Potocari, such as the

 7     man shot near the White House or the nine men killed near the stream

 8     towards Budak.

 9             Your Honours, I have a very brief further submission concerning

10     reburials, and this is simply to address questions raised in the Nikolic

11     final brief concerning the inclusion of the reburials in the indictment.

12     Again, I'm not going to deal with the factual details or the nature of

13     the accuseds' participation in the operation.  Those are covered in the

14     Prosecution's final brief starting at page 311 as well as in the sections

15     concerning the individual accused.  I will just deal with the arguments

16     raised in the section of the Nikolic brief entitled "The Alleged Reburial

17     Operation has no Purpose," which is at paragraphs 260 to 274.  The

18     conclusion of this section at paragraph 274 states:

19             "For all intents and purposes, the inclusion of the alleged

20     reburial operation into the indictment serves no apparent goal.  The

21     Defence submits that the Trial Chamber must disregard it as either: (a),

22     a component of the alleged general side; (b), reasonably foreseeable

23     consequence of the alleged murder operation; (c), a crime in and of

24     itself; and (d), ex post facto aiding and abetting the alleged murder

25     operation."

Page 34186

 1             The conclusion that a reburial operation is irrelevant is wrong,

 2     and I want to highlight the reasons why the reburial operation is

 3     included in the indictment, since it was a major planned military

 4     undertaking, and it should inform the Trial Chamber's deliberations

 5     concerning the murder JCE.

 6             The indictment at paragraph 32 indeed states that, and I quote:

 7             "The reburial operation was a natural and foreseeable consequence

 8     of the execution and original burial plan conceived by the joint criminal

 9     enterprise."

10             This characterisation reflects the Prosecution's evidence that

11     the reburials were foreseeable to the members of the murder JCE in July

12     1995.  It was foreseeable from the outset of the murder JCE that the

13     initial steps taken to conceal the crimes in July 1995 might not be

14     sufficient because the killings and burials were so extensive and so

15     hastily organised.  That such crimes could not be concealed so easily was

16     borne out by what actually occurred.  The disappearance of thousands of

17     Muslim men from Srebrenica quickly became well known, and the burials of

18     many of the victims were carried out hurriedly and involved civilian as

19     well as military personnel.  The Trial Chamber should, for example,

20     consider the testimony of Witnesses PW-161, PW-170, and PW-104.

21             Because the killings and burials were not well concealed, it was

22     foreseeable that further steps might be needed to hide the crimes.  In

23     any event, this foreseeability is not a necessary element to establish

24     the guilt of the accused under any of the modes of liability charged,

25     since all five accused charged with genocide both joined and contributed

Page 34187

 1     to the JCE in July 1995, before the reburial operation started.  Those

 2     who were involved in the reburial operation, in other words, all five,

 3     other than Borovcanin, further contributed to the crimes by their

 4     involvement in the reburials at a later stage.

 5             As well as taking into account the reburial operation when

 6     considering the liability of the individual accused, the operation is

 7     also hugely significant as an act of concealment, which confirms the

 8     knowledge and intent of the JCE members as participants of a massive

 9     criminal enterprise to murder the Muslim men of Srebrenica.

10             Finally, as the Trial Chamber will hear from Ms. Soljan, the

11     destruction of the Muslim women and children was a component of the

12     genocide, and the reburials clearly were an element which contributed to

13     the inability of the surviving Muslim population to recover from the loss

14     of their men, since afterwards it would be even more difficult to locate,

15     identify, mourn, and come to terms with the fate of their murdered

16     fathers, brothers, husbands, and sons.

17             Those are my submissions, Your Honours.

18             JUDGE AGIUS:  Thank you.

19             Okay, Ms. Soljan.

20             MS. SOLJAN:  Your Honours, Counsel, good afternoon.

21             The Prosecution has proven beyond a reasonable doubt that the

22     five accused, Vinko Pandurevic, Ljubomir Borovcanin, Ljubisa Beara,

23     Vujadin Popovic, and Drago Nikolic, are responsible for genocide

24     committed against the Bosnian Muslim population of Eastern Bosnia, as

25     charged in paragraphs 26 to 33 of the indictment.  It has proven that

Page 34188

 1     with a goal of destroying the Bosnian Muslim population of Eastern

 2     Bosnia, the VRS and RS MUP forces carried out the following genocidal

 3     acts enumerated in Article 4(2), (A) through (D) of the Statute:  (a),

 4     they killed over 7.000 Bosnian Muslim men from Srebrenica; (b), they

 5     caused serious bodily or mental harm to both the male and female members

 6     of the Bosnian Muslim population of Srebrenica and Zepa; (c), they

 7     created conditions contributing to the physical destruction of the

 8     Bosnian Muslim population of Srebrenica and Zepa; and, (d), they

 9     contributed to the failure of the Muslim population of Srebrenica and

10     Zepa to live and reproduce normally.

11             I shall briefly address two issues related to the genocide

12     account.  First, I will address some of the factual issues raised by the

13     Defence concerning the number of Srebrenica victims, more specifically

14     the number of persons killed, as charged in paragraphs 26(a) and

15     paragraphs 27 to 32 of the indictment.  After that, I shall briefly speak

16     about the destruction of the Muslim population of Eastern Bosnia,

17     focusing in particular on the destruction of women and children caused by

18     the separations of the men at Potocari, their subsequent murder, as well

19     as by the forcible transfers from the Srebrenica and Zepa enclaves, as

20     charged in paragraph 26(b) and paragraph 33 of the indictment.

21             With respect to the first issue, Your Honours, the number of

22     Srebrenica victims, the Defence argues that anywhere from 1.500 to 3.000

23     Srebrenica persons died in legitimate combat, as well as a result of

24     land-mines, suicides, or friendly-fires.  You can find references to this

25     in Popovic final brief paragraph 708 and 886; the Beara final brief,

Page 34189

 1     paragraphs 584 and 586; and the Nikolic final brief at paragraph 1493.

 2             The Defence also argues that the figure 3.000 is indicative of

 3     the total number of missing persons from Srebrenica, and that, and I

 4     quote:

 5             "... not in excess of 2.000 to 3.000 victims were killed in

 6     Srebrenica."

 7             This is from the Nikolic final brief at paragraph 1494.

 8     Evidence, however, shows that the Defence figures wildly underestimate

 9     the number of Srebrenica victims.

10             First of all, evidence shows that almost 8.000 persons from

11     Srebrenica are missing.  Based on a rigorous demographic analysis, the

12     minimal number of Srebrenica missing persons was determined to be 7.661.

13     As you will recall from Mr. Brunborg's 2000 report on the number of

14     missing and dead from Srebrenica, and this is Exhibit P571, this is a

15     conservative number.  In some cases, entire families went missing,

16     leaving no surviving family member to register the information with the

17     ICRC.  This minimum demographic figure was revised to 7.826 Srebrenica

18     missing persons in January 2008, when the list was cross-referenced with

19     the then current ICMP DNA matching data.  This would have been Exhibit

20     P3002, the October 2007 ICM -- ICMP update, and is also reflected in

21     Exhibit P3159, which was the then report on the ICMP's DNA

22     identifications.

23             Based on ICMP's recent 10 April 2009 Srebrenica tracking chart,

24     Exhibit P4500, the number of persons reported to ICMP as missing from

25     Srebrenica, and as represented by donor relative blood samples, is 7.789,

Page 34190

 1     a figure very close to demographic accounting, but obtained independently

 2     of the ICRC.

 3             I note that the Nikolic Defence, at paragraph 1469 of its brief,

 4     incorrectly states that, I quote:

 5             "The 2009 ICMP update is based on information provided by the

 6     family of the missing person to the ICRC."

 7             Dr. Parsons, in fact, testified that information regarding

 8     individuals reported missing regarding any event in Bosnia came directly

 9     to the ICMP from the family members.  So to quote:

10             "To associate it with Srebrenica, that would have been

11     information that the family provided to us."

12             Reference page 20873 of the transcript.

13             Dr. Parsons also explained that ICMP's expert interview teams

14     meet with families, obtain genetic blood samples, properly record all

15     relevant information, including the date and place of disappearance of

16     missing persons, which are then nominally set as 11 July 1995 and as

17     either Potocari or forest, which are then placed on the match report and

18     update for purposes of keeping track of the ICMP Srebrenica cases in an

19     internally-consistent manner.  The reference to this is at 20875 to

20     20876.  In short, the ICMP information is based on information and blood

21     samples provided by family members to the ICMP, not the ICRC.

22             Now, of the almost 8.000 Srebrenica persons reported missing, we

23     have evidence that approximately 2.000 of those persons were separated at

24     Potocari.  We also have evidence that at least 5.000 of them were

25     captured or surrendered from the column along the Bratunac-Konjevic Polje

Page 34191

 1     road, and, finally, that at least 648 of these individuals identified

 2     from surface remains were killed along the column route.  They were not

 3     only in combat.

 4             Let's take a closer look at these figures.

 5             With respect to the evidence that shows approximately 2.000 men

 6     separated at Potocari, first of all, we have the demographic evidence

 7     which shows that 2.070 individuals were reported missing from Potocari in

 8     the month of July 1995.  We see this at Exhibit P2413, which is the

 9     report from 2003.

10             In our final brief at paragraph 496, the dates of disappearance

11     from men reported missing from Potocari were narrowed to just 10 to 13

12     July, and the number was still 2.003.

13              Currently, 1443 individuals reported by the ICRC as missing from

14     Potocari had been identified through DNA.  This can be verified by

15     comparing the most recent ICMP update, Exhibit P4494 with the previously

16     listed exhibit, P3159A, which is the 2007 progress report on ICMP's

17     identifications, which also contains the date on ICRC dates and place of

18     disappearance.

19             JUDGE AGIUS:  For the purposes of the record, since the number of

20     individuals did not show up in the transcript in line 24 --

21             MS. SOLJAN:  My apologies, Your Honour.

22             JUDGE AGIUS:  No, it's not your fault.

23             MS. SOLJAN:  The number --

24             JUDGE AGIUS:  What was the number of individuals --

25             MS. SOLJAN:  Currently identified is 1.443.

Page 34192

 1             JUDGE AGIUS:  Okay, thank you.

 2             MS. SOLJAN:  The vast majority of these individuals, Your

 3     Honours, can be found in the primary --

 4             JUDGE AGIUS:  One moment.  For the record, the transcript says

 5     now 1.943.  I heard you say 1.443.

 6             MS. SOLJAN:  1.443, yes.

 7             JUDGE AGIUS:  Okay, thank you.

 8             MS. SOLJAN:  That would be 1.443.

 9             The vast majority of these individuals can be found in the

10     primary and secondary graves related to all the major executions and

11     execution sites, including Kravica, Orahovac, Petkovci Dam, Kozluk, and

12     Branjevo Farm, as well as Pilica.  It can also be found in the primary

13     undisturbed graves, such as Bisina, Nova Kasaba, Konjevic Polje, and

14     others.  In addition, some of these individuals reported as having gone

15     missing from Potocari have been identified from surface remains.  As an

16     example, 12 of the 14 individuals identified via DNA from the Kozluk

17     surface remains, which we can find in Confidential Annex D to the

18     Dusan Janc report, this is Exhibit number P4491, they were found -- and

19     the most reasonable inference is that they were separated at Potocari.

20     This specifically contradicts the Defence arguments by the Beara Defence

21     at paragraph 635, as well as the Popovic Defence argument as

22     paragraph 755, that the Kozluk surface remains are legitimate combat

23     casualties of a battle taking place in the area.

24             Second, of almost 8.000 persons reported missing, at least 5.000

25     were captured along the Bratunac-Konjevic Polje road.  While the evidence

Page 34193

 1     concerning the movement of the column, the surrenders, the captures, is

 2     dealt with in greater detail in the Prosecution final brief at

 3     paragraphs 518 through 544, I'd like to make just a few basic points in

 4     order to respond to Defence arguments.  Evidence has shown that

 5     approximately 15.000 Muslim civilians and ABiH 28th Division soldiers

 6     gathered near the village of Jaglici and Susnjari on the eve of 11 July

 7     and set out westwards in a column towards the Muslim-held territory.

 8     Now, I'm emphasising the word "westward" in order to address an entirely

 9     unsupported argument at paragraph 613 of the Beara Defence final brief,

10     namely, that the column -- and I quote:

11             "... would have very likely taken soldiers through the area of

12     Ravnice, where the column may have been attacked or ambushed."

13             Now, this argument is a part of Beara's broader argument, that

14     bodies found in the Glogova, Ravnice, and Zeleni Jadar graves got there

15     as a result of legitimate combat.  There is no evidence whatsoever in the

16     record that the column ever went in such a convoluted north-eastern

17     direction in order to reach the Konjevic Polje intersection which is

18     squarely to the west on their way north-east to Tuzla.  We only need to

19     take a look at the map showing the movement of the column, which is

20     Exhibit P2110, in order to see that the column went from Susnjari and

21     Jaglici through the so-called Pobudje area, south of Bratunac, well south

22     of Glogova and Ravnice graves, and moving westward in the hills south of

23     the Bratunac and Konjevic Polje road towards the Konjevic Polje

24     intersection.  For further reference, you can also see Exhibit P04524,

25     which was the map of connections from primary to secondary graves based

Page 34194

 1     on DNA and forensic evidence.

 2             Evidence shows that as many as 6.000 men and boys from the column

 3     were captured or surrendered along the road.  An intercepted conversation

 4     at 530 hours -- 1730 hours on July 13th, which is Exhibit P1143A, shows

 5     that the Bosnian Serbs had captured approximately 6.000 Muslim men along

 6     the Bratunac-Konjevic Polje road that day.  It tells us that

 7     approximately 1.500 to 2.000 men were detained at three major sites;

 8     Nova Kasaba, Konjevic Polje, Sandici Meadow.  And we know that survivors,

 9     such as PW-116, PW-113, PW-111, who were captured and placed at Nova

10     Kasaba or Sandici Meadow corroborate those numbers.  Demographic evidence

11     shows that at least 4.600 individuals were reported as missing from the

12     area along the route of the column between Jaglici and Susnjari and

13     Konjevic Polje.  Roughly, this number includes 1.085 men reported as

14     missing from the forest, 2.338 men reported as missing from

15     Konjevic Polje, Kravica, or Kamenica, and approximately 1.200 persons

16     reported as missing from smaller locations in the Pobudje area along the

17     route of the column prior to the Konjevic Polje crossing.  We can see

18     this at exhibits P2413, the demographic report specifically at ERN

19     0501-6201, as well as Exhibit P3159A, the 2007 progress report.

20             Now, what do we know about the Muslim men who were captured or

21     surrendered from the forest and various locations?  We will see that the

22     vast majority of these individuals have been identified in the primary

23     and secondary mass graves related to all the major executions and

24     execution sites, including Kravica, Orahovac, Petkovci Dam, Kozluk,

25     Branjevo Farm, and Pilica, as well as in primary undisturbed graves such

Page 34195

 1     as Trnovo, Bisina, Nova Kasaba, Konjevic Polje.

 2             Now, we know that in addition to the approximately 2.000 men who

 3     were separated in Potocari, as well as at least 5.000 men who surrendered

 4     or were captured along the Bratunac-Konjevic Polje road, there are 648

 5     individuals whose remains have been identified at the surface, primarily

 6     along the route of the column.  Before discussing these individuals,

 7     let's just briefly look at the DNA evidence concerning the numbers of

 8     individuals in mass graves.

 9             If I may, Your Honours, could I take the break now and we'll

10     continue immediately thereafter?

11             JUDGE AGIUS:  Thank you, I think that's perfect.

12             We'll resume in 25 minutes' time.  Thank you.

13                           --- Recess taken at 12.29 p.m.

14                           --- On resuming at 12.58 p.m.

15             JUDGE AGIUS:  Yes, Ms. Soljan.

16             MS. SOLJAN:  Thank you, Your Honours.

17             As of 31 January, 6.006 individuals from Srebrenica have been

18     identified via DNA analysis by the ICMP.  The exhibit for this is P4494.

19     Of these people, 5.358 have been identified from mass graves and 648 from

20     surface remains.  We know that the total figure is a conservative one,

21     since not all human remains have been exhumed, examined, matched, or even

22     located.  The vast majority of the 5.358 identified from graves have been

23     identified via DNA from primary and secondary mass graves connected to

24     the major execution sites of Kozluk, Branjevo Farm, Pilica Dom, Petkovci

25     Dam, Orahovac, as well as Kravica and surroundings.

Page 34196

 1             With respect to the Kozluk sites, primary and secondary graves,

 2     currently a total of 1.040 victims have been identified via DNA analysis

 3     from the graves related to the Kozluk sites.  This is without counting

 4     the 14 victims identified from the Kozluk surface remains of whom 12 were

 5     reported as missing from Potocari.  Additionally, an anthropological

 6     minimal number of individuals, MNI, estimate of 400 persons, has come out

 7     as a result of last year's exhumation of the Cancari 4 and the Cancari 6

 8     secondary graves, which should be confirmed by future DNA

 9     identifications.  And, finally, we should keep in mind that we do not yet

10     have the DNA results or MNI estimates for the Cancari 1 grave related to

11     the Kozluk exhumations, to the Kozluk execution site, which is Cancari 1

12     is scheduled for exhumation in the course of this year.

13             With respect to the Branjevo Farm, Pilica Dom-related primary and

14     secondary graves, currently there is a total of 960 victims who have been

15     identified via DNA from related graves.  In addition, there is an

16     anthropological MNI, minimum number of individuals, estimate of 84 people

17     for Cancari 8 secondary grave, which was exhumed last and which Mr. Janc

18     has testified is related to Branjevo Farm execution.

19             From Petkovci Dam, currently 805 victims have been identified via

20     DNA analysis from graves related to this execution site.  With respect to

21     Orahovac, currently 807 persons have been identified from the graves

22     related to this execution site.  Finally, from Kravica, currently 1.319

23     [realtime transcript read in error "1.309"] victims have been identified

24     via DNA analysis from the graves which are related primarily to the

25     Kravica site.

Page 34197

 1             As discussed in the Prosecution final brief at paragraph 1087, as

 2     well as in the Janc corrigendum, Exhibit P4492, and in his testimony at

 3     references 33518 to 33520, 33527, and from 33638, approximately over 100

 4     individuals buried in the Kravica-related graves are not from Kravica.

 5     While it may never be possible to identify the precise number of those

 6     individuals who are not from Kravica, Janc's explanation in testimony,

 7     cited above, as well as the testimony of the two Kravica survivors, that

 8     the respective rooms they were placed in in the Kravica warehouse were

 9     filled to the brim - this would be Witness PW-156 at transcripts T-094 to

10     T-0 -- 7095, and PW-111 at transcript reference 6690 - taken together

11     with Exhibit P4529, which is the declaration of Investigator Blasczyk

12     regarding the Kravica warehouse measurements, show that approximately 500

13     men could fill up each of these two rooms in the warehouse.  Therefore,

14     it is the Prosecution's position, also cited at paragraph 1987 of its

15     final brief, that a minimum of 1.000 individuals were brought to the

16     Kravica warehouse prior to the executions and that they were executed

17     there.

18             In addition to the current number of 1319 individuals who have

19     been identified, there will likely be more identifications related to the

20     Kravica execution site coming from last year's exhumations of the

21     Zeleni Jadar 1A and Zeleni Jadar 1B graves.  Further references --

22     specific references to the related graves can be found in Dusan Janc's

23     report, Annex A.

24             JUDGE PROST:  Sorry to interrupt you, Ms. Soljan, but at one

25     point at page 75, line 1, it's 1.309, and you just mentioned 1319.

Page 34198

 1             MS. SOLJAN:  Thank you, Your Honour.  Indeed, it should be

 2     1.319 individuals.

 3             JUDGE PROST:  Thank you.

 4             MS. SOLJAN:  Thank you, Your Honour.

 5             Now, in addition to these almost 5.000 individuals, and the exact

 6     number is 4.931 individuals coming from these graves, and I just want to

 7     point out to you the exact location in Annex A where the listing of all

 8     these graves is located, this would be at ERN XO19-4271 to XO19-4272 of

 9     Annex A of Mr. Janc's report, which is P4490.

10             Now, in addition to this total of 4.931 individuals found in

11     these graves, from these mass executions, we also have an additional

12     4.013 individuals found in graves which were either primary undisturbed

13     graves, mass graves which were previously known to the ICTY, such as

14     Cerska -- sorry, this would be 413 individuals who are found, then, in

15     undisturbed mass graves previously known to the ICTY, such as Cerska,

16     Nova Kasaba 96 and 99, Sandici, Konjevic Polje, and Trnovo, as well as

17     smaller individual and other graves, which include Bisina, Motovska Kosa,

18     Brezjak, Potocari, and others.  All of which are listed in Dusan Janc's

19     report.

20             Your Honours, taking into account the fact that there are

21     currently 5.358 men who have been identified from graves, mass graves,

22     that there is an estimated minimum number of individuals of approximately

23     500 persons which were recovered last year from the Cancari -- from the

24     three Cancari graves, Cancari 4, 6, and 8, taking into account that there

25     is, as of yet, an unknown number of other individuals who are recovered

Page 34199

 1     last year from the Zeleni Jadar 1A and 1B graves, as well as with the

 2     knowledge that there are new exhumations taking place this year,

 3     including that of the Cancari 1 secondary mass grave, as well as that

 4     there are continuing identifications still arriving from previously

 5     exhumed graves, there is no question that at least 6.000 but most likely

 6     more Srebrenica individuals who are either separated at Potocari or who

 7     surrendered and were captured from the forest, were buried inside mass

 8     graves as well as smaller or individual graves.

 9             With respect to the surface remains, Your Honours, we know that

10     since 1996 957 cases of surface remains were collected, of which 648 have

11     been identified via DNA identification.  We know from Annex B of

12     Mr. Janc's report that the vast majority of these surface remains

13     identified individuals, and the precise number is 538, were located in

14     the Pobudje area, the area just before the Konjevic Polje crossing.

15     While with respect to many of the surface remains identifications, we may

16     never know what happened, at least with respect to two locations, Nezuk

17     and Snagovo, we have evidence that executions took place along the column

18     route.  This means that not all surface remains represent battle

19     casualties, but, on the contrary, that they represent victims of

20     executions.

21             In addition to the testimony we have from the Snagovo survivor,

22     Witness PW-106, about the execution which took place at Snagovo, we also

23     have ICMP's identification of one of the individuals mentioned by PW-106,

24     and we can find his name at Exhibit P4491, the confidential annex to the

25     Janc report, under case ID SNA-16, at ERN page R065-7769.  With respect

Page 34200

 1     to the Nezuk execution, in addition to the testimony of the two

 2     survivors, the surface remains of one of the five individuals mentioned

 3     by the survivors has been located as a surface remain at Tisova Kosa.  We

 4     can find information on him under case ID TIS-1 at Exhibit P4491, ERN

 5     R065-7766.

 6             We also have a few combat reports which show that there were

 7     other instances of executions similar to those taking place at Nezuk and

 8     Snagovo using words such as "liquidation," "neutralising," to describe

 9     the killing of captured Bosnian Muslim men from the Srebrenica enclave by

10     VRS and MUP personnel through July and August.  We have seen, for

11     example, the 14 July 1995 regular combat report by the 5th Engineering

12     Battalion deputy commander, Mila Simanic - this Exhibit P2672, in which

13     he states that:

14             "About 1.000 to 1.500 enemy civilians and soldiers were arrested

15     and killed."

16             When asked about why he had exclaimed, "God forbid," upon being

17     presented with this combat report during his previous interview with the

18     OTP, Simanic testified that in his view, "this --" I quote "...

19     constitutes a crime."  This is at transcript reference T-14641.

20             We also have seen the 19 July 1995 Zvornik Public Security Centre

21     report to the MUP office of the minister, which states, and I quote:

22             "Eight Muslim soldiers were neutralised.  We learned from them

23     that some 200 Muslims, armed with automatic and hunting rifles, are

24     located in a sector below the old road near Snagovo."

25             This is Exhibit P4486.  It is obvious from the wording of this

Page 34201

 1     report that the men must first have been captured, then interrogated, and

 2     finally euphemistically neutralised.

 3             Finally, let us recall the Rogatica Brigade's regular combat

 4     report of 8 August 1995, in which the Rogatica Brigade Commander

 5     Rajko Kusic, reports that five balijas from Zepa were liquidated.  This

 6     is at Exhibit P209.  This report also stated, and I quote:

 7             "The same day, in the vicinity of Luka, an unarmed Ustasha, born

 8     in Srebrenica, 24 years old, was liquidated.  Before he died, he said

 9     that he fell behind the others and he was looking for food."

10             This man was alive when he was captured, and he was murdered with

11     the full knowledge and authorisation of Rajko Kusic, the Rogatica Brigade

12     commander.

13             In addition to the evidence of these types of illegal killings,

14     which are actually reflected in writing, we may never know how many

15     individuals walking in the column may also have been killed by

16     Ljubomir Borovcanin's anti-aircraft guns as they were being called down

17     to surrender.

18             Now, there is no evidence, as the Defence argues, that between

19     1.500 to 3.000 individuals died as a result of legitimate combat.  This

20     is argued in Popovic brief at paragraph 708, in the Beara final brief at

21     583 to 586.  There is also no evidence that that proximity of

22     Srebrenica-related graves to the column route means legitimate combat

23     casualties were buried there.  This is from Beara's final brief at paras

24     634 to 635.  There is no evidence of combat taking place in the rear of

25     the Zvornik Brigade zone of responsibility at the time of the Branjevo

Page 34202

 1     Farm, the Kozluk, the Petkovci Dam and the Orahovac executions.  There is

 2     also no evidence of combat taking place either in the area of Glogova or

 3     Ravnice, let alone Zeleni Jadar, Budak, Bljeceva, there is, however,

 4     plenty of evidence described in detail in section 3(e) of the Prosecution

 5     final brief concerning the separation of numerous men at Potocari, about

 6     their surrender or capture from the column on the 13th of July, about

 7     their placement on buses or trucks, about their transportation to various

 8     holding areas in Bratunac, in Kravica, in the Zvornik area of

 9     responsibility, Zvornik Brigade area of responsibility, and, finally,

10     plenty of evidence about their ultimate executions.

11             Forensic evidence, survivor testimony, as well as intercept and

12     other evidence show that individuals found in graves in the Zvornik

13     Brigade area of responsibility, as well as in other areas such as Trnovo

14     and Bisina, were killed at those sites, not elsewhere.  Evidence also

15     shows that machinery for the excavation of the Orahovac, Petkovci dam,

16     Kozluk and Branjevo farm mass graves, was mobilised to be there

17     contemporaneously with the mass execution or immediately thereafter.

18     Again, this evidence can be found at section 3(e) of the Prosecution

19     final brief, as well as at paragraphs 1080 to 1104 of the forensic

20     connection between graves section, and paragraphs 1155 to 1174 on

21     forensic DNA and demographic evidence.

22             Finally, to suggest that the Bosnian Serb Army would exhume

23     legitimate battle casualties two months after combat in the dead of night

24     and relocate these bodies to isolated, well-hidden areas is implausible,

25     to say the least.

Page 34203

 1             Just to address a couple of specific points made in the Defence

 2     final briefs, there is no support for the conclusion in the Beara Defence

 3     brief at paragraphs 614 to 616, as well as 636, that individuals found in

 4     the Glogova and Zeleni Jadar graves must have died in combat, given

 5     findings of shrapnel and grenades.  Ample forensic evidence has been

 6     presenting [sic], Your Honours, including the Hadley report,

 7     Exhibit P4525, the US NCIS Kravica report, Exhibit P678, the Baraybar

 8     report on Zeleni Jadar, P2576, the testimonies of Jean-Rene Ruez

 9     reference page 1468 and 1469 to 1471, as well as Manning at 18978 to

10     18983.  We also have the testimony of survivors and those present in the

11     area during the Kravica warehouse killings that grenades were being

12     lobbed into the Kravica warehouse during the execution.  We have seen

13     photos and a video of grenade handles and fly-off levers found outside

14     the Kravica warehouse.  The reference to that video is Exhibit P1575.

15     Therefore, the individuals located in Kravica-related graves, as a matter

16     of fact, would show signs of shrapnel injury.

17             There is no evidence concerning the fact that bodies of victims

18     from 1992 and 1993 are buried in Srebrenica-related graves, as the

19     Popovic Defence claims at paragraph 716.  The Popovic Defence cites the

20     testimony of Witness PW-161 to argue that bodies of Muslim men who died

21     in 1992 are also buried in the Glogova grave.  However, this is a

22     misstatement of Witness PW-161's evidence.  While PW-161 acknowledged

23     that he was involved in the burial of 100 to 150 Muslim men in 1992, he

24     clearly stated that these bodies were buried some 10 to 12 kilometres

25     from Glogova.  The reference to for this is 9398 at line 14.  He further

Page 34204

 1     stated, and I quote:

 2             "I went to the Glogova locality with Mr. Ruez, but I never told

 3     him that in 1992 Muslim bodies had been buried in Glogova, because after

 4     Glogova I took Mr. Ruez to the locality where the 100 to 150 Muslim

 5     bodies had been buried in 1992."

 6             This is at 9399, lines 6 to 10.

 7             There is also no evidence that bodies from 1992 and 1993 were

 8     counted as part of the ICMP's DNA identification count, as the Popovic

 9     Defence claims at paragraph 713.

10             The Popovic Defence refers specifically to the Bljeceva 1 grave,

11     stating that, I quote:

12             "Forty-six persons were identified, of which six remains were not

13     Srebrenica-related."

14             Noting that these remains, these six remains, were from 1992.

15             Similarly, the Nikolic brief, at paragraph 1451, criticises the

16     figure -- the overall figure of the 5.358 individuals identified in

17     graves because, among other reasons, and I quote:

18             "The Bljeceva grave also contains remains of approximately 50

19     individuals who died in 1992-related events ."

20             This makes it sound as though Mr. Janc counted these six or 50

21     bodies of individuals who died in 1992, when he was counting

22     Srebrenica-related ICMP DNA identification.  The record is clear,

23     however, Your Honours, that Mr. Janc, in his count, did not count victims

24     unrelated to the fall of Srebrenica.  We see this at transcript 33509,

25     33513, as well as in his exhibit, the report -- his report, the

Page 34205

 1     Exhibit P4490.  In fact, Mr. Janc was at pains to explain why he did not

 2     count the nine unique unnamed DNA profiles for Bljeceva, as well as one

 3     unique unnamed DNA profile from Lipje [phoen] precisely because of the

 4     possibility -- or, rather, the impossibility of connecting them to

 5     Srebrenica-related information for the time being.  This can be found at

 6     transcript reference 33508 to 33509.

 7             The 46 individuals currently identified as Srebrenica missing

 8     from the Bljeceva 1 grave are individuals who report to the ICMP as

 9     missing following the fall of Srebrenica in July 1995.  These are the

10     only individuals counted by Mr. Janc for the Bljeceva grave.

11             Finally, at paragraph 1451 of their brief, the Nikolic Defence

12     also argues that this current number of 5.358 individuals identified from

13     Srebrenica-related graves is incorrect because: (a), an exact number of

14     individuals connected to the Kravica execution site cannot be provided

15     and, (b), and I'm paraphrasing, because there is evidence that 12

16     individuals found in the Cerska grave were alive after July 13, 1995, the

17     date of the execution as alleged in the indictment, and were reported as

18     being seen as late as 17 July 1995.  Your Honours, neither of these

19     reasons affects the actual figure or the number of individuals

20     affected -- identified from each of the exhumed graves.

21             With respect to Kravica, it is clear that 1.319 individuals have

22     been identified, regardless of whether they were executed at Kravica, the

23     Vuk Karadzic school, in Grave L or elsewhere.  Similarly, the fact that

24     individuals found in the Cerska grave may have been reported as being

25     captured or at least as reported as last being seen on 16 or 17 July

Page 34206

 1     changes nothing about the number of bodies identified from this grave.

 2     In fact, the ICMP data actually under-reports the number of individuals

 3     for this grave, rendering the figure 5358 a conservative one; namely, in

 4     this instance we know from Dr. Haglund's report on the Cerska exhumation,

 5     Exhibit P611, that because it is an undisturbed primary grave, that there

 6     are 150 complete bodies which were exhumed from this grave.  At this

 7     time, we have only 142 ICMP DNA identifications coming from this grave.

 8             In conclusion on this topic, Your Honours, evidence shows that

 9     thousands of separated, captured, surrendered Bosnian Muslim men and boys

10     from Srebrenica were systematically executed in July 1995, that they were

11     buried in mass graves, in many cases reburied, but some of them also left

12     out, becoming surface remains.  The Prosecution submits that a minimum of

13     5.358 men identified from graves, but actually closer to 6.000 men when

14     counting the already known 500 estimated minimum number of individuals

15     from last year's exhumations, are all victims of executions.

16             The Prosecution also submits that not all of the 648 men

17     identified from the surface were killed in legitimate combat, by suicide,

18     land-mine, or by friendly-fire.  This, for the time being, leaves us with

19     approximately a thousand to 1500 individuals we currently have no

20     identification information on.  Some of them might not be discovered

21     because they are lying in graves, without survivors, or because their

22     bones are shattered in such small pieces inside secondary graves that no

23     DNA can be obtained.  However, Your Honours, new exhumations, new DNA

24     identifications, continue to take place, and as they continue to come to

25     light, the tragic story of murder of more than 7.000 Muslim men and boys

Page 34207

 1     will only serve to underline the gravity of the crimes committed against

 2     them and against the Bosnian Muslim population of Eastern Bosnia.

 3             Turning very briefly to the second issue, Your Honours, that of

 4     the destruction of women and children, the Popovic Defence, at

 5     paragraph 643 of its final brief, states that, I quote:

 6             "The Prosecution did not prove that the movement of the Muslim

 7     population from Srebrenica to the BiH-held territory disabled their

 8     normal life and reproduction.  Namely, there is no normal living at the

 9     time of war."

10             Similarly, at paragraph 644, the Popovic Defence, and I quote:

11             "... rejects charges for genocide toward women and children.

12     Events occurred in Potocari after the fall of Srebrenica toward women and

13     children did not have significant impact to their capability to reproduce

14     and did not at all jeopardise the survival of the protected group."

15             Your Honours, the Prosecution has dealt in detail with the issue

16     of the destruction of women and children in its final brief at

17     paragraphs 1105 through 1128 as well as with the legal aspects of the

18     charge of genocide at paragraphs 2806 to 2834 and will therefore not

19     repeat the discussion here.  However, I will briefly make the following

20     point:  We have read and heard evidence concerning impact of the forcible

21     transfer on the population of Srebrenica and Zepa, as well as the

22     separation and murders of the men, which caused incalculable suffering

23     and permanent damage to the tens of thousands of living survivors who

24     have been consigned to a lifetime of physical/mental suffering.  The

25     women and children have been traumatised by the events of July 1995.

Page 34208

 1     There has been a breakdown of family life, since thousands of men have

 2     disappeared.  There exists the possibility that many of the survivors may

 3     never know who happened to the loved ones who went missing.  Many have

 4     spoken of the pre-war life that was reasonably prosperous, relatively

 5     care-free, under the guidance, protection, and leadership of their

 6     husbands and fathers.  Now that life has changed, and they have been

 7     living in abject poverty in many cases, forced to take on

 8     responsibilities not normally taken on by the female members of the

 9     Bosnian Muslim population of Eastern Bosnia.  What once were vibrant

10     communities are no more.

11             The accused, originally from the Eastern Bosnia area or employed

12     there, knew well about the importance of men in the traditional

13     patriarchal societal structure of Bosnian Muslims of Eastern Bosnia.  We

14     talk about this at paragraph 1126 and 1127 of the final brief.  Their

15     crimes were deliberately inflicted, resulting in the death of thousands

16     of Muslim men and boys.  We have evidence from countless witnesses who

17     have lost multiple male members -- male members of their families, some

18     of whom have lost not only their loved ones, but also realise that their

19     family name will disappear, since no men remain to carry it forward.

20             Your Honours, the words that truly bring home the enormity of the

21     tragedy, the abnormality of life, the destruction experienced by those

22     who lost their family members and their old way of life, was cited to by

23     Chief Prosecutor Carla Del Ponte at the opening of this case at lines

24     377 -- or pages 377 to 378.  They are the words of Witness PW-121, a

25     woman who last saw her husband and older son as they joined other men to

Page 34209

 1     head off into the woods as Srebrenica fell and whose youngest son, barely

 2     14 years old, had been violently torn from her in Potocari.  At the time

 3     this witness testified, she did not know about the fate of her husband

 4     and sons, and when asked what she thought may have happened to them, she

 5     responded in an anguished cry.  I will not take up the Court's time today

 6     with a video-clip of her testimony, though if you would like to read it,

 7     it is at Exhibit number P2266, transcript pages 5761, especially lines 15

 8     to 22.  This woman was a classic example of somebody suffering from the

 9     so-called "Srebrenica syndrome," living a life on hold, waiting,

10     uncertain about the fate of her loved ones, hoping against hope that they

11     may be alive, unable to move on with her life until finding out for sure,

12     a classic example of destruction, of failure to live normally, of serious

13     mental harm caused to a Srebrenica woman.

14             Could we go into private session for a moment, please, Your

15     Honours?

16             JUDGE AGIUS:  Yes, let's do that.  Let's go into private session

17     for a short while, please.

18                            [Private session]

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 34210

 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                       [Open session]

14             JUDGE KWON:  I take it, Ms. Soljan, we didn't hear that witness.

15             MS. SOLJAN:  Your Honour, she was a 92 bis witness, and we have

16     her testimony.  This is Exhibit P2266.

17             JUDGE KWON:  Thank you.

18             MS. SOLJAN:  2226.

19             And to conclude, Your Honours, while it may be true that as the

20     Popovic Defence says, there is no normal living at the time of war, the

21     point here is that since July 1995, there has been no normal living for

22     the tens of thousands of survivors of Srebrenica and Zepa.  The story of

23     Witness PW-121 is just one of many thousands of tragic stories we've

24     heard from those who have survived the horror of separations, the

25     forcible transfers, the loss of loved ones, of property, into small but

Page 34211

 1     now tragically well-known enclaves of Eastern Bosnia.  Thanks to the

 2     advent of DNA matching, some women and children of Srebrenica and Zepa

 3     have finally, over time, begun learning about the fates of their missing

 4     men after years of not knowing.  However, many tragically still live

 5     without knowing, and some perhaps will never know and will never be able

 6     to move on and lead a normal life.

 7             This concludes my submission, Your Honours.

 8             JUDGE AGIUS:  Thank you, Ms. Soljan.

 9             Now, Mr. McCloskey, I think you're the one left, and we also have

10     10 minutes left.  Do you want to start now, or shall we continue

11     tomorrow?

12             MR. McCLOSKEY:  Mr. President, I would greatly appreciate if we

13     could start tomorrow, but I can guarantee you I will be finished by the

14     second period.  I don't intend to take more than two hours, perhaps less,

15     though it's hard to say.  And I'm also ready to answer questions or

16     receive any homework that you might have.

17             JUDGE AGIUS:  Okay, all right.

18             So, Mr. Zivanovic, I suppose you will go first after the

19     Prosecution.

20             MR. ZIVANOVIC:  Yes, Your Honour, that's correct.

21             JUDGE AGIUS:  You are put on notice that you will be expected to

22     start tomorrow.

23                           [Trial Chamber confers]

24             JUDGE AGIUS:  Anyway, you are put on notice you may have to start

25     tomorrow.

Page 34212

 1             MR. ZIVANOVIC:  Yes, Your Honour.

 2             JUDGE AGIUS:  Okay, thank you.

 3             We stand adjourned until tomorrow morning at 9.00.

 4                           --- Whereupon the hearing adjourned at 1.36 p.m.,

 5                           to be reconvened on Friday, the 4th day of

 6                           September, 2009, at 9.00 a.m.