1 Monday, 7 September 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.06 a.m.
5 JUDGE AGIUS: Okay, Mr. Registrar, good morning to you. Could
6 you call the case, please.
7 THE REGISTRAR: Yes, Your Honours.
8 Good morning, Your Honours. Good morning to everyone in and
9 around the courtroom. This case number IT-05-88-T, the Prosecutor versus
10 Popovic et al. Thank you.
11 JUDGE AGIUS: Okay, thank you.
12 Good morning, everybody. For the record, all the accused are
13 present. The Prosecution composition is as it was last Friday at the
14 end. The Defence teams, okay, everyone is present, so we can proceed.
15 Mr. McCloskey, we had pointed to some issues last Friday which
16 you had to do some homework upon and come back to us.
17 MR. McCLOSKEY: Yes. Good morning, Mr. President, Your Honours,
19 And I have endeavoured to do that. I first wanted to ask,
20 Mr. President, Your Honours, I noticed that I had inadvertently left out
21 a discussion of four exhibits that are specific to a response of the
22 Kravica warehouse argument that the Defence had made in Borovcanin. It
23 would just take me a very few minutes to go over those just to clarify
24 it. I think it will help you to understand this and make more sense out
25 of the Defence arguments.
1 I also failed to mention our sentencing request, which I would
2 just do very briefly and without any fanfare.
3 JUDGE AGIUS: Okay.
4 [Trial Chamber confers]
5 MR. McCLOSKEY: We think we've got 15 minutes.
6 JUDGE AGIUS: You still have -- you still have about 20 minutes.
7 You still have about 20 minutes, anyway.
8 MR. McCLOSKEY: This shouldn't take that long.
9 JUDGE AGIUS: It's up to you, how long it takes. It's your
11 MR. McCLOSKEY: Thank you.
12 All right. Well, then, we'll just get right to it. If we could
13 go to Exhibit PIC
14 Kravica survivor from the west side, or the right side of the warehouse,
15 as Borovcanin, I believe, refers to it. PW-156. I may have said "157"
16 as well before. It's PW-156.
17 And this exhibit, you may recall, is the exhibit that shows where
18 he came from. Now, this is, of course -- he was using the winter shot,
19 but that shows that he was walking from the right side of the picture,
20 across the front of the warehouse, and then went in through that door
21 that we see marked, where the red goes into.
22 And now we can go to the next one, which is PIC00066.
23 JUDGE AGIUS: And don't broadcast these photos because I think
24 that guy had protective measures, and there is his initials on the --
25 MR. McCLOSKEY: Yes, I think that's -- I don't know if he put
1 initials or his number. Hopefully, we had him just put his number,
2 but --
3 JUDGE AGIUS: And if it's not his signature -- the previous one,
4 the first one. Yes, but there wasn't "156" next to it. It's the first
5 one that we saw.
6 MR. McCLOSKEY: Now, this shot is where he's marked "B" and made
7 little markings, which was him -- his attempt to, on the screen, to mark
8 where the bus was. But he described that the bus was in front of the
9 warehouse and that he walked between the warehouse and the bus, and which
10 is, if you go back to your recollection of the bus, parked right adjacent
11 to the warehouse. It is our submission that that was the bus, that he
12 would have walked between the warehouse and the bus. So while these
13 markings are a bit out in front, I think if you look at the testimony,
14 it's clear that he is walking between the bus and the warehouse. And if
15 you recall, the bus was in front of this -- of this little door that we
16 showed that he walked in to before.
17 All right. Now, let's go to Exhibit P02103, and as you'll
18 recall, Mr. Ruez provided some very brief testimony that the witness had
19 told him that he'd gone into a little guard room in the warehouse. And
20 if you recall, his testimony was that he went into the big room and went
21 over to the right side of the warehouse, and I'd ask you to infer from
22 the evidence that after the shooting began he moved over and went into
23 this little room. It's in Sanction, if you're having a problem with it.
24 In fact, I think there's the -- there is -- now, that room -- or that
25 little door where all the light is streaming through, that is the door
1 that the witness came in and the door that the witness testified he came
2 out of. And this little outline that you can see is what Mr. Ruez was
3 speaking of when he talked about the little guard room.
4 And if we could go to the same picture, but I asked Ms. Stewart
5 to make lines on it that I've asked her to make. It's not -- no witness
6 has made this. This is just something so -- to call your attention to
7 it. You can clearly see, in the right side wall in the photograph, and
8 the top wall, the construction of what would be the wall and ceiling.
9 What I really want to call your attention to is over on the left side.
10 You'll see that there is similar marks of white that outline what we
11 believe is the wall that will come out perpendicular to that door. So
12 this little room is -- does not include the doorway. You don't walk in
13 from that doorway into the little room. When you walk in that doorway,
14 this little room is to your left, in our view. And so the witness would
15 have crawled into this room and stayed there, and then left out through
16 that door.
17 Now, that's important because the Defence claims that this room
18 is a -- is incorporated into the front of this door and that it is a
19 separate room that would have held only a certain number of people.
20 Well, I don't think that is a fair interpretation of the evidence. The
21 fair interpretation of the evidence is this is a separate room that you
22 enter into from its own door, not from this particular door that we see.
23 And I'd like to go to Exhibit P04529. This is a sketch. You may
24 remember, it wasn't long ago and when we were into a rebuttal mode of
25 trying to show roughly how many people could fit in each sides of the
1 warehouse, and this was a very rough-draft document that Tomasz Blaszczyk
2 used to help determine the number of square metres in those rooms. And
3 Dusan Janc -- we put it on through Dusan Janc to help him in his
4 conclusions about how many square metres were in these rooms. There is
5 no evidence in the record that this diagram has anything to do with that
6 little -- the little guard room. It does not. There's no evidence about
7 that, it's not meant to deal with the guard room at all. It's a very
8 rough, not-to-scale diagram, so it should not be viewed as anything to do
9 with that guard room. It has to do with the two big rooms and the basic
10 square-metre measures.
11 All right. And in addition to that, Mr. President, I would
12 merely state -- reiterate what we said in our trial brief, that there can
13 be no other sentence for all of these accused than life imprisonment.
14 JUDGE KWON: If you could show me the picture again, the previous
16 MR. McCLOSKEY: Yes, sir.
17 JUDGE KWON: The previous one.
18 MR. McCLOSKEY: The one with Ms. Stewart's markings on it?
19 JUDGE KWON: Yes. I cannot clearly see the trace on the left
20 side. Its own room -- own door, in your opinion, is inside the room
22 MR. McCLOSKEY: That's -- that is the Prosecution's position, and
23 that's correct.
24 And if we could go to the other photograph and just -- the yellow
25 markings sometimes blot out what I'm referring to. Now you can -- now
1 you can clearly see the line of white there next to the bright door, both
2 the vertical and horizontal. Those are the outlines of both the ceiling
3 and the wall as it came out perpendicular from the doorway. Yeah,
4 those -- that is the indication of where the wall used to be as it came
5 out perpendicular and parallel to the back wall.
6 JUDGE KWON: Thank you. This is page 101 of that exhibit. Thank
8 MR. McCLOSKEY: We'll get to the questions, which I will try to
9 answer briefly, and of course I'm here for any further questions.
10 The first one on my note was responding to the Gvero argument
11 that Article 49 of the Geneva Conventions is the ruling article on this
12 point and that it applies only to civilians.
13 Well, we agree that Article 49 of the 1949 Geneva Conventions
14 applies to civilians only, but that is, of course, not where the
15 discussion and the analysis stops. We can also see that Common Article 3
16 of those conventions refers to "hors de combat" and does not limit it to
17 civilians. But most importantly, we look, as has the Appellate Chamber
18 looked, to customary international law, and as we look at Mrksic and
19 Martic, that the Appellate Chamber has a long discussion on customary
20 international law, citing the various authorities over the years that
21 have stood for and expanded the original view beyond just civilians. I
22 would draw your attention in Martic, particularly, to paragraphs 305,
23 306, 309, and 311, where they lay out some of that customary
24 international law.
25 And just for an example, that we have not been held solely in
1 this Tribunal to Article 49, Article 49 has required that for
2 deportations, they be deported from occupied territory. Well, that has
3 never been a requirement in this Tribunal. Not that it has to do with
4 this case, but that's just an example of how this Tribunal, through its
5 Article 5, has expanded the scope from the Geneva Conventions from 1949.
6 Okay. The next question I see is that in the Miletic brief there
7 was an allegation that we did not specifically refer in the indictment to
8 Miletic's role in restricting the UNPROFOR resupply convoys, and where we
9 did specifically refer to his role in restricting the humanitarian
10 convoys. Well, I don't believe that is correct because if you go to the
11 indictment, under paragraph 75, where we specifically describe some of
12 General Miletic's actions, we note that Miletic, acting individually or
13 in concert with other members of the joint criminal enterprise to
14 forcibly transfer and deport the populations of Srebrenica and Zepa, and
15 knowing that forcing the Muslims out of the enclaves was unlawful,
16 committed acts in furtherance of the joint criminal enterprise as
17 ascribed in paragraphs 50 to 54 of this indictment and below."
18 And then under the heading "Making Life Unbearable for the
19 Inhabitants of the Enclave." We go on to say under I:
20 "He drafted Directive 7 which was signed by President Karadzic on
21 8th March and called on the VRS to inter alia ..."
22 And then we lay out the two foundational points of this case, the
23 forcible transfer and how it began: One, the policy to create an
24 unbearable situation so life was impossible for the Muslims and, two, the
25 issuing of permits to reduce and limit the logistical support for
1 UNPROFOR and the supply and material resources to the Muslims. So there
2 it is.
3 Now, yes, it is first noted that he drafted that, but we're not
4 just putting that down as merely the drafter. Of course, we are holding
5 him and the others in the joint criminal enterprise for carrying that
6 out, and there it is spelled in black and white, reducing UNPROFOR.
7 Now, the next "(ii)" we particularly point out and emphasise the
8 part about the Muslim restriction, but that should not be viewed to
9 suggest he's not responsible for all of Directive 7 and particularly the
10 part where it says "reducing the help to UNPROFOR." And, in fact, as I'm
11 sure you're aware, the whole thrust of our case is -- regarding UNPROFOR
12 is not so much that UNPROFOR is a victim in this case, but it's their
13 reducing the fuel and other supplies and the reinforcements to UNPROFOR
14 that directly affects UNPROFOR's ability to look after and protect and do
15 their duty regarding the Muslim population. So as we focus on the Muslim
16 population, that's, of course, the focus, but we also clearly point out
17 UNPROFOR and the reason that UNPROFOR is so important is not for UNPROFOR
18 on its own, but UNPROFOR as it relates to the Muslims.
19 Now, it's not just the indictment that lays this out. We may not
20 remember much of my opening statement back in the 21st of August, 2006
21 but what I attempted to do in a very short opening statement, as you may
22 recall, is point out the specific and important links of the accused to
23 this case, and I went accused by accused by accused. And I want to read
24 to you -- when I got to the Miletic section, and I read out one of the
25 convoy documents where General Miletic had made some specific
1 restrictions on the inspection of cargo and fuel tanks, and then I said
3 "Now --" and for the record, this is on page 443 back on the 21st
4 of August, 2006:
5 "Now, this shows that General Miletic is playing a very important
6 role in this. Now, on its face, there is nothing criminal about this,
7 but it does indicate to us the role he's playing, and he can say to the
8 Zvornik Brigade, 'I demand a detailed ...' Now, is that an order from a
9 commander? No. Is it a directive you have to follow? Yes. This is
10 consistent with Mladic's overall order Directive 7 and the other
11 materials that we've seen establishing the policy. And you'll see,
12 speaking of fuel, how fuel was restricted and strangled. So by the time
13 DutchBat was there in July, when these events happened, they didn't have
14 enough fuel to run their air-conditioning or their electrical, and they
15 couldn't go out in the vehicles, and this is all the Main Staff's doing
16 through their corps, through their brigades, as it was done with
17 General Miletic."
18 Now, that's pretty clear. General Miletic is involved in the
19 restriction against UNPROFOR, both in the indictment, right up front in
20 the opening statement.
21 An indictment can't possibly list all the ways in which people
22 commit crimes. We did our best, you required us to do even better, and
23 this indictment does a good job of it.
24 And also in Miletic's brief, they make the conclusion that --
25 regarding the location of Miletic and Milovanovic in 1995. Now, the
1 exhibit that I would draw your attention to, and as cited by the Defence,
2 but not very accurately, is P03163, and this is a little information
3 report done right before Milovanovic -- I believe right before he
4 testified, where we went over with him this complete collection that we
5 had of reports from the Main Staff to the president, and those reports
6 were -- came out in the name of Miletic or Milovanovic and sometimes
7 others signing "Za" for them, and he went through all of those and
8 noticed his name and Miletic's name and other's name, and he went
9 through -- and from that document you can see the conclusions of that,
10 and he testified that basically this represents the time that he would
11 have been there or Miletic would have been standing in for him. It's not
12 perfect. You may recall there was -- Ms. Fauveau showed Mr. Butler,
13 I think it was on the same day, one document that went out in
14 Milovanovic's name, one that went out in Miletic's name. As Milovanovic
15 goes to a front and comes back, that this is clearly not going to be
16 absolutely 100 per cent representative, but it does give you a good idea
17 of the long periods of time that Miletic was standing in, and some of the
18 periods of time that Milovanovic came back.
19 So just very roughly we can see from this document that for most
20 of January, it was signed off by Miletic. I counted, this morning, nine
21 days in February that was Miletic. The rest of it was Milovanovic. Six
22 days in March that was Miletic. Mostly the rest of March, it was
23 Milovanovic. Seven days in April was Miletic. May, it was a rough
24 split. And then from 31 May all the way to 4 September, it's all
1 And also recall, when Miletic comes back, he's not always in the
2 HQ. Sometimes he's within Zvornik, looking after -- excuse me, when
3 Milovanovic comes back, he's not always in the headquarters. Sometimes
4 he was in Zvornik, looking after an operation in that area. And when he
5 does come back, he's going to be briefed and they're going to have to
6 communicate very closely with each other. So -- and this is engaging
7 General Miletic in the briefing as well. So when Milovanovic doesn't
8 come -- when he comes back, that doesn't disengage Miletic. In fact, if
9 General Miletic was the chief of the air force defence, perhaps he would
10 have been slightly more disengaged, but he, as chief of operations, he is
11 not going anywhere. He's fully engaged in all this material. So there's
12 no real lack of knowledge or action on Miletic's part when Milovanovic
13 comes back. Yes, he would not be standing in for -- in this informal way
14 that we have described and you're the experts on now, when Milovanovic is
15 back, but that doesn't fundamentally change the equation here. In fact,
16 it shows they're both working together.
17 All right. There was another question regarding the
18 adjudicated -- your adjudicated facts decision and whether that shifted
19 the burden of proof, and I gave you my recollections on that, that -- at
20 the time that I didn't -- none of us felt that there was any obstacle put
21 forward by the Trial Chamber for either side on these adjudicated facts;
22 that they were an attempt, of course, to stream-line the case. And we
23 found the language which reflects just that, and it's from 27 September
24 2006, page 2253. And, Mr. President, you said, starting at line 3:
25 "Basically, the decision means, first, that in as far as those
1 250-odd adjudicated facts that we have agreed with you upon, the Trial
2 Chamber is simply taking judicial notice of the fact that that fact was
3 adjudicated by a previous Trial Chamber. We are not going any further
4 than that. The fact that a previous Trial Chamber has adjudicated that
5 on the 11th of July, 1995
6 that the chapter begins there and finishes there, and that you are --
7 neither of you, nor the Defence, are entitled to expand on that. There
8 are some adjudicated facts that obviously go in favour of your case, and
9 there are several adjudicated facts that go in favour of the Defence.
10 What we have stated there is what I have told you, and if you need to
11 expand on that to make things clear, because ultimately it's we who will
12 have to adjudicate not only on that fact, but all the facts that are
13 pertinent, of course you will be able."
14 I think that it more than clearly establishes you're not putting
15 the adjudicated facts in the way of anybody. They are free to put on
16 their case, and that, of course, is consistent with the entire way you've
17 run this case. We don't see authoritarian moves to block anyone in three
18 years, which I'm sure is very much appreciated.
19 And the last note that I have had to do with Mr. Borovcanin's
20 claim that we have not charged him with aiding and abetting;
21 specifically, had not charged him for aiding and abetting in the failure
22 to protect the section. This can be answered very simply by going to the
23 section on individual criminal responsibility. It's paragraph 88 of the
24 indictment, where we say:
25 "Pursuant to Article 7(1) of the Statute of the Tribunal ...,"
1 and we list everyone, including Borovcanin, "... are individually
2 responsible for the crimes charged against them in this indictment, and
3 each of them committed, planned, instigated, ordered, and otherwise aided
4 and abetted in the planning, preparation, and execution of these charged
5 crimes as set out in detail in this indictment."
6 But then we go on and repeat ourselves in more particularity, and
7 we speak especially regarding Mr. Borovcanin in paragraph 92, and we say:
8 "As a separate and independent basis of liability under 7(1),
9 Ljubomir Borovcanin's presence at or near the Kravica warehouse execution
10 site, described in paragraphs 30.4 and 43(A)(iii) of this indictment,
11 together with his failure to intercede in order to protect prisoners
12 there, instigated, assisted, and aided and abetted the physical
13 perpetrators of the killings in that his presence served as encouragement
14 and incitement to the physical perpetrators of the Kravica executions who
15 continued to kill prisoners during and after Ljubomir Borovcanin's
17 We go on to the second part of that:
18 "... and, (b), constituted a willful failure to discharge his
19 legal duty, resulting in liability under 7(1) as an omission, in that
20 Ljubomir Borovcanin had custody and control over 1.000 Muslim prisoners
21 held in the Kravica warehouse on the afternoon and evening of 13 July.
22 He had a legal duty to protect those prisoners from harm from his own
23 troops and others, including at least one member of the Bratunac Brigade
24 Red Berets. Despite his ability to do so, Ljubomir Borovcanin failed to
25 protect all the prisoners within his control who were held at the Kravica
2 Now, the beginning of that paragraph mentions aiding and abetting
3 regarding both those two, his presence as an encouragement and incitement
4 and his failure in his duty to protect.
5 And I would just add one brief comment about this idea of aiding
6 and abetting. "Aiding and abetting" has been defined as knowing of the
7 criminal event and substantially assisting in it, intending to provide
8 substantial assistance in it.
9 Now, when determining the intent of an individual that hasn't
10 confessed or made admissions, this is precisely how a prosecutor or
11 anyone, a trier of fact, determines intent; that the accused knows about
12 a crime and that he was part of it. Where Trial Chambers draw the line
13 between aiding and abetting and actual intent, it's very difficult to
14 determine. It's up to the individual Trial Chamber. There's no clear
15 jurisprudence on that. The sentencing between the two, aiding and the
16 abetting and actual intention, has not been very different, if you look
17 and see what Krstic was sentenced to as an intentional participant and
18 what Krstic was sentenced to as an aider and abetter. I think one was
19 45, 46 years and the other was 35. So they're not viewed as particularly
20 different, because, well, obviously they're not. When you intentionally
21 take part and provide a substantial assistance to a crime, you're a key
22 member of it. And none of these are individual crimes. They're all
23 working together. This idea that there's one central figure and all the
24 rest are elves, and you have to determine who's most responsible, well,
25 that's a matter, in our view, of sentencing.
1 And so when you look at the evidence of knowledge of the crime
2 and substantial assistance to it, you should infer, in my view, that one
3 intends the known consequences of one's acts. You can, in fact, find
4 that one intends the natural and probable consequences of one's acts.
5 When human beings act and they know that the likely consequences
6 of their acts are a crime, a horrible crime such as murder, you may infer
7 that they intend to do that. That's the way we humans are. I don't
8 think we need to get, in this case, into the likely consequences, because
9 when Mr. Borovcanin does not act, he knows that's going to result in
10 deaths, whether by bleeding to death at the warehouse or further
11 executions or both.
12 So please consider those words as you consider this very
13 difficult but yet crucial area for international law. We are this far in
14 the Tribunal, and we still have not clearly defined what it is that
15 there's a difference, though the case law clearly says the desire is not
16 a requirement. We don't have to prove that they want this to happen.
17 Many times, people commit crimes and they don't want or desire to have
18 done that, but they do it because they have to do it. It happens.
19 So that was the last. I think it was clear that there was no --
20 in the indictment, there was nothing in the indictment suggesting that
21 Mr. Beara participated in the reburials, so he cannot be held responsible
22 under the indictment for that. There may have been a witness that
23 mentioned his name regarding the reburials, and I think that evidence is
24 in the case, but there's nothing wrong with that. But we absolutely
25 stand by what we had said and what Your Honour had said before.
1 So I think I've gotten most of them or -- if not all of them, and
2 stand prepared to answer anymore questions, or sit down.
3 JUDGE AGIUS: I think you can sit down.
4 MR. McCLOSKEY: Thank you very much, Mr. President.
5 JUDGE AGIUS: Yes. Thank you very much, Mr. McCloskey.
6 We can now start with the closing arguments of the Popovic
7 Defence team.
8 MR. ZIVANOVIC: Good morning, Your Honours.
9 JUDGE AGIUS: Good morning. You've got two hours and a half, as
10 you know.
11 MR. ZIVANOVIC: The Popovic Defence filed its final brief and
12 elaborated, within the limits set out by the Trial Chamber, its position
13 on the indictment, crime-based testimony, so the witnesses' expert
14 findings and exhibits. I skip to this paragraph.
15 The time allocated for the closing statement does not give me the
16 opportunity to elaborate on all the arguments set out by the Prosecution
17 in its final brief. As a result, I'm going to restrict my closing
18 statement to the part of the Prosecution final brief addressing the
19 responsibility of Vujadin Popovic.
20 The Prosecution's assertion in paragraph 2320 of the final brief,
21 that Popovic was reassigned to the Drina Corps as the chief of the
22 Intelligence and Security Department in November 1992, is incorrect. It
23 relies on the testimony of the witness Mikajlo Mitrovic. This testimony
24 was clearly misconstrued by the Prosecution, as it did not mean that
25 Popovic became the head of the Intelligence and Security Department of
1 the Drina
2 became an ordinary officer in this department and then was reassigned to
3 the 2nd Romanija Brigade, where he spent approximately one year and a
4 half. Thereafter, he was sent on a course for security officers in
5 Pancevo, and only after that was he assigned to the position of the chief
6 of the Security Department of the Drina Corps Command in early 1995.
7 The witness Vojnovic supports this when he testified that he
8 worked with Popovic for a year or a year and a half when he was the
9 security officer of the 2nd Romanija Brigade. It is transcript
10 page 23712, 21st July 2008
11 The document by the Drina Corps Command of 11 May 1994 - it is
12 7D485 - was signed by Lieutenant-Colonel Ranko Kuljanin in the capacity
13 of the Drina Corps chief of the Intelligence and Security Department,
14 further supports it. The enumerated evidence clearly indicates that
15 Popovic was not chief of the Intelligence and Security Department before
17 Also, the reorganisation or, precisely, separation of the
18 intelligence from the security organ took place in 1995, not 1993, as the
19 Prosecution final brief states. This is evident in the fact that the
20 previously-mentioned Drina Corps document reads that in 1994, the
21 Intelligence and Security Departments were in the same organ.
22 In the next paragraphs, the Prosecution analyses various rules
23 and documents to prove the responsibility of Popovic, but for prisoners
24 of war and refugees, as well as his duty to coordinate with MUP. The
25 Prosecution's arguments and analyses of these subjects are incorrect.
1 The submission on Popovic responsibility for prisoners of war is
2 based on two grounds. First of these grounds are the legal norms
3 assigning to the military police the physical security of prisoners of
4 war. The Prosecution submits that Popovic participated in the
5 organisation and implementation of the measures for the security support.
6 The security support includes, among other things, the military police
7 measures. One of the military police measures was the direct security of
8 prisoners of war and the guidance and control of the movement of
9 refugees. It's paragraph 2328 of the Prosecution's final brief. Since
10 Popovic allegedly had a duty to control the military police units, but
11 from the corps command and the subordinate brigades, he was responsible
12 for both prisoners of war and refugees.
13 Secondly, the Prosecution asserts that the corps security chief
14 was responsible for prisoners of war because he proposed to his commander
15 ways in which the military police would be used, was authorised to direct
16 the commander of the military police units in accomplishing the tasks
17 ordered by the unit command, and had control of the military police units
18 at the corps and brigade levels. The Prosecution's assertions were
19 founded on distorted facts and misinterpretation of relevant rules and
20 documents. The first rule misconstrued by the Prosecution is the rule of
21 corps. It's 7DP412.
22 According to paragraph 468 of the rule of corps, security support
23 includes five kinds of measures, one of which were counter-intelligence
24 measures and activities. These measures are within the exclusive
25 competence of the security organs and at the level of the Drina Corps
1 Command, of which Popovic was solely responsible for. These are the
2 measures provided by paragraph 6 of the Rules of Service of the security
3 organs. It's P407, assigning the counter-intelligence works to the
4 security organs as protagonists. All other security measures, including
5 military police measures, were in the exclusive competence of the unit
6 commander. These are command and staff tasks stipulated by paragraph 7
7 of the Rules of Service of the security organs. In these tasks, the
8 security organ participate -- that is, the need for his participation or
9 extent of such participation is determined exclusively by the commander
10 on a case-by-case basis. In this sense, the participation of Popovic in
11 security support, as the security organ, is different from
12 counter-intelligence measures; as such, cannot be taken for granted or
13 assumed, but must be proven on a case-by-case basis.
14 This means that the Prosecution must prove not only that Popovic
15 was authorised to participate in military police measures relating to
16 security support, but that he really participated in the military police
17 measures relating to security support -- sorry, but that he really
18 participated in the organisation and implementation of such measures
19 because such participation was not obligatory, according to the rules.
20 It means that the Prosecution must prove that Popovic participated in
21 military police measures relating exactly to the prisoners of war and/or
22 refugees in the relevant period.
23 For example, Popovic could have participated in the organisation
24 and implementation of just one of the military police measures, say, in
25 direct security of the Main Staff commander, General Mladic, in the
1 Operation Action Uda [phoen]. It is P0033. However, this doesn't mean
2 that he participated in all other military police measures and, in
3 particular, those related to prisoners of war and refugees. The
4 Prosecution did not prove that Popovic was ordered by his commander to
5 participate in military police measures related to prisoners of war or
6 refugees in the period relevant for the indictment.
7 The Prosecution also used an incomplete quotation and misleading
8 interpretation of Article 29 of the Regulation regarding responsibility
9 of corps command. It is 7DP410. The Prosecution quoted in
10 paragraph 2324 of its final brief only the part of sentence that the
11 security organ of the corps is responsible, I quote:
12 "... for organising and implementing security measures and
13 undertaking other specialised work in the field of security ..."
14 However, the sentence continues as follows:
15 "... that is placed under its responsibility by special
16 regulation, et cetera."
17 The omitted part of the sentence limits the responsibility of
18 Popovic to security measures placed under his responsibility by special
19 regulations. The special regulations were incorporated in the rule of
20 service of the security organs. These special regulations made him
21 responsible for counter-intelligence work, not for organising and
22 implementing the measures of the whole security support, including
23 military police measures and, in particular, those regarding prisoners of
24 war and refugees. Accordingly, he was only responsible for professional
25 management and control of the military police, not for the control of all
1 its activities and duties.
2 Professional management of the military police --
3 JUDGE AGIUS: I suggest you keep some water handy, nearby.
4 MR. ZIVANOVIC: Yes, thank you.
5 Professional management of the military police was precisely
6 defined by paragraph 14 of the Rules of Service of the military police
7 and include the organisation for education and training, inspection of
8 such training, taking part in drafting and establishment of military
9 police units, preparation of the relevant rules and regulation, and
10 taking part in the control and assessment of the combat readiness of the
11 military police units. The responsibility for the other four kinds of
12 security support is provided by Article 9 of the same regulation.
13 According to section 6 of this provision, the corps commander is in
14 charge of managing security service, responsible for the security support
15 of the command and subordinate units, and institution and taking measures
16 on the basis of the regulation and his responsibilities. The Prosecution
17 submission that corps security organ had the duty to control the whole
18 work of the military police units of the corps command and subordinate
19 units is contrary to the principles of the military organisation for VRS
20 established in this case.
21 The main principle in the organisation of command is the
22 principle of the singleness of command. I refer to Vuga, transcript 4
23 July 2008, pages 316 to 334. It was the supreme principle, meaning that
24 the commander of a military unit has an indivisible and exclusive right
25 to command all subordinate units and bears responsibility for the
1 condition, combat readiness, and use of the units, as well as for the
2 proper execution of all tasks assigned to the unit. I refer to Kosovac.
3 It is 16 January 2009
4 In fact, the command function places three main duties and
5 obligations on the commander: to take a decision; to issue an order; and
6 to control or monitor or follow up on what he has ordered. I refer to
7 Forca. It's 20 June 2008
8 The Prosecution's interpretation of Article 29 and submission
9 that Popovic was responsible for the security support and the control of
10 the military police would mean that the brigade commanders issued orders
11 to their military police units, but could not control whether they
12 carried out such orders properly or not, because the corps security chief
13 was authorised to control military police. In all aspects of their work,
14 including the execution of orders issued by the brigade commanders, such
15 an approach would be in contravention with the principle of the
16 singleness of the command by practically excluding the military police
17 units from the effective command of the brigade commander.
18 Anyway, item 9 restricts the professional management of the
19 security organ as regard the control of the work of the military police
20 just within the limits placed under the responsibility of the security
21 organs by special regulation as provided by the first paragraph of
22 Article 29.
23 The absence of the duty of the Drina Corps security chief to
24 control the whole work of the military police units of the corps command
25 and subordinate units is endorsed by the fact that there was no regular
1 daily reporting of these units to the security organ of the Drina Corps.
2 For general and daily control of the activities of the military police,
3 it was necessary for the subordinate units to submit regular reports.
4 However, there is no evidence to support that the military police units
5 from the brigades were under a duty to send such report -- regular
6 reports to the security organ of the Drina Corps; neither is there
7 evidence to support that they did so at all. They submitted daily
8 reports to the commanders of their brigades, as did all other units. The
9 brigade commanders did not also have any obligation to inform either
10 their own security officer or the security organ from the corps command
11 about orders given to the military police unit of his brigade or about
12 the daily activities of these units.
13 Without such reports, the security organ of the Drina Corps was
14 not able to know anything about the activities of the military police on
15 a daily basis. This proves that the security organ of the Drina Corps
16 had no duty to control all the work of military police units, but at
17 corps or brigade levels. Otherwise, the line of regular reporting would
18 have been established between the military police units of the brigades
19 and corps and the chief of the security organ of the Drina Corps Command.
20 The special regulations contained in Rule of Service of the
21 security organs provides two kinds of their duties. The first group is
22 counter-intelligence work, and the second administrative and staff work.
23 The counter-intelligence work had to be performed by the security organ
24 without any order from his commander. The practical impact of such a
25 provision on this case is that the Prosecution had no need to prove that
1 such work in the Drina Corps Command was performed by Popovic, since he
2 was the only individual carrying out the work, was not authorised to
3 transfer such duties to anyone else, and the commander of the Drina Corps
4 was not authorised to give this kind of work to any other officer.
5 THE INTERPRETER: The counsel is kindly asked to slow down for
6 the purposes of the interpretation. Thank you.
7 JUDGE AGIUS: Mr. Zivanovic --
8 MR. ZIVANOVIC: Sorry.
9 JUDGE AGIUS: You are aware now of the --
10 MR. ZIVANOVIC: Okay.
11 JUDGE AGIUS: So please slow down.
12 MR. ZIVANOVIC: Sorry.
13 JUDGE AGIUS: Okay.
14 MR. ZIVANOVIC: I apologise to interpreters.
15 The second group of duties which includes military police tasks
16 was to be carried out only upon the order or request of the unit
17 commander. I refer to Vuga. It's transcript page -- 30 June, 2008;
18 transcript page 057 to 058. For this group of tasks, the commander of
19 the unit was exclusively authorised to decide whether the security organ
20 would be included in the decision-making process relating to ways of
21 using the military police units. I refer to paragraph 2324 of the
22 Prosecution final brief. This further means that the commander of the
23 unit was not duty-bound to seek a proposal from his security organ on
24 ways of using military police units, but only when he deemed it
25 necessary. He was not bound to inform the security organ of what tasks
1 and orders he issued to the commander of the military police units.
2 Again, Vuga; it is pages 058 to 062. In this sense, it was not
3 obligatory that the commander of the unit assigns the task to its
4 military police unit through the security organ, as stated in Prosecution
5 paragraph 2325. It is also incorrect to assert that the security organ
6 always directed the commander of the military police unit in
7 accomplishing the tasks issued by the commander of the unit. He did so
8 only if the unit commander found it necessary. Otherwise, the unit
9 commander assigned the task to the military police commander, without any
10 participation on the part of the security organ.
11 In addition, the chief of security of the corps is responsible to
12 the corps commander for the activity of the military police unit in the
13 corps command pursuant to paragraph 23 of rules only when such activity
14 stands from the tasks issued upon his proposal. Otherwise, he cannot
15 assume responsibility for the tasks issued by the corps commander to the
16 military police commander without his knowledge. This is quite logical,
17 as the security organ could propose the use of the military police only
18 within the scope of his activities which relates to counter-intelligence
19 work. All other use of military police via the physical security of
20 persons and features could be proposed by the commander of the military
21 police who is the best trained and qualified for such tasks. I refer to
22 expert report of Vuga, paragraph 2.90.
23 Of course, the commander of the unit is authorised to assign any
24 task and issue order to the military police unit without asking or even
25 contrary to the proposals made either by the security organ or military
1 police commander. In short, it cannot be taken as the rule that the
2 security organ effectively participated in the organisation and
3 implementation of measures, other than that of counter-intelligence.
4 According to the Rule of Service of security organs,
5 paragraph 7(e), the security organs participate also in, I quote:
6 "... in operations that precede the initiation of criminal
7 proceedings, and criminal proceedings themselves," et cetera.
8 It is, again, the expert report of Vuga. It is 1175 -- 1D1175,
9 paragraph 244. These duties are among the command and staff duties for
10 which command organs are responsible and in which the security organ
11 participate. It means that commander determines the scope of such
12 activity, who will do that, military police or security organ, or both of
13 them, when and whether the report will be sent directly to the
14 Prosecution or to the high-ranking officer, and whether such information
15 will be sent at all.
16 In this light, the military prosecution guide-lines the
17 Prosecution indicates in its final brief does not replace the legal
18 obligations and relationship in the command of the VRS provided by Rule
19 of Service of the security organs and the Law on Military Courts.
20 Namely, the Prosecution quote the obligation of Popovic to receive
21 reports about crimes and report of any information up the chain of
22 command. There is no evidence that Popovic received any report or that
23 he failed to report the information about crimes up the chain of the
24 command. Because of that, Popovic could not be responsible as the
25 Prosecution states in paragraph 2409.
1 In addition, the Prosecution refers to some documents indicating
2 that the chief of security of the corps had a duty for the control of the
3 military police units, but in the corps and subordinate brigades. The
4 work plan of the Drina Corps for the 10th of December, 1994 - it is
5 5D989 - tasked the chief of security with the control of the work of the
6 military police units from the corps command and the subordinate units.
7 However, the authors of the plan knew what kind of control over military
8 police the security organs were authorised to perform. This document was
9 intended for officers who knew very well the scope of their competence.
10 As such, it was not necessary to write down in this particular document
11 the various rules and regulations determining the nature, scope, and
12 limits of the security organ's control over the military police. This
13 plan did not exclude either corps commander or brigade commander from the
14 control of their military police units, meaning that the control of
15 security organ was restricted to the professional management.
16 The Prosecution also misinterpreted three documents sent by
17 security organ of the Drina Corps Command as evidence of Popovic
18 competence concerning prisoners of war and his authority over the
19 military police. The first was the instruction regarding the handling of
20 prisoners of war, dated 15 April, 1995
21 the instruction of the Security Administration of the Main Staff
22 concerning the security aspects of the handling of prisoners of war. It
23 was observed that after exchange, prisoners of war became significant
24 sources of highly-sensitive military information about VRS for the
25 enemy's intelligence. This was because before direct exchange, they were
1 kept near the front-line or military objects with full insight into the
2 deployment of VRS forces and units, their arms and other data. The
3 instructions alerted the commands from the battalion level upwards to
4 determine places behind the front-line where kept members of the enemy's
5 army were to be kept and warned that such, I quote:
6 "A place must not be in the area of a command post, nor in the
7 area of communication centres, artillery weapons, or significant elements
8 of logistic support."
9 Accordingly, this instruction does not demonstrate the
10 responsibility of security organ for prisoners of war, but the
11 counter-intelligence measures which had to be applied by the commands to
12 the third intelligence activities of enemy forces and
13 counter-intelligence protection of material, technical equipment, zones,
14 areas, and features of particular importance. These were the duties for
15 which the security organs were protagonist as provided in paragraph 6(a)
16 and (c) of the Rules of Service of security organs. It's P407.
17 The parts quoted by the Prosecution are, in fact, measures
18 preventing prisoners of war from observing VRS units deployed in the
19 vicinity, their arms, and other features relevant for the defence of
20 Republika Srpska.
21 In addition, the text of this instruction clearly indicates that
22 Popovic literally conveyed the instruction of the Main Staff
23 Security Administration and, therefore, could not indicate his
24 responsibility for prisoners of war, basically. This was a clear example
25 of the professional management defined by paragraph 14 of the Rules of
1 Service of the military police. This paragraph includes, among other
2 things, the education, training, and preparation of the military police
3 members, preparation of the rules and regulations related to the military
4 police. This instruction is an elaborated regulation on how to handle
5 prisoners of war and keep them as far as possible from sensitive military
7 Popovic was bound to forward any instruction received from the
8 superior security organ to the subordinate units, and this document just
9 demonstrates that he did so. In addition, this document clearly
10 demonstrates the competence of the unit commands for prisoners of war.
11 This is indicated in paragraph 2, which reads, I quote:
12 "All commands from battalion level upwards are to determine
13 places behind the front-line at which captured members of the enemy army
14 are to be kept."
15 They further advise what kind of risk should be avoided from a
16 counter-intelligence point of view.
17 The second document the Prosecution refers to is dated 7 February
18 1995. It's P3032. This document was sent by the security organ of the
19 Drina Corps Command to brigade commands. This was again based on a
20 request made by the Main Staff Security Administration, seeking
21 information about the management of the military police in subordinate
22 units, their level of training, mobilisation, logistics -- logistic
23 support, security, and tasks. The document properly reflects the limits
24 of the competence of the security organs over the military police. It
25 also reflects the fact that the chief of security of the Drina Corps
1 Command sought information necessary for professional management of
2 brigades' military police units from the brigade commands, not directly
3 from the military police units of the brigades. If Popovic had overall
4 control over the work of the military police units of the corps command
5 or subordinate units, he would have asked for such information directly
6 and not through the brigade commands.
7 The Prosecution also misrepresented document 3D436, which was the
8 instruction sent to the chiefs of security and intelligence of the 5th
9 Military Police Battalion of the Command of the Drina Corps subordinate
10 brigades regarding the work of the military police check-points. The
11 Prosecution found, notably, that Popovic assigned to the chiefs of
12 security and military police commands in subordinate units responsibility
13 for the implementation of the instructions. This is contained in
14 reference 5074 of the last evidence. However, the document literally
15 conveys the instruction of the commander of the Main Staff of the VRS,
16 General Mladic, who pointed out - it is paragraph E, on the last page
17 just above the signature of General Mladic - that, I quote:
18 "Assistants for security intelligence duties of the VRS
19 Main Staff, corps commanders, and their subordinate organs and units of
20 military police are responsibile to me," meaning General Mladic, "for due
21 implementation and acting upon this instruction."
22 The sentence added by Popovic was that chiefs of security in the
23 units and commanders of the military police units are responsible to this
24 department for the implementation of this instruction. This could only
25 mean that the assignment of responsibility which the Prosecution wrote
1 about derives from the specific order of the corps commander to make
2 responsible for the implementation of this instruction the security
3 organs and military police commanders of the subordinate unit --
4 THE INTERPRETER: Could Mr. Zivanovic kindly slow down when
5 reading. We'd be very grateful. Thank you.
6 JUDGE AGIUS: Mr. Zivanovic, again you're being reminded by the
7 interpreters that you're going too fast. If you could kindly slow down.
8 I have the same feeling as well, so, in fact, I was thinking precisely of
9 that before I -- before I heard the intervention.
10 MR. ZIVANOVIC: Okay. I repeat my last sentence.
11 This could only mean that assignment of responsibility which the
12 Prosecution wrote about derives from the specific order of the corps
13 commander to make responsible for the implementation of this instruction
14 the security organs and military police commanders of the subordinate
15 units through security organ of the Drina Corps.
16 In general, the military police commanders were responsible for
17 their work either directly to its commander or through the security
18 organs. In this particular case, the corps commander was made personally
19 responsible to General Mladic for implementation of this particular
20 instruction, decided to make them -- to make the subordinate units and
21 security organs responsibile for the implementation of this instruction
22 through the security organ of the corps. However, it doesn't mean that
23 the corps commander made either the security organs or military police
24 commanders from the subordinate units responsible for all their work
25 through security organ of the corps. It actually indicates that this was
1 the case only whenever he decided so, and this was stressed in document
2 sent to subordinate units.
3 The Prosecution also misinterpreted the order dated 30 August
4 1995 concerning the disarming of UNPROFOR. It is 7DP978. This order was
5 issued upon the order of the Main Staff of the Security Administration
6 and was not sent to the military police unit or security organs of the
7 subordinate brigades, but to the commands of the brigades. This meant
8 that Popovic intended to stress to the brigade commands the importance of
9 the task because he was not able to issue any order to the brigade
10 commanders. In fact, it was the request to the commanders that they
11 issue requested order to their subordinates.
12 The Prosecution further misrepresented the role of Popovic in the
13 assignment of the tasks to the military police. He did not assign all
14 tasks to the military police unit approved by his commander, but only
15 those assigned upon his proposal within his purview or if he was asked by
16 his commander to give some professional advice based on the
17 counter-intelligence information and -- available only to him. Even
18 then, his commander could issue the order to the commander of the
19 military police unit directly without his involvement. For all other
20 tasks, the commander of the unit issued the order directly to military
21 police commanders and not to Popovic.
22 I would -- I'll go to another topic, so --
23 JUDGE AGIUS: You'd like the break now?
24 MR. ZIVANOVIC: Yes, please.
25 JUDGE KWON: For the record, can I draw your attention to page 17
1 of the transcript, lines 21 to 22. In the transcript, at page 17, lines
2 21 to 22, it reads:
3 "... but for prisoners of war and refugees."
4 I take it this should read both the prisoners of war and
5 refugees. Do you find it?
6 MR. ZIVANOVIC: Just --
7 JUDGE KWON: From line 20, it reads like, in the next paragraph,
8 the Prosecution analyses --
9 MR. ZIVANOVIC: "Both," "both for prisoners of war and refugees."
10 Sorry. Thank you, Your Honours.
11 JUDGE AGIUS: Thank you.
12 We'll have a 25-minute break. Thank you.
13 --- Recess taken at 10.25 a.m.
14 --- Upon commencing at 10.55 a.m.
15 JUDGE AGIUS: Yes, Mr. Zivanovic.
16 MR. ZIVANOVIC: Thank you.
17 I move on, the role of security in Krivaja 1995 and this
19 The Prosecution submission of the decision by the command to
20 murder all Muslim men and boys contravenes the evidence in this case.
21 The task of the Krivaja 95 operation was to separate the Srebrenica and
22 Zepa enclaves. It is P107. In military terms, it was one-axis operation
23 in a very narrow area, without any ambition to encircle the enemy's
24 troops and take prisoners. Such action usually result in taking of
25 sporadic individual prisoners. The numeric strength of VRS forces
1 assigned for the operation was not adequate for the encirclement and
2 capture of enemy forces; namely, the VRS deployed about 2.000 soldiers
3 for the action, while 28 Division had more than 10.000 soldiers. I refer
4 to Lasic. It's 4th June 2008
5 capturing of the enemy forces required at least three times as many.
6 This means that strength of troops assigned to the operation and the
7 nature of the very operation was not intended at killings, but on the
8 separation of enclaves.
9 The evidence also demonstrates that after the task was extended
10 to include the take-over of Srebrenica, additional troops were not sent
11 which would have allowed for the encirclement, capture, and killing of
12 members of the 28th Division. This means that such a decision was not
13 made either before or after the fall of Srebrenica.
14 The VRS entered Srebrenica after it had been completely deserted
15 by its population and despite having knowledge of the fact that the 28th
16 Division had mobilised all its forces and was trying to break through to
17 B and H territory, made no considerable effort to engage all its troops
18 for the purpose of blocking, encircling, and capturing of ABiH forces.
19 On the contrary, the VRS immediately sent a major of its troops who had
20 been participating in the Srebrenica operation to Zepa, which was on the
21 opposite direction of the movement by the 28th Division, leaving Zvornik
22 almost undefended. The aforementioned facts clearly show that there was
23 no evidence that VRS command made any decision to murder all Bosnian men
24 and boys from Srebrenica, as stated in paragraph 261 -- 67, sorry, of the
25 Prosecution final brief and paragraph 24 of the indictment.
1 The test given to security organs in this operation was adapted
2 to the goal of the separation of the enclave. The Krivaja 95 operation
3 task was completed on 9 July 1995
4 There is no evidence that any prisoners of war were taken during the
5 action. Even after the goal of the operation was extended to the taking
6 of Srebrenica, it did not result in the capture of prisoners. Therefore,
7 the VRS had no enemy prisoners of war until 12th July 1995.
8 Because of that, the submission of the Prosecution that on 11
9 July 1995 between two NATO bombings, Popovic spoke with General Krstic
10 about prisoners of war is baseless. The more logical conclusion is that
11 the only topic of their conversation, if any, could be how to survive
12 NATO attacks. The task assigned in the Krivaja 95 order ceased once
13 Srebrenica was taken and troops got new tasks relating to Zepa operation.
14 The new tasks were also issued as to prisoners of war, because on 11 of
15 July 1995, the president of Republika Srpska appointed Miroslav Deronjic
16 as the civilian commissioner for Srebrenica. It's P10. His tasks were,
17 among other things, to, I quote:
18 "... ensure that all civilian and military organs treat all
19 citizens who participated in combat against the Army of Republika Srpska
20 as prisoners of war and ensure that the civilian population can freely
21 choose where they will live or move to."
22 It's paragraph 4. He was also authorised to appoint his
23 assistants. It's paragraph 6. This was the decision of the president of
24 Republika Srpska, who was also the supreme commander of the Armed Forces
25 of Republika Srpska. This decision regarding the prisoners derogated and
1 substituted the Krivaja 95 order as to responsibility of the security
2 organs for prisoners of war and entrusted Deronjic with the authority to
3 implement this decision. The decision came into force on 11 July 1995
4 on the same day when VRS entered Srebrenica. I refer to Vuga, 2nd July,
5 page 216 to 219.
6 The assertion of the OTP that Popovic stayed at Hotel Fontana on
7 13 and 14 July is not correct. The document obtained by the Defence, and
8 later by the Prosecution, too, proves that Popovic was at the
9 Hotel Fontana on 11 and July 12, 1995
10 his stay there. It was shown during the examination of Bjelanovic. It
11 is 11 June 2008
12 provided the Trial Chamber and the parties with the copies of all the
13 Hotel Fontana documents, as requested by the Trial Chamber. The invoice
14 referred to by the Prosecution did not indicate the dates he stayed at
15 the Hotel Fontana, but instead the date when Hotel Fontana prepared the
16 invoice and sent it to the Bratunac Brigade for payment.
17 With reference to paragraph 2362, Popovic was in the proximity of
18 General Mladic because he had a duty to protect him as requested pursuant
19 to the Operation Action Uda. The action required, among other things,
20 counter-intelligence protection of General Mladic and three other VRS
21 generals which was in the exclusive competence of security organs. In
22 the scope of these tasks, Popovic was in the proximity of General Mladic
23 in Srebrenica on 11 July, at the third Hotel Fontana meeting and in
24 Potocari on 12 July, and in Vlasenica on 13 July, when General Mladic got
25 there on the ceremony of the hand-over of duties between
1 General Zivanovic and General Krstic. However, at the third
2 Hotel Fontana meeting, Popovic did not represent anyone, as stated in
3 paragraph 2365. He attended because, as the chief of security of the
4 Drina Corps, he got the task to provide counter-intelligence protection
5 of the Main Staff commander in Operation Action Juda.
6 With reference to paragraph 2363, the information that on the
7 afternoon and the evening of 11 July, an estimated 1200 to 1500
8 able-bodied Muslim men arrived in Potocari was not clear. The
9 Prosecution even asserts that there was one -- between 1.000 and 2.000
10 Muslim men in Potocari on 11 July and that VRS was aware of it.
11 According to the Prosecution, they posed potential threat to the Bosnian
12 Serb forces that were planning to enter Potocari on 12 July. It is
13 paragraph 492 of Prosecution brief.
14 The presence of 1.000 to 2.000 Muslim men in Potocari would not
15 present a potential but a real and serious threat for the VRS. This is
16 because the reconnaissance patrol could not provide information as to
17 whether these people were armed or members of ABiH, but eventually only
18 that they were in civilian clothing. The total strength of VRS troops
19 engaged in the Srebrenica operation was 2.000 men. The alleged
20 information would indicate that Muslim forces in Potocari were equal to
21 the VRS troops engaged in the whole of Srebrenica operation. This
22 information would, therefore, cause a serious source of concern for the
23 VRS, since they were still well aware of the main force of the
24 28th Division. In such a situation, the VRS would encircle Potocari in
25 the early morning hours on 12 July and call for the surrender of such
1 forces. General Mladic and other high officers would not enter Potocari
2 with camera crews and journalists knowing that 2.000 Muslim soldiers
3 could attack them at any moment.
4 Potocari was one of the places where a considerable number of
5 Muslims dwelled until fall of Srebrenica. The able-bodied men being
6 mobilised left the village to the meeting point of 28 Division in Jaglici
7 and Susnjari before the VRS entered Potocari on 12 July. This means that
8 they were still in Potocari on 11 July in afternoon and evening. In
9 addition, the headquarter of 280 Brigade was also in Potocari. I refer
10 to 4D135. This brigade defended the Srebrenica-Potocari axis and had the
11 task to defend the industrial area in Potocari. It is P107, paragraph 1,
12 subparagraph (3).
13 On 6 July 1995
14 members. I refer to 1D607. After the fall of Srebrenica on 11 July in
15 the afternoon, an order of 28th Division Command to withdraw its forces
16 to Jaglici and Susnjari, the troops deployed to defend Potocari left the
17 area on the same afternoon and evening. This meant that the number of
18 28 Division members passed through Potocari on their way to Jaglici and
19 Susnjari. I refer to Rutten. It's paragraph -- it's page 837 to 838,
20 13 November 2006
21 So the VRS reconnaissance patrols could see these men in Potocari
22 on 11 July in the afternoon and evening, and included them in the
23 assessment. However, after the ABiH troops left Potocari to Jaglici and
24 Susnjari, only between 400 and 700 men were noted. I refer to
25 Momir Nikolic transcript, 22nd of April, page 009, lines 7 to 20.
1 Due to the above, the information of 1200 to 1500 Muslim men in
2 Potocari on 11 July 1995
3 208 Brigade left Potocari to Jaglici and Susnjari with mobilised,
4 able-bodied men.
5 The number of Muslim men transported from Potocari on 12th and
6 13 July was exaggerated and unreliable, as specified by Witness
7 Mile Janic. He testified in Blagojevic that on the first day only 10 to
8 15 buses was, with approximately 70 men in each, were dispatched from
9 Potocari. This would mean that 700 to 1.050 men were transported on 12th
10 July only. He further testified that on 13 July, two or three times more
11 were dispatched. It would mean that on that day, between 1.400 and 3.150
12 Muslim men were transported in total. It would suggest that between
13 2.100 and 4.200 Bosnian Muslim men were sent from Potocari on 12th and
14 13 July. According to the witness, a bus had 52 to 54 seats, and 15 to
15 20 people were standing in aisles. It is -- his testimony is on 20
16 November 2007, pages 942 to 944.
17 However, a bus full of prisoners, with just a driver in it, would
18 present an obvious security risk for the driver. The risk would not be
19 diminished with the presence of one or two soldiers beside the driver.
20 They could not control the prisoners who were sitting and standing due to
21 overcrowding. The soldier, or two of them, standing beside the driver,
22 could not see anything but up to ten prisoners in front of him. The
23 prisoners would be so close to him that he would not be able to prevent
24 an attack, despite carrying arms. This, therefore, means that the VRS
25 would not risk the lives of its personnel by overcrowding of buses with
1 prisoners. Besides, Janic had not only task of counting Muslim men, but
2 of counting all the refugees. He obviously was not able to carry out
3 this task, which meant that Colonel Jankovic at one point told him that,
4 I quote:
5 "An average per bus was, therefore, worked out and used to
6 calculate how many refugees were transported from Potocari."
7 It is in Blagojevic judgement, paragraph 181, and it is in
8 transcript in Blagojevic, 9773 and 9842.
9 He testified also that some discrepancies in counting were
10 observed by Colonel Jankovic, which makes both the calculation and
11 estimates unreliable.
12 On the other hand, the witness already told his story in
13 Blagojevic, and the Trial Chamber did not find his estimate credible. I
14 refer to paragraph 495 for Blagojevic judgement. His testimony just
15 proved that he did not carry out properly the task of counting the number
16 of persons from Potocari which he was given.
17 The number of separated Muslim men in Potocari is not supported
18 with OTP missing list. It is P566. The source of data is ICRC list, as
19 indicated at page 2, last paragraph. However, it is quite unknown who
20 provided these dates and when, as well as how much time passed before
21 such data were provided. Namely, the date when a person was last seen is
22 not necessarily provided by the eye-witnesses, but also got from other
23 unknown and unreliable sources. Because of that, there is no evidence
24 that the entries in this list in respect to date corroborate the
25 arguments of the Prosecution that 2.000 men were separated in Potocari.
1 The list demonstrates that 516 people were last time seen in
2 Potocari before 12th of July. In addition, the list shows 660 Muslim men
3 last seen in Potocari on 12 July. However, Potocari were not under VRS
4 control before the noon
5 whether 660 people were last seen before or after the VRS entered
7 With respect to the testimony of Momir Nikolic, the Defence
8 extensively addressed the ostensible conversation between him and Popovic
9 in paragraphs 289 to 305 of its final brief. Now, the Defence repeats
10 that the conversation described in parts of Nikolic testimony and the
11 paragraph 4 of his statement of fact related to 12th July 1995 in front
12 of the Hotel Fontana never took place. Popovic never told him that
13 Muslim men and boys would be detained and then killed or that Muslim
14 women and children would be transported to B and H-held testimony. This
15 was confirmed by Kosoric, who testified that such a conversation has
16 never taken place.
17 Momir Nikolic did his best to court the Prosecution and said
18 whatever he believed that the Prosecution would like to hear. He even
19 falsely confirmed his own identity on photographs and falsely confessed
20 that he ordered the execution in Kravica and Sandici. He agreed to tell
21 obvious lie that the intent of the VRS in the attack on Srebrenica was to
22 remove all Muslim population from the enclave, although upon the request
23 of the Trial Chamber, personally wrote that such decision did not exist
24 at the time, and confirmed it in his testimony. He even agreed to avoid
25 any mention of the 28th Division just to give the illusion the enclave
1 was demilitarised and the attack of VRS could not be directed at military
3 Corroborating evidence which the Prosecution mentioned was
4 something that Momir Nikolic used to conceive his story. He was provided
5 with all this evidence before he made his statement of fact. The picture
6 taken in front of the Hotel Fontana does not depict Momir Nikolic with
7 Popovic and Kosoric, but with Popovic, Colonel Jankovic and
8 General Mladic's bodyguard. Such a picture cannot be taken as
9 corroboration that Momir Nikolic had an alleged conversation with Popovic
10 and Kosoric and in particular about the topic of such a conversation.
11 The ostensible reconnaissance of Ciglane as execution site cannot
12 corroborate the statement of Nikolic that he suggested to Popovic and
14 There is no evidence for the Prosecution submission that Popovic
15 assigned Momir Nikolic to coordinate the so-called separation of the
16 Muslims in Potocari. Firstly, the terms "separation of Muslim men and
17 boys from their families," or "the separation from their loved ones,"
18 were widely used in this case; their legal mis-characterisation of the
19 arrests implemented by the VRS according to the generally-accepted norms
20 and customs of war, such mis-characterisation is inciting the ethnical
21 animosity and hatred towards the Serbs who carried out their duties.
22 On the other hand, such mis-characterisation consistently
23 conceals the fact that members of the ABiH were among the populations of
24 Potocari, despite unchallenged evidence demonstrating that in the night
25 between 11 and 12 July there were 300 ABiH members in the UN compound in
1 Potocari. It is 1D463.
2 It seems that Major Franken also permitted a certain number of
3 men inside the compound who are or could have been active combatants.
4 It's the testimony of Rutten, 30 November 2006, page 885, lines 15 to 21.
5 Popovic did not assign Momir Nikolic to coordinate the separation
6 of able-bodied Muslim men and boys and expulsion of the women and
7 children in Potocari. The testimony of Nikolic in this regard is not
8 only inconsistent, but in clear contravention with other evidence.
9 According to the Witness Boering, who as professional officer of
10 the Royal Netherlands Army, is perfectly qualified to clarify the
11 military terms, Momir Nikolic was some sort of coordinator, as he himself
12 indicates, for transport and separation, and that he received the
13 authority from Colonel Jankovic. It's the page 536, transcript 25
14 September 2006. It is quite logical that someone who coordinates the
15 work of different units should have the authority to do that. On the
16 other hand, he must inform the subjects participating in the work that he
17 was authorised to coordinate. Such persons must inform all concerned who
18 provide him with such authorisation so that it could be checked.
19 Momir Nikolic did it and indicated that he was authorised for
20 coordination by Colonel Jankovic, so that anyone interested in it could
21 check with Colonel Jankovic.
22 It means if Momir Nikolic was authorised by Popovic to coordinate
23 in the so-called separation and transportation of Muslims in Potocari, he
24 would indicate Popovic as the individual who authorised him to do that
25 and not Colonel Jankovic.
1 Boering also testified that Jankovic's role was, first of all, to
2 provide General Mladic with direct assistance, and that was why at one of
3 the meetings he was seated directly next to him and occasionally he
4 consulted with him. He also learned that Colonel Jankovic was assigned
5 to wrap matters up on the side and behalf of General Mladic as a type of
6 liaison from General Mladic to DutchBat, which meant he was to arrange
7 things with DutchBat to the full execution of General Mladic's plans. He
8 clarified that Mladic's plan meant the transport of refugees, but that it
9 was not his personal observation, but based on insight and hearsay. It
10 is transcript page 144 to 145, 21st September -- 21 September 2008 --
11 2006, sorry.
12 In Blagojevic, the witness testified that General Mladic
13 introduced Colonel Jankovic as his next in command to take care of
14 matters if General Mladic was absent. I refer to Blagojevic trial
15 judgement, 154.
16 Momir Nikolic testified that after the third meeting in
17 Hotel Fontana on 12 July, he asked Colonel Jankovic what would be his
18 next task, and he was told that he was to help during the evacuation of
19 the people who were in Potocari. This entailed evacuation and separation
20 of the able-bodied men who were in Potocari. It's testimony of
21 Momir Nikolic on transcript 22nd April 2009
22 statement of fact, paragraph 5.
23 Momir Nikolic confirmed his testimony in Trbic case that there
24 was no need for him to inform Colonel Jankovic about what he did in
25 Potocari, given that Colonel Jankovic himself was deployed in Potocari
1 and Jankovic was in charge, not him. It is transcript page 268 to 279,
2 27 of April, 2009.
3 The presence of Colonel Jankovic in Potocari was confirmed by the
4 Witness Mile Janic. He testified that early in the morning on 12 July
5 1995, upon the request of Momir Nikolic, he arrived at Potocari. Nikolic
6 assigned him to Colonel Jankovic, who tasked him, before any of buses had
7 arrived, to count the refugees who would be transported from Potocari.
8 He got the same task the next day. This task indicates that the physical
9 presence of Colonel Jankovic in Potocari was related to the
10 transportation of refugees. It is transcript page 926 to 928, 20
11 November 2007.
12 In the VRS, the carrying out of an order was regularly reported
13 to superior command. The report that the evacuation had been
14 successfully completed was submitted by Colonel Jankovic on 13 July.
15 It's 5DP113. The report was sent from Bratunac to the Main Staff and the
17 have been sent by him and not Colonel Jankovic.
18 The presence of Colonel Jankovic in Potocari was also observed by
19 DutchBat members. Franken complained to him once he got reports of -- on
20 of abusing of the detainees in the White House. It is transcript 16
21 October 2006, page 499. He also asks Franken to sign the statement of
22 evacuation. It is P453. Franken also testified that Colonel Jankovic
23 made it clear that DutchBat members could not leave the base from 13 July
24 until their withdrawal on 21st July.
25 Franken also let Colonel Jankovic know about compilation of the
1 list containing 251 Muslim men registered by the DutchBat within their
2 compound in Potocari on 12th or 13 July, 1995. It is transcript page 502
3 to 503, 16 October 2006
4 Colonel Jankovic was inspecting the area. It is OTP final brief
5 paragraph 335.
6 Finally, Momir Nikolic testified that after ostensible meeting on
7 12 November 1995
8 following days they did not communicate or do anything together. It is
9 page 029, lines 12 to 20, 22nd April 2009
10 It is quite impossible to delegate a coordination assignment to
11 someone and then have no communication with him while the work he had to
12 coordinate was still ongoing. If the quoted evidence is true, there is
13 no evidence to support that Popovic either coordinated the activities of
14 various VRS or MUP units in Potocari or that he delegated this kind of
15 work to Momir Nikolic.
16 There is a contradiction in the testimony of Momir Nikolic when
17 he states that he did not communicate with Drina Corps policemen at all
18 and did not see their commander. It is page 013 to 014, 22 April
19 2009 - and that of the Witness Trisic, who testified that he saw the
20 military policemen from Drina Corps providing security to the Muslims in
21 Potocari together with Bratunac Brigade military policemen, and that
22 Momir Nikolic coordinated their activities. It is transcript 20th of
23 October, 2008, pages 103 to 104.
24 It is, however -- the presence of the Drina Corps military police
25 in Potocari was restricted to the escort of General Krstic. At that
1 time, the military police of the Drina Corps was deployed at Kocari, not
2 engaged in military police tasks but in the combat operation. 90 per
3 cent of the members of the 5th Military Police Battalion of the
4 Drina Corps Command were engaged in the combat operation in June until 7
5 July 1995
6 policemen stayed in Vlasenica to perform military police duties and
7 carried out, in rotation, the physical security of the Drina Corps
8 Command, escort of the commander and the chief of staff, et cetera. It
9 is Vuga transcript, 2nd of July, 2008, page 204 to 206.
10 However, it was quite possible that Trisic saw soldiers who had
11 military police insignias of the Drina Corps on their uniforms. The
12 evidence indicates that these insignias were sewed onto the uniforms so
13 that members of the unit that were deployed to other units took with
14 their uniforms their insignia. The Witness Bjelanovic testified that it
15 facilitated their movement because it was much easier for them to find
16 transportation from one place to another with such insignia. It is 10
17 June 2008, page 274 to 275.
18 The problem grew to the extent that Popovic personally went to
19 the Vezionica factory to discuss the problem with the commercial director
20 of the factory, Slavisa Racic. They were trying to find a solution for
21 problem with armbands instead of sewing the insignia onto the uniforms.
22 I refer to 1D1438, 1438. It is witness statement of Slavisa Rasic.
23 So Momir Nikolic knew the military policemen from the Drina Corps
24 who were present in Potocari and did not communicate to them because they
25 were escort of General Krstic and he had nothing to do with them.
1 However, he communicated with the soldiers who were not members of the
2 Drina Corps military police at the time but just wore these insignias,
3 and because of that he testified that he did not communicate with
4 military policemen of the Drina Corps. On the other hand, Trisic saw
5 Momir Nikolic communicate with the soldiers who wore the insignias of the
6 Drina Corps military police, but did not know that they were not at the
7 time members of that unit.
8 As a result of the above, the Defence admit that Momir Nikolic
9 either communicated with escort of General Krstic or with soldiers who
10 only wore the insignia of the Drina Corps military police but were not
11 members of that unit. If the military police of the Drina Corps was
12 present, except the escort of General Krstic, under his direct command,
13 they would have their superior who would be in charge of the unit or the
14 part of the unit deployed in Potocari.
15 Finally, there was no way that Nikolic could issue the orders to
16 Drina Corps military police or to the units of the Main Staff. He could
17 not also get such an authority from Popovic.
18 The Defence, therefore, submits that there is no evidence that
19 Popovic had authority from his commander to coordinate the work of units
20 in Potocari on 12th and 13 July 1995
21 authority to Momir Nikolic and oversaw his work there.
22 Popovic was not involved in coordination and security of the
23 buses. The Prosecution submits that Popovic, as the sole security
24 officer of the Drina Corps Command at the time, was involved in
25 logistical issues concerning the buses. There is no evidence, however,
1 that Popovic was involved in the logistic issues concerning the buses.
2 The buses were provided by the commander of the Drina Corps and Ministry
3 of Defence, with the participation of the competent services of the VRS.
4 There were -- there was no need for Popovic to leave his jobs and become
5 involved in that of others.
6 On the other hand, Popovic's first duty was to perform
7 counter-intelligence work, because only the officer in the Drina Corps
8 who was authorised to do that. The essence of Operation Action Uda was
9 to detect the conspiracy against General Mladic and other leading
10 officers of the VRS. In short, Popovic was competent for dealing with
11 SIC activities against VRS and inside VRS. His participation in the
12 security of the buses transporting Muslim population from Potocari to
13 B and H-held territory was not ordered to do -- to do that, and it is not
14 within his counter-intelligence work. The column of buses needed
15 physical security only, and this was a task which the corps commander and
16 the commanders of the units in the area had to provide.
17 In addition, the Witness Kosoric testified that he was tasked by
18 General Krstic to go before the first convoy of buses to Luka and convey
19 the order of General Krstic to the unit in that area to secure the
20 unhindered passage of refugees to Kladanj. It is page 794 to 795, 30
21 June 2009. This had nothing to do with security in competence of the
22 security officer, but with physical security of opening the passage
23 through minefields.
24 May we move to the private session, Your Honour, please.
25 JUDGE AGIUS: Sure. Let's go into private session for a short
1 while, please.
2 [Private session]
14 [Open session]
15 JUDGE AGIUS: We are back in open session.
16 MR. ZIVANOVIC: All these matters are in the purview of the corps
17 commander and commanders of units deployed in the area, since such
18 activities required physical security, and there is no evidence that any
19 participation in this task was requested from Popovic by his commander.
20 Finally, the deployment of patrols was within the competence of
21 the corps commander and the commanders of subordinate units from the area
22 along the route. As such, this submission remains unsubstantiated.
23 Popovic was only in Potocari on 12 July afternoon for a short
24 period, and this was when General Mladic, General Krstic, and other
25 officers was present there. However, he had no additional task to
1 oversee either the transport of Muslim population or the so-called
2 separation of the Muslim men.
3 The Prosecution submission that General Zivanovic was in Potocari
4 is in clear contradiction with Srebrenica video, where he was not
5 captured at all on this date. The submission of the Prosecution that
6 Popovic saw the distribution of the bread in Potocari is also unfounded.
7 The video the Prosecution refers to shows the distribution of bread to
8 Muslim refugees who are inside the UN compound in Potocari by VRS
9 soldiers and UN members. Popovic was standing between the truck, where
10 the bread was, and the refugees, who were behind the fence. His back was
11 toward refugees, clearly indicating that he was not overseeing the bread
13 At one point, Popovic asked the soldiers to stop the distribution
14 of the bread, and it seems that they complied and removed the truck to
15 another place and resumed the same job. The video only indicates that
16 Popovic sought that they stop of bread distribution from that point --
17 from that position and their removal of the truck, and not that he
18 oversaw this distribution of the bread. If Popovic was in charge of
19 overseeing the distribution of the bread, he would have watched the
20 participants of the process, the soldiers who carried out the task, and
21 refugees who got the bread. His acts just depict that at one moment the
22 truck presented an obstacle to his task. As such, he sought its removal.
23 Popovic did not instruct VRS soldiers in Potocari on 13 July. It
24 is particularly unsubstantiated that Popovic was aware of intimidation,
25 physical violence, and abuse of the Muslim population in Potocari. None
1 of the witnesses testified that he saw Popovic at such places or that he
2 complained to Popovic about it.
3 It is not true that Popovic was next to the White House. The
4 identification by Rutten was wrong, and its unreliability was obvious
5 from the fact that he was the only one who recognised General Zivanovic
6 as the officer who, on 12th and 13 July, was in Potocari giving
7 instruction and in charge.
8 On 12 July 1995
9 Potocari. We have seen him Vlasenica on the day - it's St. Petar's Day -
10 giving the speech. He alleged that he also saw him on 13 July 1995
11 the White House. I refer to transcript 824, 13 November 2006. He
12 managed to recognise him from a photograph where the face of
13 General Zivanovic was not captured at all, but only the back of his head.
14 It is P2324. Nobody else had seen General Zivanovic in Potocari either
15 on 12th or 13 July. As such, the recognition of Popovic and Zivanovic
16 given by Rutten is not credible and was carried out contrary to the rules
17 explained in this proceeding by Professor Wagenaar.
18 He explained the difference between identification and
19 recognition, plus the importance of the perception of the witness of a
20 person at the site. Professor Wagenaar testified that the identification
21 of the person with his back towards camera might be misleading. I refer
22 to transcript 8th September 2008, pages 367 to 369.
23 Professor Wagenaar finally explained the phenomena of how the
24 memory of a witness gets worse over time, but despite this he produces
25 new facts about an event he could not remember earlier. The professor
1 explained that despite the fact that the recollection of the memory goes
2 down, the confidence of the witness goes up. It's transcript page 370 to
3 371. The Defence submits that this phenomenon actually occurred with
4 Witness Rutten as regards the identification of Popovic and Zivanovic
5 from the aforementioned photograph.
6 It is very interesting that the Witness Rutten did not protest or
7 complain to Popovic about alleged abuses he noticed in White House,
8 although he allegedly noticed him during his second visit there and was
9 aware that he was not an ordinary soldier. It is transcript 29 November
10 2006, pages 805 to 806. He also did not complain to the other individual
11 from the same photograph who, according to him, was in charge of the
12 whole process in Potocari and who allegedly, on the 13 July afternoon,
13 was around the White House too. It is transcript 7 December 2006,
14 page 225 to 227. In addition, the witness failed to mention this event
15 or the persons he identified in his October 1995 witness statement. It's
16 transcript 4 December 2006
17 He did not also mention either in Krstic or during the proofing
18 session in this case that the person he recognised gave instructions to
19 the soldiers, despite the fact that this recollection had not improved in
20 the last ten years. It's transcript page 220 to 221. As the
21 intelligence officer for the DutchBat, he must have been aware that 28
22 Brigade, consisting of more than 1.000 soldiers, had its command in
23 Potocari. However, he concealed this fact by saying that, I quote:
24 "There are no real B and H soldiers around that is shelling --
25 well, there are no real B and H soldiers around, and there weren't any at
1 the time, and there were no B and H positions near the Potocari area."
2 He corroborated his testimony by stating that there were only
3 civilians wearing normal civilian clothes, although he must have been
4 aware that ABiH troops in the enclave also performed their tasks in
5 civilian clothes and that 1300 -- 300, sorry, ABiH members were inside UN
6 compound in Potocari. I refer to page 830 to 831, transcript -- it is
7 transcript 30 November 2006
8 The Defence denies that Popovic was aware of the extent of the
9 abuse of the Muslim population by Serb soldiers or that he encouraged
10 them in acts of intimidation and physical violence, as the Prosecution
11 states in paragraph 2408. The Prosecution did not prove that the scale
12 of abuse and killing in Potocari was such that Popovic had to be aware of
13 them. There were at least 20.000 people in Potocari at the time. The
14 evidence states that nine bodies were found near Budak in the woods, far
15 from the main road. It is P2172 -- 79, sorry. And one Muslim was taken
16 behind White House on 13 July and executed. This would mean that ten
17 people were killed. That number, as well as the place where their bodies
18 were allegedly found, do not indicate that the extent of the abuse and
19 killing in Potocari was such that Popovic had to be aware of them.
20 There is no evidence that Popovic was in position to observe
21 serious abuses and crimes committed by VRS members. There is no evidence
22 that he was present to any physical maltreatment, theft of goods, or
23 similar events. In addition, there is no evidence that he was reported
24 about such incidents. He was, therefore, not in position, as the
25 Prosecution state, to take uncompromising action and prevent the crimes.
1 There is no rule prohibiting an army from detaining suspected
2 members of the enemy's forces during a war. The crucial point is that
3 security organ had nothing to do with the detention of suspected members
4 of the enemy forces or the establishment of their identity, unless it was
5 explicitly ordered or sought by his superior.
6 Popovic, in his capacity of the security organ of the
7 Drina Corps, had no duties or responsibilities for the detention or
8 treatment of prisoners of war in Potocari. The security organs, in
9 general, were authorised to interview prisoners of war if they could
10 provide relevant information related to the enemy secret activities
11 against VRS or actions from within the army itself. I refer to expert
12 report of Vuga, paragraph 434, and his testimony 30 June 2008, pages 052
13 to 053. However, it was left on their assessment and other information
14 if they deemed that a particular prisoner could be in possession of such
15 kind of information. Again, Vuga, 082 to 084, same transcript.
16 Popovic did not interview any prisoner of war because he deemed
17 that they could not provide such information, information about enemy's
18 intents and plans, their combat activities, or facts pertaining to other
19 crimes was within the competence of the intelligence or commands of the
20 units or military police. For example, Momir Nikolic brought
21 Resid Sinanovic to the witness Zlatan Celanovic in Bratunac Brigade
22 military police in order to investigate if he participated in war crimes
23 against the Serb population. I refer to transcript 21st April 2009,
24 page 932 to 933. He also did not assess that Sinanovic [realtime
25 transcript read in error "Zivanovic"], who had a significant position in
1 B and H authority, was in possession of information relevant for his
2 counter-intelligence or intelligence work.
3 There was no evidence that identification of detainees could be
4 done through sight of their identity documents. These documents were
5 issued by the authorities in the enclave without any centre control or
6 confirmation of their authenticity. In addition, many of the Muslims
7 discarded their identification documents, although they were not required
8 to do so. According to the statement of Witness van Duijn, the area
9 around the bus station was full of passports and other papers. I
10 referred -- I refer to van Duijn testimony, 28th September 2006, page 352
11 to 354.
12 JUDGE PROST: Mr. Zivanovic, I don't mean to interrupt you, but
13 at page 56, if you see at line 6, it makes reference: "He also did not
14 assess that Zivanovic ...," and I know that's not the name that you
15 mentioned, who held a significant position in the B and H authority. I
16 wonder if you could repeat that name so we have it on the record.
17 I think it was --
18 MR. ZIVANOVIC: Sinanovic.
19 JUDGE PROST: Sinanovic.
20 MR. ZIVANOVIC: The name is wrong.
21 JUDGE PROST: Thank you.
22 MR. ZIVANOVIC: Resid Sinanovic, yes.
23 The selection and screening of the arrested people was performed
24 through the checking of their hands, fingers smelling of gunpowder,
25 inspection of their clothes. I refer to Rutten, 13 November 2006,
1 page 896, line 21, to 898, line 1. The screening was carried out over a
2 period of more than one day at different locations. Again, Rutten, same
3 transcript, 853, line 13, to 855, line 16. Many of them -- sorry, the
4 last reference is 7 December 2006
5 them had ammunition and left in front of White House. The ammunition
6 exploded when the pile was burnt. It was testified by Franken on 17
7 October 2006, page 578.
8 In addition, many prisoners were interrogated in the White House.
9 Again, Rutten, 30 November 2006
10 submission of the Prosecution that there was no -- not screening or
11 investigation of arrested people is unsubstantiated.
12 The Prosecution states that Popovic knew of significantly -- knew
13 of, significantly contributed to, and shared the intent with the other
14 JCE members to participate in the JCE to murder Muslim men from
15 Srebrenica. The Prosecution submits that Popovic was aware that the
16 purpose of the arrest and capture of Bosnian Muslim men in the column was
17 to execute them. For such submission, the Prosecution relies upon the --
18 upon two communications of General Tolimir - it's paragraph 2416 -
19 alleging that General Tolimir directed Drina Corps security organs to
20 propose to brigade commands that all measures to capture the enemy
21 soldiers from Srebrenica should be taken. The Prosecution
22 mis-characterises the communications from General Tolimir sent to the
23 subordinated intelligence and security organs as evidence that Popovic, I
24 quote: "... would have been provided with information concerning
25 prisoners," as well as that he had been directly involved in organising
1 and implementing any corresponding measures.
2 Two communications convey information by General Tolimir about
3 the movement of 28 Division and Muslim armed group after the fall of
4 Srebrenica and alerted all the subordinate units about the threats
5 against the civilian population and VRS combat units that could emerge
6 along their routes. I refer to P148, penultimate paragraph. He directed
7 intelligence organs to propose measures to be taken by commands to
8 prevent armed Muslims from illegally reaching Tuzla and Kladanj, such as
9 setting up ambushes along the routes in order to arrest them.
10 The second communication directed the security organ of the
11 brigades to propose to the commanders of the units deployed along the
12 line of withdrawal of 28 Division to undertake all measures to prevent
13 the withdrawal and to capture the enemy soldiers. It's P149, page 1,
14 last paragraph. The communication warned that special attention should
15 be paid to monitoring the gaps on the VRS forward defence line and
16 possible escape routes along the corridors, as well as to the possible
17 sudden attacks on residential areas, rear combat disposition elements,
18 and defence elements. This means that nothing in the two communications
19 spoke about intent to murder prisoners, but only about need to prevent
20 the 28 Division from reaching B and H-held territory and endangering VRS
21 and the civilian population en route.
22 However, these communications, as well as the communications
23 4DP111, are significant for other reasons. The communications sent by
24 General Tolimir to Popovic were addressed to the IKM of the Drina Corps
25 in Bratunac, meaning that on 12th July Popovic was at the Drina Corps IKM
1 in Bratunac. This corroborates the Bratunac Brigade document booking a
2 room for him for 11 and 12 July. When the Stupcanica 95 order for the
3 attack on Zepa was issued, the IKM of the Drina Corps was moved to
4 Krivace, so the IKM in Bratunac was closed and the further stay of
5 Popovic became unnecessary.
6 Secondly, the document 4PD111 demonstrates that the information
7 and instruction of General Tolimir to MUP was conveyed by General Krstic,
8 and not Popovic. This clearly indicates that Popovic was not authorised
9 to coordinate with MUP, but that all communication with MUP remained in
10 the hand of General Krstic, who commanded the units taking part in the
11 Krivaja 95 operation.
12 Thirdly, the messages of General Tolimir clearly warned of sudden
13 attacks on civilian and military targets that could be carried out by the
14 forces of the 28th Division on their way towards B and H-held territory.
15 It meant an increased danger from sabotage and terrorist enemy groups.
16 The detecting and preventing of such activities was in the exclusive
17 competence of Popovic, making his presence in the critical areas
18 necessary as soon as the route of withdrawal of the enemy forces was
20 The Prosecution has not proven that Popovic knew for abuses, ill
21 treatment, the failures to provide adequate food -- adequate food and
22 water for the prisoners in Konjevic Polje, Sandici, and Nova Kasaba. He
23 was not duty-bound or ordered by his commander to undertake this
24 responsibility. I refer to paragraphs 2429 to 2431 of Prosecution final
1 The Prosecution submits that Popovic was present at the meeting
2 in Bratunac Brigade on 13 July at 9.30 and that he was informed about
3 prisoners Momir Nikolic and Srdjan Jankovic saw in -- around
4 Konjevic Polje. At 9.30 on 13 July, Popovic was not present at any
5 meeting in the Bratunac Brigade headquarter. The Prosecution relies on
6 Momir Nikolic's statement of fact and Vasic dispatch concerning the
7 meeting held with Mladic on the morning of 13 July, during which the role
8 of MUP in the ongoing evacuation of the civilian population to Kladanj
9 was discussed. Momir Nikolic was not also present at the meeting and had
10 no knowledge that Popovic was there. The communication by Vasic did not
11 also mention that Popovic was present. However, it demonstrated that
12 Popovic had no task in coordination of the MUP. Otherwise, Vasic would
13 have received his task from Popovic, not Mladic, as he stated.
14 The assertion of the Prosecution - it is paragraph 2423 to
15 2428 - that on 13 July 1995
16 in assigning Srdjan Jankovic to drive UN APC to Konjevic Polje, having
17 been present at the time and as Momir Nikolic's professional superior,"
18 is pure speculation, not confirmed either by Nikolic or anyone else.
19 Also, there is no evidence that Popovic was apprised of Jankovic and
20 Nikolic observations and activities in and around Konjevic Polje.
21 In paragraphs 2423 to 2434, the Prosecution states that Popovic
22 actively implemented the command decision to kill the Bosnian Muslim men
23 and boys of Srebrenica, since the prisoners presented a security threat.
24 However, there is no evidence that counter-intelligence measures were
25 required to deal with such threat. In fact, for the neutralisation of
1 such threats, only adequate forces were needed to guard them, meaning
2 that only physical security was necessary for which the security organs
3 have no capacity to implement. Again, I refer to Vuga, 30 June 2008,
4 page 082 to 084. There is no evidence that Popovic was assigned to
5 undertake the above task.
6 As already told, on 11 July, the president of Republika Srpska,
7 Dr. Radovan Karadzic, assigned Miroslav Deronjic to ensure, I quote:
8 "... that all civilian and military organs treat all citizens who
9 participated in combat against the VRS as prisoners of war and ensure
10 that the civilian population can freely choose where they will live or
11 move to."
12 Deronjic was authorised to appoint his assistant for this
13 purpose. The decision came into force on the same day. This means that
14 from 11 July 1995
15 of the prisoners of war and all the Muslim civilians from Srebrenica. He
16 was only one authorised by the supreme commander to ensure that all
17 civilian and military organs treat prisoners adequately. The term
18 "ensure" meant that all the other organs listed in the document should
19 act upon the commissioner's request because the president had entrusted
20 him with the authority to implement his decision about prisoners of war.
21 I refer to Vuga, 2nd July 2008
22 As already said, Popovic was not present in Bratunac on the night
23 of 13 and 14 July and he was not registered at Hotel Fontana on these
24 dates. There is no evidence that Popovic was with Beara on 13 July in
25 Bratunac or communicated with him at the time about prisoners-related
1 issues. General Krstic did not leave Popovic in Bratunac because Popovic
2 was in Vlasenica on 13 July, working on the counter-intelligence security
3 of General Mladic, who came to Vlasenica that afternoon to be present for
4 the hand-over of duties between General Zivanovic and General Krstic and
5 prepare the counter-intelligence security for the newly-established
6 Drina Corps IKM for the Zepa operation. I refer to Vuga, 3rd July 2008,
7 transcript page 234 to 235, and Bjelanovic, transcript 10 June, 267 to
9 As already said, Popovic was not present in Bratunac -- sorry.
10 Popovic did not contact Drago Nikolic on the 13 July 1995 at about 1900
11 or 2000 hours at the IKM of the Zvornik Brigade, as described in
12 paragraph 2435. He did not tell Nikolic anything about prisoners, their
13 coming to Zvornik, organisation of their transfer, and that someone would
14 be sent to provide Nikolic with further information.
15 It is unsubstantiated that Popovic, by virtue of his position,
16 knew about the detention, abusing, and murder of the prison ers. Whoever
17 gave such an order was not bound to inform Popovic of it, being without
18 troops under his command or any other necessary resources for the
19 purpose. And given his position as the only security officer in the
20 Drina Corps Command competent to carry out counter-intelligence work,
21 such information would be unnecessary and pointless. Also, whoever
22 executed such order, he had no duty to report to Popovic, but to the
23 superior who issued the order. He had no responsibility for prisoners in
24 Bratunac because such responsibility, since 11 July 1995, was explicitly
25 assigned to the civilian, Commissioner Deronjic and his authorised
2 There is no sufficient and credible evidence to show that Popovic
3 was in Zvornik on 14 July 1995
4 meeting with Beara [realtime transcript read in error "Deronjic"] and
5 Nikolic. The Prosecution sees the meeting as a follow-up of the
6 ostensible Popovic conversation with Nikolic which never took place. The
7 Defence address the testimony of Bircakovic in paragraph 494 and 495 of
8 its final brief and sticks to these arguments. The uncertainty of
9 Bircakovic testimony is demonstrated in his report of -- the uncertainty
10 of Bircakovic's testimony is in his response, that -- I quote:
11 "People from the Drina Corps attended the meetings with Drago."
12 It is transcript page 044, lines 22 to 23, 7 May 2007, meaning
13 that at least two or more people from the Drina Corps met Nikolic and
14 that there was more than one meeting between him and unknown persons from
15 the Drina
16 the buses on 14 July 1995
17 school. He did not indicate Popovic or a Golf leading such convoy, as
18 stated in paragraph 489 of Defence final brief. In addition, the witness
19 said to Dean Manning in 2002 that his recollection of Popovic was foggy,
20 meaning that his recollection of Popovic presence was not credible
21 enough. It's transcript 8 May 2007
22 JUDGE AGIUS: Just a moment.
23 While we are still on the page, page 63, line 2, that "Deronjic
24 and Nikolic" is obviously a mistake. If I remember, I heard you say
25 "Beara and Nikolic." Is that correct?
1 MR. ZIVANOVIC: Beara and Nikolic, not Deronjic.
2 JUDGE AGIUS: So that needs to be corrected. Thank you.
3 MR. ZIVANOVIC: Okay. Finally, he did not say, in his interview
4 to the OTP, that such meeting ever took place on the 14 July 1995.
5 Again, same transcript, page 097, lines 12 to 17.
6 May we move again to the private session, Your Honours.
7 JUDGE AGIUS: Sure. Let's go into private session for a short
8 while, please.
9 MR. ZIVANOVIC: The Defence denied in its final -- oh, sorry,
10 sorry, sorry.
11 JUDGE AGIUS: Okay, we are in private session.
12 [Private session]
9 [Open session]
10 MR. ZIVANOVIC: The arguments of the Defence have been
11 reinforced, meanwhile, with the Prosecution submission that at the same
12 time when Popovic allegedly led convoy of buses from Bratunac to
13 Orahovac - it is paragraph 2464 of the Prosecution final brief - Popovic
14 was in Dragasevac, in the base of the 10th Sabotage Detachment. In fact,
15 the Prosecution asserts that Popovic was in Dragasevac on 14 July 1995,
16 between 1000 and 1200 hours. It is paragraph 2469.
17 The Prosecution also alleged that the person whose
18 contemporaneous description and rank clearly matched of Popovic was seen
19 by the PW-101 at the execution site at Orahovac. The person had
20 side-arms, and to strengthen its argument, the Prosecution referred to
21 the Srebrenica trial video depicting that Popovic, on 12 July, had
22 side-arms too. The Prosecution also found that the presence of Popovic,
23 I quote, at least "at one other execution site at Bisina," the Defence
24 clearly indicated in its final brief that the testimony of the Witness
25 PW-101 was untrue as regard his presence at the execution site in
1 Orahovac and saving the life of the PW-105, hiding him in his van from
2 the other soldiers who allegedly would kill him. It is in paragraph 224
3 and 496 to 512. In short, the witness had a good reason to be untruthful
6 The side-arm was the obligatory element of the equipment for all
7 officers of VRS. Many of them could be seen at various videos and photos
8 bearing side-arms. Significantly, the Prosecution did not put a question
9 to the witness in order to get more details concerning the identity of
10 the alleged lieutenant-colonel. It is the submission of the Defence that
11 it was not done because such efforts would be negative for the
12 Prosecution case. Because of that, the Prosecution opted to leave it
13 unclear and to stray to the conclusion that this person was Popovic.
14 As to rank, the witness did not say that a man was
15 lieutenant-colonel, but lieutenant-colonel or the colonel at most. He
16 described that person as the tall man, but Popovic, he's not tall. He
17 described that person as good-looking man, but Popovic was not good
18 looking. His testimony --
19 JUDGE AGIUS: And if Popovic is not tall, how would you classify
20 me --
21 MR. ZIVANOVIC: I'd be restrained.
22 JUDGE AGIUS: -- or yourself?
23 MR. ZIVANOVIC: Or myself? Also restrained.
6 (redacted). Only after the members of the Zvornik
7 Brigade left the van, PW-101 drove the wounded boy to the Zvornik
8 hospital upon the order of Sreten Milosevic. It is transcript 15 July
9 2009, page 984, lines 16 to 24. According to the hospital record, it was
11 PW-101 did not go to Orahovac to transport food and drink for the
12 soldiers, but to take assistant commander for logistics for the Zvornik
13 Brigade, Sretan Milosevic, to Orahovac. Namely, he testified that he
14 called the brigade from a house in Orahovac and sought the duty officer
15 to send a car to fetch him back to Zvornik. It's again same transcript,
16 page 982 to 983.
17 JUDGE AGIUS: One moment, Mr. Zivanovic.
18 Mr. McCloskey, I suggest you have a look at from line 22 of
19 page 66 to where we are now and see whether there is any inherent risk of
20 revealing the PW-101's identity. Just come back to me when you can.
21 Thank you.
22 Let's proceed.
23 MR. ZIVANOVIC: Thank you.
24 The witness lied at least on six points: First, that he was sent
25 to Orahovac by Pantic; second, that proposal of his travel was to
1 transport the food and drink to the Zvornik Brigade soldiers who were
2 there - I refer to transcript 22nd February 2007, lines [sic] 564, lines
3 5 to 15; that he was sent by Sreten Milosevic to bring the food to the
4 soldiers at the execution site - it's transcript page 569 to 571; that he
5 was at the execution site at the main access road to Krivace and
6 Kitajnica or Orac and saw the execution there, including the known and
7 unknown persons he allegedly saw there, including the lieutenant-colonel
8 or colonel who commanded to the execution squad, and insisted on the
9 killing of the wounded boy - it is the same transcript, page 580 to 590;
10 that he saved the life of the boy, but from the person and/or other
11 soldiers of the brigade, by transporting him directly to Zvornik
12 hospital - it is also page 584; that there were no other members of the
13 Zvornik Brigade in his van and that it happened in the dusk.
14 The witness testified that at the point that he arrived at the
15 execution site, he was told by a soldier that in another meadow there
16 were executions carried out and that the other meadow was full of
17 corpses, and they could stop firing upon people there, and that they
18 moved to that other meadow "where you were located at the time" - it is
19 page 720, lines 15 to 21 - such statement is in clear contravention with
20 the testimony of survived victims, as analysed in the Defence final brief
21 in paragraphs 403 to 408. However, the Prosecution -- 503 to 508.
23 However, the Prosecution submits that on 14 July, between 8.30
24 and 9.30 p.m.
25 who was in the Zvornik Brigade. The witness was -- allegedly said by the
1 Zvornik Brigade duty officer that Vujadin Popovic had arrived -- sorry.
2 May we have a break?
3 JUDGE AGIUS: Yes. I was going to suggest it.
4 We'll have a 25-minute break. Thank you.
5 --- Recess taken at 12.28 p.m.
6 --- On resuming at 12.57 p.m.
7 JUDGE AGIUS: Yes, Mr. Zivanovic.
8 MR. ZIVANOVIC: Thank you, Your Honours.
9 The witness was allegedly said by the Zvornik Brigade duty
10 officer, I quote:
11 "... that Vujadin Popovic had arrived just at the very moment."
12 It is page 939, lines 18 to 25, transcript 20th June 2007.
13 However, just at that time, or precisely around 8.30 p.m., PW-101
14 got the task to go to Orahovac. In that same span of time he departed to
15 Orahovac, stayed in front of the school, spoke with Drago Micic and
16 Sreten Milosevic, waited the soldiers to take food and drink he had
17 allegedly brought, and watched the embarking of the prisoners who would
18 be transported to the execution site. It means that in that span of time
19 he was watching the execution and saw the officer similar Popovic there.
20 In the paragraph 2452, the Prosecution misquoted the testimony of
21 Tanasko Tanic when he stated that he saw Popovic at the Orahovac school.
22 The witness testified that standing at the road, he saw Popovic in the
23 yard and these people were unknown to him. He was told by a military
24 policeman that one of them was Popovic. He could not tell what the man
25 looked like at the time, nor did he know his rank. It is transcript 23
1 April 2007, page 337 to 338.
2 According to Bircakovic, Popovic arrived there half an hour after
3 the prisoners arrived. This evidence is in clear contradiction with the
4 testimony of PW-138, who said that Popovic led the convoy and reached
5 Orahovac before the prisoners. It also endorses the Defence submission
6 that Popovic did not lead the column of buses with prisoners because he
7 would have arrived at Orahovac before the prisoners and not half an hour
8 after them.
9 May we move again into private session, please.
10 JUDGE AGIUS: Sure. Let's go into private session, please.
11 [Private session]
11 Pages 34378-34379 redacted. Private session.
5 [Open session]
6 MR. ZIVANOVIC: The Defence denies that there were over 1.000
7 prisoners in Rocevici school. None of the witnesses confirmed that, and
8 the indictment states that there were approximately 500 prisoners in that
9 school. The drastic increase of the number of prisoners in the school
10 the Prosecution bases on the ICMP DNA
11 evidence of the Witness PW-142 is not reliable, since he just glanced
12 inside the gym, so that he just think that the number was the same to the
13 number of those in Orahovac. I refer to transcript page 462, 29 January
14 2007. However, it contains the obviously erroneous conclusion founded on
15 the wrong generalisation that DNA
16 and secondary grave-sites automatically means that all victims from these
17 secondary graves were brought there from the same primary grave-site. I
18 refer to Dunjic witness statement, 1D1447.
19 So according to Janc's conclusion, on the basis of 54 DNA
20 connections found in secondary graves, he concluded that all 708 bodies
21 were brought there from Kozluk.
22 In respect of paragraph 2478, there is no evidence that the
23 meeting that Witness PW-165 testified about took place on 15 July 1995.
24 On the day the ostensible meeting was held, PW-165 was working at the
25 check-point in Rocevici until 17 hours, but he did not see any transport
1 of prisoners to Kozluk. It clearly indicates that this date is wrong.
2 The Defence expounded the testimony of this witness in paragraphs 520 to
3 522 of its final brief, and therefore maintains its position that
4 PW-165's testimony on the identification of Popovic was erroneous.
5 The Defence also analysed all evidence related to the alleged
6 Popovic activities related to the detention, transportation, execution,
7 and burial of victims in the Kula-Konjic-Branjevo area. It is in
8 paragraph 229 to 294 of the Defence final brief. Sorry, 529 to 594. The
9 Defence denies the specific allegation by the Prosecution that Popovic
10 was engaged at Kula school in the morning of the execution. The Defence
11 also analysed the testimony of Slavko Peric in paragraph 540 to 542 of
12 its final brief, who did not confirm that Popovic was present at Kula
13 school, but a person who looked like him. He also testified that he
14 thinks that one soldier called the shorter of the two officer with
15 nickname "Popovic." The witness said that he believed that he heard
16 Popovic. However, this evidence is not reliable for establishment of
17 Popovic presence in front of the Kula school because the witness was not
18 able to confirm that Popovic was present at the school, although he knew
19 him, or that he was addressed with his -- with the nickname "Pop."
20 In addition, the last name Popovic is common in the area, so that
21 one of the members of the 10th Sabotage units, Velimir Popovic - I refer
22 to Adamovic testimony for May 2007, page 946, lines 20 to 15 - had the
23 same last name. The member of this unit was also Boris Popov, who could
24 have had the same nickname. I refer to Dorovic testimony, 21st August
25 2007, page 040, lines 8 to 12.
1 The submission of the Prosecution that Popovic was at the Kula
2 school is not corroborated by the evidence mentioned in the OTP final
3 brief. The Defence analyses all this evidence. The fuel issue was
4 addressed in paragraph 543 to 562, the entry in the paragraph 563 to 566,
5 and intercept evidence in 567 to 594 of its final brief. Neither of them
6 confirms Popovic present at the Kula school, as the Prosecution submits,
7 by coordinating the execution of the Muslim prisoners at Pilica. The
8 Defence stays behind its arguments, pointing out that they are reinforced
9 with the testimonies of Ljubo Rakic and Branko Bogicevic, and absence of
10 any evidence that Popovic was seen at Branjevo Military Farm. None of
11 the Prosecution witnesses, and I refer to Slavko Babic, Jevto Bogdanovic,
12 Pero Petrovic, Drazen Erdemovic [realtime transcript read in error
13 "Obrenovic"], testified that they saw Popovic at the Kula school or at
15 The Prosecution also brought the witnesses who participated in
16 burial of the victims, and none of them testified they got any order or
17 instruction from Popovic or that he even saw him at that place. I refer
18 to the Witness Damjan Lazarevic. In respect, the paragraph 2528 and
19 2529, where the Prosecution stated that Popovic issued the direction to
20 the chiefs of intelligence and security in the Drina Corps formation,
21 banning indefinitely all reporters and cameramen from entering the
22 Republika Srpska, the Defence submits that it is normal that filming and
23 the recording during wartime is restricted, as well as the movement of
24 foreign citizens, including journalists.
25 JUDGE AGIUS: One moment, Mr. Zivanovic.
1 MR. ZIVANOVIC: Sorry.
2 JUDGE AGIUS: Line 5 of this page -- in this page, 75, amongst
3 the witnesses that supposedly you mentioned --
4 MR. ZIVANOVIC: No, no, no.
5 JUDGE AGIUS: -- is Dragan Obrenovic.
6 MR. ZIVANOVIC: Not Dragan Obrenovic.
7 JUDGE AGIUS: It was Erdemovic?
8 MR. ZIVANOVIC: Erdemovic, Drazen Erdemovic.
9 JUDGE AGIUS: Erdemovic. Okay, thank you.
10 MR. ZIVANOVIC: The Defence indicates that a similar ban was
11 imposed by the ABiH. I refer to 1D1091. So the commander of the ABiH
12 2nd Corps issued the order after noticing an increased activity by
13 UNPROFOR and foreign journalists to collect information on ABiH forces
14 and possible plans for their deployment. In order to prevent such
15 activities, he issued the order forbidding such persons to pass through
16 from temporarily-occupied territory and to travel from B and H-controlled
17 territory to temporarily-occupied territory. They were also banned to
18 travel to the zone of responsibility without written approval of the
19 2nd Corps Command.
20 Popovic was not present at the execution in Bisina. The
21 testimony of PW-172 was not accurate as regard Popovic presence during
22 the execution. The vehicle log - it is P197 - reflects that Popovic on
23 that day left Vlasenica at 900 hours in the morning to Zvornik. The
24 purpose of his travel to Zvornik was described in details by the Witness
25 Vlasic. He recounts that their conversation in Zvornik was suddenly
1 interrupted, and Popovic left Zvornik only after a telephone call.
2 Popovic emerged at Bisina two hours after the trucks where the prisoners
3 had arrived. This was confirmed by Witness Kojic and Coric.
4 PW-175 testified that he wrote in his vehicle log the names of
5 officers who signed it, upon the request of the finance chief who was not
6 able to recognise signatures. He did it with block letters after his
7 chief who assigned him the task identified the signatures. He also
8 confirmed all the assignments he got from his chief. This means that it
9 was not Popovic who was in charge of operation, as the Prosecution
10 erroneously interprets from his testimony. He did it when he submitted
11 the vehicle log to the chief of finance who asked the witness to identify
12 the signatures on the vehicle log.
13 It was not questioned who was in charge of the operation, because
14 the witness never stated that he knew of that. This submission is
15 corroborated by two of Popovic's other signatures for his assignment in
16 July 1995. It was done for the days when he had not assigned related to
17 any kind of security jobs or transportation of the prisoners or the
18 members of 10th Sabotage units, indicating that the signature was given
19 just because Popovic was the only available officer at that moment in the
21 when -- only where the Popovic signatures were, but also for all days he
22 drove the mini-bus in July 1995. I refer to transcript page 796, 25 of
23 March, 2009.
24 The Prosecution's assertion that evidence related to Bisina
25 confirms Popovic presence at Branjevo Military Farm on 16 July 1995 is
1 quite unsubstantiated. In the final brief, paragraphs related to the
2 Popovic individual criminal responsibility related to the Pilica-Branjevo
3 execution, the Prosecution never mentioned that Popovic was present at
4 the Branjevo Military Farm, but only at the Kula school and Pilica.
5 There is no evidence that Popovic was at Branjevo Farm at all. There is
6 not a single witness who testified to this or a single document
7 confirming such an allegation.
8 The Defence considers that the evidence related to Bisina on 23rd
9 July could not be used to confirm the charges against Popovic on all
10 execution sites where the Prosecution was not able to prove his role and
12 JUDGE AGIUS: How much more do you have?
13 MR. ZIVANOVIC: I will be finished by the end of the day, if you
14 permit me.
15 JUDGE AGIUS: How long has he already taken, time-wise, how much
17 [Trial Chamber and registrar confer]
18 JUDGE AGIUS: You've exceeded the time-limit by already seven
19 minutes. Let me confer with my colleagues.
20 [Trial Chamber confers]
21 JUDGE AGIUS: Now, by way of exception rather than establishing a
22 rule, we are allowing you to go on up to five to seven minutes before the
23 scheduled end of the sitting.
24 MR. ZIVANOVIC: Thank you very much.
25 JUDGE AGIUS: In other words, leave us five to seven minutes.
1 Thank you.
2 MR. ZIVANOVIC: Thank you very much.
3 The Prosecution did not even prove that any member of the
4 Drina Corps military police was present at the Branjevo Military Farm,
5 but that some soldiers had such insignias. In the light of the
6 testimonies of Bjelanovic and Racic, it is clear that such insignias were
7 worn by almost all former members of the Drina Corps military police who
8 were redeployed to the other units, so the soldiers noticed at Branjevo
9 Military Farm were not actual members of the Drina Corps military police
10 because at the time Drina Corps military police was deployed at Kocari on
11 combat operation and only a small number of them were available for
12 military police tasks in Vlasenica.
13 The Prosecution asserts that Popovic organised the transportation
14 and execution of the Bisina victims, despite evidence indicating to the
15 contrary. Popovic vehicle log indicates that he departed Vlasenica for
16 Zvornik on 23rd July 1995
17 day, Popovic did not carry out counter-intelligence tasks. He was in
18 civilian classing and had to meet the commercial manager of the Vezionica
19 factory which produced the uniforms and insignias for the Military Police
20 Battalion. They had to resolve the problem with insignias sowed on the
21 uniforms because the soldiers, when they deployed, went with these
22 uniforms and insignias to other units, they were seen by others as the
23 members of the Drina Corps military police, despite the fact that they
24 had ceased to be its members.
25 It was as a result of this that the route of travel was written
1 on Popovic log on this particular day, since the places for the
2 performance of counter-intelligence tasks were not usually disclosed to
3 members of the corps command. This was also done on 3rd July 1995
4 Popovic travelled to Ljuboja. The intercept referred to by the
5 Prosecution - it's P1313 - indicates that Popovic had already left
6 Vlasenica at 9.04 that morning. However, the Prosecution's
7 interpretation, that it also reflects that Popovic went to Sekovici, to
8 the Lieutenant-Colonel Racic, is unsubstantiated and contrary to the
10 The Popovic vehicle log demonstrates that Sekovici was not the
11 place he intended to visit on the specific day. There is no evidence
12 that Popovic contacted Lieutenant-Colonel Racic on that day. The witness
13 statement of Slavisa Racic, however, confirms that he met with Popovic in
14 Zvornik. It was before noon
15 their meeting lasted about half an hour. It's 1D48.
16 The preparation for the transportation of prisoners to Bisina
17 started at 8.30 with the fueling of truck PW-172 drove on the day. The
18 truck later proceeded to Bisina, where the executions and burials of
19 victims took place. At that time, PW-175 left Vlasenica to Bisina and
20 got back to Vlasenica at 10.15. It is P4432. At 10.30, he travelled
21 again on the Vlasenica-Sekovici-Bisina-Sekovici route, and the minivan
22 transported the 10th Sabotage Detachment -- if the minivan transported
23 the 10th Sabotage Detachment members, it means that they left Bisina
24 before noon
25 the minibus completed their task at Bisina before the noon and went back
1 immediately. It was confirmed by PW-172. It's transcript 10 March 2009,
2 page 573, lines 7 to 10.
3 The Witness PW-172 testified that the executions took place very
4 fast and that as soon as that was done, they went back and sat in the
5 car, and they left the location. Although it is not clear what kind of
6 car was at the location which the execution used to leave, it is most
7 probable that they did so immediately after they completed their task.
8 According to the witness Vlasic, Popovic suddenly interrupted his visit
9 after a very short telephone conversation, he was seen in civilian
10 clothes at the building site of the Bisina barracks in early afternoon,
11 inquiring with the two witnesses, Kojic and Coric, as to whether they saw
12 where the military trucks went. The place was at the junction of the
13 road. As such, he required information to determine where they went and
14 thereafter followed the direction indicated by the witnesses.
15 Cojic stated that Popovic arrived at the building site in Bisina
16 about 1300 hours. It is 1D1439. Kojic also stated that Popovic came to
17 Bisina building site between 13 and 14 hours. It is 1D1446. If Popovic
18 was there early in the morning, as the Prosecution asserts, he would not
19 seek information as to where the trucks went. He would know the place of
20 the execution. However, the whole event obviously became known to him
21 after his telephone conversation at Vlasic's office from the Vezionica
22 Zvornik, and he managed to arrive at the location only when the
23 executions had been completed but the burial was underway.
24 The Defence submits that PW-172 was not only in a state of shock,
25 but also in a state of fear of his own criminal responsibility due to his
1 acts and conduct. At the time of the execution, he was present with the
2 two young soldiers upon the oral order of his commander. Apart from
3 them, there were the unknown soldiers from 10th Sabotage unit who left
4 the place immediately after the execution and also an unknown driver of
5 the machine performing the burial. At the time, he felt that he would
6 be -- he could be responsible for the events, given that none of the
7 officers was present. The coming of Popovic was a kind of relief. He
8 could protect himself because of Popovic's position of authority,
9 although he was not present at the executions.
10 The testimony of this witness obviously confirms that Popovic did
11 not organise the transportation and execution of the 39 Muslim prisoners
12 at Bisina. The witness agreed with the position of the Defence, that
13 Popovic did not have anything to do with the transportation of the
14 prisoners from Susica and Sekovici to Bisina. It is transcript page 598,
15 lines 2 to 7. The witness, in another part of his testimony, clearly
16 indicates that Popovic did not organise the execution of Bisina victims.
17 The witness testified that when he asked Popovic after the execution what
18 happened, that Popovic did not answer. The witness saw the tears in his
19 eyes. It is the submission of the Defence that an individual who
20 organised the execution and who worked to complete such a task would not
21 cry once he completes his task. The tears in Popovic's eyes which the
22 witness spoke of indicate that execution of these Muslims was a shocking
23 surprise for Popovic too.
24 The Defence would also like to explain why the Popovic vehicle
25 log for 23 July 1995
1 log was filed in advance at the beginning of the trip, when he did not
2 expect that he would go to Bisina. This also indicates that he did not
3 participate in organising the transport and execution of Bisina victims.
4 In the paragraph 2538, the Prosecution submits that Popovic
5 implemented the command decision to kill the wounded from the military
6 hospital. It refers to two intercept conversations and the testimony of
7 PW-168. The content of the quoted intercepts was inaccurately and
8 incompletely presented. In the first conversation, Pandurevic sought
9 instructions as regard both prisoners and the wounded. The part of the
10 conversation in respect of wounded was transcribed with considerable
11 gaps. I refer to P1309.
12 The next conversation refers to the previous one, by saying that
13 Popovic would come by 1700 hours and convey what needs to be done
14 regarding the work we talked about. This conversation did not mention
15 the issue of the wounded prisoners alone, but also many other topics. At
16 least four additional topics will arise in the conversation. The first
17 relates to Sekula and Modric, the second related to something that should
18 be returned to Kosoric, it must be ready right away. The third related
19 to reinforcements. The fourth related to the time General Krstic had
20 sent for Legenda. In light of the aforementioned, the part of the
21 conversation that Popovic would convey what needs to be done regarding
22 the work we talked about is not necessarily related to the wounded, as
23 the Prosecution misrepresents it.
24 May we move into private session, Your Honours.
25 JUDGE AGIUS: Yes. Let's go into private session for a while,
2 [Private session]
18 [Open session]
19 JUDGE AGIUS: We are in open session now. Thank you.
20 MR. ZIVANOVIC: Popovic, however, did not convey anything to
21 Pandurevic on that or any other day. The Drina Corps Command had a
22 better way of communication with its subordinate brigade commander,
23 including protected communications and professional courier, than sending
24 its assistant commander as the courier. It is, however, interesting to
25 note how the Prosecution would like to present Popovic activities on 23rd
1 July 1995. In the morning hours and early afternoon, he ostensibly had a
2 very delicate task to organise the transportation, murder, and burial of
3 victims at Bisina. Immediately after that, he was transformed in the
4 courier between an unknown command and the commander of a subordinate
5 unit. Such distorted presentation was far from the reality and was
6 created just for proving the unsubstantiated charges from the indictment.
7 In respect to the paragraph 2550, it is correct that Popovic got
8 the task from his commander to go to Serbia and retrieve Muslim soldiers
9 who fled there from Zepa. However, it only proves that the task related
10 to the prisoners Popovic undertook was upon the order of his commander
11 and only with the limits determined by him. It proves that the norms
12 from the Rules of Service for the security organ were fully implemented
13 and that Popovic had no tasks relating to prisoners in his purview.
14 Popovic did not participate in the reburial operation. The
15 testimony of the Prosecution plea agreement witness -- witnesses are not
16 credible, as explained in Defence final brief.
17 Popovic never managed fuel resources. However, one of the tasks
18 of the security organ was to detect activities within the VRS against the
19 VRS. This included the theft of fuel, because it presented the most
20 important item for the operation of the army.
21 (redacted) --
22 JUDGE AGIUS: Yes.
23 MR. ZIVANOVIC: Sorry.
24 JUDGE AGIUS: Redact that, and proceed.
25 MR. ZIVANOVIC: May we move to the private session, please.
1 JUDGE AGIUS: Okay. Let's move to private session, please, and
2 redact what has been stated in the last few seconds.
3 [Private session]
11 Page 34394 redacted. Private session.
4 [Open session]
5 MR. ZIVANOVIC: The Prosecution misrepresented the ostensible
6 intercept conversation from 22nd September 1995 which shows Popovic
7 involvement in managing and overseeing the reburial operation in Zvornik.
8 In that conversation, Popovic asked his collocutor whether the fuel had
9 arrived. It's P2391. He received the information that his collocutor
10 did not know anything about it, but that Trbic was working on it, and on
11 that specific day he could not -- as not much of work could be done.
12 Finally, Popovic asked the other speaker to find out if the fuel was
13 delivered and called the gas station to check.
14 The conversation does not reflect in any way Popovic managing and
15 overseeing of the reburial operation, but instead the detection of abuses
16 and illegal appropriation of fuel. The Prosecution asserts that the fuel
17 for reburial was delivered on 14 September 1995. This conversation took
18 place eight days later, after the fuel had been delivered. This
19 conversation reflects Popovic interest for fuel, which was to be
20 delivered to the gas station of the Zvornik. The fuel approved on
21 14 September had already been delivered to the Standard Barracks, as
22 ordered in the document. There is, therefore, no logical conclusion that
23 this conversation related to the same subject matter as the disbursal
24 order for the fuel delivered on 14th September. The fuel delivered on
25 14th September was assigned personally to Captain Trbic for a specific
1 task by the Main Staff commander. Accordingly, this order made Trbic
2 responsible to commander of the Main
3 the execution of this task. The order did not mention that he was
4 responsible for the performing of such tasks to anyone else but to the
5 commander who issued the task personally.
6 As a result, neither Popovic nor anybody else was authorised to
7 seek any information about the fuel because they did not get such a task
8 from the commander who issued the delivery order. This means that
9 Popovic asked about another fuel sent for the regular needs of the
10 Zvornik Brigade.
11 We can -- just a moment. Sorry.
12 In respect to the paragraph 2565, the testimony of another
13 Prosecution plea agreement witness, Momir Nikolic, as to Popovic
14 involvement in reburials is also false. If the fuel for the purpose was
15 delivered to Zvornik, as was shown with the document of 14 September
16 1995, it would be the same also for the Bratunac Brigade. Accordingly,
17 to the -- according to the Prosecution, in the case of Zvornik, the
18 disbursal order was by the Main Staff commander directly to Captain
19 Trbic, without any involvement from Popovic. In the case of Bratunac, it
20 might have been done in the same way, meaning that it was delivered to
21 Momir Nikolic, who got the same assignment as Trbic. The Defence
22 addressed its position about Momir Nikolic's testimony as regard the
23 reburials and sticks to that.
24 I'd just like to add that Momir Nikolic, in his -- wrote in his
25 additional statement - it is C-2 - "I helped in exhumation and reburial
1 operation to the extent I was ordered to by my commander, Colonel
2 Blagojevic, to whom I reported regularly at regular briefing meetings."
3 This can be seen from the minutes of the briefing meeting of
4 Bratunac Brigade on 16 October 1995
5 "In my brigade, the task order was ordered was recorded as
7 I refer to page 4, last paragraph, C-2. It clearly indicates
8 that Momir Nikolic got all his order in respect to reburials from his
9 commander, not from Popovic. Otherwise, he would report to Popovic
10 regularly, not his commander. He misrepresented the obligations he got,
11 like Trbic, as regard the fuel, just to conceal his direct responsibility
12 for reburials.
13 Your Honours, I have just one more very short topic. It refers
14 to ethnic animosity toward Muslims.
15 JUDGE AGIUS: Very short --
16 MR. ZIVANOVIC: Thank you, very much.
17 JUDGE AGIUS: Very shortly. Briefly, please.
18 MR. ZIVANOVIC: The Prosecution's submission that Popovic
19 harboured a particular deep-seated ethnic animosity toward Bosnian
20 Muslims because he used derogatory terms like "balija" in referring
21 Muslims is unsubstantiated. The Prosecution has never clarified what the
22 term "balija" means. In fact, the exact term "balija" was not known to
23 many of the witnesses the Prosecution examined. The witness Grujic, a
24 journalist by profession working during the Bosnian war as the
25 correspondent of Reuters Television - I refer to his testimony, 756 page,
1 22 July 2008
2 The exact meaning of the term could not be explained by Vuga, although he
3 agreed that was mildly derogatory and appears in vernacular. Although
4 such term was not appropriate in the official documents, it was commonly
5 used in the VRS, just as the other side used derogatory terms for Serbian
6 sides. However, it does not reflect a deep-seated ethnic animosity
7 toward Muslims. Many witnesses in this case testified that Popovic had
8 no hate towards Muslims and had many friends among them.
9 Popovic was the officer of the former JNA, educated in the
10 military schools in the spirit of fraternity and unity, as the crucial
11 concept of the former JNA. His former superior and associates gave
12 statements in this regard. Its reference is witness statements at
13 1D1318, 1320 and 1317, witnesses Mico Vlaisavldjevic [phoen], Nermin
14 Jusufovic and Boris Mazibrada.
15 Just for a short time, if we can move to the closed session -- to
16 private session, please.
17 JUDGE AGIUS: Yes. Private session, please.
18 [Private session]
6 [Open session]
7 JUDGE AGIUS: Yes, we are in open session now.
8 MR. ZIVANOVIC: One of the witnesses, Nermin Jusufovic, who is
9 Muslim, stated that he met Popovic in 1991 in the former JNA multi-ethnic
10 unit. The witness was friends with Popovic and they socialised at the
11 time, and he never noticed Popovic express any negative attitude towards
12 people of other ethnicity or comment about their behaviour or character.
13 The second witness, Popovic's former command,
14 Mico Vlaisavldjevic, stated that he met Popovic in 1978 after Popovic
15 graduated from the Military Academy
16 1992. He described Popovic as an extremely pro-Yugoslav-oriented officer
17 without any intolerance towards many members of other ethnic groups in
18 the unit. The witness named some of Popovic's close non-Serb friends.
19 Finally, the witness stated that Popovic helped many people when the war
20 broke out to get passports and leave the territory of Republika Srpska
21 He named some of them in his statement.
22 Boris Mazibrada also confirmed that Popovic had very good
23 relations with people of different ethnicity. Witness Milan Vojnovic,
24 who had contacts with Popovic, testified that he never felt any animosity
25 from Popovic towards other ethnic groups except towards armed formation
1 of enemy. The witness Mikajlo Mitrovic, who was Popovic superior in the
2 2nd Krajina Corps testified that there were members of the other ethnic
3 groups in that unit, but Popovic never showed intolerance towards them.
4 Finally, the Prosecution submission of Popovic near pathological
5 hate towards Muslim is quite inconsistent with testimony of PW-172, who
6 saw tears in his eyes after the execution of the Muslim prisoners near
8 In light of the aforementioned reasons, I ask the Trial Chamber
9 to acquit Mr. Vujadin Popovic of all charges from the indictment.
10 Thank you very much.
11 JUDGE AGIUS: Mr. Zivanovic, Judge Kwon has a question for you.
12 MR. ZIVANOVIC: Thank you.
13 JUDGE AGIUS: Judge Kwon.
14 JUDGE KWON: I was hesitating whether to ask this question or
15 not, but I didn't find the time to ask this before.
16 Do you remember when Mr. Svetozar Kosoric came to testify on the
17 30th of June? During the course of cross-examination he was shown a
18 video in which Mr. Kosoric and Zoka and Mr. Popovic took a picture. I'm
19 not sure whether you remember that. During the course of dialogue,
20 Mr. Popovic said that -- to the effect of, Come on here, the entire OB is
21 present, and then he said "the war criminals." I wonder whether you are
22 in the position to answer in what context he said that.
23 MR. ZIVANOVIC: I believe that it was recorded when all of them
24 were a little bit tipsy, and it was a kind of joke, according to the
25 behaviour of all of them and according to the behaviour of Popovic
1 himself. It was my impression. I cannot give any other details, but
2 that's it.
3 JUDGE KWON: If you can expand why it was a joke. You can answer
4 the question tomorrow.
5 MR. ZIVANOVIC: Okay, thank you.
6 JUDGE AGIUS: So let's adjourn.
7 I take this opportunity to thank the members of the staff,
8 interpreters, technicians, and everyone, for having been patient and
9 allowed us to sit some extended minutes.
10 Let it also be the practice that you should alert the Trial
11 Chamber if, at a certain point in time, it becomes obvious that you're
12 not going to conclude in two and a half hours. I don't think we should
13 be faced with a situation where we have to check and find out that you
14 have already exceeded by a few minutes, and then ask you to leave us five
15 or seven minutes, and you don't even leave us that. I don't think this
16 should be a healthy practice in this Tribunal, and you should try to
17 avoid it by all means.
18 Thank you, and have a nice afternoon.
19 --- Whereupon the hearing adjourned at 1.54 p.m.
20 to be reconvened on Tuesday, the 8th day of
21 September, 2009, at 9.00 a.m.