090908ED

Page 34419

1 it was their methodology, whether it was the materials they used, or the

2 analysis that they provided. That completeness is necessary in all

3 criminal proceedings, in my view, if the standard of proof is beyond a

4 reasonable doubt.

5 We tell the Court they failed to call relevant, critical, and

6 necessary evidence. It's perhaps naive to think that someone can make

7 that charge and not be able to substantiate it. The Prosecution, in my

8 view, does it. The Defence is restricted. But when I tell this

9 honourable Chamber that they failed to call relevant, critical, and

10 necessary evidence, I'm referring to Nova Kasaba, July 14th, 1995. I am

11 referring to Mr. Egbers. As everyone knows, the evidence purportedly

12 that occurred that day was not as it was with many of their 14 witnesses,

13 one-on-one with Mr. Beara, although in open no one else observed them.

14 This meeting with Mr. Egbers was between at least four individuals who

15 were supposedly present, according to Mr. Egbers. Zoran Malinic was

16 present. Why didn't the Prosecution call him as a witness? Do they have

17 doubt about what he may say?

18 The Prosecution listed Zoran Malinic in their 65 ter list. The

19 Prosecution knows that the 65 ter list is inconsistent with what is

20 written in Mr. Malinic's interview statement. They have the obligation,

21 if they want to corroborate the evidence and show the Court beyond a

22 reasonable doubt that Mr. Beara was purportedly present at Nova Kasaba,

23 to at the very least call Zoran Malinic. Of course, they'll give you

24 their same excuse, All Serbs are liars, you can't trust those people who

25 were involved in this war. Why don't they call the interpreter, Nebojsa,

Page 34420

1 who was neutral? He was there. They had access to him, interviewed him,

2 met with them. Their investigators clearly could have convinced him or

3 asked or had him even subpoenaed to come here.

4 But forget about Zoran Malinic and the interpreter Nebojsa. They

5 could have went two hours away from The Hague, and I think the town is

6 Assen, and I may have mispronounced it. They could have got Egbers'

7 former colleague in DutchBat, Theo Lutke. They interviewed him, they had

8 statements from him. It's their obligation to bring forth that evidence

9 if they believe that they can prove that Mr. Beara was present beyond

10 reasonable doubt. The fact that they did not bring such evidence

11 forward, in my view, suggests that there is doubt as to his presence.

12 Specifically given the testimony of the various Defence witnesses, there

13 is little question but that there is doubt as to Mr. Beara's presence on

14 that date.

15 Finally, with respect to thoroughness and fairness, I'd like to

16 say that the Prosecution, not only in applying their standard with

17 respect to Defence witnesses, that they have a double standard, but they

18 have a double standard as to even interpretation of words. By way of

19 example, we can look at the Vasic documents, P60, P62, P886. Here's a

20 person who acknowledges and admits his involvement in certain portions of

21 the war. The dates of these documents are not only relevant, but are on

22 point as to the entirety of the Prosecution's case, the 12th and 13th of

23 July. Here's a person who uses the word "liquidation" or "killing" in

24 his July 13th report, P886, and yet the Prosecution tells you, with a

25 straight face, He really didn't mean 'killing,' he was exaggerating the

Page 34421

1 fact that MUP was solely involved to his bosses. He was exaggerating?

2 He was killing? He was joking in an official document, when he used the

3 word "killing"? But in order to test the worthiness of their claim, we

4 should look at the converse. Apply that to a defendant or an accused.

5 If, for example, in the Croat intercept, instead of the word "selekcija"

6 "selection" was used, the person said "liquidation," what would this

7 Court do to me, as an officer of the Court, if I argued on the same

8 principles that the Prosecution does, he didn't mean it, he was joking,

9 it's somehow distorted, or that he was probably not -- probably trying

10 just to sympathise or get some credit from his bosses? This honourable

11 Chamber would laugh us and laugh me out of this courtroom and out of the

12 Hague. That's the double standard that the Prosecution wishes to

13 utilise, and that's the double standard that I think should not be

14 allowed.

15 If they want you to believe that Vasic was not involved, if they

16 want you to believe that Vasic did not mean what he said, they simply

17 have the recourse. He was here for a week, waiting to testify. They

18 withdrew him, with very little in terms of an explanation. He's the one

19 witness who may have, although I doubt it very seriously, corroborated

20 some of the nonsensical evidence that we've seen with respect to

21 Mr. Deronjic and whether there was a meeting with Mr. Beara or not in

22 Bratunac in the SDS offices. They don't call that evidence because that

23 evidence doesn't support their case. They don't call people like Malinic

24 and the interpreter and Theo Lutke because there is doubt and flaws in

25 what Mr. Egbers said with respect to Beara's presence.

Page 34422

1 The Prosecution, in its closing remarks, probably regurgitated

2 its brief and highlighted that there were 14 witnesses. As expected and

3 as I've stated, they've chosen quantity over quality.

4 Let it be -- since I'm moving to the issue of specific witnesses,

5 I want to say this to the Court and to the Prosecution: Let there be no

6 doubt that I would prefer one Milan Kerkez over 100 of their Momir

7 Nikolics. Let there be no doubt I would prefer Svetlana Gavrilovic and

8 Mira Cekic over hundreds of Deronjics and Nikolics and Vasics, and

9 PW-161, or, for that matter, anyone from Bratunac.

10 The first witness that the Prosecution uses in their brief to

11 highlight or claim that Ljubisa Beara was involved in any of the actions

12 relating to Srebrenica and Zepa appears on paragraph 2187 and then on

13 paragraphs 2203, 2204, and 2205. In order to be fair and thorough, we

14 must dissect the evidence of each witness and then determine whether that

15 witness should be considered credible and worthy.

16 The OTP relies on one witness, and only one witness, to claim

17 that Ljubisa Beara was at the IKM in Pribicevac. This single witness and

18 his faulty recollection was not confirmed by any other witness. It was

19 not confirmed by any other documents, or any other intercepts, or even

20 the infamous Zvornik Brigade duty officer log-book. Others have

21 testified in this courtroom regarding the IKM in Pribicevac. Others have

22 testified who was present with Krstic at the IKM Pribicevac. Prosecution

23 witnesses testified in that regard. If they believed Bosko Momcilovic,

24 they could have gotten corroborating evidence from other people who were

25 present when Mr. Momcilovic claims he saw Mr. Beara. There is no

Page 34423

1 corroboration from either other witnesses who were present, such as

2 PW-162, such as Mr. Deronjic, such as Defence witness Miljenko Jevdjevic.

3 There's no record of any source to substantiate or corroborate this

4 claim. This witness stands alone with respect to this date, but this

5 witness, like nine others in their -- on their list of 14, is not alone,

6 when you look at the common denominator that there is no corroboration

7 for his evidence, there's no support for it either in the documents, the

8 intercepts, or anywhere else.

9 Look at Butler and what he says with respect to Mr. Beara's

10 whereabouts. It's the Prosecution's military analyst. Certainly, he

11 wouldn't have lied with respect to whether or not Beara was present at

12 the IKM Pribicevac if there was any -- any reasonable source of

13 information to suggest that Beara was present there. He was not, and

14 therefore the Court should not consider this evidence, standing alone,

15 without corroboration, to support the fact or the claim that the

16 Prosecution is offering.

17 If that isn't enough, look at the unrebutted testimony of the

18 Defence witness, who said, and that's Ljuban Mrkovic. We have his

19 intercept. It's reflected on July 10th, that he states that

20 Ljubisa Beara was at the Sarajevo Romanija Corps for four or five days

21 and that Ljubisa Beara afterwards told him that he was going to the

22 Krajina region. On the 10th, he's saying this on the intercept. When he

23 testified, it was unrebutted.

24 Bozo Momcilovic's uncorroborated and unsubstantiated and

25 erroneous recollection cannot be given any weight whatsoever. No

Page 34424

1 records, no video, no documents, and no other witness support his claim.

2 If the Court recalls, there was one other witness who gave

3 testimony, and that was a person by the name of Dragoslav Trisic.

4 Dragoslav Trisic, I think, told the Court uniquely what the problem is

5 with these recollections. Initially, he claimed, surprisingly to both

6 the Prosecution and the Defence, in an interview, not in court, that he

7 thought he may have seen Mr. Beara at Potocari. Simply not true. The

8 Prosecution knew it, never argues it, doesn't argue it, because they know

9 it's not true. During his testimony, he explained that he did, in a

10 prior interview, mention him because he felt pressured. He felt

11 pressured to just name everyone and anyone that he knew.

12 He knew that Mr. Beara was indicted, so he just threw him in a

13 vacuum of people that may or may not have been present. With all due

14 respect, there is no credible evidence whatsoever that Mr. Beara was

15 either in Potocari -- there's no evidence of that, and there's certainly

16 no credible evidence that Mr. Beara was at the IKM in Pribicevac.

17 Momcilovic, also I think if you look closely at his testimony, as

18 opposed to lumping him in the 14 that purportedly saw him, he lied under

19 oath. He said that, In 1995-1996, I saw Mr. Beara on television, in

20 order to substantiate his claim. Mr. Beara was not on television. That

21 was verified by the Prosecution, themselves, when they cross-examined

22 Professor Wagenaar.

23 Finally, with respect to Mr. Momcilovic, who was he, what kind of

24 a witness was he? He was a character witness for Momir Nikolic, someone

25 that the Prosecution, themselves, suggest has not only provided

Page 34425

1 half-truths and lies, but it's someone who came into this courtroom

2 during his sentencing and provided character witness testimony

3 for Momir Nikolic. Enough said on the first witness.

4 The next group of witnesses the Prosecution wants to claim,

5 because they want to enhance their case and say that Beara was in

6 Bratunac from the 10th through the 12th of July, 1995, they identify four

7 witnesses; Zlatan Celanovic, PW-161, respectfully Mr. Borovcanin, and -

8 I've got to get this right again - PW-138. When you view this evidence,

9 they utilise and rely on these witnesses for other aspects of their case,

10 not just the 10th through the 12th. But when you view these individuals,

11 as we're about to, I think the Court will find that they are not credible

12 and not worthy of being given any weight to their testimony.

13 With respect to Zlatan Celanovic, the first and most -- and

14 perhaps the impressive issue with him is that the Prosecution

15 acknowledged and puts forth immediately that Zlatan Celanovic is terrible

16 with dates, cannot remember or recall specifically the date of any

17 meeting or anything that happened. The transcript, at page 6627, the

18 Prosecution asks the following question:

19 "Q. And I want to go to the time of about the fall of the

20 Srebrenica enclave. Now, I know you've testified before that you weren't

21 real good with dates; is that right?

22 "A. That's correct."

23 Zlatan Celanovic, if you view his testimony carefully, clearly

24 did not see Ljubisa Beara from the 10th through the 12th, at least until

25 the evening, as he later claimed, of July 1995 in Bratunac. He admits

Page 34426

1 he's not good with dates. He's vague when he met Beara. How could you

2 get it wrong, whether you met someone in the morning or in the evening?

3 I could certainly understand someone saying, It was mid-afternoon, or

4 early evening, or late afternoon. How do you get it so diametrically

5 different from, I think it was either the evening of the 12th or the

6 morning of the 13th?

7 This meeting, like many meetings with purportedly Mr. Beara, were

8 "mano y mano." Never was there a third part, with the exception of

9 Egbers. These people have these secret meetings in the middle of town in

10 offices that don't belong to military, in places where secretaries see

11 people coming in and out, and there's supposedly military policemen at

12 the door, unknown people sitting in the conference room who happen to be

13 colonels and lieutenant-colonels, never identified; but yet the only

14 person that comes and testifies is one individual who claims to have seen

15 Beara. There's no record to support this claimed meeting with Zlatan

16 Celanovic. There's no other human being who testified that they saw

17 Zlatan Celanovic with Mr. Beara. How could there be a record of the

18 meeting between Zlatan Celanovic and Mr. Beara?

19 We can draw from our own personal experiences, and if, as the

20 Prosecution claims, that Mr. Beara gave an order to Zlatan Celanovic that

21 he needs to interrogate and he needs to investigate, and Mr. Celanovic

22 does interrogate and investigate certain individuals, you would expect to

23 find, in some of his records or in some of his paperwork, that he was

24 instructed or ordered or asked or requested by Ljubisa Beara to do any of

25 these things.

Page 34427

1 The Prosecution is relatively angry and upset because if we

2 accept the proposition that Zlatan Celanovic is credible, although he

3 stands alone, with no documents supporting his version, Butler

4 acknowledges there was nothing illegal or improper with respect to the

5 requests made at that time on the evening of July 12th, 1995, to

6 interrogate, to investigate.

7 They believe Zlatan Celanovic when he claims that he saw

8 Ljubisa Beara on the 12th, in the evening, in Bratunac, all alone, but

9 they do not believe him as to the perfectly legal discussion that

10 Celanovic claims he had. In that regard, Mr. Vanderpuye and the

11 Prosecution say, Mr. Beara was cunning, he was cunning. Where's the

12 proof of that? Isn't that manipulation? Isn't that distortion? What is

13 the basis of making a claim like that? None.

14 If this honourable Trial Chamber accepts Zlatan Celanovic's

15 testimony, the only time he would have been able to see Ljubisa Beara was

16 on the 12th of July, 1995, in the evening, and you respectfully must

17 accept at face value what Celanovic claims Beara purportedly said to him.

18 You cannot accept the Prosecution's baseless version that this was a

19 cunning man trying to deliberately deceive everyone with respect to the

20 work that was purportedly at hand.

21 Celanovic, indeed, says that the interrogation process proceeded

22 and that Beara said these individuals would be transported to Kladanj.

23 Celanovic also confirms that he spoke to another individual, a bus

24 driver, who also told him that the individuals would be transported to

25 Kladanj. I refer the Court to the transcript at pages 6631 through 6632,

Page 34428

1 and also at 6641.

2 The second witness that the Prosecution relies on to try to prove

3 or establish that Ljubisa Beara was present in Bratunac is an accused,

4 Mr. Ljubomir Borovcanin. And with the highest of respect to

5 Mr. Borovcanin, I don't have a case against him and I'm not trying to

6 prove a case against him.

7 Last Friday -- when you view this evidence, the Court allowed it

8 in, I need not remind you what the rules of evidence are and what weight

9 you should give evidence that we, Mr. Beara's Defence team, did not have

10 an opportunity to closely scrutinise and cross-examine, but look at what

11 the Prosecution told you on the 4th of September, 2009, with respect to

12 that interview statement. With all due respect to Mr. Borovcanin, the

13 Prosecution said:

14 "Look at his false statement."

15 "He is lying to me."

16 "There is radical changes from the statement to what's in the

17 brief."

18 Wait, let me get this straight. The Prosecution wants to use

19 Mr. Borovcanin's statement against us, but yet they're telling this Court

20 that he lied, that it's a false statement, that there's radical changes

21 to it? Those concepts, respectfully to Mr. Vanderpuye, do not coexist.

22 PW-138, which is a third witness that the Prosecution uses to

23 support their claim of the 14, in his testimony the OTP is relying to

24 establish Beara's presence again in Bratunac from the 10th through the

25 12th of July, 1995, but let's take a refreshingly honest and closer look

Page 34429

1 at what he actually said.

2 If we examine transcript page 3802 through 3803, we'll find the

3 following passage, quote -- question by the Prosecution.

4 "Q. So let's take Colonel Beara, for example. Can you tell us

5 whether you know whether he was in the area of Bratunac before the fall

6 of the enclave?"

7 Answer by PW-138:

8 "I've just told you that I cannot -- that I really cannot say

9 whether he," they're referring to Beara in parentheses I place, "was

10 there before the fall of the enclave or not."

11 Further, PW-138 says at transcript page 3803, line 16:

12 "It's all mixed up in my mind."

13 "I'm not sure whether I saw Mr. Beara."

14 "It's all mixed up in my mind."

15 The Prosecution abandons this witness as to a charge of reburial

16 with Mr. Beara, and yet they now want to tell this Court that you should

17 rely on his testimony.

18 We further test this witness's credibility by virtue of the fact

19 that no one has been brought in to corroborate his claim, no records

20 exist, and no intercepts were ever disclosed which would remotely support

21 such a claim. It does speak volumes to the Prosecution that they

22 abandoned PW-138. It does speak volumes as to how they view his

23 recollection, his testimony, as well as his credibility.

24 Relying on a witness such as PW-138, who cannot recall anything

25 with specificity, and admits that he is mixed up, and acknowledges he is

Page 34430

1 uncertain, would be, as Mr. Vanderpuye shared with us, "valueless."

2 The next witness, PW-161, perhaps, but I think certainly, one of

3 the least credible witnesses that this Court has been asked to evaluate.

4 It's clear that with respect to PW-161, that he is inconsistent with his

5 interviews -- his prior interviews with Investigator Ruez, and you can

6 find that quickly and briefly both in our brief, but also I'll provide a

7 cite, which is 9419 and 9420, page number.

8 This witness was called as a Defence witness in the Blagojevic

9 case in order to support a ridiculous claim of parallel chain of command.

10 This witness was brought in the Blagojevic case to support that

11 Mr. Blagojevic was not present or not at Bratunac and did not give

12 orders. This witness, however, when asked whether he can share with us

13 how many times he met with the Blagojevic Defence, couldn't remember, not

14 sure. This witness and his selective memories should be rejected by the

15 Trial Chamber. He acknowledged at that time that he, indeed, gave four

16 or five different versions. This witness also claimed that he did not

17 see Momir Nikolic at that time in Bratunac.

18 If Momir Nikolic is right and he sees Mr. Beara in the centre of

19 town, and from my understanding there's only one road that leads to that

20 centre of town, on any given day, how could this witness, with any

21 credibility, stand before this Court and tell you he never saw Momir

22 Nikolic?

23 He also, this witness, PW-161, claims he didn't see

24 Ljubislav Simic. Here's an individual who worked and coordinated in 1992

25 with Deronjic, was involved and connected with the killings and the

Page 34431

1 murders that occurred in Glogova and the Bratunac area in 1992. He now

2 comes into this courtroom and tells us that he did not see any of the

3 principle perpetrators of the crimes that occurred in Bratunac in 1992 or

4 1995?

5 Look carefully at PW-161's testimony. He had a meeting at the

6 Restaurant Jasen. He claims, with Mr. Borovcanin, but also with Miroslav

7 Deronjic, he tells us it was soon after the Kravica killings. Here's

8 what PW-161 said when asked if he remembered anything about that meeting

9 and about the incident that occurred at Kravica, as the question was

10 posed to him. The question referenced "incident at Kravica." He says at

11 transcript page 9364, specifically lines 20 through 21:

12 "It was discussed that evening, but I truly don't remember what

13 Miroslav said, what Borovcanin said, what I said. We talked a lot."

14 This witness that the Prosecution is relying on, who said that he

15 doesn't remember what was discussed after a horrific massacre, after

16 killings were completed at Kravica, he has the audacity to come into

17 court and tell us he doesn't remember what was discussed? This witness,

18 who was in charge, by virtue of his capacity and employment, with digging

19 and obtaining machines, both in 1992 as well as in 1995, realised how

20 deep he was with respect to his criminal culpability and his criminal

21 responsibility. He had no way out. He had to claim that someone else

22 ordered him to do the digging at Glogova.

23 Again, with most if not all of the Prosecution's 14 witnesses,

24 this witness is not corroborated by any other witness. He also sees

25 Beara, mysteriously, alone. He does say, There were two other VRS

Page 34432

1 officers in the room, one a colonel, one a lieutenant-colonel. He claims

2 Beara was in the room. He tells you, conveniently, that he doesn't

3 remember the other two individuals' names. He tells you that when he

4 came into the SDS offices, Deronjic was not there. He passes the

5 secretary, as we know her name now is Mirna Nikolic. He doesn't check in

6 with her, she doesn't make a record of it. There's no evidence to

7 support his claim. He stands alone with respect to his claim that he saw

8 Beara that evening. He does not stand alone with respect to the evidence

9 the Prosecution is bringing against Beara. He, as others like Zlatan

10 Celanovic, like Egbers, like Bozo Momcilovic, all have this unique

11 quality. They all see Mr. Beara alone, in the middle of town, with many

12 people passing, with thousands of people in buses. They're the only ones

13 who see him? No support whatsoever. No MUP records, no records from the

14 civilian authorities that Mr. -- that PW-161 reports to, to simply state,

15 I was asked, I was requested, I was ordered, I had a meeting with this

16 individual. No evidence of that at all.

17 Further, when you evaluate PW-161 and his testimony, you have to

18 view the evidence of one other individual, Momir Nikolic. Momir Nikolic

19 either had a reawakening or he came to his senses to tell, in part, the

20 truth as it relates to this plan, to this lie, to shift the

21 responsibility of the killings in Kravica and the burial at Glogova to

22 Mr. Beara. Momir Nikolic, in his testimony on page 33128, acknowledged

23 to the Prosecution that PW-161 lied about the alleged Beara involvement

24 in Glogova.

25 I asked Mr. McCloskey and Mr. Vanderpuye, in particular, although

Page 34433

1 Mr. Nicholls, with all due respect, is the one who interviewed him and

2 obtained that information initially for us, Why didn't you follow up with

3 PW-161? Here's a lead, here's a witness that you had on your list, a

4 witness you entered into a plea agreement, a witness who now is saying

5 something different than the witness that you brought forth into court.

6 Are we not owed that obligation? Is it not their duty to be fair and

7 thorough? Is it not their duty to bring forth at least some truth in

8 this courtroom as it may relate to an accused?

9 PW-161 was involved with the 1992 Glogova killing and burial.

10 PW-161 was similarly involved at least in the burial in Glogova relating

11 to the Kravica warehouse killings. PW-161 had a tight-knit group of

12 individuals whom he could trust and perpetrate -- and perpetuate a false

13 claim, a claim that he thinks will somehow absolve him of responsibility.

14 His evidence was not only contradicted by Momir Nikolic; his evidence was

15 inconsistent with other statements he, himself, had given. His evidence

16 was not corroborated by anyone or anything. This is the witness that can

17 be coined as deliberately deceptive or cunning, but certainly not

18 Mr. Beara.

19 Moving along on the next group of witnesses that the Prosecution

20 offered in this case, relates to the evening of the 13th and 14th of

21 July, 1995. There are four witnesses that they utilise to support their

22 claim, two of which we've already touched upon. That would be

23 Mr. Borovcanin as well as PW-161. Who is left? Two individuals who have

24 pled guilty, two individuals who acknowledge and admit that they were

25 involved in war crimes in former Yugoslavia. One individual,

Page 34434

1 Miroslav Deronjic, who acknowledged his involvement in the crimes against

2 the Bosnian Muslims in Bratunac and Glogova in 1992, and Momir Nikolic

3 who I think still, although it was unclear from some of his testimony,

4 was involved in the tragedy that occurred to the Srebrenica enclave and

5 the people that made their way through Bratunac and through Zvornik.

6 Those are the four individuals that they rely on.

7 Mr. Vanderpuye was quite clever in mocking or trying to mock the

8 Defence and say, Was someone walking around carrying a suit or a mask of

9 Mr. Beara? No, that's not our defence. Our defence is: When you

10 dissect the evidence fairly and thoroughly, you will find that the

11 evidence the Prosecution stands on has no foundation and should not be

12 accepted, and given no weight. The cunningness and deliberate deception

13 does intertwine with Momir Nikolic and Miroslav Deronjic. However, they

14 couldn't even get their stories straight. Although they are in-laws,

15 related, their testimony between themselves was inconsistent,

16 contradictory, unsubstantiated by others, was not confirmed by records,

17 intercepts, or other data.

18 Mr. Nikolic, the self-admitted liar. He told us he lied about

19 critical issues. He told us he had previously lied about his involvement

20 in Sandici as well as his involvement in the Kravica warehouse. The

21 Prosecution is really relying on that evidence? He admits that he lied,

22 along with PW-161, when they tried to include, shift, and blame Mr. Beara

23 for the killings and burial relating to Kravica and Glogova. He admitted

24 it. We do not, and we respectfully ask you not to accept Mr. Nikolic's

25 false, contrived evidence, and suggest that you reject the same.

Page 34435

1 Deronjic's story does not coincide with Mr. Nikolic's. It can't, because

2 a lie will ultimately be unravelled.

3 Deronjic's story about the alleged meeting in the SDS offices

4 with Beara. Mr. Deronjic passed away during the start of this trial. We

5 did not have an opportunity to cross-examine him. That evidence, much to

6 our disappointment, was nonetheless introduced. There was no evidence to

7 substantiate or corroborate, from a credible source, Mr. Deronjic's view

8 or recollection of the events as they may have occurred specifically

9 relating to Mr. Beara. What the Prosecution could have done was, at the

10 very least, bring forth Mr. Vasic, as I've previously stated, if they

11 wanted to, if they truly believed anything that Mr. Deronjic had said.

12 Mr. Deronjic, just like Momir Nikolic, is a self-admitted liar.

13 We've highlighted for you and we've taken an enormous amount of

14 time in our brief showing you how other people viewed Mr. Deronjic's

15 testimony and recollection, but in order to highlight some of those we

16 can take a closer look and review. Mr. Deronjic's statements and

17 credibility, in my view, can best be described as follows: The forensic

18 value of his statements and testimonies is extremely limited. Not one of

19 the Trial Chambers which heard from Deronjic were satisfied that he was

20 credible or reliable. For example, the Appeals Chamber in Krstic, while

21 analysing Deronjic's testimony, cautioned -- cautioned to everyone,

22 because they knew and had the wisdom that the Prosecution may use

23 Mr. Deronjic's testimony in other cases, they cautioned and said, We

24 "hesitate to base any decision on Mr. Deronjic's testimony without having

25 corroborating evidence."

Page 34436

1 I see that it may be close to the time. I'm not sure if I'd be

2 allowed just to maybe finish with Mr. Deronjic or if the Court is pressed

3 for time.

4 JUDGE AGIUS: No, not at all. Please go ahead.

5 MR. OSTOJIC: Thank you.

6 A closer review of any evidence offered by Deronjic reveals that

7 his statements are not only not fully correct. It is difficult to number

8 the times Deronjic admitted that his previous statements were

9 deliberately not true. The Court has also found in other instances that

10 the details of his statement cannot be taken as true, that he gave false

11 testimony, that he was not truthful in prior instances. Deronjic's

12 testimony should be rejected in its entirety.

13 I have a question for the Prosecution. I wrote these things in

14 our trial brief. Why didn't they reconcile it with the Court? Why do

15 they stand there, proud as a peacock, to tell us, We have 14 witnesses

16 that claim that Beara was there from the 10th through the 16th? Let's

17 dissect it. Their obligation, and it is mine, when they ignore my

18 evidence, to tell them they've ignored it, they could have and they

19 should have told the Court how they truly view Mr. Deronjic's testimony,

20 despite the fact that we didn't have an opportunity to cross-examine him.

21 The only thing that Deronjic may have said that was remotely true

22 was when he claimed, on P3139 - that's the exhibit number - page 119-120,

23 when he was interviewed with the Prosecution and talked to them, he told

24 them, In giving now my second or third interview, I've prepared better.

25 Of course, he doesn't mention, as uniquely, no other witnesses mention

Page 34437

1 Mr. Beara until well after the Krstic case, but this witness, in

2 particular, says to the Prosecution that he's consulted or he's "used

3 some friendly connections" to recreate the chronology of the events?

4 Unsurprisingly, those connections and those people he consulted were the

5 people that he met with in order to perpetuate his lie as to who was

6 ultimately responsible.

7 We're grateful for the intercept that shows Deronjic discussing

8 with former President Karadzic what should be done with the POWs. Does

9 that not indicate Deronjic's involvement? Does the fact that he was

10 appointed to the position that he was clearly reveal that he was

11 responsible for those POWs?

12 Look at the timing of that intercept. At 2010 hours, July 13th,

13 and it's Exhibit P1149, it's immediately prior to this -- or not

14 immediately; it's prior to this purported meeting with Mr. Beara. No

15 mention by Karadzic that he will send him a secret source to inform him

16 what to do with the POWs. No mention in that intercept or any data that

17 Karadzic will send a messenger, or a courier, or an individual to tell

18 Mr. Deronjic what to do with the POWs. Karadzic, through an interpreter,

19 simply tells him what to do, Place them in the warehouse, you know what

20 to do. Deronjic's testimony in this regard, if you look at what he said

21 on the 8th and 9th of July, when he met with Karadzic, that he was

22 already instructed by Karadzic to kill the Muslims, he was already

23 instructed by Karadzic to apply the Western Slavonia method. How do you

24 reconcile now his purported claim that Mr. Beara comes to his office at

25 midnight or at 1.00 in the morning? Simply put, he made it up. He lied

Page 34438

1 in order to shift the responsibility that he had, to shift his

2 involvement from the crimes that were committed and were about to be

3 committed to someone else.

4 How do we explain -- and I'm shocked that I didn't hear it from

5 the Prosecution. How do we -- how do they not reconcile that Deronjic

6 doesn't want the individuals in Bratunac, but purportedly Beara comes in

7 and sees him and says, I want to move the individuals, and they get into

8 this mysterious, heated debate and discussion? Why would it be heated?

9 Deronjic supposedly wants them out, Beara allegedly is asking to move

10 them. There should be no debate. The point is that their lie was

11 uncovered, in part. The point is that their lie cannot hold muster. The

12 point is that there is no evidence to corroborate or substantiate by any

13 other individual that Mr. Beara was present on either the 13th or 14th of

14 July.

15 It might be -- and I appreciate the additional time past the

16 hour. I do have a couple more comments on Mr. Deronjic, but I think it's

17 a good place to stop, if I may.

18 JUDGE AGIUS: Thank you.

19 We'll have a 25-minute break now.

20 --- Recess taken at 10.34 a.m.

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

22 JUDGE AGIUS: So Mr. Ostojic.

23 MR. OSTOJIC: Thank you, Mr. President, Your Honours.

24 We left off discussing briefly the evidence that was proffered by

25 the Prosecution in connection with Mr. Deronjic. They don't ever

Page 34439

1 reconcile for us, quite candidly, the fact that Mr. Deronjic claimed that

2 he got instructions from Karadzic. Although they were pretty wild in

3 some accusations and inferences that they made, I can probably be certain

4 that they will try to use that evidence in other cases before this

5 Tribunal, but they should reconcile that if it's true that Karadzic gave

6 Mr. Deronjic instructions on the 8th and 9th of July, 1995, to kill the

7 POWs from Srebrenica, it's clear, then, that there was no need for

8 Karadzic to send this purported messenger, courier, or person to give

9 Mr. Deronjic the same information, which is what I think they're saying,

10 in a nutshell.

11 At the end of the day, the Prosecution cannot, certainly, with

12 all due respect, rely on Deronjic's testimony with respect to Mr. Beara

13 for a number of reasons. They know and respect the law of this Tribunal;

14 I'm confident of that. They know that there should not be, at any

15 instance, evidence that is tainted, replete with lies, false innuendos,

16 to be brought forth against a witness. They know the penalty for

17 perjured testimony. But what I don't understand and what they haven't

18 reconciled for me is: How and why do they rely on that testimony?

19 The law is clear that Deronjic's testimony, given that it is

20 asserted against an accused, not subject to cross-examination, they know

21 what the Appellate Court and Trial Chamber has said about Deronjic;

22 essentially, that his testimony is not credible, should not be relied

23 upon without any corroborative evidence, both testimonial or documentary.

24 They know the intercept of the 13th of July, P1149, at 2010 hours.

25 Having all that, they don't reconcile for us how and why they think he's

Page 34440

1 credible and reliable and whether you should give that witness any

2 weight. Their silence, perhaps as others have said, may be deafening,

3 but in this instance their silence with respect to Mr. Deronjic is a

4 clear indication that they, likewise, see and appreciate the fact that

5 Deronjic's testimony is simply a lie.

6 No other witnesses, up to this point, the 13th of July, have been

7 brought forth by the Prosecution, so logically that takes us to the next

8 day, the 14th of July, 1995. Again, Mr. Vanderpuye uses a standard to

9 claim that Milan Kerkez, Mira Cekic, and Svetlana Gavrilovic, that you

10 should scrutinise their testimony carefully, that you should, if they

11 make an inconsistent statement or an implausible statement, reject it in

12 its entirety. I repeat what I've said earlier. I'll accept that

13 standard, so long as it applies to all the witnesses that the Prosecution

14 brought forth. If there is an inconsistency and there is no

15 corroboration, or there is evidence to the contrary, that evidence should

16 be rejected as well.

17 In a nutshell, on the 14th of July the Prosecution provides you

18 with three witnesses that they claim support that Ljubisa Beara was, of

19 all places, in Zvornik, in Bratunac, and Nova Kasaba in that order. If

20 you carefully, as I know you will, review that evidence, you will find

21 that that timeline is not only implausible, but impossible.

22 The first witness that the Prosecution relies on,

23 Milorad Bircakovic, his testimony was rebutted, his testimony was

24 contradicted by the Prosecution evidence with respect to his travel logs.

25 They, themselves, also indicate that it is not possible, the evidence

Page 34441

1 that they disclose to us at P296. That travel log reveals that he did

2 not go from the headquarters to an IKM. That evidence shows the time,

3 the date, five people that he was travelling with at that time. Not only

4 do the documents contradict Milorad Bircakovic, who initially claimed

5 that he brought Drago Nikolic from the IKM to the headquarters and that

6 he claimed that he saw Beara at the Zvornik headquarters. What's

7 important in this analysis is to review the timing of when it occurred.

8 And, again, he states that it was 8.00, 8.30, to be fair to the

9 Prosecution. He tells us how long the meeting purportedly took place.

10 He tells us how long it took him to go from Zvornik Brigade headquarters

11 to the IKM and back. He then tells us when they purportedly left.

12 Interestingly, Witness PW-162 seems to be having a meeting alone, with no

13 one else to support it, with Mr. Beara in Bratunac at or approximately

14 the same time, 9.00, 9.30. It's impossible to reconcile these witnesses

15 without taking them together.

16 You've been to the site. You know how long it would have taken

17 you to travel there under better condition. I dare say that at the time

18 that the Prosecution alleges, the 14th of July, that the conditions did

19 not allow for quicker travel to get from one place to another within such

20 a short period of time.

21 What's complicated about the Prosecution's theory is that they

22 add another factor. Although Mr. Butler thought that Vincent Egbers saw

23 Beara on the 13th or 12th, by virtue of his testimony, it is now pretty

24 clear - and I can give the Court the cite, if it wishes - that, in fact,

25 Egbers claims to have seen Mr. Beara on the 14th, and that's what's

Page 34442

1 claimed by the Prosecution, again in the morning.

2 In a nutshell, their case on the 14th of July, 1995, is that

3 Beara was in three different places at or approximately the same time,

4 with three separate individuals, but, according to the Prosecution, we do

5 not have corroborating evidence for any of those three instances.

6 With respect to PW-162, who claims that he saw Beara in the

7 morning of July 14th, 1995, we need only look at what he said at

8 page 9627 and 9628, where he cannot recognise Beara. Our brief goes into

9 greater detail at paragraph 116 in that regard.

10 PW-162 is the individual that Deronjic spoke about when he said

11 that he had these close connections and that he could reinvent the

12 chronology of events. PW-162 was troubled by the fact that we knew,

13 during his testimony, that he had spoken with Deronjic. He first seemed

14 to deny it. Then he recalled it. Then he simply dismissed it.

15 PW-162 is the individual who claimed that when he went to see

16 Beara at the SDS offices, that the secretary called him in to visit with

17 Beara. There's no secretary or evidence from a secretary to confirm such

18 a claim. There's no record of the SDS offices to support that these

19 meetings ever took place, much less at the SDS offices.

20 The circumstances of the meeting that Witness PW-162 gave

21 evidence on are suspect as well. He claims that Beara brought him to the

22 SDS president -- president's offices to talk to another colonel and a

23 lieutenant-colonel, who again, like PW-161, they don't know who those

24 other individuals are. They can't remember. In fact, during their

25 bald-faced lie, they said, Those individuals were never introduced to us.

Page 34443

1 These unknown sources by these witnesses, both PW-161 and 162, clearly

2 reveal the lies in their stories.

3 PW-162, unlike PW-161, says that Beara was not in the office with

4 the two other individuals, but that he just merely brought him in the

5 office and stayed outside. PW-162 and 161, although in their clever

6 attempt to implicate others, clearly mixed up their story. They both

7 wanted to have the same story so that a prosecutor, an investigator, or

8 perhaps even a judge would believe that such a meeting took place. It

9 did not. There's no evidence to support either the claim of PW-161, 162,

10 or Milorad Bircakovic that would be considered independent or credible

11 that this Court would be able to rely upon. Given the fact that there's

12 no corroborating evidence, given the fact that there's no testimony from

13 other individuals to support, to confirm, or even to mildly recollect

14 similar instances, I suggest, with all due respect, that the Court reject

15 the testimony in its entirety of PW-161 and 162.

16 That leaves us with Mr. Egbers. My comments earlier about

17 Mr. Egbers obviously still hold true, as does of our brief. Mr. Egbers

18 is unique and presents a unique problem for the Defence. He seemed, and

19 I'm sure he was, genuine in his comments that he gave. However, in a

20 criminal proceeding, where the Prosecution, with all due respect, is

21 seeking a life sentence, I respectfully believe more is required, more

22 than just the testimony of one individual who seems genuine, who seems

23 independent. The Prosecution had the wherewithal, had the knowledge, and

24 certainly has the experience to have brought forth to this courtroom

25 corroborating evidence as it relates to Mr. Egbers. Instead, what do

Page 34444

1 they offer you? They offer you an aerial shot to show that there were,

2 indeed, Bosnian Muslims, POWs, in Nova Kasaba. I don't think we're

3 disputing that. I think we're disputing that it was actually Mr. Beara

4 at Nova Kasaba.

5 The Honourable Judge Kwon asked me, during this case, early in

6 the case, when Egbers testified, What's your position? Unlike the

7 Prosecution, when asked questions, I responded directly. I could have,

8 and some advocates suggest, that I should have merely said,

9 Honourable Judge Kwon, I don't have the burden of proof, I don't need to

10 answer that question. They have to prove that Mr. Beara was there. They

11 easily could have proved that, chose not to. That inference, the fact

12 that they refused to call Zoran Malinic, that they refused to call the

13 interpreter, Nebojsa, the fact that the Prosecution failed to call

14 Theo Lutke to substantiate or corroborate Mr. Egbers, should be examined

15 very closely. If those individuals, any three of them, remembered,

16 recalled, or knew that Mr. Beara was there, we would have seen those

17 three individuals. The inference is clear. Those individuals did not

18 and do not support Mr. Egbers on this point.

19 Quickly, to turn to Witness PW-104 that the Prosecution alleges

20 in their list of 14 witnesses that purportedly saw Mr. Beara, this

21 witness also claimed that Mr. Beara was at the Zvornik Brigade

22 headquarters on the 14th of July, in the evening. With respect to his

23 testimony, I think once you review it carefully and cautiously, you'll

24 find that it's implausible. He was a local civilian who worked with

25 Deronjic and the Bratunac personnel, both in 1992, through his relations

Page 34445

1 through other individuals who were elected office in Zvornik. With this

2 witness, as with ten other witnesses that the Prosecution has brought

3 forth with respect to the presence and identity of Mr. Beara, there is no

4 corroboration.

5 This witness, in particular, says that he cannot recall which

6 officers of the Zvornik Brigade were present when he met with Beara. He

7 cannot recall how many persons were present during this purported

8 meeting. Likewise, he could not confirm the identity of Beara. Look

9 closely, in his admitted statements, and I think you'll find the

10 motivation that this person needed to shift the responsibility and blame

11 to someone like Beara. Look closely at the records in his case, and

12 you'll find in his statement that (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted), an individual who

18 was also assisting in transporting Bosnian Muslims from Bratunac to

19 various places. That's his motivation. This witness was uncorroborated

20 by any evidence, by any witness, and clearly when you review his

21 testimony, you'll find it to be implausible and impossible.

22 We do have one other individual on the 14th of July, 1995, and

23 that's Marko Milosevic. He's, as we know, the deputy commander of the

24 Zvornik Brigade 6th Battalion. Now, here's an individual who wanted to

25 try to tell us that he did have corroborating evidence with his deputy,

Page 34446

1 of all people, Ostoja Stanisic. Together, these individuals want you to

2 believe that near or around the Petkovci school, which was close, I

3 thought he said that when he claimed to have seen Beara, he walked over

4 to the school, prisoners were held at that school, of no concern to

5 Mr. Stanisic or to Mr. Milosevic, apparently, he walked there and simply

6 conveyed a message to Mr. Beara. How plausible is that? How realistic

7 is that, that a deputy commander and a commander of the 6th Battalion,

8 knowing, seeing, appreciating the situation, would not have reported it

9 to someone, would not have recorded it anywhere? If it's true that Beara

10 was there, all they had to do was write it in their log-book. It's a

11 positive thing for them to say, Hey, look, bad things are happening five

12 seconds away from us or five minutes from where we're at. Other people

13 are there. We don't want to get involved in it. Instead, they tell you

14 that when they came back to the command, they heard shots. They knew

15 what was going on.

16 I challenged Mr. Ostoja Stanisic and said that he was involved in

17 the killings and his men were involved in the killings. He took it

18 rather personally, as he should have. It is not possible for a commander

19 or a deputy commander, such as Marko Milosevic, to say with any

20 credibility that they knew what was going on at Petkovci school, that

21 they went to Petkovci school, saw Beara, but didn't record that anywhere.

22 It's not plausible, their story.

23 You heard, although it was not revealed to us from the

24 Prosecution, these two individuals were interviewed by the Prosecution on

25 the same day. They travelled together for three or four hours in the

Page 34447

1 car. Before they meet with the Prosecutor of the ICTY to discuss

2 Srebrenica and their involvement, they again lied and said, We really

3 didn't discuss the events. We talked about various things, but we didn't

4 want to discuss it. They weren't serious. It's not plausible, it's not

5 possible, that in a three-hour ride, if it's true that they saw Mr. Beara

6 and if it's true that they knew that there were POWs in the Petkovci

7 school, it's not plausible that they didn't discuss it on the car ride to

8 visit with the Prosecutor in the first interview. They concocted the

9 story. They've made it up in order to shift the responsibility, because

10 they knew that they were responsible. It was within their zone of

11 responsibility, Petkovci school.

12 The least they could have done and what they should have done, if

13 there is any truth to their claim that Beara was present, was record it.

14 Later, they could use that to try to absolve themselves of

15 responsibility. They didn't do it because they couldn't do it. They

16 knew that Beara was not there.

17 Now, they claim they conveyed a message to Beara. No one else

18 confirms that they saw Beara at Petkovci school, no one else confirms

19 that Beara went back to where Ostoja Stanisic was to make this phone

20 call. Nowhere in the log-book do they write down, Yes, we've given the

21 message to Colonel Beara. I think those log-books are highly suspicious,

22 and I'll address that issue later in my arguments and submissions.

23 There is no doubt that Ostoja Stanisic and Marko Milosevic

24 coordinated their testimony. There is no doubt, that it's impossible to

25 believe, that these two people who are placed in charge of a battalion

Page 34448

1 would have notified others of the circumstances involved in Petkovci, and

2 there's clearly no doubt that if it's even remotely true or possible,

3 that a third party, such as Mr. Beara, was actively engaged in activity

4 at Petkovci, they would have written that down, they would have shared it

5 with others, and they certainly would have been able to use that to

6 absolve them of any responsibility in those crimes.

7 Again, with respect to Marko Milosevic, there is truly no

8 corroborating evidence. There is, what the Prosecution says, some

9 consistency that the record mentions, looking for Beara or convey a

10 message to Beara. However, we are in a criminal trial, and the standard

11 of proof is not that there's consistent evidence; there must be

12 conclusive evidence. Such conclusive evidence does not exist as to any

13 of the purported identities of Mr. Beara and his presence at any of the

14 sites or venues as claimed by the Prosecution.

15 July 15th, 1995, in the evening. The Prosecution's brief relies

16 on one witness in this regard, and that is PW-165. PW-165 spent the

17 entire day that day guarding and watching the POWs at Rocevic school.

18 Upon return to the barracks, someone, again consistent with what they're

19 telling the Court, an unknown person, told PW-165:

20 "Well, the commander had a meeting with Popovic and Beara."

21 This witness's testimony is not only, as Mr. Vanderpuye says,

22 valueless, it is truly worthless in the regard of identity of Mr. Beara.

23 This witness was not corroborated by anyone. This witness doesn't even

24 remember who told him that it was Beara. This witness also claims that

25 on the 15th of July, 1995, when he references the commander, he

Page 34449

1 references Obrenovic.

2 Look at what PW-168 says about Obrenovic. And I know I said that

3 inartfully. Look specifically at that testimony. PW-168 denies being

4 present at that meeting. Look further at PW-168's testimony and examine

5 the OTP brief at paragraph 867, the transcript of PW-168's testimony at

6 17061, where he clearly says that he never saw Beara from the 12th

7 through the 18th of July.

8 PW-165 also acknowledges and admits that he never saw Beara

9 before or after this incident, or during. He simply says, Some unknown

10 person told me that they were at the barracks.

11 PW-165, as a military policeman from the Zvornik Brigade, clearly

12 would have told us if he had seen Beara at the Rocevic school or anywhere

13 near the Zvornik Brigade on the 15th of July. PW-165 and his testimony

14 are, again, as I've stated, in my view, respectfully, worthless, and no

15 weight should be given to it.

16 The next day, the 16th of July, 1995. Again, the Prosecution

17 relies on solely one witness. We invite you to look at our brief again

18 at page 130, paragraph 424, with respect to the analysis of

19 Mr. Slavko Peric. But quickly to share with you what he said, Peric

20 admitted, under oath, that he "cannot say with any certainty" that the

21 person he purportedly saw was Beara; transcript 11411, May 112007. He

22 told the Court, being subject to perjury charges:

23 "I cannot say with any certainty."

24 The Prosecution chose to ignore that evidence. They chose not to

25 try to reconcile it for the Court, and they simply stand by his

Page 34450

1 inconsistent version when and if he actually saw Mr. Beara.

2 Again, with this witness, Slavko Peric, as with PW-165, 161, 162,

3 Bosko Momcilovic, and others that I've highlighted, there is no

4 corroborating evidence to support or to be able to even give any weight

5 to the testimony of this person who claims to have seen Beara on the 16th

6 of July, 1995.

7 Now, the 16th of July, 1995, seems to be a good transition for us

8 to look at some of the intercepts. But before we do that, I just want to

9 highlight, again, of the 14 witnesses that the Prosecution claims that

10 they support that Beara was present at or around Bratunac or Zvornik, 10

11 of them were not corroborated, 10 of them had no records to support what

12 they were claiming, 10 of them saw -- heard from unknown sources, were

13 unfamiliar with Mr. Beara, as described by Professor Wagenaar in his

14 testimony. But the Prosecution, I think, respectfully, missed the point

15 of Professor Wagenaar. They seem, in their brief, to embrace and endorse

16 his view. All Professor Wagenaar was trying to tell us is that there is

17 a clear methodology and a way in which, if you're going to have

18 identification evidence, that there's a procedure as to how you should

19 follow it.

20 We did spend an awful lot of time going over the characteristics

21 of Mr. Beara. They were clear, they were distinct. The witnesses'

22 testimony in that regard were also inconsistent, and I ask and invite the

23 Court to review that when determining whether any weight should be given

24 to these witnesses.

25 If 10 out of the 14 witnesses had no corroboration, had no

Page 34451

1 support, or, as the Prosecution called, were either liars or gave false

2 statements, what four are left? The four witnesses that are left,

3 respectfully, are Momir Nikolic, Miroslav Deronjic, PW-161, and

4 Ljubomir Borovcanin. If we exclude Mr. Borovcanin, which I shall,

5 there's three witnesses in this case who claim that they have seen

6 Mr. Beara. And if you add PW-162 to these three witnesses, those four

7 witnesses, examine their testimony closely and you'll find the

8 inconsistency. You'll find not the loop-hole in order to acquit

9 Mr. Beara; you'll find the fairness and thoroughness which is required in

10 these proceedings, that the Prosecution failed to meet their burden of

11 proof beyond the reasonable doubt.

12 Double-check PW-138. Let the Prosecution tell us why they chose

13 to abandon his testimony.

14 Look closely at Zlatan Celanovic and you'll find that Mr. Beara

15 was not, could not have been, and there's no support that he was with him

16 in Bratunac at any time. Is it a coincidence or convenience that the

17 Zvornik Brigade persons who testified had no corroboration, had no

18 support, but yet claimed that Ljubisa Beara was present at certain times?

19 With respect to the 14th, as I've already stated, the timeline

20 makes no sense for an individual to go from Zvornik Brigade headquarters,

21 down through to Bratunac, back up towards Nova Kasaba, within that short

22 period of time.

23 The burden of proof rests with the Prosecution. With all due

24 respect to them, they failed to carry that burden on each and every

25 instance in which they claim Beara was present.

Page 34452

1 Certainly compare and contrast the testimony of our Defence

2 witnesses with that of the Prosecution, but do not let the Prosecutor

3 convince you or anyone that there should be this double standard; that if

4 a witness is inconsistent or cannot recall a date, that as long as it's a

5 Defence witness, you should reject that testimony, but if it is a

6 Prosecution witness, you should embrace it. I am confident that you will

7 not do that.

8 The next issue, as Mr. Butler himself acknowledged and admits,

9 who spent an inordinate amount of time analysing the documents, the

10 evidence, the statements, as a military analyst on behalf of the

11 Prosecution, he told us quite frankly and quite candidly that Mr. Beara

12 was nowhere to be seen from the 17th through the 31st of July, 1995. He

13 told us also that he had no evidence of Mr. Beara from the 1st through

14 approximately the 12th of July, 1995; no statements, no records, no

15 documents to support such a theory. The Prosecution does not reconcile

16 that with the evidence and the position they're taking in their final

17 brief. They simply do what they're accustomed to doing; ignore it,

18 ignore the evidence just like you ignore 2D PW-19. Ignore the evidence,

19 just like you would Jakov Bienenfeld, ignore the evidence just like you

20 would of Zoran Malinic and the others.

21 With respect to Mr. Butler and the Zepa issue and the charges

22 brought forth on Zepa, his testimony, on 20213, highlights the case that

23 the Prosecution claims they have against Beara. The question is as

24 follows:

25 "Q. From the 17th of July until the 31st of July, 1995, what did

Page 34453

1 your analysis find as to the whereabouts of Mr. Beara?"

2 "A. I don't believe we have any intercepts or any other

3 information pertaining to his whereabouts during this period."

4 Subsequently, we asked him:

5 "When did the Zepa operation start and when did it end?"

6 He gives it to us at page 20216, lines 12 through approximately

7 20, and he offers to us:

8 "Keep it in the proper context, Mr. Ostojic."

9 And I accept it. And then I ask him:

10 "Give us the timeline of when the operation started and when it

11 ended so that we'll know if someone who was not there, who did not know

12 anything about it, had any responsibility."

13 He shares with us:

14 "The civilians were being transported from the Zepa enclave

15 starting the 26th of July, if memory serves."

16 "When did it end, sir?"

17 "I think within two days, three days, the movement was done."

18 "So would that be the 28th or 29th, according to your analysis?"

19 "Yes, sir. I mean, I believe I have the dates in my report. It

20 was not a very large movement process, two days max."

21 I go back to Mr. Butler, and I ask him at the very next page, at

22 20217:

23 "Q. In fact, am I correct, sir, that there is no evidence

24 whatsoever with respect to Ljubisa Beara involved in the Zepa operation

25 but for the intercepts that we see, purportedly, on the 1st and 2nd of

Page 34454

1 August, 1995?"

2 "A. To my knowledge, that's correct. I'm not aware of any

3 information."

4 I went on, on that page, to ask him about planning, organising,

5 assisting, supervising, even facilitating, although I don't accept the

6 definition given by the Prosecution. I think it remains unclear what

7 they mean by that.

8 With respect to Zepa, the Prosecution, interestingly, in their

9 brief ignore the evidence of Butler and they rely on one witness, PW-109.

10 And they say that this witness, remarkably, remembers that Mr. Beara was

11 supposedly somewhere near the Zepa check-point. Look closely at the

12 evidence of PW-109. (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 Again, when you assess the credibility and the weight of the

20 witness and the evidence that the Prosecution is required to bring forth,

21 there is no corroboration to this evidence, it is weak, in my opinion, it

22 is not conclusive. This witness could not pin-point the date at all. We

23 know and we acknowledge Mr. Beara's involvement on the 1st of August,

24 1995, well after the operation ceased to unfold. The Prosecution is

25 trying to put Mr. Beara at the Zepa check-point well before the

Page 34455

1 August 1st, 1995 intercept. They have no proof, no evidence, no

2 corroboration, or no documents, but for one witness, to support that

3 claim.

4 Again, it's not that difficult. If you really believe this,

5 Mr. Prosecutor, there were other people at the check-point. You have

6 evidence, video evidence, of other people at the check-point at certain

7 times. There's no evidence that Mr. Beara was at the check-point during

8 or before the operation, none whatsoever.

9 Fair and thorough is what I would have expected. I don't believe

10 we got it in connection with the witnesses. I don't believe we got it

11 with what they call other evidence to support their position as it

12 relates to Mr. Beara, and that is the intercept evidence. And I'd like

13 to turn to the intercept evidence.

14 And as I briefly shared with you, we ended with the witness on

15 the 16th of July, and in the interests of time and by way of an example,

16 we should look at the 16th of July intercept. I think that it is

17 intercept P1187.

18 And if we could just have that -- thank you. If we could have

19 that placed before the Court.

20 Now, this intercept purports to be a conversation at 1111 hours

21 on the 16th of July, 1995, between Beara, Cerovic and X. They claim that

22 "triage" was a code word for "murder." They don't accept, when Vasic

23 says "liquidate" or "kill," that it means what it says at face value, but

24 they concoct now the word "triage" as being a code word for "murder."

25 Looking at this intercept carefully, as I hope that we would and

Page 34456

1 that you will, who used the word "triage" during this intercept? Here it

2 is. From recollection, it's used four times. All four times, it's used

3 by Cerovic, not Beara.

4 The Prosecution says, as does their expert, Mr. Butler, that

5 there was no triage of POWs that were conducted on July 16th, 1995.

6 Therefore, this must mean, based on their leap of logic, that it must

7 mean to kill. That's not true, and the Prosecution knows it.

8 The other intercept or evidence that you should look at is also

9 P12. Now, P12 -- I'm sorry, P1200. Thank you. I apologise for that.

10 P1200, this intercept is dated the 16th of July, 1995, at 1948 hours.

11 It's between two other participants, discussing vehicles, issues with

12 wounded and injured people. This, surprisingly, intercept is relied upon

13 by the Prosecution to say that others knew, others may have known. This

14 intercept clearly is talking about triage, and the triage of the wounded,

15 and the triage of the sick, and the triage of the people that were left

16 in Bratunac and Potocari -- and Srebrenica, excuse me. But you don't

17 have to take my word for it. It's in the document, on page 2. If you

18 look at that document, on page 2 the word "triage" appears, and it's ERN

19 009-35916. The 16th of July, 1995, others are discussing triage. Is

20 that enough? I think it's enough to create reasonable doubt. The

21 Prosecution simply ignores it.

22 But look at P2567, if you will. It's also dated the 16th of

23 July, 1995. Now, mind you, the Prosecution is taking the view that there

24 was no triage, that there was no evidence of wounded. P2567, which is a

25 Main Staff document dated the 16th of July, 1995, discusses the

Page 34457

1 coordination between various parties in order to transport approximately

2 100 people from Potocari and Bratunac to Tuzla.

3 You must view the evidence that the Prosecution claims as it

4 relates to Mr. Beara, the intercept of the 16th of July, 1995, P1187,

5 together with P1200 and P2567 and, respectfully, ask yourselves whether

6 their interpretation of the word "triage" is accurate or correct when

7 used on that date. It is not, and this is just their attempt at an

8 imaginary claim which they so desperately need as it relates to

9 Mr. Beara.

10 Now, we're going to look at a couple other intercepts, and in the

11 interests of time I may skip some, but it's hopefully covered in our

12 brief in detail.

13 If we look at P1130, which is also an intercept that the

14 Prosecution claims identifies Mr. Beara at 1015 hours, it's the intercept

15 between Zoka, Beara, and Lucic. The OTP, in their closing remarks, asked

16 a quizzical question and said, This intercept is hotly contested by the

17 Beara Defence, and I don't see why. I invite you to look at the three

18 copies that you have of P1130. You'll find that in the handwritten copy,

19 nowhere does the word "Beara speaking" appear. All we see is "Beara,"

20 somehow magically that appears in the English translation. The typed

21 version speaks for itself, I suppose. Also, the handwritten version and

22 this witness who testified, clearly he said -- during the second half of

23 this document, clearly he said, I want to talk to him, Lucic wanting to

24 talk to Cerovic. This witness, although he was a Prosecution witness,

25 clearly stood by that. Now, the Prosecution's claim is that Beara wanted

Page 34458

1 to talk to Zoka - I said "Cerovic" by mistake, Zoka - that Beara wanted

2 to talk to Zoran Malinic, but it was actually Lucic as recorded by the

3 intercept operator who wanted to talk to Zoka. It was clear in his

4 testimony, and I invite you to look at that testimony again.

5 The next point that's interesting about this P1130, if you look

6 at the first portion that seems to indicate that Beara was one of the

7 speakers, look at the questions that are being asked by, purportedly,

8 Beara. Is this a man who had knowledge? Is this a man who was well

9 informed? Is this a man who knew what was going on at that time, or is

10 it logical to conclude that this person had no idea, had no information?

11 His first question:

12 "Where are they now?"

13 According to the Prosecution's overall case, Beara should already

14 have known, by 1000 hours, where they were. He goes on, attributed to

15 Beara:

16 "And they've been rounded up, disarmed, everything?"

17 How does the Prosecution reconcile that? If Beara had knowledge

18 by the 13th, this intercept that they claim is Beara certainly doesn't

19 corroborate that. He goes on to ask other questions that are attributed

20 to Beara:

21 "And there is someone to guard them?"

22 He goes on:

23 "They're locked up; right?"

24 Finally:

25 "Do you have enough room over there?"

Page 34459

1 Certainly, that individual who was asking those questions did not

2 know, did not have any knowledge, and certainly was not involved in any

3 aspect of either the transportation nor the killing of the Bosnian

4 Muslims.

5 You'll find, on the next page, where Lucic says: "Let me talk to

6 him," which is what I referenced earlier, and I invite you to look at

7 this particular intercept operator's testimony in regard to that issue

8 and how steadfast he was and determined that the Prosecution's theory is

9 incorrect and that Lucic was actually seeking to speak with Zoka.

10 P1144, temporally connected with the prior exhibit, P1130, it's

11 an intercept of the 13th of July, 1995, at 1829 hours. Now, this

12 intercept, interestingly enough, the Prosecution identifies and says the

13 following in their footnote, of all places, 4904, in paragraph 2215 of

14 their brief, with respect to P1144, the Prosecution says the following:

15 "The intercept clearly shows that there were VRS members who were

16 not informed about the murder operation and who were, therefore,

17 concerned about screening the captured Muslim men for possible war

18 crimes. Otherwise, they would go scot-free, i.e., be exchanged."

19 This is at 1829. The Croat intercept that Mr. Beara was captured

20 on, which the Prosecution is exculpatory, identifies a process of

21 selection, of potential or purported war criminals and the transfer of

22 individuals to the Batkovici camp. The Prosecution call that intercept,

23 the Croat intercept, deliberately deceptive. They criticised us for not

24 going further and trying to identify where the intercept came from, who

25 recorded it.

Page 34460

1 If you take anything with respect to Mr. Beara, if you look at

2 the 13th, the evidence P1130, the Croat intercept, as well as P1144 and

3 the comments by the Prosecution, you'll find that Beara did not have

4 knowledge and was not involved in either the transportation or the

5 killings of the Bosnian Muslims.

6 Quickly, and I apologise for doing it quickly, if we look at

7 P1164, it's the July 14th intercept, the time 2100 hours, approximately.

8 It's an allegation that there was a claim that Beara was instructed to

9 call extension 155. Certainly, as we've tried to display during the

10 cross-examination of this intercept operator and other witnesses,

11 certainly, if this extension was from the Main Staff, Beara would have

12 known what the extension is and whose extension it was. During the

13 conversation, the individual that the Prosecution purports was Mr. Beara

14 clearly has no clue where extension 155 is or who that extension may

15 belong to.

16 And I noted with respect to the 13th of July - I'm sorry I'm

17 jumping - that -- when you look at the three exhibits; it's P1130, P1144,

18 and the Croat intercept which is 7-2D642.

19 Now we come to what the Prosecution thinks is their most prized

20 piece of evidence, and that's the evidence on the 15th of July, 1995, and

21 the intercept at approximately 10.00. We do feel that this intercept is

22 suspicious for a number of reasons: One, Krstic denies it; two, no other

23 intercept, I dare say in the history of this case or any other case, no

24 other intercepts were captured more than once. This intercept

25 conveniently was captured by three separate intercept operators.

Page 34461

1 We, at the beginning of this case in August of 2006, told this

2 Court in our opening statements that this intercept is exculpatory to us.

3 This does not prove that Beara was involved in any killings. This does

4 not prove that Beara had any responsibility.

5 What does the individual and the Prosecution claim says during

6 this intercept? I've waited for three days, I've waited for three days.

7 He doesn't say, Boy, I've been really busy, because according to the

8 Prosecution he has been, busy meeting with civilian politicians,

9 engineering groups, trying to gather all this stuff, and we're killing

10 some people here and killing some people over there. He says, I've been

11 waiting for three days, waiting because he just returned. He returned

12 after being away for a couple of days in Belgrade.

13 This intercept and the discussion of triage flies in the face of

14 the documents that we have on the 16th of July, 1995. This intercept

15 certainly disputes, rebuts, and contradicts the arguments of the seventh

16 accused and his counsel, where they claim Beara was in command and in

17 control and was able to order. If Beara was able to order or command or

18 control, why doesn't he simply ask Krstic, Give me the men, I'm in

19 charge, simply transfer these men to me? The fact of the matter is that

20 Beara was never in command or control of any such killing operation.

21 This intercept, when viewed reasonably, pragmatically, you will find that

22 it does not support what the Prosecution claims it does, and it certainly

23 doesn't support Mr. Beara's involvement whatsoever in the crimes that

24 have been alleged in the indictment.

25 Quickly, to turn to a third piece of evidence that the

Page 34462

1 Prosecution seems to rely upon, and their third piece of evidence can

2 uniquely be described in less than seven pages. They claim that the

3 Zvornik duty officer log-book supports some of their preposterous

4 propositions.

5 The Zvornik log-book was tainted, as we know, because of PW-168.

6 He not only changed the dates, as described by Mr. Gogic, also as

7 identified by their expert Kathleen Bar; they were uncertain who wrote

8 the entries as it may relate to Mr. Beara. Conspicuously, all the

9 entries, as it relates to Mr. Beara, either appear at the very last line

10 of the documents or are inserted at the beginning of the documents.

11 Reliance on documents, such as these, when we know there was not a chain

12 of custody that we can respect, but was actually tainted by an individual

13 who needed the document, who held the document for well over a year in

14 his possession, who admitted that he made alterations and dates within

15 the document, is clearly suspicious and should not be given any weight.

16 The Prosecution, when they boldly told you they had, I guess,

17 four, or fourteen, or whatever number of witnesses that saw Beara, the

18 intercepts that they claim conveniently had no discussion of triage with

19 people in Bratunac or Potocari, when in fact it does, their reliance on

20 the documents such as the Zvornik Brigade, should be rejected. But what

21 they tell you is, subtly, We do not have evidence as it relates to

22 Mr. Beara in any interim combat report, in any regular combat report from

23 either a battalion, a brigade, a corps, or Main Staff document. We have

24 no correspondence sent by Beara to any individual. We know -- we know we

25 don't have any correspondence sent to Beara from any individual. We

Page 34463

1 don't have any correspondence that mentions, refers, or identifies

2 Mr. Beara.

3 We can't give you the Bratunac Brigade duty officer log-book.

4 There's no evidence against Mr. Beara in that regard. The Drina Corps

5 duty officer log-book and other documents from the Drina Corps do not

6 show or support Beara's involvement at all. Technical intercepts taken

7 from the battalion and the brigade and the corps do not support Beara's

8 involvement at all. The SDS office records of appointments or an

9 appointment book, they haven't produced that. No evidence of Beara, that

10 he was present there at any time, under any circumstance. Any personal

11 notes from PW-161, Deronjic, Nikolic, PW-162? None. How about any

12 records from the MUP of either Bratunac or Zvornik? We know Vasic liked

13 to write letters, probably explaining his involvement, although getting

14 carried away, according to the Prosecutor. He really didn't mean

15 "killing," he really didn't mean that he's in charge of the entire

16 operation process. He was intimately involved with Mr. Deronjic and the

17 POWs, as reflected by his very own documents. Do the MUP documents

18 support that Mr. Beara knew or was involved in any way? Of course not.

19 All they're relying on are three intercepts, a log-book of less than

20 seven pages, and four individuals from Bratunac for their case against

21 Mr. Beara.

22 Not only was their case not fair, not only was their case not

23 thorough, and I don't blame them for that, there is no other evidence

24 that they could have brought forth. Had they been able to, they would

25 have. They knew exactly what they were doing. They knew exactly how to

Page 34464

1 bring a case against Mr. Beara, and they did a remarkable job weaving

2 some of these loose ends to try to shift and point the finger at

3 Mr. Beara.

4 I respectfully ask this Court not to accept such false testimony

5 and loose claims by witnesses who I believe you will find to be less than

6 credible and worthy of giving no weight. I ask this Court, respectfully,

7 to dissect the information and the testimony of these individuals, not as

8 a prosecutor would, to try to confirm a theory of "one size fits all,"

9 all VRS members are guilty of some complicity or some involvement in the

10 Srebrenica murders, but to view it openly and honestly, as I expect and

11 am confident that you will, to view the evidence in light of the defence,

12 and to look at what the reasonable interpretations should be.

13 Accept Mr. McCloskey's challenge that if there are two reasonable

14 interpretations, the Defence should prevail, and I find that if you do

15 that, that you will find the evidence and the case against Mr. Beara to

16 be not only thin, but to be nonexistent.

17 I want to touch upon, in my last moments that I have with the

18 Court, not only our appreciation for everything that you've done and

19 allowing us to bring forth our case and evidence. We fell short. I

20 tried to call Milos Tomovic, I tried to call other witnesses. We were

21 constrained with time, we couldn't do it. That evidence existed for

22 Mr. McCloskey to call him. I'm not shifting the blame on him alone. I

23 feel bad for Mr. Beara. I should have and tried on six different

24 occasions to impress upon certain individuals the importance of coming

25 before this Court. Many were hesitant, all did not come forth as we had

Page 34465

1 expected, but I'm confident that, because it's not our burden of proof,

2 that the Court will not hold it against us, but that the Prosecution was

3 required to bring forth that evidence and they failed to do so.

4 Finally, in my brief -- in our brief, I addressed sentencing. We

5 are contentious with the Prosecution for many reasons. In their final

6 brief, they say Beara was arrested. We say he voluntarily surrendered.

7 You saw the evidence, as it relates to Mr. Beara, with the minister of

8 justice in a conference room, saying goodbye to his family, being flown

9 in a private airplane to the Netherlands and The Hague. He was not

10 arrested. They brought forth no evidence of his arrest. We saw the

11 video, and we know that he turned himself in voluntarily.

12 With respect to the sentence imposed, the Prosecution said in his

13 opening remarks, and he identified Mr. Schindler, and I'm sure we've all

14 seen the movie: There is little doubt that more could have been done,

15 there is little doubt that more should have been done.

16 I'm convinced as to who is responsible and why they would be

17 responsible and convinced that Beara is not. However, if you accept and

18 adopt the standard that the Prosecution is offering to you, and that

19 would be, as I coin it, the "Schindler standard," then, yes, Mr. Beara,

20 with all due respect, sir, perhaps should have done more, perhaps could

21 have done more.

22 In light of that, and in light of Mr. McCloskey's comment and

23 idiom that Beara cannot hold a candle to Blagojevic or any commanders, I

24 suggest a sentence, if you find any of the evidence to be credible

25 against Mr. Beara, and I underscore that, if you find that he was present

Page 34468

1 Good morning, once again, Judges. Good morning to all my

2 colleagues in the courtroom.

3 Mr. President, I have the honour this morning to address the

4 Trial Chamber with respect to parts 1 to 4 of our closing arguments on

5 behalf of Drago Nikolic. Before I begin, I wish to join my colleague in

6 saying that it was both an honour and a privilege to appear before you

7 during the last three years. I also wish to join my colleague in

8 expressing my gratitude to the interpreters, the stenographers, as well

9 as to all the Registry support staff.

10 Before I go to the text that I have prepared, Mr. President,

11 there is something that is striking to me, after listening to both my

12 colleagues making their arguments or their closing arguments. The word

13 "genocide" has not been pronounced once, and to me this is striking.

14 It is firmly our position, Mr. President, that the events which

15 took place in the area of Srebrenica, as well as in the area of Zvornik,

16 despite the fact that these events were atrocious in character, that

17 these events do not amount to genocide. And I hope to have the time to

18 make my arguments before -- or at least to make my case during the

19 presentation of these closing arguments. And I'm sure that if my

20 colleagues did not address the issue, it's not because they do not

21 believe it, because they have the same position as we do, that this,

22 despite its unlawful character, is -- unlawful and atrocious character,

23 was not genocide.

24 That being said, Mr. President, let me begin by saying that, as

25 mentioned by my colleague Zivanovic, we respectfully take the view that

Page 34469

1 two and a half hours is a very short time in which to attend to all of

2 the relevant issues we'd like to address after a three-year trial. Of

3 course, we do understand that the Trial Chamber is already in possession

4 of our final trial briefs, which sets out in detail our submissions

5 regarding the charges laid against Drago Nikolic and the evidence that

6 was adduced at trial. Nonetheless, we respectfully submit that the time

7 allotted is insufficient for the purpose of addressing all of the

8 Prosecution's submissions, both in its final trial brief and its oral

9 arguments. Accordingly, we will endeavour to address only the most

10 important Prosecution submissions, hoping that we will have the

11 opportunity to answer the same questions which were asked by the Trial

12 Chamber to the Prosecution in the event these topics are not covered

13 sufficiently during our oral arguments.

14 Mr. President, the time has come, three years and two months

15 after the beginning of the proceedings against the seven co-accused in

16 this case, to address the Trial Chamber for a final time. To say that

17 this was a long trial would be an understatement. I must admit in this

18 regard that recently, when I was cross-examining Witness Sreten Milosevic

19 a few weeks ago, I happened to look at the screen before me and I saw a

20 man with white hair asking questions. And that took me by surprise,

21 because I did not have the hair-do of Drago Nikolic when this case began.

22 Nonetheless, the hair-do of Mr. Drago Nikolic, which is quite

23 distinctive, was not sufficient for Witness PW-102 to notice it when he

24 met, allegedly, Drago Nikolic at the Standard barracks. Beyond any

25 doubt, Mr. President, that visit never took place at the Standard

Page 34470

1 barracks, as argued in our brief.

2 On a more serious note, I would like to address the testimony of

3 Sreten Milosevic immediately, because his testimony in this courtroom is

4 one of the differences or maybe one of the issues which highlights the

5 differences between the Prosecution and the Defence on behalf of

6 Drago Nikolic during these proceedings.

7 You may recall, in this regard, that Mr. Milosevic was on the

8 Prosecution's Rule 65 ter list of witnesses when this trial began.

9 However, as for what happened to a number of important witnesses on its

10 list, and I will come back to this later, Milosevic was withdrawn from

11 the Prosecution's list because there was something in the evidence that

12 he could provide which did not match the Prosecution's theory of the

13 case. Now, we saw this when Milosevic testified before this

14 Trial Chamber, and all the gaps that he was able to fill, all the gaps

15 which had not been filled by the Prosecution.

16 Of course, the Prosecution is entitled to withdraw witnesses, but

17 when such witnesses are critical to the understanding of the events which

18 took place in July 1995, then it is the Trial Chamber which is deprived

19 of relevant and probative evidence.

20 Mr. President, this Trial Chamber had not heard any of the

21 officers who were or who were called upon to exercise the function of

22 brigade operations duty officers during the critical period from 12 July

23 until 17 July. Admittedly, we had some evidence pursuant to Rule 92 bis

24 or 92 quater of Bojanovic and Maric, and of course the evidence of -- did

25 I refer to a witness that was -- sorry, I thought I'd made a mistake by

Page 34471

1 referring to a witness who was not public. And, of course, it is public

2 information that Dragan Jukic, who was brigade operations duty officer on

3 14 July, refused to testify in this case.

4 In these circumstances, we respectfully submit that it was the

5 duty of the Prosecution to call Sreten Milosevic, who was on duty on 13

6 July. This is the basis of the Prosecution's case against Drago Nikolic,

7 yet the Prosecution decided to withdraw Sreten Milosevic.

8 The position adopted by the Defence team of Drago Nikolic in this

9 regard was very different. We did not hesitate to ask the Trial Chamber

10 to issue a subpoena against Sreten Milosevic to ensure that his evidence

11 would be before the Trial Chamber. We knew that by doing so, he might

12 react negatively towards Drago Nikolic, but our priority since the

13 beginning of these proceedings has been to ensure that all reliable and

14 relevant evidence which could show the true involvement of Drago Nikolic

15 in these events would be before the Trial Chamber.

16 Three years ago, Mr. President, on 23 August, exactly, 2006, I

17 had the honour to address the Trial Chamber and to make an opening

18 statement on behalf of Drago Nikolic. In preparing for these closing

19 arguments, of course, I read what I had mentioned at that time. What is

20 striking in this regard is the fact that what we said three years ago is

21 exactly what we did during the Prosecution case in chief. We challenged

22 the evidence which was adduced by the Prosecution. What we said three

23 years ago also corresponds to the evidence we adduced during the case for

24 the defence of Drago Nikolic. You may recall in this regard that, as

25 promised, the case for Drago Nikolic lasted no more than three weeks, and

Page 34472

1 that each witness called had a specific aim which could easily be

2 identified, with the view of answering the Prosecution's case. And then

3 again what we said three years ago, in the opening statement, is also

4 reflected in the Nikolic final trial brief.

5 Contrary to others, and despite the manner in which the

6 Prosecution presented its case, and I refer to the Prosecution adding new

7 documents not included on its Rule 65 ter list of exhibits on a daily

8 basis, to the Prosecution modifying its list of witnesses to be called on

9 numerous occasions, to the Prosecution adding new allegations against

10 Drago Nikolic such as the infamous words attributed to him during a

11 conversation which supposedly took place at the Zvornik Brigade Command,

12 involving Witnesses PW-102 and PW-108, to the Prosecution delaying the

13 disclosure of both the identity of certain witnesses and the evidence

14 they were to provide until the very last minute - I refer inter alia to

15 Witnesses PW-101 and PW-108 - despite all of this, Mr. President, the

16 theory put forward by the Defence of Drago Nikolic has remained unaltered

17 throughout.

18 That being said, one thing has changed, Mr. President, since

19 making my opening statement. Three years ago, I said that the evidence

20 would demonstrate that Drago Nikolic did not commit any of the crimes in

21 the indictment and that by the end of the trial you would have no chance

22 but to return a verdict of not guilty for Counts 1 to 8. Today, on the

23 basis of all the evidence admitted on the record, it is evident to us

24 that the Prosecution has failed to meet its burden of proof, and we are

25 confident that Drago Nikolic does not incur individual criminal

Page 34473

1 responsibility for all of the Prosecution's allegations in the

2 indictment, except for a few allegations in relation to the events which

3 took place in Orahovac on 14 July 1995.

4 Mr. President, this is not easy to say, and it is certainly not

5 the norm for a counsel before this Tribunal to say that their client may

6 incur liability for any of the violations set out in the indictment.

7 Cutting to the chase, however, we are not blind to the evidence. The

8 evidence has shown that Drago Nikolic was close enough to what happened

9 in Orahovac on 14 July 1995 to possibly incur criminal responsibility for

10 what happened there. Of course, it will be for the Trial Chamber to

11 determine the true extent of Drago Nikolic's involvement in these events.

12 However, two preliminary remarks must be made in this regard at

13 this stage. Firstly, it is evident, on the basis of the evidence on the

14 record, that the responsibility of Drago Nikolic for what happened at the

15 school in Orahovac on 14 July 1995 does not even come close to the

16 Prosecution's theory of the case, which clearly is not supported by the

17 evidence. Secondly, it is a reality that the proceedings against

18 Drago Nikolic could have ended much sooner if he had been properly

19 charged and if the Prosecution had not attempted to put everything on his

20 back simply because this is Srebrenica and no one should get off lightly.

21 Moreover, looking at the manner in which the Prosecution handled

22 the plea negotiations with Dragan Obrenovic and Momir Nikolic, pleading

23 guilty was simply not an option for Drago Nikolic. Despite his

24 understanding that he may incur criminal liability for what happened at

25 the school in Orahovac in July 1995, there was no chance that

Page 34474

1 Drago Nikolic would accept to fabricate evidence and/or to create a

2 narrative to please the Prosecution, as the evidence reveals

3 Dragan Obrenovic and Momir Nikolic did when they pled guilty in the

4 Blagojevic case in exchange for leniency.

5 In my opening statement, I said that the statement of facts

6 provided by Momir Nikolic and Dragan Obrenovic, as a result of their plea

7 negotiations with the Prosecution, were replete with lies. The evidence

8 adduced over the last three years demonstrates my point beyond any doubt.

9 This, Mr. President, is, in our view, a major consideration in this case.

10 History deserves better, the International Tribunal deserves

11 better. The victims of Srebrenica and, more importantly, their families

12 are entitled to know the truth, as well as what really happened in July

13 1995, not the lies of officers looking for leniency. In this regard, it

14 is our submission that the statement of facts provided by Momir Nikolic

15 and Dragan Obrenovic, which have been admitted in evidence in this case,

16 cannot be attributed any probative value, and I will come back to this

17 later. For now, suffice it to say that the alleged responsibility of

18 Drago Nikolic, once you will have disregarded the incriminating evidence

19 found in the statement of facts provided by Momir Nikolic and Dragan

20 Obrenovic, that you will have no other choice but to conclude that the

21 Prosecution's case against Drago Nikolic has been entirely defeated. To

22 put it bluntly, Drago Nikolic is simply not the man whom the Prosecution

23 would like you to believe he is.

24 Another very important consideration we wish to bring to your

25 attention at this stage is that despite the soaring gravity of the crimes

Page 34475

1 committed in and around Srebrenica, as well as in the area of Zvornik, in

2 respect of Drago Nikolic we are talking about a period of 24 to 36 hours,

3 at the most, in the life of a man. Needless to say, this is neither a

4 defence nor an excuse for what happened during that period. However, it

5 is an important fact which, if duly considered, will allow the Trial

6 Chamber, in our view, to properly assess the true responsibility of

7 Drago Nikolic in the context or in the circumstances ruling at the time.

8 In this regard, the fact that the Prosecution has not adduced any

9 evidence related to the alleged responsibility of Drago Nikolic, other

10 than for the limited period of mid-July 1995, is significant.

11 Moreover, in our submission, the evidence reveals that

12 Drago Nikolic was in no position to influence the course of events once

13 he realised what was happening in the area of Zvornik on 14 July 1995.

14 The evidence also reveals, as will be argued later, that due to

15 his rank and position, and considering the attitude of his superiors

16 towards him, including, amongst others, Vinko Pandurevic and

17 Dragan Obrenovic, Drago Nikolic would have been unable to become a member

18 of any joint criminal enterprise, the members of which included or would

19 have included the commander of the army as well as other senior-level

20 officers. This is probably why, Mr. President, as I discussed so many

21 times with my colleagues during this trial, it appeared as though during

22 the trial everybody wanted a piece of Drago Nikolic.

23 That being said, I move to the next part of our argument --

24 sorry, before I move to the next part, allow me to invite the members of

25 the Trial Chamber to turn to their right and to look at the man who is

Page 34476

1 sitting there, Drago Nikolic. For the past three years, Mr. President,

2 Drago Nikolic has been sitting in this courtroom, hearing all the

3 witnesses who have testified, and you have seen his reaction to the

4 evidence. Even before we say anything more about him, I invite the Trial

5 Chamber to consider both the demeanour and the body language of

6 Second Lieutenant Drago Nikolic sitting amongst a group of superior

7 officers throughout this trial. This, Mr. President, is another theme we

8 intend to address during our closing arguments; namely, the significant

9 differences which exist between Drago Nikolic and the other co-accused in

10 this case.

11 Finally, it is necessary at this stage to draw the attention of

12 the Trial Chamber to a major deficiency affecting the Prosecution's final

13 trial brief. When I read this brief for the first time, Mr. President, I

14 had the impression of reading a new-and-improved version of the

15 Prosecution's pre-trial brief, supplemented here and there by new

16 footnotes. What is most significant, however, is the absence in the

17 Prosecution's final trial brief of any critical approach regarding the

18 evidence which was admitted during the last three years. If something

19 was mentioned by a witness and it was incriminating on any of the

20 co-accused in this case, it was referred to by the Prosecution in its

21 pre-trial brief. Moreover, the Prosecution simply ignored reliable and

22 probative evidence adduced by the Defence.

23 As a result, what may appear prima facie as being a strong case

24 against Drago Nikolic will end up being an empty case once the

25 Trial Chamber will have assessed the evidence and determined what

Page 34477

1 probative value, if any, can be attributed to it. This, Mr. President,

2 we are confident the Trial Chamber will do.

3 With this in mind, I take this opportunity to bring back the

4 Boering figure which I used in my opening statement three years ago. We

5 promised on that occasion that despite the seriousness and the gravity of

6 the allegations against Drago Nikolic in the indictment, the Trial

7 Chamber, if it put its mind to it, would be able to identify his true

8 involvement in these events. This is what the boring picture is all

9 about: Whether you see the young lady or the old lady first is not

10 important. There are more than one ways to look at the Prosecution

11 evidence. What is important is that at this stage, you are able to see

12 the lady that you did not see three years ago.

13 On this, Mr. President, I move to the second part of our closing

14 arguments dealing specifically with the duties and responsibilities of

15 Drago Nikolic. What I wish to do at this time is to address certain

16 issues concerning his duties and responsibilities in the light of the

17 specific Prosecution arguments in its final trial brief.

18 A lot of evidence has been heard during this trial concerning the

19 duties and responsibilities of Drago Nikolic in his capacity, of course,

20 as security organ of the Zvornik Brigade. Firstly, I refer the Trial

21 Chamber to our submissions in the Nikolic final trial brief at

22 paragraphs 345 to 395. Secondly, I note that the position taken by the

23 Prosecution regarding these duties and responsibilities is very similar

24 to our own position. In fact, we agree on many issues in relation to

25 this topic, which is not surprising, of course, because the duties and

Page 34478

1 responsibilities of security officers were clearly defined in the rules

2 and regulations which were applicable at the time in 1995.

3 Moreover, the views expressed by our own security expert,

4 Petar Vuga, are very close to that of the Prosecution's expert

5 Richard Butler on this issue. In fact, in this courtroom only one

6 person, namely Vinko Pandurevic, disagrees concerning the duties and

7 responsibilities of Drago Nikolic as security organ of the

8 Zvornik Brigade, and this is one of the topics I will be addressing later

9 on.

10 That being said, Mr. President, there are at least three issues

11 concerning the duties and responsibilities of Drago Nikolic on which we

12 disagree with the Prosecution, and we respectfully submit that the

13 Prosecution is wrong in this regard. These issues include: The power

14 and ability of Drago Nikolic to issue orders to members of the Military

15 Police Company; the responsibility of Drago Nikolic for the treatment of

16 prisoners of war; and the role of Drago Nikolic concerning the exchange

17 of prisoners.

18 On the first issue, I refer the Trial Chamber to paragraphs 2595,

19 2596 of the Prosecution's final trial brief, where it is stated:

20 "Once the commander issued an order, Nikolic would provide

21 directions and instructions to the commander of the Military Police

22 Company on how best to implement the commander's orders."

23 Even though this may appear to be a benign issue on its face, it

24 is evident that the Prosecution's understanding of this sentence goes

25 well beyond the correct interpretation of the applicable rules. It is

Page 34479

1 evident also that the Prosecution takes this position with the sole aim

2 of applying it to the events which took place at the school in Rocevic,

3 with the view to increasing the individual responsibility of

4 Drago Nikolic. But this is an erroneous interpretation of the applicable

5 rules, which recognise that Drago Nikolic -- or, rather, that staff

6 officers do not tell commanders what to do.

7 In this regard, the Prosecution has it right when stating, in its

8 final trial brief, that Drago Nikolic did not have any command authority

9 of his own over the military police, despite the impression left on some

10 members of the Military Police Company, and that he was actually passing

11 on the orders issued by his commander. The Prosecution also has it right

12 when stating, in its final trial brief, that Nikolic always operated

13 under the derived authority of his commander, Pandurevic, or, in

14 Pandurevic's absence, Dragan Obrenovic. The contentious issue is where

15 the Prosecution states that Drago Nikolic was giving instructions and

16 directions to the military police commander and the members of the

17 Military Police Company in order to facilitate and oversee the

18 implementation of those orders. Drago Nikolic did not give any

19 instructions and directions to members of the Military Police Company.

20 (redacted)

21 "Well, we personally, with the security officers, did not talk to

22 the security officers while we were on duty. We might sit around with

23 them, but we received commands from the military police commander."

24 Other witnesses, such as Stevo Kostic - transcript

25 page 26424-26425 - testified in the same way.

Page 34480

1 Secondly, in passing on the commander's orders to the commander

2 of the Military Police Company, Jasikovac, Drago Nikolic did not give

3 instructions and directions. His involvement, on the basis of his role,

4 advisory role to the commander in respect of the military police, was

5 limited to providing specialist advice and recommendations on the use of

6 the Military Police Company to his commander; not to the commander of the

7 military police, to the commander of the unit, to Vinko Pandurevic.

8 I refer the Trial Chamber on this issue to the submissions of my

9 colleague Zivanovic on Monday.

10 In other words, when Drago Nikolic passed on the orders of the

11 commander to Jasikovac, he did not tell him how to implement these orders

12 or how to use the resources at his disposal for this purpose, and neither

13 did he provide, as the Prosecution would like you to believe, without the

14 support of any evidence, directions or specific instructions in this

15 regard. Also, if and when orders were passed on directly by the brigade

16 commander to the commander of the Military Police Company, for example,

17 when dealing with combat issues, in which Drago Nikolic had no

18 involvement whatsoever, as confirmed by Vinko Pandurevic

19 himself - transcript page 31684 - Drago Nikolic certainly could not

20 interfere and give directions on how to implement the commander's combat

21 orders. All of this was made clear by Petar Vuga in his expert

22 testimony; transcript 23315 to 23317. See also 23453 and 23457.

23 Once again, the only reason why the Prosecution takes this

24 erroneous position is to attempt to demonstrate that Drago Nikolic was

25 directing the show in Orahovac, which is not what the evidence reveals.

Page 34481

1 There was no show in Orahovac, and Drago Nikolic was not directing

2 anything that was going on there.

3 I now move to the second issue I wish to address, the

4 responsibility of Drago Nikolic for the treatment of prisoners of war.

5 Now, I use "prisoners of war" and everybody in the courtroom uses

6 this term, even though it should not be used in the context of a

7 non-international armed conflict. So sometimes I say "prisoners" and

8 sometimes I say "prisoners of war," but let it be known I simply refer to

9 those people who were captured as a result of the hostilities.

10 The Prosecution advocates the view that through his professional

11 management of the military police, Nikolic's role also included

12 responsibility for prisoners of war; paragraph 2634 of the Prosecution

13 final trial brief. We strongly disagree with the Prosecution's position,

14 which is simply wrong both factually and legally. In support of its

15 position, the Prosecution refers to paragraph 3.19, 3.19, of the "Butler

16 Brigade Command Responsibility Report," that is, P684, as well as to

17 Exhibit P707, "Service Regulations of the SFRY Armed Forces Military

18 Police." On this basis, the Prosecution notes that the military police

19 take part, and I underscore, take part, in providing security for

20 prisoners in camps for prisoners of war. The Prosecution also notes that

21 the military police may also, upon a special order, escort prisoners. We

22 agree with those references or those provisions.

23 Paragraph 3.19 of the Butler report also provides that at the

24 brigade level, the brigade commander was responsible to ensure that the

25 provisions of the 1949 Geneva Conventions were strictly complied with

Page 34482

1 regarding the treatment of prisoners. We also agree with this statement.

2 However, from these references the Prosecution goes on to state,

3 without any support, that the task of the military police include the

4 treatment of prisoners. This is nowhere mentioned. This, Mr. President,

5 is clearly incorrect. Nowhere is it mentioned in the applicable

6 provisions of the rules and regulations concerning the duties and

7 responsibilities of the military police, that they are responsible for

8 the treatment of prisoners, as revealed by the evidence in this case.

9 The overall responsibility for the treatment of prisoners rests, as for

10 everything else, first and foremost with the commander of the unit

11 holding these prisoners.

12 Moreover, within any unit holding prisoners, many organs are

13 involved in the handling of the prisoners, including, for example: The

14 intelligence organ for interrogating the prisoners of war; the logistics

15 or rear services, for transport, food, water, and other supplies; the

16 medical service; the personnel and administration service for the

17 mobilisation of accommodations, if needed; and, yes, the military police,

18 to provide security in and around the facilities where prisoners are

19 held.

20 The evidence in this case reveals that the military police of the

21 Zvornik Brigade did exactly what the rules and regulations provided for.

22 They provided security around some of the facilities where the prisoners

23 were held; namely, at the schools in Orahovac and Rocevic; testimony,

24 Ivanovic, transcript 14562; testimony Bircakovic, transcript 10764-10765;

25 and even testimony PW-143, which is relied upon heavily by the

Page 34483

1 Prosecution in other circumstances, transcript 6586.

2 It follows, Mr. President, that the military police is not

3 responsible for the treatment of prisoners of war. And then it is

4 incorrect, of course, to argue that Drago Nikolic, through his

5 professional management of the Military Police Company, was responsible

6 for prisoners of war.

7 It must also be recalled in this regard that in July 1995,

8 Drago Nikolic was solely the security organ of the Zvornik Brigade and

9 that he had no responsibility for the gathering of intelligence. In

10 other words, Drago Nikolic was not involved in the interrogation of

11 prisoners of war, and he did not have any professional reason to be

12 personally in contact with the prisoners held at the school in Orahovac

13 in July 1995.

14 Once again, the Prosecution attempts to demonstrate that in his

15 capacity as security organ, he had a responsibility for the handling of

16 prisoners which goes way beyond his de jure duties and responsibilities

17 in July 1995. As for de facto responsibilities, as for orders which

18 would have been issued to him to be responsible for the prisoners during

19 that period, there is no evidence to that effect. This is directly

20 related to the oral submissions made by my colleague Mr. McCloskey on

21 2 September, when he said - transcript 34046 - that one of the things

22 required for the accused in this case to be guilty is that they

23 consciously made the decision to disregard their duty. Consequently, it

24 is highly significant that Drago Nikolic did not have any specific duty

25 or responsibility for prisoners held at the school in Orahovac, or at any

Page 34484

1 other school, for that matter. His responsibility was to see to it that

2 there was some security; nothing more.

3 I move to the third issue on which we disagree with the

4 Prosecution, and I refer to the Prosecution final trial brief

5 paragraphs 2650 and 2658. In these paragraphs, it is suggested that

6 Drago Nikolic would have known -- again, the words are important, "would

7 have known," and I -- that the prisoners taken to Orahovac were not going

8 to be exchanged because he had been involved in the negotiation of

9 prisoner exchanges since 1993 and he knew the standard procedure for

10 detaining, registering, interrogating, and exchanging a prisoner. My

11 colleague from the Prosecution, Mr. Mitchell, reiterated this argument

12 during his oral submissions. This position is erroneous, both factually

13 and legally.

14 Firstly, Drago Nikolic did not have any duty or responsibility in

15 relation to the exchange of prisoners of war, a fact which was confirmed

16 by Witness Novica Simic; transcript 28571. While the Prosecution relied

17 on the testimony of Novica Simic - paragraph 2650 of its final trial

18 brief - to describe the procedure for exchanging a prisoner, it omitted

19 the part of his testimony where he makes it clear that:

20 "The exchanges are carried out by the Main Staff of the VRS, and

21 there are also commissions that were organised at the corps level. The

22 brigades did not get involved in the exchanges."

23 This was also confirmed by Dragutinovic, transcript 12713, 12714,

24 as well as by Vinko Pandurevic in his report of 20 July - that is P350 -

25 asking the Drina Corps for assistance in dealing with prisoners.

Page 34485

1 As for Exhibit 3D-7D454, the Zvornik Brigade Command report

2 number 57, it merely describes one incident in 1993 when Drago Nikolic,

3 at a time when he was both the chief of intelligence and security, was

4 involved in the exchange of one recently-captured prisoner from Rocevic,

5 acting with and in support of his commander, Pandurevic. Consequently,

6 Mr. President, there is no evidence on the record establishing either the

7 involvement of Drago Nikolic in prisoners exchanges since 1993 or his

8 detailed knowledge of the applicable procedure. The Prosecution has

9 adduced no evidence in this regard, yet they would like you to accept its

10 proposition at face value for the purpose of drawing a negative inference

11 against Drago Nikolic. Clearly, Mr. President, the Prosecution is

12 pushing the envelope too far.

13 I move immediately to part 3 of our submissions today, which has

14 to do with assessing the evidence on the record, and the first issue is

15 the credibility of witnesses.

16 I wish to begin by recalling what my colleague for the

17 Prosecution said three years ago in his opening statement. He warned the

18 Trial Chamber that he expected some of his witnesses to lie. He actually

19 referred to one of his own witnesses as a bold-faced liar; transcript

20 386.

21 Let me also recall the words of one of my colleagues from the

22 Prosecution who said, on 3 September, when referring to Witness

23 Srecko Acimovic and the fact that this witness, according to the

24 Prosecution, a fact with which we agree, tried to minimise his

25 involvement in the events which took place at the school in Rocevic. My

Page 34486

1 colleague stated:

2 "That, of course, does not mean that everything he said is not

3 true."

4 The question is, Mr. President: What probative value should be

5 attributed to the testimony of a witness when there are reasons to

6 believe that he did not tell the truth in respect of one or more material

7 elements of the evidence he provides? Another way to put the question is

8 whether it is possible to pick and choose, in the evidence provided by a

9 witness, between what can be attributed weight and what is not deserving

10 of probative value. This is an important question because this is what

11 the Prosecution does for a number of witnesses who are referred to in its

12 final trial brief. When they like it, when it suits their case, it

13 should be attributed probative value. When it doesn't, then, of course,

14 the witness is not to be believed. A good example of this is Witness

15 Bircakovic. I will come back to this later.

16 As very well put by my colleague Ostojic, the Prosecution cannot

17 have it both ways. While it can reasonably be said that witnesses who

18 appear before this Trial Chamber tried, at least to a certain extent, to

19 distance themselves from the events which took place in July 1995, it

20 does not mean that these witnesses were not truthful, and we are

21 confident that the Trial Chamber will have no difficulty in identifying

22 the credible and reliable witnesses amongst them. However, it is our

23 submission that when there are good reasons to believe that a witness did

24 not tell the truth about one or more material fact disputed by the

25 parties, the Trial Chamber must exercise extreme caution before

Page 34487

1 attributing any weight to his evidence.

2 This brings me to the issue of corroboration, which is a word we

3 see so many times in the Prosecution final trial brief.

4 While there is no legal requirement, per se, that the testimony

5 of a witness be corroborated before it can be attributed probative value,

6 it is nonetheless our submission that this is necessary when dealing with

7 a witness who either has a past record of not telling the truth or whose

8 evidence is contested on the basis that he obviously did not tell the

9 truth. This is all the more true when the evidence provided by such a

10 witness is the sole evidence on the record concerning a fact which must

11 be proved beyond a reasonable doubt. In such cases, we respectfully

12 submit that the evidence offered by the Prosecution as corroboration must

13 be both reliable, in itself, as well as independent from the evidence

14 supposed to be corroborated. This, as will be argued throughout our

15 submissions, is one of the main defects in the Prosecution final trial

16 brief, whereas the evidence adduced to corroborate the testimony of

17 certain witnesses is not reliable, is not independent, and very often

18 both. I refer specifically to the testimony of Witness PW-168 in this

19 regard.

20 More importantly, it is our submission that the Prosecution's

21 case against Drago Nikolic rests on evidence provided by witnesses who

22 are so unworthy of belief that no weight whatsoever can be attributed to

23 their testimony, leading to only one conclusion, one possible conclusion,

24 that the Prosecution failed to prove its case. This is what guided the

25 construction of the Nikolic final trial brief. In our view, it is not

Page 34488

1 possible to adjudicate this case and determine if the Prosecution has met

2 its burden of proof beyond reasonable doubt without first assessing the

3 credibility and reliability of certain key witnesses and deciding what

4 probative value, if any, can be attributed to it.

5 Accordingly, we identified precisely eight key witnesses, namely,

6 PW-168, PW-101, Momir Nikolic, Mihajlo Galic, Srecko Acimovic, PW-102,

7 PW-108, and last but not least, Vinko Pandurevic, for whom we made

8 specific submissions concerning the weight that can be attributed to

9 their testimony. These eight witnesses, Mr. President, are not the only

10 ones who did not tell the truth before this Trial Chamber. However, what

11 is most significant about these witnesses is the fact that because very

12 little weight, if any, can be attributed to their evidence, the

13 Prosecution's case against Drago Nikolic falls apart. Without repeating

14 our detailed submissions in the Nikolic final trial brief, I will say a

15 few words about each of them.

16 Mr. President, I see that there is only five minutes, and the

17 first witness I would like to make some submissions about is likely to be

18 for more than five minutes. With your leave, I would like to stop here

19 and continue in the morning.

20 JUDGE AGIUS: Thank you, Mr. Bourgon, we will do that.

21 MR. BOURGON: Thank you, Mr. President.

22 JUDGE AGIUS: We will continue tomorrow morning at 9.00.

23 --- Whereupon the hearing adjourned at 1.40 p.m.,

24 to be reconvened on Wednesday, the 9th day of

25 September, 2009, at 9.00 a.m.