1 Friday, 4 September 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.03 a.m.
5 JUDGE AGIUS: So good morning.
6 Mr. Registrar, could you call the case, please.
7 THE REGISTRAR: Thank you, Your Honour.
8 Good morning, Your Honours. Good morning to everyone in and
9 around the courtroom.
10 This is case number IT-05-88-T, the Prosecutor versus Popovic
11 et al. Thank you.
12 JUDGE AGIUS: Thank you.
13 All the accused are here. The Prosecution, I only notice the
14 presence of Mr. McCloskey for the time being. And Defence teams, I think
15 the situation unchanged, everyone is here, like yesterday.
16 You, the Prosecution, has already taken six hours and fifty
17 minutes, just for your information. I'm sure you know that.
18 So let's start, unless you have any preliminaries, but I don't
19 think so.
20 MR. McCLOSKEY: Good morning, Mr. President. Good morning, Your
21 Honours, and everyone.
22 I want to begin in what will be a relatively brief presentation
23 this morning, but I want to begin with some comments about the Borovcanin
24 case, as per the directions of the Court.
25 First, on their brief, I read it and found it to be detailed and
1 thorough, for the most part articulately written, but fundamentally
2 flawed. It was full of unreasonable conclusions, misstatements, and
3 mis-analyses of the Prosecution's case. We absolutely stand by, as we
4 always have, the legal proposition, if there are two reasonable
5 interpretations of circumstantial evidence, one in favour of the Defence
6 and one in favour of the Prosecution, the Court must go with the version
7 in favour of the Defence, but when you look at this brief, you really
8 need to examine carefully their analysis and look at their sources
9 because they're not reasonable. They're articulate, they're intelligent,
10 but they're not reasonable. I can't go through all of them. I'll go
11 through a few. And there are some fundamental flaws in the way they're
12 coming at this.
13 One example. They criticise the Prosecution for concluding, in
14 the opening statement, that -- or, excuse me, in the trial brief, that
15 Borovcanin was in Potocari on the early afternoon of the 13th, and
16 whether 3.00 p.m.
17 this is what they say on that point: On page 60, paragraph 90. Now, I
18 got a corrigendum apparently last night at 10.30 that Ms. Stewart just
19 put in front of me, so I'm hoping this isn't in their brief anymore, but
20 this is what they said:
21 "The Prosecution erroneously alleges in its pre-trial brief that
22 this visit, the visit to Potocari, was in the early afternoon of 13 July,
23 citing the Petrovic video images as its source. This may seem like a
24 minor factual error, but it would be naive not to view this as part of a
25 pattern of minor misstatements designed cumulatively to create an
1 entirely false impression."
2 The Prosecution is deliberately twisting facts to the Trial
3 Chamber to create a false impression for you.
4 Now, this kind of thing gets said. I usually call it false
5 exuberance or over-exuberance, excuse me, but it's a theme throughout.
6 They give an example in my opening statement; twist things, say something
7 I never meant to say, and tell you it's part of this pattern.
8 Another example of this I need to respond to is that in
9 paragraph 163, they tell you that we withdrew two Sekovici witnesses, and
10 they call into question our motives for this and suggest that our claims
11 regarding why we did this are specious. And they go on to say this:
12 "The Prosecution's deliberate strategy of not calling direct
13 eye-witnesses should not be lightly excused. The question is: Why would
14 the Prosecution do this? What tactical advantage do they hope to gain?
15 What aspect of their testimony might prove inconvenient or exculpatory so
16 as not to out-weigh the potential incriminatory value of the testimony?
17 Is it safe to draw inferences based on the circumstantial evidence
18 knowing the Prosecution deliberately chose not to present eye-witness
20 Paragraph 164:
21 "Please see our filings on this matter filed 23 January 2009 and
22 16 February 2009
23 These witnesses had become under the authority of the Court, the
24 state court. They had stood on their right to remain silent. First they
25 were indicted, then they were acquitted. Mr. Thayer, myself,
1 Mr. Vanderpuye, are licensed to practice law in the United States under
2 the rules of our states in the District of Columbia. We are not, under
3 those rules, allowed to use the force of process to call someone like
4 this that is facing potential loss of their freedoms, and we stated as
5 much; yet we're having this thrown back in your face and they want you to
6 imply that it's part of this continuing theme of theirs. I hope we don't
7 see it in the closing argument. It's unreasonable. We can handle it,
8 but it shows their reasoning isn't -- is over the top, and we see that.
9 Look at the way they've analysed the two Kravica warehouse witnesses.
10 Completely off the mark, completely unfairly.
11 And it's not just the Prosecution, as I said. They state three
12 times in their brief at paragraph 89, 101 and 186, something along the
13 lines that when Borovcanin is in Potocari after 3.30 p.m., the evacuation
14 was essentially or effectively over. They say that three times in those
15 three different paragraphs. And if we look at P02986, it may come up on
16 the screen, I'll take you back to part of that video that was shot by
17 Petrovic, which as we know, Borovcanin was right there. There's a huge
18 line of separated men next to a huge line of buses. This -- he wasn't
19 there for that long, under his own words, a half an hour, 30 minutes, and
20 the time span seems to reflect that. So he's there during a crucial,
21 crucial time-period, not when it's essentially over. They base that on
22 the statement of van Duijn, who said something about the large group of
23 people is no longer there. Well, remember the large groups, some 20.000,
24 30.000 people in a couple of photos. Well, that's true, but there's
25 still a lot of work to be done. And that statement is just not
1 reasonable, that it's essentially or effectively over. He's there during
2 a critical period, separations, of the horror of what's going on, and
3 he's got his cameraman with him who's editing out the various bits of
4 horror that we know.
5 In addition, I've got to go briefly into private session.
6 JUDGE AGIUS: Let's go into private session, please.
7 MR. McCLOSKEY: As I want to just take you to one UNHCR document
8 on this point. It's 5D01446 from a person that's reporting on Potocari.
9 It gives us a very good indication of how late this evacuation is going.
10 [Private session]
23 [Open session]
24 MR. McCLOSKEY: Now, interestingly, there's some very significant
25 changes from the statement of Mr. Borovcanin, which I'm sure you've
1 carefully gone over, the statements that he gave to me over -- two
2 different statements with several days in between. He's a very bright,
3 very capable police officer, commander, that came into this well
4 prepared. This was not where he got picked up and suddenly talked to in
5 an interrogation room. And as we've stated in the brief, he had a very
6 well thought-out but flawed defence, that under his version, basically,
7 freed him of military responsibility, and it went like this: That he
8 learned -- he was ordered by General Mladic, in the early afternoon of 13
9 July -- excuse me, 12 July, right before anything is really happening, I
10 believe, in terms of the bussing, to take his units to Zvornik; not
11 towards Zvornik, to Zvornik.
12 When he told me that in the interview, "to Zvornik," I asked him,
13 Well, where in Zvornik? And he said, The Zvornik Brigade headquarters.
14 You can see, as we cite in the brief, I was astounded by that because I
15 knew that his units were stationed along the road. We'd had the first
16 public version of the Petrovic video for a long time at that point, and I
17 knew that the critical point that was needed at 12 July was that road,
18 not Zvornik. But he continued to push that theme, and of course he
19 acknowledged that he was along the road on the 13th and came up with the
20 story that as he set off, it became dark, even though he said he set off
21 at 4.00 p.m.
22 tanks, to go up to Zvornik. They've been sending women and children
23 along that route the entire day. The only dangerous -- really dangerous
24 part of that route at that point was between Konjevic Polje and the
25 Drinjaca River
1 Well, it was an absurd comment.
2 And then he tried to explain that he -- so he got stuck and had
3 to stay on the road. And then he said he got orders from the MUP, so now
4 he's under the command of the MUP. And I said, Well, are you under the
5 command of the army? And he goes, No. So he's not under the command of
6 the army anymore. And then he comes, No, I am for combat purposes. So
7 he's stuck in this terrible place he's gotten himself in. It makes no
8 sense. However, he has now put himself with orders into Zvornik, saying
9 that he's now left Dusko Jevic and his other units behind, no longer in
10 command, and he's not working or doing anything with the army, he's stuck
11 in limbo along the road. This was his defence. It's laid out perhaps
12 more articulately in our brief.
13 Well, now the brief comes completely off that, as far as I can
14 tell, and is now repeating what we see in his reports on the matter; that
15 he is ordered by Mladic to go to the road, and he takes his troop to the
16 road, which means there's an acknowledgment, even though there's no
17 evidence of it, that all of that material that he told me were lies.
18 Well, they obviously were lies, so now they're agreeing. Unless they're
19 not, we'll see, maybe the stories of -- of being too dangerous to go to
20 Zvornik and being blocked and all that is still at play, but I don't
21 think so. So this is a radical change, trying to make the story more
22 reasonable. And at the same time, the story switches to, yes, he is
23 issuing orders to Dusko Jevic to take part in the evacuation, which if
24 you recall my interview, he doesn't want to have anything to do with
25 Dusko Jevic after he leaves Potocari. That's Dusko Jevic, he's working
1 with Momir Nikolic, I have nothing to do with them anymore. Now that's
2 changed, after testimony in this case that's uncontroverted, no reason to
3 lie. He's now acknowledging he's issuing orders to Dusko Jevic. There
4 is no more indicia or indication of command than the issuing of orders.
5 He stays in the Bratunac area on the 13th, the 14th, as does
6 Dusko Jevic, both in Potocari, his troops, and along the road. There is
7 no question he is in command of Dusko Jevic and his troops and in control
8 of them.
9 They make an amazing allegation, which Mr. Borovcanin never made
10 to me. As a military man, I can't imagine him trying to tell me this,
11 that, oh, yes, he was issuing orders, he was present in the area, but he
12 was not exercising command or control over this unit. Nonsense. That
13 would violate the rules, the law, common sense. It's completely
14 unreasonable. We see him in Potocari on the 13th, when this awful stuff
15 is happening, and his commanders are on the field, separating people.
16 Also, as in his interview, when we got to the road, we were
17 playing a video and asking him about who these men are, he's telling us,
18 Oh, the people that are capturing the men, those are -- those are
19 Milan Lukic's men, those are army that are taking the men and guarding
20 them. My guys are on the road. We're not really involved. And then he
21 makes this comment:
22 "I cannot exclude the possibility that one or two or more of my
23 men were involved."
24 But he does not want to have anything to do with the capturing
25 and the detaining or the dealing or the coordinating of those men in the
1 interview. It's as clear as a bell. And now, at paragraph 166 of their
2 brief, they're acknowledging that his men are taking part in the
3 capturing and the detaining of these men. They even go on to say that
4 his commander, Cuturic, who was -- coordinated with Momir Nikolic, who we
5 know is also going up and down the road at this day, coordinating those
6 captures and those detentions. So this is another radical change where
7 they're looking to the common-sense view of the evidence and
8 under-cutting significant parts of the statement of their client. It's
9 an attempt to make it more reasonable. But, of course, how does that
10 affect the overall package? It makes it less credible, the overall
11 package less credible.
12 And as we'll get to a little bit later, from the version that a
13 Muslim soldier took a weapon, shot a Serb MUP person, the Serbs grab the
14 gun away, burned his hands, and then fire back, which we agree
15 happened - you can see that, as we said, in the brief from the health
16 records, that happened - but Mr. Borovcanin's version is: After that,
17 Milos Stupar reports to him that Milan Lukic's men fired back, committing
18 mass killings. There's no suggestion of a two-part legitimate escape
19 attempt that they're talking about now in they're brief and then a
20 systematic murder happening later on that night. It doesn't get into
21 that at all, and I'll tell you, and I'm sure you'll agree with me on
22 that, the one person in this courtroom that knows what happened at the
23 Kravica warehouse that night is Ljubomir Borovcanin, and he had the
24 ability to tell me that -- or tell us that. He didn't. Had it been a
25 legitimate escape attempt, he could have very well told me, and he should
1 have. But now the story has changed, and I'll get into the support of
2 that story a bit -- a bit further.
3 Let me go to a couple of conclusions that the Defence make.
4 Page 23, paragraph 41, they say:
5 "Even if Borovcanin somehow surmised improper coercion was
6 underway" - he's referring to Potocari - "his only viable course of
7 action by that stage was to alleviate the humanitarian situation."
8 Well, let me tell you what his viable options were, and this is
9 important because I'm sure in our lifetime we're going to see
10 international troops in this situation again, refugees coming in. The
11 Geneva Conventions are clear. When you know a crime is afoot, and he
12 must have known the intentions to toss those people out, he should not
13 have been involved. When he heard about the assault to go into the
14 enclave, he should not have been involved at all. If he'd walked away or
15 refused, he wouldn't be here today. Now, as we've always said, part of
16 this assault had a legitimate aspect, so let's give him the benefit of
17 the doubt. Even though he knows what's going to happen when he gets
18 there, that they've focused on this -- on the population and they're
19 going to toss them, he takes part in going through the minefield and he
20 takes control, with the VRS, of Potocari. That, by itself, still leaves
21 him time to get out. Does he get out? No, he doesn't. He could, he did
23 Now, once he found out and was aware that this -- and was ordered
24 to take part in the separations and the forcible transfer of the
25 population, it is not the Prosecution's position that he had to
1 prevent -- try to prevent that. He did not have the military capacity to
2 take on Mladic and Mladic's VRS. I don't expect that. I don't think the
3 Geneva Conventions expect that, but what they do expect and what he knows
4 by training is that he should not have been involved. He could have done
5 what the ICRC did in Zepa and Srebrenica and just refused, just don't
6 take part. He could have also done what the Dutch did. He could have
7 helped the Dutch. He could have put a security cordon around to look
8 after those people, those civilians, and maybe those nine guys wouldn't
9 be dead and the 10th person that was shot up against the wall and the
10 other horrors that happened wouldn't have occurred if he had helped
11 van Duijn and Rutten and Koster, and made it clear to them, Hey, I don't
12 agree with what's going on, I'll help you. At the very least, keep his
13 men from separating people.
14 You recall van Duijn. His men were separating people from the
15 first moment of the -- on the 12th of July, and it went all the way to
16 the 13th. Mendeljev Djuric was taking part in that. We've seen him on
17 the video. The testimony was absolutely clear. He did not have to do
18 that. And when he did, he was substantially assisting not only in the
19 forcible transfer, but clearly, under any reasonable evaluation of this,
20 by the end of the 13th of July he must have known that these men were
21 going to be killed. And so by continuing to command his men in the
22 process of the separation, he is substantially contributing to the murder
24 And follow the men that his men has separated. They go to
25 Bratunac. He leaves them in Bratunac. He doesn't protect them ever,
1 even though he knows of the murder operation on the 13th and after
3 Should he have disarmed the soldiers? Well, we don't have any
4 beef with the idea of disarming the Dutch soldiers in the armed combat
5 situation or as they're approaching. But once they're inside the
6 confines of the area around Potocari and the Dutch soldiers are trying to
7 protect these masses, and they're of no threat whatsoever to the Serb
8 forces, there's only one real reason they're dismantling -- the Serbs are
9 dismantling the Dutch, is to make their job to do the separation and
10 forcible transfer easier. That's the problem here, not -- not taking
11 their weapons pursuant to the assault. I have no major disagreement with
13 He could have also gone up his chain, Goran Saric, his command,
14 and said what was going on and reported it. He could have gone to
15 Tomislav Kovac, the minister -- the assistant minister.
16 Miroslav Deronjic, he could have gone to Deronjic, who had a connect
17 with -- at this time with Karadzic. Deronjic recognised that there was
18 no screening going on, that this was a wholesale grabbing of both men --
19 old men, boys, and able-bodied men, without any screening to determine
20 whether or not they were war criminals or able-bodied. Deronjic even
21 recognised that. Look at his testimony. He didn't go to any of those
23 He should have done those things as a commander. The Geneva
24 Conventions require them. They asked the question. I give you my
1 They also say:
2 "The Prosecution has not shown that Borovcanin was animated by
3 any other intent than to assist in the evacuation."
4 Now, I won't reiterate all the involvement of this horrible
5 process that he was involved in and the separations, but I will remind
6 you, and you want to look at intent, look at his false statements to me,
7 insisting that Jevtic were taken away from him, insisting that he was
8 just visiting Potocari to take care of the bus situation on the 13th.
9 His false statement saying he knows nothing about the separations, he's
10 lying to me about that because he knows that these are all crimes that he
11 is involved in and his men are involved in, and it shows a consciousness
12 of guilt. That shows his intent.
13 He also acknowledges now that he -- his units were working
14 closely with Momir Nikolic, Radoslav Jankovic. Of course they are.
15 They're doing the same thing. And, remember, we have a clear picture now
16 that he's acknowledging he's taking part in the detentions and the
17 capturing of the men in Sandici, because remember what's going on in
18 Sandici; the same thing that's going on in Potocari. They're asking
19 people to stand up, anybody born after a certain day, and they let those
20 little kids, some of them, off and they allow them to get on the buses.
21 So Borovcanin's unit and his people that he is fully aware of, because
22 he's up and down that road, are separating, in this case, the kids.
23 They're taking IDs. They're not taking any names. They're not giving
24 them any food. They're not giving them any medical. Horrible things are
25 going on, there are people that we see on stretchers. Remember the
1 forensics. They found stretchers in Glogova. Do you think the people --
2 the Muslims who came out on stretchers were carried all the way to the
3 Kravica warehouse? No, there's evidence in this case that shootings were
4 going on and killings were going on in Sandici. So the same things that
5 are going on in Potocari are going on in Sandici. He is under the
6 command -- he is commanding the bulk of those units along the road. He's
7 commanding a significant part of the units in Potocari. It's the same
9 He's trying to rely on this dog that will just not fight, that
10 the security officers are commanding, the security officers are
11 commanders, that Momir Nikolic and Radoslav Jankovic are commanding this
12 thing. Well, I hope you can put this to rest. I will stand up for the
13 accused's security officers on this point. The difference between their
14 criminal responsibility and the responsibility of the commanders is
15 immense. It's not even close. Our visceral -- reaction of the men that
16 are organising the killings is visceral. It's like we hate those local
17 drug dealers that are involved in the killings, but the Harvard grad
18 that's bringing in the cocaine on his Lear jet is harder to get a handle
19 on. His kids are in law school. So don't aggravate the case against the
20 security officers. The real responsible guys for this are the
21 commanders. Of course, the security officers have responsibility, but
22 there's always going to be people to take the security officer's job.
23 The commanders are the ones that are going to really have the ability to
24 stop this, and don't buy into their argument.
25 Okay. Now, Kravica, I want you to -- I don't want to play that
1 body video again, but I do want to give you an exhibit that is a
2 panoramic compilation so you can get a one-picture view of what
3 Borovcanin and Petrovic saw as they drove by. I've given this to
4 Borovcanin yesterday, and, Ms. Stewart, if you could pass out this to
5 everyone, I think it's easier. It doesn't really come out very well
6 on -- I don't -- well, it may come out on the video, but I would prefer
7 that everyone just have this. You may or may not want to refer to it at
8 various times.
9 Now, in their brief and in their opening statement, they asked a
10 couple of good questions to the Prosecution, a couple of questions that
11 need to be answered, one of which is: Why on earth would Borovcanin take
12 Petrovic around with him, filming Potocari, filming the road, and
13 certainly filming Kravica? Why on earth would he do that, if he was
14 actually part of this? Well, one of the answers is very simple. He
15 received, as he told me, a written order --
16 JUDGE AGIUS: Judge Kwon has raised an important issue. Have you
17 given a copy to the accused?
18 MR. McCLOSKEY: I would trust that Defence counsel will have done
19 that, but we have copies for the accused as well.
20 MR. GOSNELL: He has a copy, Mr. President.
21 MR. McCLOSKEY: But all the accused should have it, though.
22 JUDGE AGIUS: Okay, thank you. And thank you, Judge Kwon.
23 You can proceed.
24 MR. McCLOSKEY: Thank you.
25 So the question of why, why the journalist? Well, he told me in
1 the interview, page 51 to 52, that he received a written order from
2 Goran Saric to take Petrovic with him. Well, there's one reason. He's
3 following orders. Also, we know from his stunt on the 12th in front of
4 the cameras, propaganda was very important for the Serb cause. They
5 needed heroes. They needed to report back that there were men in uniform
6 doing their job for the cause, and so they needed journalists they could
7 trust to shoot film they could trust that they could come back and play.
8 Well, they trusted the wrong journalist, because we see, even before
9 Petrovic gets involved, Borovcanin is handing out cigarettes to children,
10 but we also see in the back petrified Muslim men, and it's part of an
11 arrogance, a stupidity, as well as the propaganda effort. People
12 committing crimes make mistakes. This was a stupid mistake on their
13 part, to be doing this, as he fully understands now.
14 And for why he would have taken him and not done something about
15 it to the actual Kravica killings, well, having your men suddenly shot
16 and killed by a Muslim, when your men are supposed to be doing the
17 executing, that may make you forget immediately what exactly is going on
18 as you rush down there to take care of the problem, and you have your
19 trusted person, who is there, to edit out any issues. Well, there was a
20 lot of editing going on in that movie. There are 24 seconds of the
21 filmed shot at the end which should be, if you look at the testimony of
22 Thomas Blaszczyk on this, there's 24 seconds of a black-out and other
23 items played that should be that section right after the bus and the last
24 little open room that gets cut, 22 -- 24 more seconds. I wait for the
25 phone call that that material gets found.
1 The second good question was: Why would Borovcanin, if he was
2 guilty, bring the OTP the Petrovic film, the section that was played over
3 Studio B? Well, the answer to that is: That was part of his overall
4 strategy. He was betting that we had or we eventually would get that
5 film. It was shown on public TV. You can see the advertisement for a
6 Rolling Stone concert under it. It was the best strategy to bring it to
7 us and try to put his spin on it. But then why does he -- why doesn't he
8 tell us that this is an escape attempt, a legitimate escape attempt, that
9 his men had to quell? We know it was his men that were involved, given
10 with army and others. His men were there, his officer was there.
11 There's very reliable hearsay in this case. Stupar, on 15 July, told the
12 group at the meeting of the burned hand story and said his men, the MUP
13 and army as well, fired back and killing everybody. It's very reliable
14 hearsay, as well as the other second-hand evidence and other evidence
15 that we've laid out in our brief. We don't discount that there were army
16 there. Where there's one Red Beret, the special unit, there are other
17 Red Berets. The Red Berets are the one disciplined unit in the Bratunac
18 Brigade that would be expected to be at the executions. So this was part
19 of a strategy. And he has come off, as we've said, that first statement
20 to me as part of that strategy, to try to make it make more sense. It's
21 a continuing effort, a continuing strategic way of avoiding his
23 Now, I've spoken briefly about Mr. Borovcanin and his control of
24 the road on the 13th. That is in the brief. I think that is clear.
25 Yes, there will be some army people at the Kravica warehouse. We don't
1 find any army folks in Sandici or along the road, and the documents
2 indicate this is a MUP operation. Borovcanin, his tanks, his two
3 anti-aircraft, his mortar platoon, his soldiers from the various
4 companies, they're the ones that are there, they're the ones that are in
5 control, they're the ones that have the power over good and over evil.
6 It's paragraph 189 where the Defence acknowledge that Cuturic
7 would have coordinated with Momir Nikolic about the closing of the road.
8 This also would allow us to infer that Momir Nikolic is coordinating with
9 Borovcanin's people as well, not just the MUP in Konjevic Polje, which of
10 course would be in close communication with Borovcanin's units.
11 And recall the afternoon of the 13th, as we get closer to the
12 warehouse situation, that Mladic and his senior officers are at the
13 Sandici Meadow and for the first time really see the large number of
14 prisoners that are there. This is after an organised execution, the
15 Jadar River
16 likely started on the 13th with three buses, an excavator, and I'm sure
17 the orders, if you look, came out at about that time that these men are
18 to be killed. And that warehouse was right there, and they figured that
20 So we have Borovcanin in control of the road, we have him
21 coordinating with the army, we have Mladic and the group passing through.
22 I think we can definitely infer they gave some orders. Let's see how far
23 we can take this inference. You've got to look at everything that
24 happened that day before you can make the inference.
25 Well, as you know, Petrovic recorded the video, and we got
1 snippets of the radio conversations that Borovcanin is having with his
2 men, and one of them is stopping the traffic along the road. Now, if you
3 evaluate that, that -- and you look at the time stamps, which the Defence
4 agree are accurate, a time stamp appears at 1649, I believe, and then
5 shortly thereafter is the order to -- for Cuturic to close the road. And
6 when we add up the time shot in the video and the travel time and the
7 cuts, he cannot have issued that order to close the road before about
8 1654. So it's after 1655, we believe between 1655 and 1700, he issues
9 the order, Close the road behind your back. Now, we know that happened
10 because Pepic, his officer, Pepic, says to Cuturic, his overseer, that he
11 gets orders to close the road, and he does that. He's not great with
12 times, but we clearly see -- we hear -- we hear the order and we see how
13 it happens. And as you look back at this, when you evaluate it, you'll
14 see that the Muslim men must have been in the warehouse or almost in the
15 warehouse, giving the benefit of the doubt, when the order to close the
16 road was made. And I'll get to how you can figure that out. It's in the
17 brief, but this is -- this can be complicated.
18 The other place where we can go to time is we know from the
19 Bratunac Health Centre that the first soldier that's wounded in the
20 "burned hands" incident, as we call it, gets to the health centre at 1730
21 hours, at 5.30 p.m.
22 dangerous -- unlike television, a shot through the arm with a
23 high-velocity rifle can cut your artery and kill you in no time, so he is
24 going to be -- we can infer fairly that after he is shot, he is going to
25 be taken to that health centre as soon as possible. It's about a
1 ten-minute hurried drive from Kravica to the health centre. So if he's
2 checking in at the health centre at 5.30 p.m., his shooting incident, the
3 "burned hands" incident, happened 10 minutes, maybe 15 minutes earlier,
4 at 5.15, 5.20. And that's about the time Borovcanin arrives, shortly
5 after that incident, 5.15, 5.20, thereabouts, because he hears it
6 immediately. He's in Sandici, according to the video. He says he's a
7 little bit farther away, but no matter what, he's going to be coming
8 there as quick as possible, and there's no way to get him there, less
9 than about three minutes, no matter how far he is. So he's getting there
10 shortly after it happened; 5.15, 5.20, give or take. And when he gets
11 there, we see this: Many bodies piled up. So we know something horrible
12 has happened in the time between he closed the road and he arrives, and
13 he had to have closed the road after 1654 and there's dead bodies at
14 5.15, 5.20, thereabouts, lots of them.
15 Now, I had said before, I think in a question, that it was our
16 position that the doors that you see on that warehouse were open and that
17 the way the soldiers were acting meant that everyone in there was dead.
18 Well, we have looked at some of the -- well, all of the conclusions in
19 the Borovcanin brief, and not all of them were bunk. This particular
20 conclusion of theirs, that these were closed doors, we carefully reviewed
21 and we agree with.
22 You'll see other -- if you look at this very carefully, you'll
23 see other pictures shot through those open doors, and the windows in the
24 back of the warehouse cast an eerily similar look as this photo. But we
25 agree and I've offered to enter in agreement of facts for the record for
1 you that these doors are closed, so we cannot now conclude, as easily as
2 we could before, how many people are dead, except that group of 15, 20,
3 30, that we see scattered all the way from one side of this photo to the
4 next. That's a lot.
5 And as I read the Borovcanin brief, they fundamentally agree with
6 our times. They leave a little more space, but they fundamentally agree
7 that the shootings happened between 5.00 and 5.30, and it's necessary for
8 their new defence that this was an escape attempt. So the question
9 now -- the big question that we get to, when you can go through this and
10 you listen to my colleague is: Is this all there is? Is this an escape
11 attempt, or is it a full execution in process? Well, to answer that
12 question, you go to the two survivors. They answer the question. It's
13 why the -- and the Borovcanin team understands that. It's why they
14 attacked the particular survivor, the one on the west side or, as they
15 call it, the right side of the warehouse so vociferously, because under
16 his testimony he goes into the warehouse, his group is the last
17 group - the other side is already filled with the other survivor and his
18 group - and the last man that comes in and packs that warehouse doesn't
19 have a place to sit, and the Serbs open fire on him and open fire on
20 everybody, and the shooting goes on and on and on until nightfall. Now,
21 that is not an escape attempt, it's not at the "burned hands" incident.
22 That is an organised and systematic execution.
23 Now, what support do we have for that? Well, that's one --
24 Witness 157 -- excuse me, 156. Witness 111, who is at the other end of
25 the warehouse, he is there, and then suddenly outside the warehouse he
1 hears automatic gun-fire and all hell break loose. He's not exactly sure
2 where it's coming from, but it's close by. He hears automatic weapon
3 fire and crucially, crucially, he hears hand-grenades. You don't use
4 hand-grenades to quell a "burned hands" escape attempt. When your
5 soldiers are all around you, you're not going to pull a hand-grenade and
6 toss it at the guy who's got the weapon. So if hand-grenades are used in
7 the early part of this execution, as described by 111, it's a significant
8 indication we have an organised execution.
9 What other evidence do we have of hand-grenades? Well,
10 Borovcanin, himself, in the interview tells us that when he hears over
11 the radio that something terrible has happened, he hears detonations in
12 the background, so -- and then when we see him on the Petrovic video
13 walking around Sandici, this is after he has closed the road, listen --
14 listen to the tape. You can hear automatic weapon fire and explosions.
15 This is shortly after he's closed the road.
16 Celic, this Serbian MUP guy that's there, that sees the column
17 walk by, also hears hand-grenades at this point. There's no
18 hand-grenades used to quell some minor "burned hands" situation. The use
19 of the hand-grenades and the other heavy weapons, look on that side of
20 the warehouse, is a key -- an important and significant indication.
21 Let me show you -- you may recall the Nicholson video which I
22 believe is P01575. We've got an exhibit to show you. I don't want to
23 show that whole video again, but I've got an exhibit that shows you where
24 the hand-grenade release handles were found around the warehouse.
25 Several of these handles were found outside the two back windows, so more
1 indications of hand-grenades. We've just taken -- looking at this
2 diagram, there was one grenade handle found at the end of the warehouse,
3 right -- and then a group of six in front of the area of one window, and
4 a group of four in front of the area of the other window.
5 Now, I probably don't have the time to carefully go through the
6 testimony of 156 and 111, but the only difference really of significance
7 for your consideration is that after the shooting erupts, 156 says that
8 it stops at nightfall, whereas 111 says it stops after a while, and
9 then -- sorry. And then a half an hour later, firing erupts in his side.
10 People come in and start shooting him, and that goes on and on and on,
11 and he says it goes on intermittently through the night. And the big
12 dispute here, they're theory that there's a systematic, organised
13 execution that starts at night, is based on their evaluation that 111 is
14 saying that this execution on his side happened as night was falling, at
15 8.30 or 9.00, because there is some indication that he's trying to figure
16 that out, and he says night is falling, as far as he knows, and so that
17 would be 8.30 or 9.00 at night. Well, to buy that theory, it's not
18 reasonable because Witness 111 clearly says that a half an hour passed
19 between the shooting that he heard on the other side of the warehouse and
20 the time the shooting happened at his side. The question was asked:
21 "How much time passed between those two events between the
22 shooting outside and the shooting that took place when the soldier fired
23 at you?
24 "A. I think that in a previous statement I said that, but I will
25 say that again. It's no problem. About half an hour passed between
1 those two events."
2 That's at 7060, 19 through 24. Then he says:
3 "Firing in the east room took place intermittently. It was
4 already dark, night had already fallen. And during the night, there was
5 several breaks and then shooting would erupt again."
6 Now, they're founding their whole view of this on his conclusion
7 that he thinks it's 8.30 or 9.00 at night because he thinks it's getting
8 dark. Well, you've been in that warehouse. Trying to judge what time of
9 day it is based on light when you're inside that dark warehouse, is
10 impossible. What he's absolutely clear on is that it -- that his
11 executions happened a half an hour after the ones that happened next to
12 him, and we know those happened about 5.00 to 5.30, when the lull
13 occurred. So theirs is not reasonable. It's based on a guy that is
14 feeling it's getting dark, and it may feel like it's getting dark, and
15 they criticise 156. After gun-fire erupts and hand-grenades are thrown
16 in, can you imagine, what can you hear? Hand-grenades go off that close
17 to you, and other large weapon fire which there is evidence of, your
18 head's going to be ringing like -- unbelievably. Who knows? Who could
19 perform such an experiment? So his ability or memory on what he is
20 hearing and when he is hearing it is going to be flawed after the
21 shooting erupts. You've got to give him that; not so much for 111, where
22 it hasn't started yet. He hears the hand-grenades, he hears the
23 automatic weapon fire, and he also -- while that's happening, the
24 soldiers on his side are getting agitated, which of course you'll get
25 agitated if you knew you were participating and your colleagues were
1 participating in a mass execution next to you. But then look at the
2 testimony of 111, who they say is reliable. He does -- the guards say
3 something, Ah, you see what your people are doing, suggesting that the
4 Muslims are attacking and that's what the gun-fire is for. So look at
5 all these things. It's the case within the case, and it takes very
6 careful consideration. Most of it's in the brief on both sides.
7 The Defence supports their version by citing the evidence of
8 Mevludin Oric and two other MUP officers to say that there's evidence
9 that it happened in the evening. Well, what happened is after the
10 shooting erupted, Borovcanin is there, people are going to the health
11 centre. Remember the testimony, Cuturic goes to the health centre, gets
12 his hands bandaged up. Pepic eventually says he comes back from the
13 health centre and reopens the road, and it's not Cuturic that's reopening
14 the road, it's Borovcanin that's reopening the road. He's the one that's
15 issuing the orders, of course, and controlling this.
16 So within a time it's hard to determine precisely, but if you
17 look at the time Cuturic goes to the health centre, he is checked in
18 there at 5.40, so with the 10 minutes either way and the time it's going
19 to take to get him dealt with, it's going to be at least an hour of him
20 being looked after before he comes back and opens the road, and that's
21 the time, a half an hour delay after Borovcanin arrives and they sort out
22 their dead and their wounded. Then it begins again in 111's side of the
23 warehouse, goes on for probably another half an hour, 40 minutes, and
24 then that pretty much puts down the thousand people in the warehouse.
25 Now, they're not all going to be dead, but they're going to be
1 debilitated. The doors are closed on them. They're suffering. A
2 high-velocity gun-shot in a crowded room with two to three people per
3 square metre is going to be through multiple bodies. Constant firing of
4 an automatic weapon is going to be able to kill and maim a lot of people.
5 In some ways, it would have been better to torch the place. They would
6 have died of smoke inhalation. Dying slowly of gun-shot wounds, bleeding
7 to death, twitching on each other. This doesn't have to take very long.
8 We have to ask you to think about that. None of us are experts. Well,
9 some of us are. But this didn't have to happen, it didn't have to take
10 very long.
11 So by 7.00, we see the dead Red Beret, I think his name is
12 Stanojevic. His body is taken to the health centre, so now we know the
13 MUP has at least had time to clean up a bit. There's hay on the bodies
14 that are in front. There's a bus in front. There's an old car in front
15 of 111. They're able to close that place up. They need to do that to
16 get the convoys running. And so after an hour, an hour and a half,
17 roughly, of organised mass execution, this thing is bound up, and that's
18 when Mevludin Oric and two MUP guys come along. They're not going to see
19 anything. Yes, they hear gun-fire, there was intermittent gun-fire
20 throughout the night, I'm sure on both sides of the warehouse, killing
21 people as they moaned or stuck their head out or tried to get out or
22 asked for water. We've seen that in all the other executions.
23 The main difference -- well, let me go over 156's testimony. I'm
24 sure Defence counsel will. He says, walking with the column, which we
25 know happened, that he turns right, crosses into -- crosses in front of
1 the warehouse. There is no fence, according to that witness. Then he
2 walks between a bus and the warehouse. Look at the picture. There's a
3 bus. That bus was not given to him. He drew that in on his own before
4 he even knew there was such a photo. And that he walked through that
5 door that's behind the bus in the photo, and over in the corner of the
6 right-hand room near the river. And after that, he says he puts his head
7 down, and we either don't ask him any more questions on that point or he
8 doesn't remember anymore, but he does say that he goes out through the
9 door he came in.
10 And Mr. Ruez, when he was talking about the warehouse, talked
11 briefly about that witness -- just a tiny bit of what that witness had
12 told Mr. Ruez, when Mr. Ruez showed you the picture of the little guard
13 room. And if we could show that picture to you briefly so you may recall
14 it. Ms. Stewart can -- it should be P02103, if I'm correct. This is the
15 guard room that Mr. Ruez talked briefly about, and he repeated a tiny
16 snippet of what this witness had told him; basically, that the witness
17 had managed to get into this room and protect himself from the firing.
18 Now, we have the witness testifying that he goes in the far
19 right-hand corner, and we have Mr. Ruez saying the witness told him he
20 went into this room to protect himself from the firing. The fair
21 inference from that -- and we have the witness saying he went out through
22 that door when he finally got out, the one that you see on the photo.
23 The fair inference you should make is that the witness managed to get
24 across sometime after those executions or even -- he managed to get
25 through his way as he's trying to get out of those doors and manages to
1 get into that room and hide, not that he totally has two different
2 stories, which will be the Defence version, I'm sure.
3 And the fence, the fence is a big part of their brief when they
4 discuss this witness. There was no fence. This witness clearly said, No
5 fence. This is a -- I'll show you a brief blurb about that fence, if
6 Ms. Stewart could hopefully -- you may remember Mr. Nicholson's video.
7 This is the only way to get you to see this fence, and you need to take a
8 look at it, because there clearly was a fence there in January of 1996,
9 this little fence that they lean up against these older bars that were --
10 had been there a long time. But this is a little, weak fence that could
11 have easily been kicked over to allow these hundreds of Muslims into the
12 warehouse, and you can look at the Petrovic picture. There's no fence
13 there, and that's when the witness is there. And we stand firmly behind
14 the witness's recollection on that, and we'll show you the fence we're
15 talking about so you can see it. Ms. Stewart can run the video, maybe
16 still it on the fence.
17 [Video-clip played]
18 MR. McCLOSKEY: There it is. It's the shorter one of the two.
19 That was in the winter-time pictures when Mr. Ruez was first there. This
20 is April 1996. You will -- if you look in the exhibits, you'll see the
21 winter-time, January. There's a shot of the fence, too. Unfortunately,
22 it's impossible to conclude from these photos, whether or not Petrovic
23 could have shot over the top of this fence, so that's why you don't see
24 it in the video, or whether you don't see it in the video because it
25 wasn't there. In any event, the witness is reliable. The fence could
1 have been kicked over easily. There's no way they would have walked all
2 this group around to come into this circuitous route when they can kick
3 over a little fence. So those particular criticisms don't fly.
4 Your Honours, that is a difficult subject. It's going to require
5 patience to go through the material and double-check everything I said,
6 double-check everything Mr. Gosnell said, but you don't use hand-grenades
7 to quell a "burned hands" incident, and these two victims are reliable.
8 They also attack, in their brief, the reliability of the witness
9 who testifies about the execution of the men left over at Sandici Meadow.
10 It's one witness. Why on earth would he tell of an execution involving
11 his unit? The facts fit, there are extra people at night, it's Sandici.
12 We find the same amount of people in a nearby grave. We can't prove
13 beyond a reasonable doubt those people are the same as the ones he's
14 talking about, but it's consistent. That execution would not have
15 occurred without Borovcanin's approval and knowledge.
16 Borovcanin has the conversation with General Krstic later on that
17 evening, about 8.40. Everything's okay, no problem. I start questioning
18 him about that. He runs from that conversation. Look at the brief about
19 that. He is lying about that conversation and going back and forth on
20 it, and it's an indication of consciousness of guilt, if I've ever seen
21 any. He's in -- commanding those troops from the 14th. He doesn't go to
22 Zvornik until the 15th. And look at what's going on on the 14th, too,
23 the clean-up, the mess. It's still his units there. He's got to be held
24 responsible for this.
25 And, very briefly, he's in control of the road, he's got the men
1 and the manpower. Yes, there are small elements of the army, certainly
2 not Milan Lukic's guys. You recall in the intercept: Milan Lukic's guys
3 on the 13th buses' broken down, and they're not around at the time that
4 this is happening, and Beara two days later is really upset. So there's
5 no Milan Lukic men, that's mystery men; that's blaming every bank robbery
6 on Jesse James because he's the bad guy in town. Completely false. But,
7 yes, there were Red Berets there, there would have been more than just
8 one. There should have been Bratunac Brigade MPs. Momir Nikolic, who
9 knows. When it comes to Kravica warehouse and Momir Nikolic, I have no
10 idea. As Kweku Vanderpuye has said, corroborate everything Momir Nikolic
11 says, but Momir Nikolic says one thing you can bet on. He was part of
12 this thing. He knew all about it. He was coordinating with the MUP. He
13 was all over the place. And now they're acknowledging they're working
14 with these guys.
15 So when Borovcanin understands what's going on here, he has got
16 to stop it. He had the opportunity, when he came back to the warehouse,
17 to stop it. He had the men. Unlike in Potocari the day before, he had
18 the men and the material and the means to stop it. He didn't. The
19 Geneva Conventions require him to stop it. He is guilty of 7(1) for not
20 stopping it.
21 Now, if I could, I'd like to go on to some brief remarks about
22 General Pandurevic. If I could -- as you know, the brief was extensive
23 on Pandurevic on both sides, and while I have the -- I have many
24 criticisms of their brief, look at it carefully, their arguments are the
25 arguments they've made from the beginning, that they made from the
1 witness stand. There's no mysteries, no real last-minute curves. You've
2 watched all that. You've seen it recently. You've seen me cross-examine
3 General Pandurevic. I don't intend to take you through all that.
4 There's no need to.
5 But if I could get a break now, Mr. President, I could assemble
6 my few remarks on General Pandurevic, and we'll come back and finish this
8 JUDGE AGIUS: Sure. We'll have a 25-minute break. Thank you.
9 --- Recess taken at 10.19 a.m.
10 --- On resuming at 10.49 a.m.
11 JUDGE AGIUS: Yes. Mr. McCloskey, your next target is
12 General Pandurevic.
13 MR. McCLOSKEY: Thank you, Mr. President.
14 You can see the crew is getting ready to come in, and -- but if
15 we could get a five- or ten-minute break after my remarks to get settled
17 JUDGE AGIUS: Yes, of course.
18 MR. McCLOSKEY: That was the plan.
19 JUDGE AGIUS: And you have approximately, from what I'm told,
20 about an hour left.
21 MR. McCLOSKEY: Thank you.
22 All right. General Pandurevic.
23 As I've said, you've seen the Prosecution and the Pandurevic case
24 battle this out. I think the issues are clear, the documents are clear,
25 the history is clear. I'll go over just a few of the points to help
1 remind you of the Prosecution's case, respond to some of what the Defence
2 has said.
3 Briefly, the events of 1993, Operation Proboj, the conduct of the
4 war from Directive 4, we were surprised to hear in the opening statements
5 that General Pandurevic was going to be suggesting he was the hero of
6 Kamenica. We still see that in the brief. But as you're aware,
7 Directive 4 particularly says to get rid of the Muslim population, and
8 perhaps a document that is second to none, in terms of its level of
9 authority, was the order from General Zivanovic implementing Directive 4
10 in even more vicious language, to move out the populations of those
11 areas. And Vinko Pandurevic was a key role -- had a key role in that.
12 When we heard that he was the hero of Kamenica, we dug into the
13 Drina Corps collections to prepare for cross-examination, and the deeper
14 we dug, the more material we found. And you'll remember his reports,
15 talking about attacking civilians and burning villages and cleaning up
16 after mosques, reports that, in his particular bold style, got edited
17 when they went up from the Drina Corps, cutting out that language. To
18 suggest he's the hero of Kamenica, in my view, is appalling.
19 The UN report, shells were dropping in on the civilians in the
20 Konjevic Polje area, they're trying to get a hold of Pandurevic to stop
21 that. It finally stops. That part of the history of the war is awful.
22 He played a major role in it. That was abundantly clear.
23 The attack on the enclave, he clearly played a major role. He
24 was aware of the Drina Corps version of Directive 7 with the awful
25 language in it. He's aware of the history. His group played a
1 significant and substantial role in the take-down of the enclave.
2 The 12 July meeting. The 12 July meeting in Bratunac, which he
3 insists is on 11 July, frankly, I'm surprised that he insisted on that.
4 I'm surprised that he continues to insist in that. In fact, in a
5 document that we recently agreed would go into evidence, it was a
6 statement of General Andric, saying he went to the meeting on the 11th,
7 why the Defence wanted it in. But I'm asking him in that, Well, what was
8 said at the meeting? Ah, well, it was on to Zepa. And I said, Well,
9 what happened on the 12th? Well, is that when Mladic came and gave you
10 the speech? Yes, it is. On to Zepa. Well, no one is contesting the
11 fact that Mladic gave the speech at Viogor on the 13th, so Andric had it
12 wrong by one day. I'd assumed in the beginning of this case that that
13 mistake would be acknowledged, and even though it put them all in
14 Bratunac on 12 July, the day the plan was first implemented in Potocari,
15 I thought they would be able to suck that up. But their arrogance,
16 unmitigated arrogance. The evidence and the intercepts, Jevdjevic,
17 Bajagic and the stupid fish, they stuck to that story, these people, all
18 the way through today to the brief? I know when you review the evidence
19 that you know that meeting happened on the 12th. The intercept capped
20 it. Why do they insist so much on that, I ask myself? It's because
21 they're with Mladic. Dark things were spoken of. Why else would they go
22 into that unholy trio of Jevdjevic, Bajagic, Pandurevic?
23 The 13th of July, moves towards Zepa. 14th of July, is with the
24 command, would have been able to communicate with General Krstic, who is
25 fully engaged in the murder operation.
1 The 15th of July I won't go into in detail. I've already done
2 that with the morning of General Krstic. Remember Pandurevic's words to
3 me about that. He, of course, had to know. He had to have been told
4 what was facing his brigade when he went home. The amounts of resources
5 involved in that required of it. If he was going to have any chance of
6 defending his column from the Muslim from the rear, the 2nd Corps from
7 the other side, the fact that there was a major murder operation in play
8 at the time that Dragan Obrenovic has pled guilty for authorising and
9 being involved in, had to have been mentioned. You must find that as
10 part of your judgement. There is no other reasonable conclusion. Vinko
11 Pandurevic by the morning of 15 July is fully informed, and he goes back
12 to his brigade. He meets Obrenovic. Of course, Obrenovic tells him
13 what's going on. He tells you, no, he learns it from some guy named
14 Branko Grujic later on down the road. That is so patently absurd, it
15 beggers belief. How does Eileen Gilleece get in her statement that he
16 told Pandurevic about -- that Obrenovic told Pandurevic about it? She
17 couldn't have made that up. She hardly knew the case. All the
18 circumstances from the evidence, from his testimony and demeanour, again
19 of course he was told about it. That yarn he spun was no more believable
20 than pigs can fly. We'll talk about pigs a little later on.
21 The 15 July interim daily combat report. You've heard me talk
22 about it in detail in the opening statement. You saw us go over it in
23 detail in the cross-examination. I don't intend to do that again. The
24 report was written clearly. It meant what it said, its cryptic
25 reference, its obvious meaning. The only other time I know Pandurevic to
1 get that cryptic is when, on his 18 July report, he made reference to all
2 the killings and how that it upset Zvornik and angered him. It's the
3 same kind of thing. But in that 15 July report, he is taking
4 responsibility. The additional burden for us, he is taking
5 responsibility when he says that. He's asking for more troops, he's
6 asking for people to come guard these people, come kill these people, and
7 come bury them. He leaves out "kill" because that's too unseemly, but
8 that's what he's asking for. He gets some help, but his units
9 participate. And the brief on that is rather incomplete, incredibly
10 incomplete. Look at our brief when you want to see the men, the
11 materials, the units that are involved in this from the 14th to the 15th
12 to the 16th to the 17th. And this defence that the Zvornik Brigade would
13 have had to mobilise the schools in some official way, and therefore
14 they're done by the civil -- it's absolutely absurd. Drago Nikolic and
15 the MPs, of course, grab that school at Orahovac for a military purpose.
16 It's under the authority of Dragan Obrenovic. When Vinko comes back in,
17 it's under his authority. And they do that with all the schools.
18 The fact that there's a civilian bulldozer driver that gets
19 incorporated into the military operation, those arguments are so lacking
20 in foundation I am, again, surprised they were even made.
21 The argument that Beara came in and became commander, again, I've
22 spoken about that. You've heard the experts on that. At one point in
23 their brief, they agree with Butler
24 and, of course, issue orders and people will follow them, but the first
25 thing they'll do is tell their commander. But he cannot come in and take
1 over command unless he's specifically designated to do so. Nobody's
2 coming into Vinko Pandurevic's area of responsibility and taking over
3 command. He would never allow that. That argument cannot fly. For this
4 case and for history, that argument has to be put in the dustbin.
5 Can I go into private session briefly?
6 JUDGE AGIUS: Let's go into private session for a short while,
8 [Private session]
12 [Open session]
13 JUDGE AGIUS: We are in open session.
14 MR. McCLOSKEY: The 15th July report and Vinko Pandurevic's
15 testimony provide a -- there is a unique window into the real meaning of
16 that report, and it has to do with Eileen Gilleece report and the pigs.
17 Now, Eileen Gilleece got some things wrong, but she got a lot right, and
18 what she wrote was:
19 "Pandurevic advised that Rick Butler refers to a handwritten
20 report dated the 15th of July, 1992, at 2000 hours. That report refers
21 to a pig farm near the 4th Battalion. The soldiers of the Muslim 28th
22 Division seised the command post and killed pigs."
23 Pandurevic acknowledges they had Butler's report. He now
24 acknowledges that that had to do with "asanacija," though remember how
25 this all started. Huge attack on Eileen Gilleece, a huge attack on
1 "asanacija." "Asanacija" meant going out and looking for wounded or
2 casualties first, and then, secondly, corpses and burial. But what we --
3 what he was explaining to Eileen Gilleece was the term "asanacija" in the
4 15 July report was a reference to when the 4th Battalion got overrun on
5 the 15th and pigs were killed and had to be buried. That's what it says
6 in the report. The problem with that is the 4th Battalion got overrun on
7 the 16th, and it got -- or the late night of the 15th, after this report
8 was written. That's the first problem. The second problem is there's no
9 way on God's green earth a brigade commander, in the midst of facing what
10 Vinko Pandurevic was facing, would report the burial of some 20 or 30, or
11 whatever it was, pigs to the Drina Corps Command.
12 Now, Vinko Pandurevic tried to sell that yarn to Eileen Gilleece,
13 and she wrote it down. And in the direct testimony, something that was
14 extremely well prepared and very well organised, and there was no more
15 important topic in this trial than the 15 July daily combat -- interim
16 combat report, look what Pandurevic said about that. He acknowledged,
17 talking to Eileen Gilleece about "asanacija," but he noting, I'm sure,
18 that she had mentioned in 1992 in her report, said that he was talking
19 about an incident in 1992, in another area, 1992-1993, I believe, and
20 that was the direct testimony. No mention of the seizing of the command
21 post, as noted, and the 4th Battalion, and the Muslim 28th Division also
22 noted by Eileen Gilleece. Completely left that out of his direct
23 testimony. It had to have been on purpose. He does not want to get near
24 that crazy story.
25 So on cross-examination, General, what about the 4th Battalion?
1 Go back and look at what he said. He tells me, Oh, yes, it did happen,
2 and he throws in, Oh, there was an artillery barrage beforehand, trying
3 to account for the fact that the pigs died before the post was seised.
4 And he ends it by saying, oh, he told Eileen Gilleece both. Remember
5 when I said, General, you've got to pick your pigs. He said he told her
6 about the pigs in 1993 and he told her about the pigs in 1995. And if he
7 told her about the pigs in 1995, just -- just like she said, so she's
8 explaining "asanacija" with the pig story. It's absolutely absurd. It's
9 a dead give-away.
10 When you're caught up in a trap like this, it's hard to keep your
11 lies straight, no matter how well organised and how good you are, and the
12 attempt to cover every one with some artillery is what got him in
13 trouble. He went way too far with that with Eileen Gilleece, he got in
14 more trouble on direct examination, and in cross-examination he finished
15 himself. He did that throughout on most topics.
16 JUDGE AGIUS: Mr. McCloskey, can you be specific as to the
17 transcript pages, a reference? Look at line 8:
18 "So on cross-examination, General, what about the 4th Battalion?"
19 All I'm asking is for the reference.
20 MR. McCLOSKEY: Vinko Pandurevic's testimony in direct
21 examination that I referred to was 31286 to 31288. Pandurevic
22 cross-examination about the 4th Battalion pig farm was at 32237 through
23 32240. And this is explained in the brief, Your Honours.
24 JUDGE AGIUS: Thank you.
25 MR. McCLOSKEY: That report means what it says. "Asanacija"
1 means what it's always meant in this trial; the burial of the Muslims.
2 "Obligations of security" meant guarding them. There's no question about
3 that. And this document indicates Vinko Pandurevic took this burden on,
4 as was his orders.
5 Now, the 16th July, the hero of Baljkovica argued over how many
6 of his men were killed. It depends on who you listen to. One of the
7 colonels that went out and reported back to the Main Staff provided one
8 number. Other reports provide others. It was a lot of men. If you add
9 in the men that died in Srebrenica that are going to be adding on his
10 mind on the 14th and 15th, he loses 20, 30, 40 men in Baljkovica, he
11 stops it. That's why he stops it. That's clear in the evidence. He
12 stopped it to save Serb lives. There's a suggestion that he did it to
13 save Muslim lives.
14 Well, there's no indication in this record that Vinko Pandurevic
15 gave a hoot about Muslim lives. It was his job to kill the Muslim army.
16 They had been killing him and his men. There's no indication that he
17 cared about those Muslims. He opened that column to save his own men.
18 That's why he didn't get in so much trouble afterward. The colonels went
19 back and recorded he was in a tough spot. That's why he did it. This
20 idea that he did it as some sort of a humanitarian gesture is just as
21 absurd as being the hero of Kamenica.
22 You got that feeling when he was testifying, when he talked about
23 the Muslims and they were preventing any Serb life at a certain side of a
24 river. There was no love lost there. Look at his morale reports and how
25 he de-humanised the Muslims. Now, he does not care at that point about
1 Muslim lives. He's trying to save Serb lives. The suggestion that he's
2 the hero of Baljkovica is appalling.
3 His 18 July report, where he indicates, you know, whose idea was
4 it to bring 3.000 military-aged Turks, created unrest in Zvornik and
5 problems for him, that showed he was angry and not happy that the Muslims
6 were forced upon him and his town and the people. There's not one
7 indication that it was the killing of them that was the problem. It was
8 that he and his guys had to do it. He's complaining about the burden on
9 him and Zvornik for having to do it, not that it had to be done. Did you
10 get any remorse out of his testimony at all? I didn't see any. And
11 there's not a shred of concern, or worry, or thought for the Muslims in
12 any of his reports; certainly not those two, the 16th, the 18th, or the
14 A report sent like that at his command to General Krstic would
15 have been treasonous. Nobody is helping the Muslims, and that cannot be
16 any more clearer than what happened to the Muslims after all this. The
17 Milici patients linked directly to him through intercepts, and the fact
18 he's commander and they're in his unit, severely wounded folks, yes, they
19 would have seen the Muslims that were gathered in Nova Kasaba, the large
20 amount of Muslims that have since disappeared, so the Main Staff, the
21 Drina Corps, must have made the decision, Oh, we must kill the severely
22 wounded people that are being held by the Drina Corps, so they send
23 Popovic to go do it. He could have stopped that. He could have sent
24 those people to Batkovic on his own, as he'd done many times before, I'm
25 sure. He let them die. He let those four Muslim survivors of Branjevo
1 Farm disappear the same way. He used them as witnesses against their own
2 guys, who gave them sandwiches and told them where the front-line was
3 going to go. He could have stopped that. He knew all about that.
4 Who's responsible, who did this in the brigade? Three guys;
5 Beara, Popovic, Nikolic? No, no. This took a unified effort of a
6 brigade, outside units, the command structure, the security branch, the
7 MPs. The Pandurevic brief, as I said, is wholly lacking in this. It's
8 Vinko Pandurevic pointing down the line. It's awful. He has a hard time
9 doing it, when it comes to Obrenovic. And remember the absurd, absurd
10 suggestion that -- something about Obrenovic pled guilty, even though he
11 wasn't guilty. That was his explanation for that. Absolutely crazy. He
12 rather comes up with that kind of nonsense for you than put it all on
14 The commander at the time of the 4th Battalion, Lazar Ristic, was
15 up to his eyeballs in this. He was at Orahovac. The commanders of the
16 Petkovci Battalion, Marko Milosevic, Ostoja Stanisic, visits from Drago
17 and Beara and had all those prisoners in their schools, there's much more
18 to that story and their involvement. The Rocevic Battalion,
19 Sreco Acimovic up to his eyeballs in this. When Vinko Pandurevic is
20 back, his unit, his men involving in the executions, the transport,
21 himself. There's no more important person for Vinko Pandurevic than the
22 commanders of his battalions. These are the guys that command the guys
23 in the trenches. If the guys in the trenches don't perform, Zvornik is
24 lost. Sreco Acimovic is a key guy. Anything that Vinko Pandurevic needs
25 to get done, he has to rely on Acimovic in that area. Acimovic is
1 guilty, and Pandurevic isn't?
2 The 1st Battalion, all their soldiers guarding people, helping in
3 the transport, helping in the clean-up, working with the 10th Sabotage.
4 They're responsible and Vinko Pandurevic isn't? Look at all the men and
5 materials related to every one of those battalions, especially right
6 after Vinko Pandurevic gets back, and you'll get a true picture of what
7 went on and his responsibility. It's laid out very well in the brief.
8 It's crucial for this Tribunal that the responsibility in this
9 situation of a commander be understood and set out. Your responsibility
10 in this regard is immense. Generations will be looking to your words.
11 I'm sure you'll get it right.
12 Now, in any murder prosecution, even a prosecutor has a hard time
13 believing, many times, that the defendant committed the murder, that
14 mothers kill their children, fathers kill their wives, fathers kill their
15 kids, husbands kill their wives, so it's sometimes hard to get grips on,
16 especially in mass murder. How can anybody do this? Do you have to be a
17 demon or a devil? Well, the answer to that is no, and at this stage of
18 the argument I'd begin to run out of words and I've tried to look to
19 words of people that speak and write much better than I do. And in my
20 readings, I came across a man that wrote something that I want you to
21 hear, because it goes to this point. The man is named Leo Tolstoy. His
22 words will be immortal, not because he writes brilliantly but -- that's
23 one reason, but he clearly had his hand on the pulse of the human
24 condition of war, of peace. I wish I was going to go to "Anna Karenina"
25 with you, but I'm not. Of course, I'm going to "War and Peace." And in
1 that story, there's a gentleman and an officer named Prince Andrew, and
2 he's at the forward command post before a major battle with Napoleon.
3 And his friend comes to the command post, his friend Pierre, and Pierre
4 says to him:
5 "'So you think we shall win tomorrow's battle?"
6 "'Yes, yes,' answered Prince Andrew absently. 'One thing I
7 would do, if I had the power,' he began again, 'I would not take
8 prisoners. Why take prisoners? It's chivalry! The French have
9 destroyed my home and are on their way to destroy Moscow, they have
10 outraged and are outraging me every moment. They are my enemies. In my
11 opinion they are all criminals. And so thinks Timokhin and the whole
12 army. They should be executed! Since they are my foes they cannot be my
13 friends, whatever may have been said at Tilsit.'
14 "'Yes, yes,' says Pierre
15 It goes on:
16 "'Not take prisoners,' Prince Andrew continued: 'That, by
17 itself, would quite change the whole war and make it less cruel. As it
18 is, we have played at war - that's what's vial. We play at magnanimity
19 and all that stuff. Such magnanimity and sensibility are like the
20 magnanimity and sensibility of a lady who faints when she sees a calf
21 being killed. She's so kind hearted that she can't look at blood, but
22 enjoys eating the calf served up with sauce. They talk to us of the
23 rules of war, of chivalry, of flags of truce, of mercy to the unfortunate
24 and so on. It's all rubbish. I saw chivalry and flags of truce in 1805.
25 They humbugged us and we humbugged them. They plunder other people's
1 houses, issue false paper, and, worst of all, they kill my children and
2 my father, and then they talk of the rules of war and magnanimity to
3 foes. Take no prisoners, but kill or be killed, he who comes to this as
4 I have through the same sufferings.'"
5 You don't have to be inhuman to feel like this in war, when you
6 see your father killed, your family killed, and after three years of it,
7 but it's a soldier's duty to deal with it.
8 It's easy for me to stand up here and quote the Geneva
9 Conventions. I understand that. I haven't been through what these guys
10 have been through. But impunity, if we're going to stop it, this Court
11 has to be the first line.
12 Now, the victims in this case are never far from our minds. I
13 always end with the victims. I don't trust my words. I've been doing
14 this -- I have some words on my wall that I would like to take down, but
15 before I do, I want to give them over to you. And my thoughts are always
16 with those rows and rows of headstones at Potocari, and the eyes looking
17 out at me from the video. And a soldier named John McCrae many years ago
18 scratched down this poem in a place not far from here, and it's on my
20 "In Flanders Fields, the poppies blow between the crosses, row on
21 row, that marks our place and in the sky, the larks still bravely singing
22 fly, scarce heard amid the guns below. We are the dead. Short days ago,
23 we lived, felt dawn, saw sunset glow, loved and were loved. And now we
24 lie in Flanders Fields. Take up our quarrel with the foe. To you from
25 failing hands we throw the torch, be yours to hold it high. If ye break
1 faith with us who die, we shall not sleep, though poppies grow in
3 This Trial Chamber is in the best position to give the men, the
4 women, of Srebrenica some rest, some peace, some measure of justice.
5 Thank you very much.
6 JUDGE AGIUS: Thank you.
7 As agreed, we'll have a break now. Let me consult with my
8 colleagues for how long.
9 [Trial Chamber confers]
10 JUDGE AGIUS: The decision is we'll have a 15-minute break now,
11 and then, in the course of the question time, we'll have a further 15
12 minutes when we feel it is more appropriate. Okay, thank you.
13 --- Break taken at 11.31 a.m.
14 --- On resuming at 11.50 a.m.
15 JUDGE AGIUS: We'll start from here: Mr. McCloskey, would you
16 just state for the record who, as from your team, is present now, because
17 I can't see everyone from behind the column.
18 MR. McCLOSKEY: Caitlin Chittenden, Chris Mitchell,
19 Rupert Elderkin, Lada Soljan, Kweku Vanderpuye, Janet Stewart, and Nelson
21 JUDGE AGIUS: Okay, thank you.
22 As we said, we have a series of questions which we will put to
23 you. If, for any of these questions, you need time to do homework, of
24 course, you will tell us. We are not going to indicate to whom, in
25 particular, any of the questions is directed. You choose who will answer
1 the question.
2 Judge Prost.
3 JUDGE PROST: Thank you.
4 To begin with, I have, Mr. McCloskey, some questions relating to
5 crimes against humanity, in particular the "Chapeau" requirements for
6 crimes against humanity. I'll begin with a very general question related
7 to the attack, widespread and systematic -- or systematic attack.
8 Now, yesterday Mr. Elderkin made reference to the Prosecution's
9 position being that the attack on Srebrenica constitutes the widespread
10 or systematic attack on the civilian population, and I presume that
11 relates, similarly, to Zepa. What I'd like to know from you is: What is
12 the Prosecution's position as to when that attack commenced? I'm not
13 talking about the JCEs here, obviously. I'm talking solely about the
14 "Chapeau" requirement and the Prosecution's position as to when the
15 widespread or systematic attack on the civilian population began.
16 And as Judge Agius has indicated, if in any of these questions
17 you want to consider your position, you can certainly let us know that.
18 MR. McCLOSKEY: Your Honour, that -- the -- we had actually --
19 it's one of the legal issues we had discussed among ourselves and looked
20 carefully into the Krstic judgement and the appeals judgement and their
21 findings relating to that, but I cannot right now immediately recall.
22 Whether we considered the attack - and I know "attack" doesn't
23 mean necessarily firing bullets and artillery - whether or not we believe
24 the attack starts with the squeezing and the formal start of the
25 indictment from Directive 7 in March or we begin it with the actual
1 operation. I would have to consult on that one, and -- but give me one
3 [Prosecution counsel confer]
4 MR. McCLOSKEY: Your Honour, in our trial brief, at
5 paragraph 2868, we talk a bit about this, where we say it's inconceivable
6 that the very person engaged in the attacks upon Srebrenica and Zepa
7 enclaves in July 1995 could not have been unaware that these widespread
8 attacks were taking place. Indeed, evidence established that all the
9 accused must have been aware of these attacks, owing to their intimate
10 involvement in various and, in some cases, all aspects of the attacks,
11 including, first: The restrictions of food and aid entering the
12 enclaves; then sniping and shelling; further forcibly displacing.
13 So that is the position. I couldn't recall, but we did start it
14 with the restrictions as were formally placed, in our view, by Directive
16 JUDGE PROST: So Directive 7 is the starting point, is your
18 MR. McCLOSKEY: Yes. As we've set out, I think very clearly in
19 the indictment, we're -- well, this business was going on for quite a
20 while. Directive 7 is where we wanted to focus the Court's attention for
21 the targeted charge of forcible transfer, the attack beginning with that
22 pressure, and this sniping, and the restrictions, et cetera.
23 JUDGE PROST: Thank you.
24 Now, the second question also relates to this issue of the
25 "Chapeau" requirements, and you have acknowledged and it's clear, and
1 it's mentioned in several of the briefs, the point related to the column.
2 I'm moving now to the column. You have acknowledged the military nature
3 of the column, albeit with a civilian component to it, but the existence
4 of the column as a military column, subject to military targeting. So my
5 question is the relationship or the nexus between the military column and
6 what you have alleged to be the attack, the attack on the civilian
8 My question to you is: What is the nexus between that military
9 column and the attack on Srebrenica, and is it a sufficient nexus to
10 bring the actions against that column, the alleged crimes against the
11 members of that column, within the concept of crimes against humanity?
12 MR. McCLOSKEY: First of all, let me try to clarify the position
13 on the column.
14 Many times, and I think I've been quoted in various briefs when I
15 stand up in court and talk about that, and I, of course, stand by
16 everything I've said, but many times the context of that is me
17 acknowledging a particular reality, and I'm not necessarily making an
18 overall statement. Usually, I get up and say, and I recall Judge Agius
19 and I having a discussion on the record about this, is that the head of
20 the column certainly was military and, as such, was a fair target, but we
21 also see a tremendous number of unarmed and non-military men and boys
22 within that column, even women we see. And there becomes a very grey
23 area for us about when that can be attacked and when can't it be. And we
24 have clearly a partial-armed column moving through the hills of Kravica.
25 Then we have these people surrendering and getting blasted by
1 anti-aircraft guns. That is clearly not, in our view, a fair target of
2 the column, when people are being asked to surrender and are being
3 blasted by anti-aircraft fire, even though that is the column. We've
4 never chosen to charge that crime or that crime of perfidy in that case.
5 We don't know who was killed up there, but it's not an absolute that this
6 column was fair game and a fair military target. Parts of it were. It's
7 in a grey area that we did not choose to go into as Prosecutors in the
8 indictment, but because as that -- as the elements went through and broke
9 through Serb lines, they clearly could be fought.
10 Now, that group, with its military command, we believe, were part
11 of the group that were forced out, out of fear of their lives. Now, this
12 is similar to the Zepa situation, where only we have a retreating largely
13 force of able-bodied men. They are victims in this case, in our view,
14 even though they are part of a fleeing force.
15 It's a mixed force. I don't think there's any question factually
16 that this is a hugely mixed force. You get excellent pictures of this as
17 they are coming out of Zvornik. There are a few guys with rifles and
18 then there's this pathetic group of men, young and old, with no guns, so
19 it's a mixed force, and these mixed guys with no guns that are no threat
20 to the Serb forces are clearly, clearly, just as much victims of forcible
21 transfer as the men that went to Potocari and got kicked out. The fact
22 that they chose to run for their lives doesn't make a difference to us.
23 The same thing with the military people. Yes, they are a target,
24 but when the intent of the perpetrator in this case is to forcibly and
25 permanently remove them, then they are also victims. It's a
1 dual-motivation crime, something I've dealt with for many years in my
2 home country; one good, one bad. If there is a bad motivation, a bad
3 mens rea, you chase a guy out because he's a Muslim, because he's in
4 Srebrenica, because you have this policy to make the Greater Serbia. You
5 chase him out, even though he's a private with a rifle. You run him off
6 your territory. You do that with the intent to permanently deprive him,
7 even though that's not a requirement, but when it is permanently
8 deprived, there can be no question he is a victim also, in our view.
9 JUDGE PROST: Okay. I think you've answered without answering
10 what was to be my next question, which was whether the position of the
11 Prosecution is that the column -- the members of the column were also the
12 victims of forcible transfer. And I take it it is the Prosecution's
13 position that the column and the members of the column, themselves, not
14 just those who surrendered but the column and the members of the column,
15 were part of the forcible transfer. Is that correct?
16 MR. McCLOSKEY: That's correct. And if someone wants to get into
17 the issues of au de combat and those issues it's going to have to be
18 someone else.
19 JUDGE PROST: No, that's -- for my purposes that's the point I
20 wanted clarified.
21 Now, I have some specific questions on this that you may wish to
22 address or it was the area that Mr. Mitchell dealt with yesterday. These
23 are specific related questions on forcible transfer related though
24 specifically to the accused Nikolic, so I'm not sure -- I'll put the
25 first question, which is in relation again to the forcible transfer.
1 And I understood Mr. Mitchell's explanation yesterday as to the
2 receiving of individuals who were forcibly transferred, those who had
3 surrendered at the road, that the act of receiving or dealing with those
4 who were received is what is being alleged by the Prosecution with
5 reference to the forcible transfer and Mr. Nikolic.
6 My question is: What evidence is the Prosecution pointing to to
7 show knowledge on the part of Mr. Nikolic that these men, primarily
8 surrendered, were forcibly transferred out of Srebrenica? What
9 particular evidence would you direct us to on that question of knowledge?
10 Because I assume you would acknowledge that the receiving of these
11 individuals, for it to become part of the crime, would have to be with
12 knowledge that they had been forcibly transferred. Simply accepting
13 prisoners of war, for example, would not constitute a crime. So I'm
14 asking for what the particular evidence is on that point.
15 MR. McCLOSKEY: Well, I can outline some of it. Perhaps
16 Mr. Mitchell will help me with others.
17 I would first point to Drago Nikolic's important position in
18 Zvornik, which, as you know, was very closely connected to the Srebrenica
19 enclave. They were involved in the restrictions of convoys. Sometimes
20 convoys came into the area over the Zvornik bridge as opposed to always
21 through Bratunac, and we see many of the convoy documents going through
22 Zvornik. And I seem to recall Vinko Pandurevic saying that that's
23 correct, that that was a Main Staff thing, We didn't have anything to do
24 with it. But you'll see there's some Zvornik Brigade reports where
25 they -- the one I recall is when they were taking medical sterilising
1 equipment and other things that appeared to us they had no business
2 taking at the Zvornik Brigade, and this was a process, as you'll recall,
3 that was overseen by the security branch. And certainly in Bratunac, we
4 have Momir Nikolic testifying about that, and I believe there's evidence
5 that the security branch was overseeing the convoy entry and exit.
6 That's normal, of course, because convoys are a security threat,
7 potentially, smuggling, things like that, so it's only a natural part of
8 security's job to know about that.
9 So we can likely provide you with more evidence of the Zvornik
10 convoy restriction, which should be in the brief section, and the
11 security branch's knowledge of that convoy restriction, and then ask you
12 to infer that that goes -- should contribute to Drago Nikolic's knowledge
13 that the convoy is being restricted.
14 Also, Directive 7 went to the Zvornik Brigade. The commander
15 knew about it. These -- the history of the area was known to all the
16 officers, and I think that is a very fair inference, that they know the
17 history. The Zvornik Brigade was massively involved in pushing the
18 people down to General Morillon, the enclaves being created, the convoy
19 restriction. They knew that those people had run for their lives, that
20 they were stuck there, and then he clearly would have known of the
21 operation to take down the enclave. And he would have known generally --
22 remember Colonel Lasic, the guy that never made general, and you could
23 tell why he never made general, is because he got up here and said
24 something like, I knew what every VRS officer knew. We weren't -- you
25 know, we're not going to live together, and that was the policy.
1 Something to that effect.
2 He knows it from the Drina Corps. Drago Nikolic has to know of
3 the policy and practice to move out the population of Muslims from
4 Eastern Bosnia
5 Vinko Pandurevic's morale documents. We have them, I think, April, May.
6 He's -- it's rife with the idea of bringing back Serbia to Serbs and
7 getting rid of the Muslims. This is the -- it's a propaganda calling
8 card to rally the troops, and it's in many of Pandurevic's documents that
9 have to go to Drago Nikolic and will go to Drago Nikolic, and he will
10 absolutely know. This is something that helped give them hope and, you
11 know, We're getting the enemy, including the women and children, out of
12 our lives so that, you know, we can live by ourselves, and so genocide
13 will not be perpetrated upon us again, like it was in World War II. This
14 is the propaganda that was being fed to everyone, and with the results to
15 back it up, that they all had to follow and take part in, from convoys to
16 seeing some of the operations that went on.
17 I'm sure Drago Nikolic would have been aware of some of the
18 operations. The 10th Sabotage got together with the Bratunac Brigade,
19 I think it was June of 1995, to go in and just to create havoc in the
20 enclave. That is, given the connections, is something that he probably
21 was aware of. But overall, his knowledge, he had been fully aware of the
22 big picture. And the little picture, remember, 168 knew that there were
23 at least 3.000 people that had surrendered on the 12th and 13th, and the
24 phone call from Drago Nikolic directly related to prisoners, was clearly,
25 you know, connected to the massive numbers of people that are
1 surrendering. The Zvornik Brigade sends down -- has to send buses down
2 there. This is something that he should have been aware of. It happened
3 very visibly, it had a potential -- a potential threat to Zvornik.
4 Zvornik troops were away at the time. Drago Nikolic, as the security
5 officer, had to be very aware of what was going on down there because the
6 word, as you could tell -- Obrenovic knew very soon that there were
7 people heading up in his direction. This would have definitely engaged
8 the security and intel forces. And so when you keep track of the army
9 and the soldiers that are heading in your direction, you clearly know
10 that there's civilians and the civilians are related to it, because they
11 are completely interrelated.
12 I want to just very briefly -- it's really impossible to separate
13 the separation of men and setting them aside for execution and the
14 forcible transfer of the women. The same troops are doing it. It's not,
15 you know, one little group that's doing the separating and one little
16 group that's doing -- they're all doing the same thing. They're using
17 the same vehicles. They can't transport the men up to Zvornik until they
18 get the women and -- until they get the vehicles for the women and
20 Now, I don't want to go into my argument without an answer to a
21 question which -- it does remind me of -- we've got to look at these
22 things together. It's not separate. As Drago Nikolic is aware of the
23 military threat, he will know the civilian connection to it.
24 JUDGE KWON: You're saying that the same troops did it, but you
25 refer to two joint criminal enterprises?
1 MR. McCLOSKEY: Yes. We chose two joint criminal enterprises to
2 try to describe this God-awful crime, and we did it based on our
3 knowledge and review of the law of joint criminal enterprise as it came
4 out. And we -- we, frankly, did not feel we could charge everybody with
5 the murder operation that was involved in the joint criminal enterprise.
6 We do believe that there may have been people engaged in one that were
7 not engaged in the other, or merely -- or, you know, to the point of
8 making it worth a criminal prosecution. That was -- that was done on
9 purpose to reflect the best way to charge individuals without
11 JUDGE AGIUS: Yes, but going back to Judge Prost's question, with
12 your indulgence, do I read you well? Are you saying that there was no
13 way anyone on the ground there could have understood the attack on
14 Srebrenica, the final attack on Srebrenica, as possibly excluding a
15 forcible transfer of the entire population?
16 MR. McCLOSKEY: I think the people in the Officer Corps that were
17 familiar with the practices and the policies, such as Drago Nikolic and
18 the others, would have been fully aware. It's unbelievably noted in
19 documents, and it's from the directives and orders, to the Krivaja 95, to
20 other things. The officers would be aware that this final push was meant
21 to be the final unburdening of the area of Muslims. That has to be
22 known; not to every soldier and every farmer in the trench, but the
23 officer corps of the Zvornik Brigade, under the leadership of
24 Vinko Pandurevic, yes. These guys knew it, they were fully engaged in
1 As we heard, Vinko Pandurevic didn't think they'd be able to do
2 it because he thought UNPROFOR would get in their way. He was wrong
3 about that. UNPROFOR backed off or UNPROFOR backed off because of
4 hostages. But they were very much aware of those enclaves, they were
5 very much aware of those Muslims, and not least of which because the
6 Muslims were a thorn in their side, militarily. So this was a huge focus
7 for the officers, the people especially in security and intel.
8 JUDGE KWON: Coming back to that issue -- I'm sorry.
9 JUDGE AGIUS: Go ahead.
10 JUDGE KWON: What would be the border-line that would distinguish
11 those who would be responsible and those who are not responsible?
12 MR. McCLOSKEY: For forcible transfer?
13 JUDGE KWON: Yes, given the dual nature of the attack order.
14 MR. McCLOSKEY: A soldier that takes part in an attack or part of
15 the processes, with full knowledge that a principal objective of that
16 attack was to move out the Muslims against their will, is responsible;
17 private, sergeant, lieutenant on up.
18 Now, practically, what I charge in this Tribunal, with our
19 mandate, the mens rea is no different, but it depends on knowledge and
20 level of involvement. I would say we'd have to have significant,
21 substantial involvement -- significant or substantial, and I can't
22 remember which. Anybody remember? I'll be in trouble with Mr. Kramer.
23 But once they have significant and substantial involvement with the
24 knowledge of the criminal event, and that their actions will result in
25 that, they're part of it. There's even law that when they can -- you may
1 infer that if situations where it's -- there's a reasonable likelihood
2 that their conduct will result in that, you may infer that they intend
3 the reasonable and likely consequences of their acts. I think that's
4 even fair.
5 In our case, that's not an issue. These people know what they're
6 doing, and they know that their actions are causing the crime, forcible
7 transfer or the murder. That's the intent I've spoke about.
8 JUDGE KWON: Would you exclude the possibility of a soldier or
9 officer who would follow the attack order while not obeying the illegal
10 part of that order, given that there's a legitimate part of that order?
11 MR. McCLOSKEY: Well, I just spoke briefly of Borovcanin on that
12 point. He knows -- historically, he's very well aware of Bratunac's
13 families there. He was the chief of police. He knows precisely what
14 this was about. He received intelligence that civilians were there, that
15 there were military-aged men there. He knew that they were going to go
16 in and get rid of those people. He's given an order to attack. He knows
17 that the troops who's he's under the command of are going to take part in
18 that attack. He is a senior officer. I think he is guilty when he takes
19 part in the attack.
20 Now, you can tell from my closing argument he's part of the
21 attack. I don't really seriously personally start getting any kind of a
22 worry about him in that until he starts going into Potocari and taking
23 part of the -- the physical movement of the people, and allowing the
24 abuse, and doing the separations. That's where, personally, I hammer
25 Borovcanin. His involvement in the attack, while I think is technically
1 a violation because he knows it's criminal, he knows he cannot be
2 involved and he knows he is involved, if you look even under the RS
3 regulations, he's guilty, whether personally -- we would have charged him
4 had he stopped and reversed out of Bratunac, I can tell you, we wouldn't
5 have. But would he have been technically guilty? Yes.
6 JUDGE KWON: If you could expand further why you think
7 Mr. Pandurevic is guilty in this respect.
8 MR. McCLOSKEY: In that -- well, it's fundamentally the same.
9 Vinko Pandurevic, as we have seen, he has pointed out, he was at the
10 meeting in - was it 1993 - with Karadzic, he was in Boksanica in 1995
11 with Mladic. He was one of the premier officers of the VRS. He went on
12 to be minister of defence. He's a published author. He was a
13 significant force and a man and thinker at the time. He, better than
14 anybody, knew the objectives. Look at those morale things. He knew the
15 objective was to throw them out. He had been following Directive 4,
16 following the orders. His knowledge was immense, his intent was immense.
17 He was the one who issued those morale orders that glorified the moving
18 of the Muslim population out of the area. So he knew precisely what this
19 was about, and he is the kind of guy that has the ability to effect
20 change and say, No, Trnovo is where -- you know, trying to suggest
21 change. Now, his career would have been over, had he done that, but --
22 so he goes into this attack with incredible knowledge on what the results
23 are going to be should they be victorious.
24 Now, had Naser Oric been there, had NATO done a more effective
25 bombing campaign, and had the UN forces been able to protect the Muslims,
1 well, Vinko Pandurevic would have been sent packing along with
2 General Krstic and the Muslims would still be there. But that's not the
3 way it happened. And once the ball started rolling, and the victories
4 started mounting up, and the massive population starts leaving, then it
5 becomes no more grey area, Your Honour. Vinko Pandurevic is still there,
6 he's still engaged in it, and it's not just him participating in that
7 initial attack. The grey area of when I personally begin to see criminal
8 conduct I can charge is when the attack is successful and the civilian
9 population is being targeted, and the mortars are falling on the people
10 on either side of the road as they're leaving. This is the 11th of July.
11 Vinko's forces are still there, he's still around. He's telling Mladic,
12 We've got to, you know, get the weapons up in the hill. The Muslims are
13 still around. He's fully engaged. So that's when I have no problem
14 putting the forcible transfer right into Mr. Pandurevic's lap.
15 JUDGE PROST: But, Mr. McCloskey, just on that same point, just
16 as Mr. Pandurevic is aware of -- on your description, is aware of the
17 background and the forcible transfer issues, he's also very aware of the
18 military purpose behind the attack on Srebrenica. So is it your position
19 that he's to say, No, to the attack, he's to say, No, pressing the attack
20 further, knowing that there's this dual purpose that you've described to
21 the attack?
22 MR. McCLOSKEY: I don't think the law can allow for a huge grey
23 area here. I think commanders need to know what is against the law and
24 what is not. When a person has such a clear object - an illegal object -
25 as written down in Directive 4, as written down in Directive 7, as part
1 of an entire war plan, when they see that that is happening, yes, when
2 they start fully engaging their unit, they should say, No. And that is
3 the incredible duty of the commander. He has to say, No, under the law
4 here, under the Geneva Conventions, in my view. Now -- because it's his
5 intent, it's his mens rea, his joining the joint criminal enterprise
6 here, and he's -- all of that's happening. He's intending to do it, he's
7 knowingly doing it, he's participating, and it's a substantial part of
8 the operation. It can't be that, Oh, when things start to go bad, it
9 gets criminal. I mean, how is a general to know when it's criminal and
10 when it's not? It's criminal from the beginning. That's when they have
11 to say, No.
12 Now, had he taken part in this and stood down, or written reports
13 condemning everything and refusing to have his people involved in it, and
14 done -- and helped the UN and people, and been honest with us about when
15 he was in Potocari and when he was in Bratunac, then that is a horse of a
16 different colour. But when you have a policy like this, that's so clear
17 from the get-go, I don't know in the next 20 years where we're going to
18 see something that's so clear as this, the six strategic objectives, the
19 Directive 4. This is such a massively horrendous thing.
20 Please, and I'll say this briefly, don't underestimate the horror
21 of ethnic cleansing. This is a policy of ethnic cleansing. Yes, it has
22 a military aspect to it because of what the Muslims are doing, but this
23 is just as much a part of the policy of ethnic cleansing as anything
24 you'll see in this case.
25 And ethnic cleansing is worse than lighting a building on fire
1 full of people. It's lighting a war, lighting a country on fire. What
2 they did in Kamenica and Srebrenica is a long end of a long series of
3 horror, that was not necessary. It's not necessary in war to do what
4 they did. And Srebrenica was the final culmination of it.
5 JUDGE AGIUS: One question which is related to what you have been
6 saying and what you have been asked.
7 Is it the Prosecution's position that the aims of Directive 7 and
8 7.1 or "/1" couldn't have been completely achieved by the Krivaja
9 operation, Krivaja 95 operation, alone, but without the specific
10 attack -- final attack on Srebrenica itself and the forcible transfer of
11 the population?
12 MR. McCLOSKEY: I'm not sure I completely understand.
13 I think Krivaja 95 was not meant to be the final -- I want to say
14 "final solution," but it was not meant to be the final -- the final
15 objective or the final movement to make Directive 7 happen. It's -- in
16 the wording of the Krivaja 95, it's clear it's creating the conditions to
17 create the elimination of the enclave.
18 JUDGE AGIUS: One wonders perfectly well my question.
19 MR. McCLOSKEY: Yes. So Krivaja 95 was there to create the
20 conditions to be able to follow through and get rid of the Muslims, but
21 just create the conditions. Pandurevic is concerned that the UN would
22 stand firm would have meant that they couldn't have gone any further, and
23 so Krivaja 95 was only -- was only Chapter 1 in what they hoped to
24 achieve. Well, with Pandurevic's success, his military success, and
25 remember, he knows the objective and he is fighting hard, then Krivaja 95
1 also says somewhere in it, you know, Be ready to take advantage of the
2 situation and move forward, something like that. All military plans have
3 that. And so on July 9th, Krivaja 95 becomes the possibility for the
4 final objective. That's why it's so important. Tolimir is sending
5 Karadzic's message that they've agreed with what must have been Mladic's
6 proposal to the IKM, to Gvero, and to Krstic, a hugely important thing.
7 They've changed from a Drina Corps plan to create the conditions for the
8 elimination of the enclave to, We are now going forward, the enclaves are
9 going to be eliminated. The UN is weak, the Muslims are weak. Full
10 speed ahead. Krstic, Gvero, Pandurevic, Mladic, Miletic, they're all
11 involved, and then it becomes massive. And then it's the final
13 But, no, Krivaja 95 didn't start out that way. It was -- it was
14 meant to be the beginning, then to roll on to Gorazde, which they never
16 JUDGE AGIUS: All right. I'll put a question to you in -- it has
17 multiple questions in one, basically, but you need to focus on the
18 principal part of it.
19 Who do you consider, as regards genocide is concerned, who do you
20 consider, for the purpose of the alleged crime of genocide, to be the
21 targeted group? And I'm asking you or whoever will answer this question
22 for the following reasons: that, for example, we heard yesterday
23 Ms. Soljan referring to the Bosnian Muslims in Eastern Bosnia. Sometimes
24 we've heard others, yesterday and the day before, but also throughout the
25 proceedings of this trial, referring to the Bosnian Muslims in Srebrenica
1 and Zepa as being the targeted group. Also, there seems to be some sort
2 of incongruity in the indictment itself; for example, paragraph 30 of the
3 indictment refers to the killings of Muslim men from Srebrenica;
4 paragraph 26 refers to both female and male members of the Bosnian Muslim
5 population of Srebrenica and Zepa; paragraph 33 refers to the entire
6 Bosnian Muslim population of Eastern Bosnia. Basically, since this is
7 one of the issues that we will have to determine for the purpose of the
8 count charging genocide, we need to know exactly what your position is as
9 to which or who was the targeted group for the purpose of the genocide
11 MR. McCLOSKEY: Well, we describe the group which is -- as you
12 know, the Statute says the group in whole or in part. We are, of course,
13 talking about a part. And the group is the Muslims of Eastern Bosnia,
14 and those are defined as the Muslims of Srebrenica and Zepa, and should
15 include Gorazde, but primarily Srebrenica and Zepa, though Gorazde is
16 also part of Eastern Bosnia and they were also the focus of the ethnic
17 cleansing campaign, as you've seen from the evidence. On to Gorazde,
18 Gorazde's next.
19 JUDGE AGIUS: Thank you.
20 In your brief, final brief, you deal with -- at some length with
21 regard to the Trnovo killings and the involvement of the Skorpions unit.
22 My question to you is: What evidence are you adducing, because it's not
23 clear from the final brief itself, which allegedly -- what evidences are
24 you adducing which would connect the Skorpions unit itself, which
25 allegedly committed the killings in Trnovo, with any of the accused in
1 the present case or, for that matter, to any other member of the alleged
3 MR. McCLOSKEY: Well, just to remind the Court, factually, the
4 six or seven victims from Trnovo all went missing. I don't know if it
5 was Potocari or the woods, but clearly they were just -- just like
6 Orjem [phoen] Soljic or Mevludin Oric, they had been separated and, at
7 some point within this July time-period, got shipped all the way across
9 to Bratunac, and being shipped to Bisina on the -- is that the July 26th
10 time-period, I think, 23rd, and we see Muslims going across the river in
11 late July and with the Serb forces after that, but -- so these are
12 Srebrenica victims that get arrested in the Drina Corps zone of
13 responsibility, and I think you can infer they end up in Trnovo because
14 buses or trucks are going back to Trnovo that were used in the forcible
15 transfer operation or murder operation.
16 I can't think of no other reason why you would send somebody all
17 the way to Trnovo, except they had troops there ready to do it. You put
18 the Muslims in the vehicles that are going back already and you send them
19 to Trnovo. Well, that's across Drina Corps and other corps lines.
20 It's -- that has to be managed by the Main Staff. You don't -- and it's
21 not just six. They're not sending six people in a mini-van all the way
22 across Bosnia
23 truckload of people, and they are being shipped there to scatter and hide
24 this horrible crime. And so the logistics of doing that, the fuel, the
25 vehicles, that all involves coordination from the level of the Main Staff
1 in order to do it. Someone has to connect with the forces on the ground.
2 Remember, that the forces on the ground in Trnovo are these joint
3 forces of army and MUP. If you'll recall, Borovcanin was commanding such
4 a force when he was shipped over to Srebrenica. He had the Skorpions
5 under his command, and he was reporting on them, on the end of June and
6 July, the Skorpion that came and the others. So someone had to contact
7 either that MUP or the army. It was the army -- Borovcanin was working
8 as per regs, he would have been working under the army, so someone would
9 have had to go to the army in Trnovo. Now, whether that was the Sarajevo
10 Romanija Corps people, or it would have had to have been at the corps
11 level. That would have to go down through the army command to the MUP
12 command, because the Skorpions wouldn't be able to do any orders until
13 their MUP guy, their equivalent of Borovcanin, whoever he was at the
14 time, they would have had to go through him to be able to get him to
15 engage these guys.
16 So, yes, we have to make some inferences, but you don't get
17 Srebrenica victims transported, with the fuel and the vehicles, and given
18 to a very well-organised, disciplined Serbian unit, without massive
19 communication and organisation at the highest levels. That's
20 inferencing, but you just -- you cannot get across the country without
21 fuel, without vehicles, and the approval to do it.
22 JUDGE AGIUS: Are you pointing your finger to any of the accused,
23 in particular, or to all those who took part in this particular joint
24 criminal enterprise?
25 MR. McCLOSKEY: No, for Trnovo, I'm not pointing at these
1 accused. I'm not going to point at the accused for executions like that
2 unless I've got evidence of the fuel, of the -- more something. I'm
3 going to want some hands-on evidence before that.
4 I can tell you that it would be almost unimaginable for the chief
5 of operations not to know that they were shipping large numbers of
6 Muslims across the country to be murdered. His involvement, his actual
7 awareness in it, is too fuzzy to point any fingers.
8 JUDGE AGIUS: Okay. You're not alleging that the Skorpions unit
9 was part of the Zvornik Brigade or under its responsibility, in other
11 MR. McCLOSKEY: No, no, no, no.
12 JUDGE AGIUS: Thank you. Yes.
13 [Trial Chamber confers]
14 JUDGE AGIUS: I'll ask you a couple of questions on reburials,
15 and then I'll give an opportunity to my colleagues, and then I'll come
16 back to you later.
17 Within the context -- Mr. McCloskey, within the context of the
18 Tribunal's Statute, the law, and the indictment, is it your position that
19 reburial, itself, constitutes a crime and that it's being charged as
20 such, a crime punishable pursuant to our Statute, in other words? That's
21 why I mentioned initially the Statute.
22 MR. McCLOSKEY: By itself, no.
23 JUDGE AGIUS: Okay.
24 MR. McCLOSKEY: No, it has to be done with the knowledge of what
25 the purpose is and in furtherance of that purpose.
1 JUDGE AGIUS: Okay.
2 JUDGE KWON: So that was the question. Somebody who didn't
3 participate in killing before genocide, not at all, participate in
4 reburial, it is your case he's responsible for genocide, for killing, for
6 MR. McCLOSKEY: Well, we do believe that the JCE continues
7 through the end of the reburial, and if you brought an officer in to make
8 sure -- let's say they brought some guy from Serbia because someone else
9 was busy, they brought in a specialist from Serbia to make sure that
10 these burials went according to plan and were part of -- and really done
11 it quietly. That would be a -- that would be a substantial contribution
12 to it, and I think the issue would be a sentencing issue under our law.
13 Now, we're talking about soldiers and bulldozer drivers and
14 things like that. No. But if an officer comes in and is really
15 providing a substantial and significant part to keep this quiet -- you
16 see, murder, you've got to cover up. At home, it's not -- cases all the
17 time, you've got to keep it covered up and keep it covered up. Mass
18 murder is even more important, so burials and reburials and mass murder
19 has to be viewed differently than we look at things domestically. So if
20 someone comes in and provides some substantial assistance to something
21 that important, to keeping this from the international community and
22 keeping this crime quiet, yes, I would say that would be add -- be a
23 substantial and significant contribution.
24 We sometimes get a bit spoiled here. With a couple of less
25 survivors and without aerial imagery, we may not have known anything.
1 They could have been fully successful in this. The amount of luck and
2 the -- it was the international community getting into Bosnia
3 that allowed this to happen at all. And so the ability to come in and
4 keep things quiet, be it Afghanistan
5 anywhere else, is a big deal.
6 JUDGE AGIUS: Yes, Mr. McCloskey, always on the subject of
7 reburials, I've got a few more questions.
8 You seem, if we understand you well, to be charging reburial as a
9 natural and foreseeable consequence of the murder operation.
10 MR. McCLOSKEY: Yes, correct.
11 JUDGE AGIUS: Could you expand on how you consider that reburials
12 legally can qualify as a natural and foreseeable consequence, in the
13 circumstances of the case? I mean, people like the ones you've charged,
14 Nikolic, Pandurevic, Popovic.
15 MR. McCLOSKEY: Well, fundamentally, I view it in two ways: One,
16 as any murder, you have to dispose of the body if you want to get away
17 with it. I mean, that is a typical part of --
18 JUDGE AGIUS: That's burial.
19 MR. McCLOSKEY: -- of any kind of a normal murder, and it's
20 absolutely foreseeable that the police or somebody are going to be able
21 to figure out where you hid the body, especially when you have to act
22 quickly, in the eyes of neighbours, or the international community in
23 this context, and that it's absolutely foreseeable that you might have to
24 move the body.
25 Now, I take my neighbourhood murder example, but it's even more
1 important on an international mass execution level. It's got to be --
2 Mass Executions 101 has to be where to rebury the bodies when the
3 internationals figure out where they are, and how to do it. In fact, we
4 taught them. In Kosovo, they didn't do mass graves anymore. They killed
5 people and left them lying and stuck guns under them because of what they
6 learned from Srebrenica, in my view. So it's absolutely foreseeable that
7 people might find where you buried mass bodies, and they might -- and
8 that you need to have a plan ready to do something about it, especially
9 near the end of the war. You know, they -- that's -- in my view, that's
10 foreseeable, that you have to hide the body from the authorities if they
11 get close.
12 JUDGE AGIUS: Thank you.
13 You also charge -- yes, yes, Judge Stole.
14 JUDGE STOLE: Just on that one same question: The timeline is
15 quite different when it comes to the reburials, compared to the burials,
16 naturally, so the reburials would, in time, be quite a bit further away
17 from the killings and the burials. These do not, in the Prosecution
18 opinion, make any difference?
19 MR. McCLOSKEY: Well, it could. As you know, the burials took
20 place from -- from 14 July through 17, 18, 20 July, the initial burials,
21 and the reburials started -- well, the fuel started -- we see the fuel
22 coming in, I believe it's September 15th from the Main Staff, so we have
23 a few months. That's not very long, in my view. It's a couple of
24 months. The longer the reburials were from the actual crime would -- it
25 would depend on the circumstances, but the circumstances in this case are
1 pretty clear.
2 In July, there's no thought of -- immediate thought of Dayton
3 Well, the end of the war is considered near. That's one of the reasons
4 why they want to push towards Srebrenica. The idea of NATO forces or
5 people like that on the ground is really unthinkable, and that's one of
6 the reasons why you see them acting so arrogantly and that documents can
7 be written the way they are written, and only get found with search
8 warrants. And so early on, in July, it was not a major concern, even
9 though it should have been. But August, September, Madeleine Albright
10 and her photographs in front of the UN, showing disturbed earth, that is
11 all pretty quickly happening, and so it's after Madeleine Albright, who's
12 in August, I believe, that in September we actually see the fuel getting
13 there. So it's, you know, burials in July, UN photos to the world in
14 August, reburials in September, boom, boom, boom. No big delay, no
15 change of personnel, no other reason to be doing this. This idea that
16 they had to bury -- rebury people for hygienic reasons, no.
17 So I fundamentally agree with you have to look at the timeline
18 and you have to see how connected it is, but in this case very connected.
19 As I just mentioned, that's the outline of -- burials in July, the world
20 knows in August, the fuel comes in September, and the bodies start
21 dribbling through Bratunac and Zvornik in September and October.
22 JUDGE PROST: Sorry, Mr. McCloskey, just one more question on
23 this -- from me, anyway, on this particular topic.
24 This whole question of foreseeability, I want to make sure I
25 understand you completely.
1 In your argument that the reburial is particularly, and
2 Mr. Elderkin argued this yesterday, a contribution, it doesn't really
3 matter, then, on your position whether it was foreseeable or not; at the
4 end of the day, it's another factor going into the contribution. And
5 foreseeability, which sometimes can bring into confusion that there's
6 some allegation of JCE 3 here, which is what I was not clear on, my
7 understanding, though, after Mr. Elderkin spoke yesterday was that, at
8 the end of the day, the foreseeability factor is really not that
9 significant on your argument of contribution?
10 MR. McCLOSKEY: Mr. Elderkin is absolutely correct, and we put a
11 lot of thought into his argument, as did he, and that's what we came up
12 with, and that's why that was specifically mentioned by him. JCE 3 and
13 foreseeability is another issue.
14 JUDGE PROST: Thank you. I think I have your point now.
15 JUDGE AGIUS: Thank you.
16 Judge Kwon.
17 JUDGE KWON: Since you have mentioned JCE 3, I have a question
18 about particularly the extended form of joint criminal enterprise.
19 You charged the accused for opportunistic killing pursuant to
20 that form of responsibility. The requirements for that is not only that
21 it was foreseeable, but also that the accused took the risk willingly.
22 So if you could explain to me what evidence we have as to whether or not
23 and how the accused willingly took that risk. I'm particularly
24 interested in knowing with respect to Generals Gvero and Miletic, because
25 they were not charged for any killing, except for these opportunistic
1 killings, while others were.
2 MR. McCLOSKEY: Yes. Well, General Miletic and Gvero, while
3 noted as members of the joint criminal enterprise to kill people, were
4 not charged, and the foreseeable -- the opportunistic killings were
5 specifically connected to the foreseeability -- to the forcible transfer
6 charges related to Generals Gvero and Miletic, and so that's a -- that's
7 a separate issue.
8 And if I get your question right, it's the -- it's their willful
9 and intentional involvement and substantial assistance in the ethnic
10 cleansing of Srebrenica that provides the foundation of their -- that
11 makes them responsible for the foreseeable actions, when there's no
12 question in my mind that Generals Gvero and Miletic are fully versed in
13 the horrors of ethnic cleansing. They see it. It's not only from the
14 Muslims, as they're driving the Muslims out pursuant to these directives.
15 They see it happening to Serbs.
16 Grahovo and Glamoc. If we start this Tribunal over again, I
17 would love to go to Grahovo and Glamoc and see what happened there,
18 but -- so they see ethnic cleansing from both sides and they see how
19 horrible it is. They see what happens when -- Western Slavonia, for
20 example, we see what happens when the Muslim forces go in to clear out an
21 area and what they do to some of the Serbs. So they see it from both
22 sides. They know precisely what this means and how ugly it is. It's
23 more than foreseeable; it's a surety, that soldiers seeking revenge are
24 going to act out.
25 Look at General Gvero's order of the 13th. He is actually
1 telling his soldiers that, This Muslim column is going through and among
2 them are inveterate criminals and villains, and you must stop them at all
3 costs. You know, you might as well say, They're going to rape your
4 children and wives. This is what, you know, the soldiers on the ground
5 are getting fed, that the Muslims are coming to commit genocide on you.
6 This is the bile that General Gvero is selling. He knows that when some
7 Muslim is getting captured by Serb soldiers who have lost family members
8 and have been given this steady diet of bile, they're going to act out.
9 It's more than foreseeability, it's a surety. But certainly Miletic and
10 Gvero, who have seen the ethnic cleansing and the results of it can
11 foresee and did foresee that the ethnic cleansing policy would result in
13 JUDGE KWON: My question was not any foreseeability; whether they
14 took the risk. But I think that your answer would do.
15 But at the beginning of your response, you said that
16 Generals Gvero and Miletic were noted as members of the joint criminal
17 enterprise to kill people. Could you draw my attention to that passage?
18 MR. McCLOSKEY: There's an annex -- I think it's an annex in the
19 indictment where we -- as you know, I think, the law requires us to list
20 those that we feel are in a joint criminal enterprise to kill people, and
21 we listed them in there. It is paragraph -- paragraph 97, and we didn't
22 do it without evidence to support it. We have not argued it, we have not
23 pushed it specifically, because we didn't charge it. But when required
24 to put down who was in it, we put it down. And I can highlight the
25 evidence of their involvement, if you wish.
1 JUDGE KWON: Thank you.
2 JUDGE AGIUS: Mr. McCloskey, I have a final question on
3 reburials, and it's more of a clarification that we require from you than
4 anything else.
5 In the indictment, you specifically charge Accused Nikolic,
6 Pandurevic, and Popovic with -- in relation to reburials, with regard to
7 reburials. In your pre-trial brief, and for the record it's para 302
8 thereof, you seem to add Beara. And we've, in the course of the
9 proceedings, heard submissions particularly from Mr. Ostojic on that.
10 In the final brief, paras 1079 and 2282 and 2283, you once more
11 mention Beara as being involved in the reburial operation.
12 Incidentally, you also allege, in your final brief, that the VRS
13 Main Staff coordinated the reburial operation with Miletic's knowledge.
14 My question is: What is exactly your position as regards
15 reburials, vis-a-vis both Accused Beara and Accused Miletic? Have they
16 been put sufficiently on notice that ultimately they were going to be
17 brought into this overall picture when they were not as such -- included,
18 as such, in the indictment?
19 MR. McCLOSKEY: Mr. President, I remember discussing this with
20 Mr. Ostojic, and some evidentiary matters related to it, and I would need
21 a small break to go back and see where we are on that because there may
22 have been some changes or something. I need to -- let me look into that.
23 General Miletic, we would have -- chief of operations has to know
24 about something like this, and has to be involved in it, and know fully
25 that it's happening. I mean, that's what that would be about.
1 And if I can get back to you on Beara and maybe discuss it with
2 Mr. Ostojic, I think we can sort it out.
3 JUDGE AGIUS: Yes, Mr. Ostojic.
4 MR. OSTOJIC: Thank you, Mr. President.
5 I would just direct the Prosecution's attention to the November
6 8th and 9th transcript where we had a discussion in what I thought was a
7 ruling from the Court, specifically on the 9th of November, 2006
8 we had that discussion.
9 JUDGE AGIUS: That's the reason why we have brought this up,
10 because the subject is returned to in the final brief.
11 So, okay. Mr. McCloskey, Accused Nikolic and Gvero, in the final
12 briefs respectively, make the point that the protection provided by the
13 Geneva Convention 4 can only be applied to civilians, intimating at the
14 same time that prisoners of war and detainees, whose detention is
15 justified, cannot be considered as victims of forcible transfer or
16 deportation. I don't recall this point having been touched upon in the
17 course of the various interventions. Perhaps if you could deal with
19 MR. McCLOSKEY: Yes, Mr. President, I -- that issue, I think, was
20 dealt with in the Vukovar case. There were some Trial Chamber rulings
21 about those victims, and the holdings that come out of the
22 Appeals Chamber, I think, are important here, and I would have to refer
23 that to my colleagues for a discussion to become updated on that.
24 JUDGE AGIUS: Okay. So I take it you will deal with this later.
25 MR. McCLOSKEY: If -- yes, please.
1 JUDGE AGIUS: All right.
2 [Trial Chamber confers]
3 JUDGE AGIUS: Yes. While we are at that, Judge Prost is drawing
4 my attention to another issue that we meant to raise that perhaps you can
5 include with this one and come back to us at a later stage. That's the
6 duty to protect prisoners, particularly within the context of the Mrksic
7 standard, as contrasted with the Blaskic considerations.
8 Yes. Borovcanin argues that the Mrksic standard can only be
9 described as aiding and abetting by omission, and should not be used as
10 the Prosecution has unmistakenly pleaded, Blaskic liability in respect of
11 the duty to protect prisoners; that is, the intentional omission, direct
12 intent which is intentional. Perhaps you can deal with this item now or
13 later, but we meant to raise it now as worthy of some feedback from your
15 MR. McCLOSKEY: Yes, Mr. President. The Borovcanin brief says
16 that we did not charge aiding and abetting for forcible transfer, and
17 when I read it we checked the indictment. Everything is being charged
18 with aiding and abetting. It's very clear in the -- in the indictment.
19 I think they're -- they're suggesting that this particular form that
20 we've chosen, Mrksic form, the Geneva Conventions, but the Defence --
21 I think the Defence expert referred to it as the duty to protect, I don't
22 understand why they don't think we've charged aiding and abetting on that
23 as well. However, I have assigned Mr. Vanderpuye to deal with that
24 issue, and I'm sure he's prepared to deal with it, especially if you give
25 him a moment or two.
1 JUDGE AGIUS: Would you prefer to deal with it now or
3 MR. VANDERPUYE: Thanks, Mr. President, and good afternoon to
5 I am prepared to deal with it now to some extent. The problem is
6 I'm not entirely clear on what the Defence position is on it. But to the
7 extent that I can assist the Trial Chamber with our position, I can
8 certainly do that.
9 JUDGE PROST: What I'm particularly interested in,
10 Mr. Vanderpuye, and I'm sorry, I can see you only on the video screen,
11 is: Is the Prosecution alleging aiding and abetting by omission, the
12 Mrksic standard? I'm particularly interested in knowing whether that is
13 an allegation that the Prosecution is pursuing on the facts in relation
14 to Mr. Borovcanin.
15 MR. VANDERPUYE: Thank you.
16 MR. McCLOSKEY: I can answer that simply.
17 This indictment was made, you know, obviously before Mrksic, and
18 we intended and wrote "aiding and abetting" on each and every one of the
19 Statutes and forms of liability. That's the way it was meant to be pled.
20 JUDGE PROST: And so what you're saying is that would include any
21 aspects of aiding and abetting that have been developed in the law, even
22 if they are developed subsequently?
23 MR. McCLOSKEY: Absolutely, absolutely, and that -- that's the
24 way it is.
25 JUDGE AGIUS: For my purposes, at least, it's clear enough. But
1 since this was a question that we had agreed to put together, are you
2 satisfied with this explanation?
3 [Trial Chamber confers]
4 JUDGE AGIUS: Okay. Mr. McCloskey or whoever, we have had a
5 submission from Borovcanin, in his final brief, that as from 9th July
6 1995, UNPROFOR soldiers are to be considered as combatants for the
7 purposes of the law. There are some allegations from others that that
8 could have been the position even before the 9th of July, but let's stick
9 to this Borovcanin submission. What's your position on that?
10 MR. McCLOSKEY: I'm not sure how fully relevant that is, but as I
11 mentioned in my argument, I don't have a fundamental disagreement with
12 it. The -- as they mentioned, there was the green order, and on, you
13 know, the days leading up to -- and on the 11th, there was some -- some
14 very minor resistance from DutchBat, and NATO got in the game and dropped
15 some bombs. So to that degree, UNPROFOR was a potential target,
16 especially if attacking or perceived to be attacking the Serbs. I have
17 no problem with Vinko Pandurevic going in to a UN OP that's firing on him
18 and taking away their weapons. I don't have a problem even if they're
19 not firing upon him, if they come into the OP and taking away their
20 weapons so that they don't get shot in the back by a Dutch soldier. I
21 have no problem with that.
22 Now, as I mentioned, once the hostility is over, and we're at the
23 12th of July, and the Dutch are sitting in their compound and standing
24 around trying to look after the Muslim population and themselves,
25 Mendeljev Djuric and his unit of deserters systematically disarming
1 van Duijn's people and pointing guns at them and taking away their
2 ability to protect the Muslims that they're in charge of protecting and
3 themselves, now, that's another matter. That is done with the intent to
4 move forward the joint criminal enterprise to get at the population,
5 either to separate and kill them or to move them out, and that's the
6 conduct that I focus on.
7 The other conduct related to what's going on with the OPs and
8 NATO, we're not charging anything like that, and I don't -- I don't
9 see -- it makes good reading, but I don't see how relevant it is, and I
10 don't really object to it.
11 MR. JOSSE: Your Honours, could my client be excused, please?
12 JUDGE AGIUS: Pardon?
13 MR. JOSSE: Could my client be excused, please?
14 JUDGE AGIUS: Yes, yes, of course.
15 Shall we continue, Mr. Josse, or --
16 MR. JOSSE: We can continue.
17 JUDGE AGIUS: Okay, thank you.
18 Judge Prost.
19 JUDGE PROST: Mr. McCloskey, I want to be very sure that I'm
20 clear on the Prosecution's position on this. It's obviously a very
21 significant point, and you spoke about it this morning, and it's
22 obviously referenced several times in the brief. It's the issue of the
23 command of the Zvornik Brigade's involvement, in terms of the
24 participation of various aspects of the Zvornik Brigade in the course of
25 the process with the prisoners and the executions.
1 Is it the Prosecution's position that first Obrenovic and then
2 Mr. Pandurevic specifically knew and authorised the participation, for
3 example, of the various battalions that you made reference to this
4 morning, or is it your position that more vague -- if I could say, that
5 it fell within their authority, that there was general
6 command/authorisation for participation, and then the battalions fell in
7 line, if you wish, behind that general authority? Are you alleging
8 specific knowledge and authorisation for the participation of the various
9 units, other than the ones on which obviously we have direct evidence on,
10 but the other extensive participation as you described it, Mr. McCloskey?
11 MR. McCLOSKEY: There's no question in my mind that
12 Vinko Pandurevic and Obrenovic were aware that the command elements of
13 the battalions in the areas where these prisoners were held were
14 involved. They would have known that, they would have had to have known
15 that. The particulars of the movements and how it all went, not
16 necessarily. The actual -- what Sreco Acimovic was doing, perhaps not.
17 But Vinko Pandurevic would have had to know. He needed the members of
18 Acimovic's unit. He had to have known that Acimovic was involved in this
19 horrible, massive thing that was taking him away from his duties at the
20 front. He would have had to have known that Acimovic, personally, and
21 that his units, generally, were engaged in that operation.
22 He had to so he could know how many he could bring to his front,
23 how many he could ask for, what kind of demands he could ask from
24 Acimovic. The same thing with the 1st Battalion up in Pilica. You know
25 they -- there's lots in the record about the people in Pilica, because
1 they were a bit off the combat track. They were constantly being used to
2 go other places, and Pandurevic had to know that there was a significant
3 number of prisoners that were having to be dealt with. When he says, The
4 additional burden for us is the obligation of security for the people in
5 the schools, he knows that the people in the schools are the obligations
6 of his soldiers to guard. That's what's happening on the 15th. Twenty,
7 thirty soldiers of the 1st Battalion, when he writes that, are guarding
8 people at the Kula school, and there are people at Rocevic. The MPs,
9 we've proven, are at Rocevic on the 15th, and the various units and
10 soldiers of the Rocevic Battalion involved in the killing. He has to
11 know all of that.
12 This is why he writes this thing on the 15th, because it's a --
13 it's a burden and it's a total irritant to him on what he needs to do,
14 and that's defend his lines and defend Zvornik. He has to know that.
15 The absolute particulars of an involvement, he never needs to know
16 absolute particulars, but he's the kind of guy that's going to need to
17 know the details, he needs to know what his commanders are doing and that
18 they're getting the job done, and he's going to demand that. He's at the
19 forward command post, he's fully involved in communication with people,
20 and he will know that his units are involved. And that is a massive
21 distraction from him and what he really needs to be doing, and he has to
22 know about it.
23 JUDGE PROST: So then there's a quote or a statement that's
24 attributed. A couple of times it's mentioned in the Prosecution's brief,
25 attributed to Dragan Jokic, where he says:
1 "The error of Popovic and Nikolic were doing what they wanted,
2 taking whomever they wanted, wherever they wanted."
3 That suggests, of course, the other position, which is that the
4 security officers were carrying out these activities with the battalions
5 without the authorisation of the Command. I take it, then, it's the
6 Prosecution's position that that's not a correct statement of what was
7 happening, because I don't think you can have it both ways,
8 Mr. McCloskey.
9 MR. McCLOSKEY: Well, I wish Mr. Jokic would have been more
10 helpful, but from Mr. Jokic's perspective, who is a civilian -- civil
11 engineer at the same time as a career officer, he's a weak character that
12 when Beara comes into his office and starts saying, I need this and I
13 need that, and Popovic is there also, and Drago Nikolic is, and they're
14 all saying, I have orders from my commander, da-da-da-da-da-da, they're
15 not coming in and doing things without the orders of their commander.
16 What I would point you to, as we've done it before, is: In
17 Zvornik the first thing, you know, Drago Nikolic does is he calls his
18 commander. Before he can do anything, he calls Dragan Obrenovic and
19 seeks his authority. Even Beara can't come in. Beara is armed with
20 Mladic's orders, but even Beara can't come in and say, I have orders from
21 Mladic, give me this. He couldn't get troops from Blagojevic or Nastic
22 or the others. He had to call Krstic, General Krstic, please get these
23 guys to give me troops. The security branch is having to go to the
24 Command in order to get what they need. They can't do anything on their
25 own. All the people, and the logistics, and the units that they need to
1 get this massive job done are under the command of their -- of the
2 commanders, and the commanders have to be involved in that at that scale.
3 Yes, a very small scale, a -- Beara could come in and order this and
4 maybe take a prisoner out and, you know, have him shot, and the commander
5 could conceivably not know about it, but 5.000 people in the schools in a
6 process from 13, 14, 15, 16, and 15 and 16 in particular for
7 General Pandurevic, involving the massive aspects of -- look at our
8 brief. I didn't have time to go over it. From the logistics and the
9 fuel and the battalions, the amount of energy and resources that went
10 into this, there's no way these three guys could begin to do that. Momir
11 Nikolic reported to his boss, Drago Nikolic reported to his boss.
12 Popovic, as Mr. Vanderpuye put it, reported to his boss several times,
13 and Beara was getting called by his people, 155, several times during all
14 this and is having to report back, and they're calling him. These are
15 the command nodes running their security branch. This is not the
16 security branch running the other way around. That is the tail wagging
17 the dog, and it's just historically fundamentally impossible on this
18 scale, it can't be done. They can't come in and just take what they want
19 and do what they want at that scale. There's only three of them. They
20 need the military police who are under the command of their commander.
21 They need the units, the drivers, the other folks.
22 JUDGE PROST: Okay, thank you. I have your point. Thanks.
23 JUDGE AGIUS: Let me see if I could run through these. I have
24 got some minor question.
25 Miletic final brief, page 9, para 16. There is a statement there
1 that General Milovanovic, himself, acknowledges that in the spring of
2 1995, and in any case from March to late May 1995, he was at Crna Rijeka
3 with the consequence that, therefore, no one could have stood as Chief of
4 Staff or as deputy Chief of Staff, et cetera. Do you accept that part of
5 the evidence, that Milovanovic was in Crna Rijeka particularly from March
6 to late May 1995?
7 MR. McCLOSKEY: I'd have to check with Mr. Thayer. I do remember
8 what should be in evidence is the collection of reports to the Supreme
9 Command. I believe we got in a huge collection of those throughout 1995,
10 and some of them showed -- a few of them showed it went out under the
11 name of Milovanovic during periods of 1995, and many others went under
12 Miletic's name. And we think that's primary evidence of who's around.
13 But there's more to it than that, and Mr. Thayer is familiar with
14 that, and again I think if you give him a little bit of time, he can give
15 you a more prepared answer.
16 JUDGE AGIUS: Thank you. The same final brief, pages 85 and 86,
17 paragraph 213, the Miletic Defence team makes the point that the Trial
18 Chamber had taken judicial notice that:
19 "The Bosnian Serbs deliberately tried to limit access to the
20 enclave by international aid convoys by early 1995, and fewer supply
21 convoys were making it through the Srebrenica enclave, and, finally, that
22 blocking aid convoys was part of the plan."
23 This is what we are supposed to have taken judicial notice of.
24 It is then submitted, basically, that the correct wording -- exact
25 wording is that the Defence was, therefore, at a disadvantage, as the
1 onus was on the Defence to adduce rebuttal evidence, which to me means
2 that this judicial notice basically led to an inversion or a reversal of
3 the onus of proof. Do you wish to comment on that?
4 MR. McCLOSKEY: I think it's clear that the adjudicated facts are
5 something that does form a presumption, but it's a rebuttable presumption
6 which Ms. Fauveau and General Miletic were fully capable of doing, and it
7 doesn't -- and they would have done it, of course, anyway, in regard to
8 our case. If the Prosecution had stood on that alone, they might have
9 some kind of a concern, but if we had stood on it alone and they'd
10 rebutted it, it would be over. So the fact that they have to rebut it,
11 yes, that does shift the traditional burden to some degree, I think. I
12 may get corrected by that statement, but I think practically it does.
13 But as we know, an adjudicated fact sits there, it's not -- it's not
14 something that you're going to -- when -- if something is hotly
15 contested, I think everyone has faith that you're going to make your
16 judgement on each side's case and not worry about your own adjudicated
17 fact three years ago.
18 JUDGE AGIUS: Thank you.
19 Page 124, para 286 of the Miletic final brief, it reads as
21 "When an accused is alleged to have participated in a JCE, the
22 nature of his participation must be specified, including the facts from
23 which such an inference may be drawn."
24 And there is a reference to some jurisprudence there.
25 Then the same final brief continues:
1 "At no point did the Prosecution allege that General Miletic
2 contributed or participated in the restriction of UNPROFOR logistical
3 supplies. This cannot be put down to lack of precision in the
4 indictment, but to an omission which cannot be remedied by the evidence
6 So, basically, this is attacking the integrity of the indictment
7 as it relates to Miletic. This is why I'm putting it to you, in case you
8 wish to make any comments.
9 MR. McCLOSKEY: Thank you, Mr. President.
10 That is an issue that Mr. Thayer and I have discussed, and if we
11 could put that on his list, I'd appreciate it.
12 JUDGE AGIUS: Okay, thank you.
13 MR. McCLOSKEY: And Mr. Ostojic, I think, is ready to answer the
14 rest of our questions.
15 JUDGE AGIUS: Leave Mr. Ostojic alone. Let sleeping dogs lie.
16 MR. OSTOJIC: Excuse me, Mr. President.
17 I just want to correct the record. On page 74, lines 19 through
18 22, it mentions that I said "May 8th," but it's actually the 8th and 9th
19 of November 2006, and particularly I found that November 9th, the
20 transcript at page 3876. Thank you.
21 JUDGE AGIUS: Thank you. I think that deals with Miletic.
22 Borovcanin. I'm reading, because otherwise no one would be able
23 to follow, from paragraph 136:
24 "The combat with the column, which the Prosecution in any event
25 concedes was a lawful military target, was not conducted by the MUP
1 alone, as claimed by Vasic in his dispatches. Vasic, for whatever
2 reason, was apparently exaggerating the situation to his superiors."
3 And then it continues, and this is the more relevant part:
4 "Third, not all the MUP forces were under Borovcanin's command.
5 The 2nd, 5th, 6th Zvornik PJP companies and the 2nd Deserters Unit were
6 subject to a different chain of command and were not subordinated to
7 Borovcanin under order 64/95."
8 Borovcanin takes -- suggests or believes that the Prosecution has
9 never suggested otherwise. Is he correct in this; in other words, that
10 you have never suggested that the 2nd, 5th, 6th Zvornik PJP companies and
11 the 2nd Deserters Unit were subject to a different chain of command?
12 MR. McCLOSKEY: I'm not sure we've dealt with it, Mr. President,
13 because the units that were specifically in the area of Sandici, in
14 Kravica, and located in Potocari, are very clearly defined in the case,
15 and these other units are -- go from more of the Lol ici towards
16 Konjevic Polje area and are coming in at different times, and we haven't
17 dealt with it. But I can tell you, under the Rules, and under the
18 conditions and knowledge of this case, it's -- it's impossible to think
19 that they're going to be bringing in PJP -- special police or PJP units
20 working alongside Borovcanin units that are under the command of someone
21 else. It can't work that way, it's not designed to work that way.
22 Borovcanin is an impressive guy. He can handle these MUP units. They're
23 not going to give MUP units in the same area as Borovcanin to some army
24 commander or some competing MUP unit. So though I don't find it super
25 significant, but the position of the Prosecution is very likely he's
1 under the command -- that he's commanding any of these units, if not more
2 than likely. I would say he is.
3 Now, I need to correct myself on the -- on one answer I gave when
4 I said I had no objection to the disarming UNPROFOR in the various
5 operations. As I'm thinking about that, this is again the problem of the
6 dual motivation.
7 When Vinko Pandurevic dismantles UNPROFOR with the purpose to get
8 at the civilian population, that is a contribution to the crime. When he
9 dismantles UNPROFOR because they're firing at him, that's not a problem.
10 When you have both at the same time, it is a problem. He shouldn't be
11 doing it in the first place because it's a crime to go into a United
12 Nations safe area to drive out the population. It's a crime to go into
13 anywhere to drive out the population. And if you take out any force to
14 do it, as a substantial part of making that happen, that's a crime. It
15 doesn't sound good, we don't like it, but that's the case. This is a
16 horrible crime.
17 JUDGE KWON: When he, himself, has a dual motivation?
18 MR. McCLOSKEY: Yes. And the higher you get up in the ranks, the
19 clearer it becomes. The lower the soldier -- the soldier that's being
20 ordered to attack the OP or the lieutenant that's going up there, you
21 know, is one thing, but the people at the top of the food-chain like
22 this, that know from the very get-go the horror that's involved and
23 what's going to happen, it shouldn't be happening, and when they do it,
24 going after UNPROFOR, be it Gvero, be it Pandurevic, Miletic, that, in my
25 view, is a substantial contribution to the JCE.
1 JUDGE AGIUS: All right. I had some other questions which I'm
2 going to skip because, more or less, they have been even marginally --
3 although marginally dealt with earlier.
4 Again, Borovcanin final brief, page 176, paragraph 277, I'm
7 plan when he wrote a particular passage to which the previous parts of
8 that paragraph refers, and that he generally believed that those men
9 would be released as an inducement for the column of the 28th Division to
11 If -- the question that Borovcanin Defence team put is the
12 following: If the killing plan was not obvious to Vasic, who had been
13 privy to the two main meetings held by General Mladic, then how could it
14 have been obvious to someone else who had been out in the field and not
15 involved in any of those meetings?
16 MR. McCLOSKEY: It's probably best to have that report in front
17 of you, but Vasic writes that report based on the 10.00 a.m., 12 July
18 meeting at the Hotel Fontana, where Mladic is saying, you know, to the
19 Muslims, You survive or disappear. And what Vasic reports shortly
20 thereafter probably -- I don't know, I can't -- he didn't have times on
21 his reports, but it's probably shortly thereafter, a few hours, on the
22 12th of July, is that Mladic -- in his view, Mladic is holding these
23 people as a hostage to try to bring the men out of -- out of the woods.
24 I don't know where he got that from, be it Mladic or not, but, yes, in
25 our view, Vasic at that point has not been told of the plan. And by that
1 afternoon, 12.00, you know, 12.00, 1.00, the bussing separations
2 hasn't -- it's beginning to get going, but it hasn't really got going
3 yet, and so the real obvious -- what's going to be clear to everyone is
4 this lack of screening and this horrible abuse and these separations.
5 This is where those that are not on the inner circle are going to start
6 to become aware.
7 Remember, on the 12th of July Tolimir, from -- where is he,
8 outside of Zepa -- writes a proposal, which is his job, and says
9 something to the effect, You know, make sure we gets lists of these
10 people so we can get down -- so the war criminals don't get away. This
11 means Tolimir doesn't know about it. He's in Zepa. He has not been
12 told, because you don't get lists, and -- you know, that's what you do
13 for exchange, that's the first thing you do, and that's what Tolimir
14 wants, so that they don't exchange all these people without figuring out
15 who the bad guys are. That's his job as security officer. So in the
16 afternoon of the 12th, that's what he's writing. So Tolimir isn't in on
18 There's an intercept. The same thing. It's on the 12th or 13th,
19 where someone is saying, Hey, they're getting large numbers of Muslims.
20 We've, you know, got to get in there; otherwise, they're going to get
21 away scot-free. And the guy at the other end says basically, Don't worry
22 about it. So somebody on the other end thought that these Muslims that
23 were getting collected in Nova Kasaba were -- were going to be sent away.
24 So the 12th of July, if you're not in on the inner circle, you're
25 not going to know, but when you start separating people and treating them
1 less than like as you would an animal, then the word spreads. The
2 commanders that are doing it have to know what they're doing, because
3 they have a duty to look after these people, to make these lists, to get
4 them ready for exchange so they can get their Serb brothers back, and the
5 commanders, like Borovcanin, that realise, We're not doing that, they're
6 going to know why.
7 So the fact that Vasic, in the afternoon of the 12th of July,
8 doesn't know, it's not until the -- the separations and, you know, he's
9 being engaged and he's communicating with the MUP in Bratunac, that he's
10 going to be fully aware. As Miroslav Deronjic, you know, basically said,
11 when he saw that there was no real screening, he knew something was up.
12 So that's the explanation to that particular part.
13 JUDGE AGIUS: Okay, thank you.
14 And last question for today, and it is strictly legal: I refer
15 you to para 399 on page 225 of the Borovcanin final brief, and then to
16 paras 411, 412 and 413, which you will find on pages 231 and 232.
17 Basically, in the first of these paragraphs, the Borovcanin Defence team
18 is stating that taking the wording of paragraph 30.4.1 of the indictment,
19 they are understanding that paragraph as properly charging only superior
20 responsibility, and exclude that the paragraph properly charges
21 Borovcanin with having committed the act described in that paragraph,
22 whether directly or by way of JCE. If his contention is not correct,
23 then he attacks the same paragraph by way of alleging that he was given
24 lack of adequate notice of what he was being charged upon.
25 Similarly, in the paragraphs -- in the other paragraphs that I
1 mentioned in pages 231 and 232, he is offering a blanket objection to
2 Counts 3 to 6 and 8, alleging that they are vague, more or less mounting
3 the same way of reasoning as in the case of the paragraph -- paragraph 34
4 or 81 that I mentioned before, and suggesting that the indictment, in his
5 regard, does not charge aiding and abetting, except insofar as the
6 Kravica warehouse events are concerned; in other words, alleging that
7 aiding and abetting is not being charged in respect of any of the crimes
8 committed in Potocari, and that includes the forcible transfer and other
9 forms of persecution.
10 I consider this allegation as warranting some kind of feedback
11 from you.
12 MR. McCLOSKEY: Thank you, Mr. President.
13 We will do that. I can answer it briefly.
14 It's ludicrous. I looked at his allegations, that we weren't
15 charging aiding and abetting. We charged aiding and abetting for all
16 forms. So we'll look into the particulars of that, and -- but I think we
17 need to be careful here. Unless there's something that they can point
18 out to that occurred at trial, or some other issue, the time for
19 challenging the indictment is long past. If they're going to challenge
20 the indictment on these grounds, that requires all accused to get up and
21 challenge the indictment on this -- on those grounds.
22 This is one of the clearest, most detailed indictments in this
23 Tribunal, and we've gone through this entire process, and so unless there
24 is some specific connection to the case that he can point to, it's -- the
25 process is disconcerting. But we will absolutely answer your questions
1 and be prepared to respond to it.
2 JUDGE AGIUS: Okay. I think we can stop for today.
3 I did have some more questions, but I think I will take the
4 opportunity over the weekend to go through them again and see whether
5 they need to be put or not.
6 In any case, on Monday we will start with you, Mr. Zivanovic.
7 We'll start with you after, of course, we've heard the final response
8 from the Prosecution for the questions that we have postponed.
9 Thank you, and have a nice weekend.
10 --- Whereupon the hearing adjourned at 1.40 p.m.
11 to be reconvened on Monday, the 7th day of
12 September, 2009, at 9.00 a.m.