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Page 34577

1 MR. ZIVANOVIC: Thank you.

2 JUDGE AGIUS: Mr. Gosnell, good morning to you.

3 MR. GOSNELL: Good morning, Mr. President.

4 Good morning, Your Honours.

5 Yesterday, I discussed at some length the uncertainties hanging

6 over the sequence of events at Kravica warehouse on the afternoon and

7 evening of 13 July. I now turn to address you more briefly on the

8 uncertainties as to who was there during that time-period, and in

9 particular the Prosecution's allegation that some of Borovcanin's

10 subordinates were: A, there, and, B, taking part in the killings.

11 Now, the Prosecution asserts in their brief, at paragraph 1938,

12 that:

13 "No VRS troops were deployed to the road" on 12 July.

14 And then at paragraph 1950 of their brief, they say:

15 "The evidence in the case establishes that Borovcanin's MUP

16 forces were present and in control of the Bratunac-Konjevic Polje road

17 from Kravica village to Hrncici on 12 July and then during all of

18 13 July. No VRS troops were deployed to the road at this time."

19 Now, the Prosecution has no direct evidence substantiating that

20 any of Borovcanin's men participated in either killing event, so the

21 absence of other units in the area is a critical circumstantial indicator

22 on which they rely to argue that the escorting between Sandici Meadow and

23 Kravica warehouse, and then the guarding at the warehouse, and then

24 subsequently the killing of the prisoners at the warehouse, must have

25 been done by Borovcanin's men. We did hear the Prosecutor qualifying

Page 34578

1 that claim last Friday, so I don't know to what extent they actually

2 still maintain that there were no VRS forces in the area. But coming up

3 on the screen now on e-court in front of you is a graphic representation

4 of just some of the evidence in this case showing how very incorrect that

5 claim is, and we document that evidence in our brief at paragraphs 132,

6 168, 169, and 185. Many witnesses, including Muslim witnesses with no

7 motive to lie at all, as well as documents and intercepts, indicate that

8 VRS soldiers were active in significant numbers along the road on the

9 13th of July. In fact, the evidence shows that they were right there on

10 the critical segment of road between Kravica village and Hrncici,

11 including, most importantly of all, men from two units of the Bratunac

12 Brigade at the Kravica warehouse itself. And it's not just one man, as

13 the Prosecution has said during its closing remarks; it's eight men, some

14 of whom held command positions in their units. The inference that

15 I think you can reasonably draw is that there were a lot more than just

16 eight men from the Bratunac Brigade in the warehouse compound at that

17 time.

18 The Prosecution tries to claim, in its brief at paragraph 1997,

19 that Borovcanin admitted during his interview that a group of 30 members

20 of the 2nd Sekovici Detachment were present at the warehouse when he

21 arrived, when he passed by along the road. They accomplish this by an

22 extraordinary misrepresentation of Borovcanin's words, stitching together

23 an answer about people having witnessed Mladic's speech at Sandici Meadow

24 at page 72 of the March interview, Borovcanin interview, with a totally

25 separate passage describing who he saw on the road in front of the

Page 34579

1 warehouse, which is at page 64 of his March interview. I simply invite

2 Your Honours to read those passages carefully, and you'll see that the

3 assertion made by the Prosecution is untenable.

4 Now, I said there was no direct evidence of Borovcanin's men

5 participating in the killings. There is direct evidence, however, from

6 Witness 111 on this issue. And 111 says that the men guarding him at the

7 warehouse were not the same men as had been guarding him at the meadow.

8 That's what he says in no uncertain terms.

9 Now, Your Honours, we say a great deal more in our brief about

10 these issues, and so I simply commend those sections to your attention.

11 It's not just the evidence about who's there; it's also the evidence

12 about the escorting. In other words, how do those prisoners get from

13 Sandici Meadow down to Kravica warehouse? I suggest to you that that's

14 an important issue for the subsequent inference of who is at the

15 warehouse. And, incredibly, given the circumstantial nature of the

16 Prosecution case, there's virtually no discussion of those issues. And

17 I think that's an important deficiency in a case that's based on the

18 assertion that Borovcanin's men simply must have been there.

19 One comment on this circumstantial nature of the case. The

20 Prosecution complained that we were unfair, in our brief, to suggest that

21 this was a circumstantial case by choice, not by necessity. And I heard

22 the Prosecution excusing their decision or explaining their decision not

23 to subpoena these two particular witnesses because that would not have

24 been allowed in the home jurisdictions of some of the prosecutors on this

25 team. But that may be so, Your Honours, but it's not very relevant.

Page 34580

1 They could have compelled these individuals, but they didn't do so, and

2 that does amount to a choice, however that choice came about. And, more

3 broadly, it's not just these two witnesses.

4 Now, Your Honours, let's assume, notwithstanding all of the very

5 serious doubts about the sequence of events at Kravica warehouse in

6 relation to the timing of Borovcanin passing by, let's say

7 notwithstanding all of those question marks and doubts that I say must be

8 there in your minds, let's say that you reach a factual finding that he

9 did know that there may have been criminal acts going on, but then you

10 find that there's no basis, no credible basis, no sufficient basis to

11 find that his subordinates are there. I suggest, Your Honours, that this

12 would bring you to the issue of omission liability.

13 The Prosecution is arguing in its brief that even if the

14 perpetrators were not subordinates, that Borovcanin had a duty to enter

15 the warehouse because he had men nearby, and he should have gone in

16 there, if necessary, with guns blazing to quell the shooting. Now, we've

17 addressed this argument at length, the legal foundations of this claim,

18 from paragraphs 357 to 382 of our brief. The issue of omission liability

19 for the actions of non-subordinates is a complicated legal issue. It's a

20 critical and important legal issue. Despite all the confusions, one

21 thing that is clear, whether you take the Blaskic standard or the

22 Mrksic standard, is that a pre-condition of this form of liability is

23 custody of the prisoners. It's an amazing omission from the Prosecution

24 case and brief that nowhere do they define custody. We do. We give you

25 a definition of custody, and I can tell you that the facts don't come

Page 34581

1 close to establishing that those men were in Borovcanin's custody. And

2 on that point, again, I commend you to our brief.

3 I move now to my third topic overall in my remarks, and that is

4 the reliability of the Prosecution brief. Aside from the

5 misrepresentations and incompleteness of the analysis that I've already

6 discussed, it brims with previously unheard of allegations. There are

7 far many to go through in detail, but I'm going to go through a few

8 signal examples, and I'm going to add one example of what I say is a

9 rather serious misstatement of evidence.

10 At paragraph 606 of the Prosecution brief, which is coming up in

11 front of you on the screen, on the left-hand side of your screen, you see

12 a description of the audio -- of a portion of audio from the trial video.

13 Now, as you know, there are transcripts of this audio in evidence. In

14 fact, there are two transcripts of this audio, one transcript associated

15 with the Petrovic footage and one transcript associated with the trial

16 video. Now, one would have thought that given the procedures of

17 admission of transcripts and the ability for both parties then to ask

18 questions to witnesses on the basis of those transcripts, that in a final

19 brief they'd use one of those admitted transcripts.

20 Now, I don't have any problem, frankly, with the Prosecution, in

21 a final brief, interpreting the audio in their own way, and I'm not

22 exactly sure why they've done what they've done in paragraph 606 of their

23 brief, but what you see here is that they've made their own -- they've

24 given their own interpretations. And, again, I don't mind that, but

25 you'd think that this would warrant a mention at least in the footnote,

Page 34582

1 saying, This is what we're doing.

2 Second example. The Prosecution tries to add three units to

3 Mr. Borovcanin's command, the 2nd Deserters Company and the 2nd and 5th

4 Zvornik PJP Companies, and this is at footnote 408 and paragraphs 1939

5 and 1944, amongst other references.

6 Let's go to paragraph 18 of the indictment. It says:

7 "Note: MUP units acting under the command and control of

8 Ljubomir Borovcanin are explicitly identified as doing so in the

9 paragraphs below."

10 That paragraph was inserted following your order which said the

11 Prosecution is ordered to amend the indictment as follows:

12 "... to plead expressly Ljubomir Borovcanin's command and control

13 over MUP forces -- the MUP forces performing alleged acts from 12 to 17

14 July 1995 throughout the relevant time ..."

15 Despite these instructions, you'll see no mention of any of these

16 three units in the indictment. You'll see no mention of any of these

17 three units in the pre-trial brief. And when you, Mr. President, asked

18 the Prosecutor on Friday to state whether the Prosecution had or had not,

19 during its case, made this allegation, you didn't get an answer. You got

20 an argument about the merits, and that speaks volumes.

21 Let me give you one example of the OTP's position about just one

22 of these units while they were questioning their own expert. After a

23 series of objections from other Defence teams about the nature of the

24 testimony that was being elicited, Mr. Butler finally answers or gives an

25 answer to a series of questions and says:

Page 34583

1 "The 2nd Company" of the Zvornik CJB - I'm inserting that because

2 that's what he's referring to - "is not designated as being directly

3 under the command of Colonel Borovcanin."

4 Then the Prosecutor says, and this is at page 19832 of the

5 transcript:

6 "Thank you. Perhaps we could take a break, Your Honour. I mean,

7 for me to have to go through that to get a piece of exculpatory

8 information for Borovcanin is beyond me."

9 Well, apparently it wasn't exculpatory enough to prevent the

10 Prosecution from arguing the contrary in its closing brief. And aside

11 from being improper, the claim is wrong, as is discussed in section 2 of

12 our brief concerning the parallel chains of MUP command that were in

13 operation at that time in that area.

14 Now, what's the prejudice of this claim? It seems innocuous

15 enough, but adding the 2nd Deserters Unit to Mr. Borovcanin's portfolio

16 is significant to one claim made by the OTP, and that is that

17 Borovcanin's men were somehow involved in the clean-up operation at

18 Kravica warehouse on the 14th of July. There's absolutely no evidence to

19 support that, with one exception, and that is PW-170's uncorroborated

20 testimony. And, remember, there were two other witnesses there that day,

21 as discussed in our brief.

22 Your Honours, just to reassure you, what you're seeing on your

23 screen is not being publicly broadcast.

24 JUDGE AGIUS: I know. I think I settled that yesterday with the

25 Registrar, and in agreement, of course, after consultation with my

Page 34584

1 colleagues, so you don't have to worry about that. Thank you.

2 MR. GOSNELL: Thank you. Thank you, Your Honour.

3 PW-170's uncorroborated testimony that he saw what he refers to

4 as Jahorinci, that he sees Jahorinci there on the 14th of July.

5 So the expanded allegation -- the inclusion of the 2nd Deserters

6 Company now allows them to overcome PW-170's failure to give any more

7 specific identification as to who was there. So by what seems to be a

8 marginal and harmless or at least innocuous expansion of its case, they

9 get to tick off one or more -- one of those boxes that they listed in

10 their check-list at the beginning. It's a significant factual allegation

11 being made through the back door.

12 And, Your Honours, if the Prosecution wants to allege de facto

13 command over these units, that's fine, but there are factual issues

14 associated with such a claim, and that has to be established through

15 evidence at trial, and we have to know that that's what they're claiming.

16 And we have to have a chance to respond, other than getting up during

17 closing arguments and responding to it, based essentially on hypothetical

18 assertions. And, again, that's particularly true where we all know that

19 there were two parallel chains of command in operation at that time in

20 that place. Now, I suggest that there is a need to be on guard against

21 the insidious prejudice of these kinds of claims.

22 And, incidentally, as to the issue of responsibility for burials

23 on 14 July, we stand by everything that we say in paragraph 201 of our

24 brief as to who was directing and performing that process, and it wasn't

25 Borovcanin or his men.

Page 34585

1 Third example. At paragraph 1865 of the Prosecution brief is the

2 previously unheard of claim that the 2nd Sekovici Detachment and the

3 1st PJP Company are still present along the road on 14 July. Again,

4 another claim not found in the indictment, despite the clear instructions

5 in the indictment. This proposition was never put to any witness. It's

6 not found in the pre-trial brief. It wasn't in the opening statement.

7 It wasn't in any other of the accepted mechanisms by which you

8 communicate your case. And, in any event, there isn't one wit of

9 evidence to support it.

10 Fourth example. In discussing the alleged responsibility of

11 Borovcanin for forcible transfer, the Prosecutor, at paragraph 1911 of

12 its brief, mentions Momir Nikolic's role in Potocari on 12 and 13 July,

13 and this mention is only brief and passing. In other words, in the

14 Borovcanin section of the brief, it's as if Momir Nikolic has no role

15 whatsoever. When you flip to the Popovic section of the brief, however,

16 you find a very different story. At paragraph 2377, after a listing of

17 the units that were present there, you see the assertion:

18 "Coordinating the action of the disparate Serb forces deployed in

19 Potocari was necessary to carry out the planned operation."

20 We entirely agree with that statement.

21 The OTP brief goes on in the next paragraph, 2378, with apparent

22 approval, that:

23 "Momir Nikolic testified that he thus oversaw the engagement of

24 the military police and the 2nd Battalion of the Bratunac Brigade who

25 were directly involved in these activities, and advised Dusko Jevic of

Page 34586

1 the MUP Special Brigade, which was similarly involved."

2 Well, two observations here, Your Honours. First, how is it

3 possible that Nikolic is overseeing two units engaged in this task, but

4 only offering advice to the third? There's no explanation given for this

5 distinction. Nikolic was overseeing all units involved in the task, and

6 it wasn't merely based on his position as the security officer of the

7 Bratunac Brigade, but because he was told to do so and invested with the

8 authority to do so by Mladic and Radoslav Jankovic, both of whom were

9 right there on the scene at the time. It's just that simple, and that is

10 what is recognised at 2378. And we submit that there's no foundation for

11 saying that he was, on the one hand, overseeing these two units, but

12 merely giving advice to Dusko Jevic, on the other hand.

13 I think the words of Lord Justice Ward of the English Court of

14 Appeal are apposite here:

15 "Riding two horses at the same time is always difficult enough.

16 Riding them when they are charging in opposite directions is an

17 altogether remarkable feat."

18 The Prosecution makes a previously unstated perfidy allegation

19 against Borovcanin and asserts at paragraph 1973 that:

20 "Momir Nikolic would only have undertaken to drive along the road

21 in an UNPROFOR vehicle and call prisoners down if Borovcanin had ordered

22 or agreed to this tactic."

23 Now, first of all, Borovcanin said in his interview that he was

24 only present along the road first early in the morning on the 13th and

25 then again at around 4.00 p.m. The Prosecution never suggested

Page 34587

1 otherwise, they called no evidence suggesting otherwise, and Nikolic, on

2 the other hand, starts driving up and down the road in his APC in the

3 early afternoon. And we discussed the references to this testimony in

4 our brief at paragraphs 173 to 174. So how could Borovcanin have ordered

5 and agreed to a tactic if he wasn't even there?

6 And second, perhaps more importantly, the claim that Borovcanin

7 would have had the authority to issue orders to Momir Nikolic is another

8 completely unprecedented allegation, and in fact it's contradicted by

9 their own expert's testimony at 20458 of the transcript of this case.

10 And, third, the perfidy claim is flatly contradicted by the trial

11 video at two hours and thirty-eight minutes, where you can see one of

12 Borovcanin's men telling a Muslim prisoner to shout to his colleagues in

13 the forest and say that he is with the Serbs. That's not perfidy.

14 Your Honours, these are just five examples of erroneous

15 statements of evidence or case expansions. There are more, many more,

16 but I leave it to Your Honours to be alert to these misstatements. I

17 suggest to you that, unfortunately, this is a brief which requires you to

18 be alert to these misstatements.

19 And three brief remarks about the credibility of Borovcanin's

20 interview.

21 First, the Prosecution claims that Borovcanin lied in his

22 interview because he said he was ordered to go to Zvornik instead of

23 having said, as he should have apparently said, that he was told to go

24 towards Zvornik. This argument might have had some validity if

25 Borovcanin had then gone on in his interview to deny where his men were;

Page 34588

1 namely, along the critical piece of road on 12 and 13 July. But that's

2 not what he did. He honestly and accurately described exactly where his

3 units were deployed, as the evidence in this case has confirmed. So I

4 suggest to you that this, essentially, is just unreasonable nitpicking.

5 And, in fact, we went back and checked the B/C/S transcript and found out

6 that on at least two occasions during this exchange, the words used, as

7 translated, were "towards," not "to."

8 Second, Milan Lukic.

9 JUDGE AGIUS: One moment. Sorry to interrupt you, but I think on

10 this particular point that you raise now, that you mention now, if you

11 are specific as to the exact page and line, et cetera, because having

12 heard you, I think we will need to have the official translators look

13 into it, the original interview in the original language, and find out

14 exactly what he said.

15 MR. GOSNELL: I believe I do have the correct reference.

16 JUDGE AGIUS: Can you pass it on, later on, to your colleague --

17 other colleagues, and to the Registrar, I will look after that.

18 MR. GOSNELL: I certainly will. Thank you, Your Honour.

19 Second, Milan Lukic. The Prosecution uses an intercept, and

20 that's the only evidence in the case on this issue showing that a bus,

21 containing some of Lukic's men, had broken down on the way to Srebrenica.

22 But that doesn't show, Your Honours, that Lukic, himself, wasn't there or

23 that at least some of his men showed up with him. And, indeed,

24 Your Honours, I suggest to you that evidence that there was at least one

25 bus heading to Srebrenica actually suggests to you that Lukic was there

Page 34589

1 and that he may have had other men with him. So this great example of

2 Borovcanin's untruthfulness is baseless.

3 Third, the Prosecution argues that Borovcanin was inconsistent

4 about his re-subordination to the VRS. Borovcanin did re-affirm

5 repeatedly that the consequence of Order 6495 was that he was

6 re-subordinated to the VRS. Now, it is true, Your Honours, that there is

7 one passage where he denies that, in the context of some questions

8 relating to General Krstic. Now, there are two responses to this.

9 First, it's not unreasonable to believe that an interviewee could make a

10 mistake at the end of three days of fairly hostile questioning. You

11 don't reasonably have to conclude that he's got -- that he is intending

12 to mislead, and you certainly -- that certainly doesn't lead to the

13 inference that he's trying to cover up some kind of criminal motive.

14 And, second, and related to this possibility of a mistake, and as you

15 know from having read section 2 of our brief and having heard our expert,

16 Professor Ristivojevic, the precise modalities of re-subordination are

17 not necessarily without subtlety. And I suggest simply to you that based

18 on that complexity, the complexity of the legislation, and the complexity

19 of the situation on the ground at that time, that what he was saying is

20 what he might well have actually believed when he was answering those

21 questions.

22 Now, one point on the forcible transfer allegation against

23 Mr. Borovcanin, which is otherwise discussed at great length in our

24 brief, and I would say only this: Military men do need bright-line rules

25 when they go into combat in order for IHL to have any real applicability

Page 34590

1 in those circumstances. The Srebrenica enclave had been a notorious

2 source of attacks on Serb forces for years. Those attacks were

3 specifically designed, as the Prosecution has admitted, to pull Serb

4 forces away from other fronts. So when a commander, who is 150, 200

5 kilometres away, receives an order to come to that front and engage in

6 combat with Muslim forces, he has to be able to rely on the good-faith

7 belief that the operation -- that the intention -- that the purpose of

8 the operation is actually to combat those military forces, and that's why

9 Article 32 of the ICC Statute says that orders need only be disobeyed --

10 that you only need to stand down, in the words of the Prosecution, if

11 those orders are manifestly unlawful. And the bottom line is that in

12 those circumstances, engaging in the military campaign against the

13 Srebrenica enclave was not manifestly unlawful.

14 Her Honour Judge Prost asked my colleague yesterday whether

15 wholesale detentions, such as those occurred in Srebrenica, were lawful

16 under IHL. Now, Your Honours, I would direct you first and foremost to

17 section 7(3) of our brief, where we discuss in detail the applicable

18 provisions and the state practice, more importantly, that supports this

19 claim, and I suggest to you you can be reassured about the correctness of

20 what's stated in that section because the Prosecution, if you look

21 carefully at their pleadings, have never suggested that the detentions,

22 per se, were unlawful. The claim is either that the manner of detentions

23 were abusive and improper or, B, that there was a hidden agenda which was

24 criminal. That's the way they've pleaded their case, and I suggest to

25 you that that's why there is no claim, no allegation, no count in the

Page 34591

1 indictment of unlawful confinement, which they could have charged under

2 IHL if that is what had happened.

3 Now, having said what I just said, this is a fact-dependent

4 inquiry, no doubt about it, but the critical factor here is not only the

5 circumstances about conscription, combatants wearing civilian clothing,

6 the presence of an armed column nearby, testimony that there were armed

7 Muslim forces in and around Potocari on the 11th and even, according to

8 one UNPROFOR witness, on the 13th. Those are all circumstances that go

9 into this analysis, but perhaps the most important aspect of the analysis

10 is the duration of the detention. No doubt, it would be improper to

11 detain a huge number of people like this over a long period of time

12 without any scrutiny or status determination. That would be improper, no

13 doubt. But over a period of 24 hours, 48 hours, 72 hours, in the context

14 that I've just described to you, yes, that is lawful, that is allowed,

15 that is appropriate, and it's what other Western militaries have done in

16 the past.

17 Your Honours, I come back, in conclusion, to the standard that

18 applies in a circumstantial case. The Prosecution must establish that

19 their scenario is the only reasonable interpretation based on the

20 fragments of evidence that they've presented to you. We have only to

21 show you or even suggest to you that any one of a number of other

22 possible scenarios is not unreasonable. The Prosecution case does not

23 come close. That's not because of any negligence on their part. This is

24 a brilliant and tough Prosecution team, but their circumstantial case

25 against Mr. Borovcanin is incoherent, inconsistent, and fundamentally

Page 34592

1 untrustworthy.

2 Your Honours, the burden falls now to you to assess the evidence,

3 to consider the law. I humbly invite you to read our brief with a

4 fine-toothed comb. I suggest that when you evaluate the big picture and

5 the smaller pictures, and all the pictures in between, you'll see at the

6 end of the day that the Prosecution case is little more than speculation,

7 speculation that isn't even very plausible. They've not proven their

8 case beyond a reasonable doubt. They've not proven that Borovcanin was

9 involved in a mass murder plot, and they've not proven that he was

10 involved in a forcible transfer operation.

11 I thank you for your patience, Your Honours. And if you have any

12 questions, I'll do my best to answer them.

13 JUDGE AGIUS: Thank you, Mr. Gosnell.

14 [Trial Chamber confers]

15 JUDGE AGIUS: Judge Stole.

16 JUDGE STOLE: Yes, thank you.

17 Clearly, what law is relevant and applicable depends on the

18 facts, such as the Trial Chamber, at the end of the day, will establish

19 this to be beyond reasonable doubt, and clearly the Defence has to state

20 its position on the facts and the law under various alternatives, as

21 indeed you have done, Mr. Gosnell, and perhaps even more so in cases

22 where there may be a development as to which possible relevant facts

23 alleged by the Prosecution. And I think I've been able to follow and

24 understand your submissions.

25 On one point, though, I would like to make sure that I have

Page 34593

1 understood you well, and that is with reference to the final brief. On

2 page 190, you discuss forms of criminal responsibility alleged, and the

3 first there is superior responsibility under Article 7(3). So that is

4 the context of the paragraph I'm taking you to.

5 On page 195, on top of that page, you have this -- immediately

6 preceding this, you have developed the scenario of two clearly identified

7 and separate shooting incidents, and then you go on, in para 330, to

8 state:

9 "The situation does not change, even accepting the hypothesis

10 that the killings are ongoing when Borovcanin passes along the road, no

11 evidence shows that any of Borovcanin's subordinates were inside the

12 warehouse compound at that moment or has been previously discussed in

13 detail -- as has been previously discussed in detail. Borovcanin has no

14 duty, as a superior, to make any inquiries into what was going on in the

15 warehouse unless his men were present there."

16 Now, as I understand it, the situation is that at this time, at

17 least two of the uncontested subordinates of Borovcanin were within --

18 inside the compound and had been injured or killed, obviously then had

19 been involved in the shootings. Now, if the evidence would be deemed to

20 be that the killings were ongoing when Borovcanin was on the scene, can

21 he then, in a situation like that, walk away without further inquiries

22 into what was going on, not only outside the warehouse, but inside the

23 warehouse?

24 Further, on page 208, you discuss liability under Article 7(1),

25 the commission by omission, or the Blaskic Commission omission liability.

Page 34594

1 And on top of page 215, you first comment on superior responsibility

2 under Article 7(3), and if I understand you well, that is a reference

3 back to the situation we've already mentioned. One exception to this

4 rule, with reference to the Blaskic Appeals Chamber decision, one

5 exception is superior responsibility under Article 7(3). That, I

6 understand, is a reference to the other situation. And then you go on to

7 a second exception and with a quote from also the Blaskic Appeal Chamber

8 decision. And then we're into responsibility or possible responsibility

9 under Article 7(1). And you have there, on page 218, in paras 379 and

10 380, you mention, among other things, the factual basis for this alleged

11 form of responsibility is lacking, and then you go on to say:

12 "The first factual deficiency is that Borovcanin was not

13 necessarily witnessing a crime as he passed by along the road."

14 And then at para 382:

15 "A very real and reasonable possibility exists that the killings

16 had ceased by the time Borovcanin passes the compound."

17 Now, it is possible that here you again premise your discussion

18 on the separate and two clearly-identified separate shootings, but I

19 would also like you, if possible, that you could elaborate what you have

20 said here a little bit more.

21 Thank you.

22 JUDGE AGIUS: Yes, Mr. Gosnell.

23 MR. GOSNELL: Thank you, Your Honour.

24 In respect of the first question, it's important to remember the

25 factual circumstances and the competing factual theories about what

Page 34595

1 happened.

2 Now, it is admitted and conceded that those two individuals were

3 there. But it's also been conceded by the Prosecution, at least, that

4 they were certainly injured and then taken back to the Bratunac Health

5 Clinic. Now, if you accept our sequence of events, and if the first

6 shooting incident was triggered by a break-out attempt, then that means

7 that the first shootings were committed by this prisoner who grabbed the

8 gun, and following that shooting, one of the two MUP soldiers was dead

9 and then the other one was sent back to the clinic. Now, I suggest to

10 you that under those circumstances, you cannot reasonably infer that

11 either of those two individuals committed any crime. And Djukanovic

12 testifies that with the exception of those two specials, he didn't see

13 any other specials inside the warehouse compound.

14 Now, if you accept --

15 JUDGE AGIUS: One moment, Mr. Gosnell.

16 Perhaps in explaining this, you could also explain one thing.

17 Why would there be those two specials and no one else from the specials?

18 MR. GOSNELL: A fair question, Your Honour, and a question that

19 we have actually answered in our brief. We do describe that it wasn't

20 unheard of for soldiers to essentially go and wish to speak to prisoners

21 on the basis that they wanted to find out about the fate of relatives,

22 and there was one piece of testimony that said that that's why they went

23 there. Now, I suspect that you're probably skeptical about that

24 explanation, but you also have Djukanovic's direct testimony saying that

25 there weren't any others there. And I suggest that ultimately the burden

Page 34596

1 does fall to the Prosecution to establish that there were other members

2 of the unit there. And when you're considering the evidence about who

3 actually was there, you know that there was a large number of Bratunac

4 Brigade soldiers. So I would simply suggest to you that it's not

5 established beyond a reasonable doubt that anyone more than those two

6 individuals was there.

7 Now, coming back to the question, if you do accept that factual

8 premise as unproven, not our factual premise having been proven, but

9 their factual premise not having been proven that there were others

10 there, and there are no other subordinates in the compound, then that

11 means that there is no 7(3) responsibility at all, and it doesn't matter

12 whether Borovcanin goes back to Bratunac and is told there was a shooting

13 event and other -- and there were non-subordinates participating in that

14 shooting event. He doesn't have a duty, under 7(3). There has to be --

15 there have to be subordinates to nourish the 7(3) responsibility, and in

16 the absence of that 7(3) foundation, there simply is no obligation, under

17 7(3), to investigate. So that is -- that is the foundation for our --

18 for our argument on that issue.

19 Now, as to the second issue, and I believe I have your point, but

20 if I don't, then I hope you'll just interrupt and tell me that I'm wrong

21 and to refocus. The point that I'm trying to make here is that if, in

22 fact, this first shooting incident was a break-out attempt, and we don't

23 know the precise contours of how far it went, in other words, is

24 everybody who -- are all the people who were killed, were they killed

25 lawfully, or did it go a little bit further? Did it go beyond the line

Page 34597

1 of legal suppression of a break-out attempt? I think the point that I'm

2 attempting to make here is that there is a reasonable possibility that

3 all of the killings at that moment that he witnessed were lawful. Or I

4 should again put it more properly: Were not unlawful. Your Honours must

5 make the determination that the Prosecution has proven beyond a

6 reasonable doubt that the killings were criminal, and the point that's

7 being made here is that that's not necessarily a safe inference to draw,

8 given what you know about all the facts and the alternative explanation

9 for what might have happened.

10 Does that answer your question?

11 JUDGE STOLE: Yes, thanks.

12 JUDGE AGIUS: Judge Prost.

13 JUDGE PROST: Mr. Gosnell, I have a question that follows

14 directly upon what the -- the questions posed by Judge Stole. In

15 particular, looking at your brief at page 210, it's paragraph 363 and

16 it's at the very top of the page, and this relates to the Mrksic standard

17 and the Mrksic prerequisites. You make the statement that neither

18 Borovcanin nor any of his men had custody and/or control over all -- I

19 assume you mean over all the 1.000 prisoners held at the Kravica

20 warehouse on the afternoon/evening of the 13th of July, and I'm not clear

21 on this.

22 You've acknowledged it's uncontested that at least two of members

23 of the units under the command of Mr. Borovcanin did have custody of the

24 prisoners not only earlier in the day, but at the Kravica warehouse at

25 one point in time when the shooting incident occurs. I take it you don't

Page 34598

1 dispute that they had custody.

2 MR. GOSNELL: I would dispute that, Your Honour.

3 JUDGE PROST: You're saying that the two men at the compound,

4 involved in guarding the prisoners who were one injured, one killed, did

5 not have custody of those prisoners at any point in time? I'm not

6 talking about later on. I'm talking at any point in time while they're

7 at the warehouse.

8 MR. GOSNELL: Yes, I would, respectfully, contest that. And the

9 basis for contesting that is twofold. One, mere premise of these two

10 individuals does not mean that they were performing the act of guarding.

11 JUDGE PROST: They were shot -- one of them was shot.

12 MR. GOSNELL: That's true, Your Honour, but they -- if you accept

13 the possibility that, essentially, they're off on their own, that these

14 two individuals have gone there to inquire after relatives, and the

15 younger soldier says to the senior one, I want to go there in order to

16 ask these questions. And one of them has a car and drives to that

17 location, of course, they know the location because they were marched

18 from Sandici Meadow to the warehouse. So I suggest that it is a

19 reasonable -- it's a possibility that cannot be excluded as unreasonable

20 that they simply did go there on their own. And I say that not simply in

21 a vacuum of these two gentlemen and suggesting, well, there's evidence in

22 the case that people do this from time to time. I do -- I make that

23 suggestion to you in the broader context of the evidence; namely, that

24 you have two commanders -- at least two people who are commanders of

25 significant-sized units in the Bratunac Brigade, and they're there at the

Page 34599

1 warehouse, and we know that they have at least eight men there at the

2 warehouse. And, further, there's no strong evidence -- there's no

3 reliable evidence at all, virtually no evidence at all, suggesting that

4 the escorting was done by MUP forces.

5 So these are pieces of the puzzle which I respectfully suggest

6 are missing, which might suggest to you that this is not a reliable

7 inference, A, that these two people are there for the purpose of

8 guarding, and, B, that they're part of a larger unit who are present.

9 I think -- so that would be my position on that question.

10 JUDGE PROST: All right. Let's presume that there is a

11 conclusion reached that at least two members of Mr. Borovcanin's unit had

12 custody, just for the sake of argument. What is your comment, then, on

13 the Mrksic Appeal Chamber's triggering of a legal duty as a result of

14 that custody, and do you draw any distinction between a commander who may

15 have shared custody of prisoners and then transfers that shared

16 responsibility to another commander, from a commander who has full

17 custody and transfers to another commander?

18 MR. GOSNELL: I would suggest to you that if the -- and of course

19 we're well aware of the facts in Mrksic, and I can -- I know where you're

20 coming from, based upon the facts in Mrksic, but let me just preface my

21 answer to that with this: If the two individuals -- one is dead and one

22 is gone by the time Borovcanin arrives, then I suggest to you -- well,

23 let me back up.

24 The issue of liability for the subordinates is not a matter of

25 omission liability under Mrksic. It is a matter of 7(3) liability. So I

Page 34600

1 would say that when you're arguing in that frame, that's 7(3), and under

2 7(3), one of them is dead, one of them is gone, I suggest to you that

3 that's the end of the 7(3) responsibility.

4 Now, Mrksic, and I do know the facts of Mrksic, and I understand

5 where you're coming from. First of all, we do have serious legal

6 problems with Mrksic, respectfully submitted. And the second point is

7 that the situation in Mrksic is actually inverted.

8 Remember that in Mrksic, the person who was on trial there and on

9 the basis of those findings, he was the security officer. He had, as I

10 understand it, he had the statutory responsibility which was supposed to

11 be continuous. That was the baseline, that was the default position for

12 custody. So he can't just say, Well, I'm washing my hands of that

13 custody, because it's fixed upon him. And in contrast, and I've quoted

14 from Butler at least five times in our brief, and I apologise if it was

15 repetitive, but that quotation from Butler is so critical to understand

16 what happened here. Borovcanin is not the default position for custody.

17 He is the provisional custodian at the line of combat. That doesn't mean

18 that something couldn't -- that it could have been otherwise. I'm

19 suggesting to you that it's probative of what did happen, especially when

20 you consider that the security organ -- that the chief of the military

21 police and his second in command were all present there, and you have

22 evidence suggesting that Momir Nikolic was actually present at the

23 warehouse at 5.00, not to mention later.

24 So just looking at Mrksic and considering how Mrksic applies to

25 our case, I would suggest that the situation is reversed, and the notion

Page 34601

1 of having to ensure that -- having to ensure that who you're passing

2 prisoners off to is a good custodian, that should be presumed when you're

3 handing off the prisoners to the security organ.

4 JUDGE PROST: And I take it -- I understand your response, and I

5 have your point. I take it, though, that there's no suggestion -- by

6 your quote, you're not suggesting that custody necessitates total custody

7 over all of the prisoners, because the way you framed it here, there seem

8 to be some suggestion that it must be over all of the prisoners, and I

9 take it that's not your point. I've understood your point differently.

10 In other words, there can be shared custody between different commanders

11 in different units?

12 MR. GOSNELL: Well, as a matter of principle, absolutely, and in

13 fact were concede that in respect of Sandici.

14 JUDGE PROST: Thank you. I just have a couple of other points I

15 wanted to raise with you.

16 With respect to the Deserters Unit, which is left at Potocari, I

17 take it, it's not your position, and you can correct me if I'm wrong,

18 that Mr. Borovcanin, in leaving the unit in Potocari, was in any way

19 relieved of his responsibility as a commander of that unit. You don't

20 suggest he was no longer a commander over that unit?

21 MR. GOSNELL: Not as a formal matter, no.

22 JUDGE PROST: Not as a formal matter or a legal matter; he was a

23 commander still of that unit?

24 MR. GOSNELL: As long as we understand that term not to imply

25 de facto --

Page 34602

1 JUDGE PROST: And I'm moving to the next question.

2 It is your position, however, that he no longer had effective

3 command and control, as I read your brief, over that unit. Is it -- is

4 the basis for that -- is it your position that by virtue of leaving the

5 geographic area and leaving his unit in a different geographic area, that

6 that alone results in a loss on the part of the commander of effective

7 command and control of a unit, even for a limited period of time?

8 MR. GOSNELL: No, Your Honour. It's a functional argument.

9 JUDGE PROST: Okay. Perhaps you could just expand a bit on that

10 for me, please.

11 MR. GOSNELL: It's a functional argument, and the claim we make

12 in the brief is that he does not have effective control in respect of the

13 manner in which they are acting and the manner in which they are

14 performing their tasks associated with the evacuation. I think that's an

15 important distinction.

16 Now, I say it's a functional definition, because in militaries --

17 you've heard many instances during this trial where there's a functional

18 task that a commander is given, and certain units are -- or people,

19 resources, are provided to that person to perform that task. And I

20 suggest to you that when that suggestion arises, whoever has the actual

21 capacity to issue orders in relation of that function, that's the person

22 who has effective control. There is a principle of unity of command, and

23 I suggest that when you have that functional designation which comes from

24 Mladic, it comes from Jankovic, it flows to Momir Nikolic, and then you

25 have all kinds of evidence of him, on the ground, issuing orders, then

Page 34603

1 that is a functionally-defined assumption of command and control over

2 those individuals. So I wouldn't say it was a geographical issue.

3 JUDGE PROST: And you're not suggesting he, at any point in time,

4 had relinquished his command responsibility, distinct from control?

5 MR. GOSNELL: As a formal matter, he did remain the commander --

6 JUDGE PROST: Throughout?

7 MR. GOSNELL: Yes, throughout that day. I do believe at some

8 point I would say that it ceases, but that's outside of the time.

9 JUDGE PROST: Thank you.

10 And just one final point on the issue that you raised regarding

11 my questions yesterday to Mr. Bourgon on the question of the detention of

12 the population, and I've read your brief on the point. I am fairly

13 certain I know your answer to this question, but the additional element

14 in the question yesterday is movement of those individuals who are

15 detained, and I take it from your comments that you would say detention,

16 including movement, is permissible; what's significant is the period of

17 time. Is that your position? So that it is lawful to both detain and

18 move the individuals?

19 MR. GOSNELL: Your Honour, I wouldn't wish to take a position on

20 the movement between Bratunac and Zvornik. That issue -- I'm only

21 making -- because the movement that occurred on the 12th and 13th was

22 between Potocari and Bratunac, and I would suggest that there's

23 absolutely nothing [Realtime transcript read in error "absolutely

24 improper"] improper in that.

25 JUDGE PROST: Okay. So confining it to that particular movement,

Page 34604

1 you'd say that that is part of the detention that is perfectly lawful?

2 MR. GOSNELL: I would say so, Your Honour.

3 JUDGE PROST: Thank you. Those are my questions.

4 JUDGE AGIUS: Mr. Gosnell, I haven't really heard you give a

5 clear explanation or response to the comment or remark made by

6 Mr. McCloskey; namely, that had the alleged attempted escape really

7 occurred, then that would have been one of the first things that your

8 client would have mentioned when he was interviewed by the Prosecution,

9 but he never did.

10 MR. GOSNELL: Well, two points on this.

11 I would actually refer you back to the interview, itself, and see

12 how my client responds, and see the skepticism that you see in response

13 from the questioner, see whether there were any additional questions,

14 whether there was any opening for him to give an answer about that

15 particular potential scenario. You'll see that there's very little -- he

16 has very little opening to discuss that, given the nature of the

17 interview, given the nature of the questions, given the presumptions of

18 the interviewer that were being telegraphed very strongly during the

19 interview. And there's absolutely nothing wrong with that, Your Honour,

20 but that was the atmosphere of the interview.

21 And the second point is it presumes that my client, in 2002, had

22 full knowledge of exactly what happened, and I suggest to you that that's

23 simply not a safe assumption.

24 JUDGE AGIUS: All right. That concludes the -- yes.

25 MR. GOSNELL: Mr. President, may I just say -- I didn't say this

Page 34605

1 at the end of my closing remarks, but I wish to tell you that it has been

2 a privilege to appear before you and among such distinguished and

3 excellent colleagues, and the professionalism also around the courtroom

4 of everybody who is involved in the process has been tremendous, and

5 including stenographers, interpreters, legal officers, Registry. It has

6 been a pleasure.

7 And I wish to adjust one note on behalf of my client, who

8 particularly wishes to thank the courtesy and professionalism of the

9 security staff who have been accompanying him for the duration of this

10 trial.

11 JUDGE AGIUS: Thank you. I'm sure these words are appreciated.

12 Ms. Fauveau, I suppose you start after the break.

13 We'll have the break straight now, so it's 25 minutes from now.

14 Thank you.

15 --- Recess taken at 10.27 a.m.

16 --- On resuming at 10.59 a.m.

17 JUDGE AGIUS: Yes, Mr. Gosnell.

18 MR. GOSNELL: Sorry to detain you with this, Mr. President, but

19 three transcript corrections.

20 JUDGE AGIUS: Yes.

21 MR. GOSNELL: Yesterday, 34570, line 8, it should read "from

22 page 34325." Today, page 7, line 3, the footnote referred to is "4408."

23 At page 28 of today's transcript, line 20, the phrase should be

24 "absolutely nothing improper."

25 Thank you, Mr. President.

Page 34606

1 JUDGE AGIUS: Thank you, Mr. Gosnell.

2 One moment, Ms. Fauveau. Okay.

3 Yes, Madame Fauveau.

4 MS. FAUVEAU: [Interpretation] Mr. President, Your Honours, at the

5 close of this trial the Prosecution's final brief and their oral

6 arguments are the best evidence of the Prosecution's inability to

7 establish the responsibility of General Miletic. Both their final brief

8 and the oral arguments are based on mis-characterisation and an

9 artificial interpretation of evidence, as well as on blatantly incorrect

10 solutions.

11 To start with, let me say a few words about the plan that was

12 allegedly envisaged by the military and political Serb leadership in

13 1992, and that allegedly was applied throughout the war. I do not intend

14 to dwell on this period, which is outside the indictment, but the

15 Prosecution's conclusions referring thereto, which somehow incriminate

16 the entire VRS and even the entire Serb people, cannot be left

17 unanswered.

18 At paragraph 68 of their closing brief, the Prosecution quotes

19 Colonel Lasic as saying that the main objective of the VRS was to defend

20 the Serb population, and if there was no other solution available, then

21 to separate peoples on ethnic principles. The conclusion

22 drawn by the Prosecution is that the objective of the VRS was the

23 forcible transfer of Muslims or ethnic cleansing. This is a

24 misstatement. This conclusion is incorrect because Colonel Lasic was not

25 speaking about forcibly transferring Muslims.

Page 34607

1 The allegation that the very objective of the VRS was to transfer

2 population or ethnically cleanse the population would mean that the VRS

3 was, in and of itself, a criminal organisation and that, therefore, each

4 and every VRS member, by the mere fact that they belonged to the VRS, was

5 a member of a criminal enterprise. This is obviously not the case.

6 The war in Bosnia and Herzegovina was ethnic by nature, which has

7 been acknowledged by the Prosecutor, himself, in paragraph 165 of their

8 final brief. Those who were unlucky enough to experience a war know that

9 contrary to what General Smith would like us to believe, war is nothing

10 but immense suffering. What brings nothing but fear, pain, and tragedy.

11 It is common knowledge that forcible transfer is banned in law,

12 but Colonel Lasic was not speaking about forcible transfer. He was

13 speaking about separating peoples at war, a separation which should have

14 limited suffering when there was no other alternative possible any

15 longer.

16 I would like to recall that in an advisory opinion, the permanent

17 Court of International Justice wrote in 1930, in the case of the

18 Greco-Bulgarian Communities that, I quote:

19 "The general purpose of this instrument is thus: By as wide a

20 measure of reciprocal emigration as possible, to eliminate or reduce in

21 the Balkans the centres of irredentist agitation, which was shown by the

22 history of the preceding periods to have been so often the cause of

23 lamentable incidents or serious conflicts, and to render more effective

24 than in the past the process of pacification in the countries of

25 Eastern Europe."

Page 34608

1 This opinion was about the Balkans and the tragic events

2 experienced by the peoples in the Balkans throughout the 20th century,

3 and in the war that broke out in 1990 in the former Yugoslavia shows,

4 even 80 years later, how wise the opinion was. The policy of a people

5 and of its army cannot be assessed broadly, generally, in a vacuum. It

6 must be placed in its own historical and social context.

7 In this context, the separation Colonel Lasic was speaking about

8 did not mean moving population. It meant the creation of distinct

9 entities, the Serb entity and the Muslim entity, which was eventually

10 achieved with the signing of the Dayton Accords.

11 At the end of the 20th century, Yugoslavia broke up into several

12 states. The foundation of this break-up was ethnicity. The Soviet Union

13 broke up on the same ethnic lines, and so was the case with

14 Czechoslovakia. Like anywhere else, the peoples of Bosnia and

15 Herzegovina no longer wanted to live in one-and-the-same state. The war

16 did not break out because the Serbs and the Muslims did not want to live

17 in a common state, but because they were not able to reach an agreement

18 and to part in peace.

19 Forcible transfer is a crime. Separating peoples is a way of

20 avoiding war, suffering, and tragedy. Colonel Lasic had this type of

21 separation in mind when he spoke.

22 War cannot be and is not an excuse for crimes, and those who

23 commit crimes have to answer for them. However, the Army of Republika

24 Srpska, the VRS, was not a criminal organisation. It was an army of the

25 Serbian people in Bosnia.

Page 34609

1 The fact that General Miletic was part of the VRS is, in itself,

2 of no importance, of no significance. General Miletic, just as many

3 members of the VRS, had no criminal intent. He did not intend to

4 forcibly transfer the Muslim population, and he did not at all want to

5 take part in any such enterprise.

6 Let me now address some of the Prosecutor's allegations that not

7 only fail to be supported by any evidence whatsoever, but also squarely

8 fall outside the scope of the indictment with regard to General Miletic,

9 and this calls for a few preliminary remarks.

10 When the Prosecutor sought to join cases, the Miletic Defence

11 opposed the motion, as it found the indictment, if it were to be joined,

12 was confused and, as such, was prejudicial to the accused, because faced

13 with a confused indictment, an accused is not in a position to understand

14 the nature and the cause of the charges against him. The Miletic Defence

15 also filed a preliminary motion in which it underscored that the

16 indictment was not clear enough as to whether General Miletic was charged

17 with taking part in a single criminal enterprise or in the two criminal

18 enterprises alleged in the indictment.

19 After the Miletic Defence filed their motion, the Trial Chamber

20 issued a decision on the 31st of May, 2006, in which it held that

21 paragraph 47 -- at paragraph 47 that General Miletic was accused as a

22 member of the JCE aiming at the forcible transfer of the Muslim

23 population, and that he was accused solely as a member of that criminal

24 enterprise. The Prosecutor did not appeal the decision.

25 Paragraph 97 of the indictment was mentioned by the Prosecutor in

Page 34610

1 support of their case that General Miletic was allegedly a member of the

2 JCE aiming at committing murders, and that it was identical to Annex A in

3 the indictment. That was the object of our preliminary motion and of

4 your decision of 31st of May, 2006.

5 An accused is not a member of a JCE because it is so alleged in

6 an indictment. It must be proven that an accused was a member of a joint

7 criminal enterprise. The presumption of innocence is the very foundation

8 of any criminal proceeding. It is enshrined in Article 21.3 of the

9 Statute of our Tribunal.

10 The Prosecution case that General Miletic was allegedly a member

11 of a criminal -- a joint criminal enterprise that aimed at committing

12 murders, although he was not charged with participating in such a

13 criminal enterprise, disregards every single principle of criminal law,

14 flies in the face of any legal reasoning, and is not permissible.

15 The established case law requires that an indictment contain

16 specific charges, and taking into account the 31st of May, 2006 decision,

17 the paragraphs of the Prosecution's final brief referring to the alleged

18 participation of General Miletic in the JCE aiming at murders must

19 squarely be disregarded.

20 Neither the murders in Nezuk, neither the murders of Muslims

21 taken to the Milici hospital, or the transfer of bodies to secondary

22 graves are part of the charges against General Miletic. The allegations

23 regarding the above acts may not be taken into account to establish the

24 criminal intent of General Miletic, because as was held by the

25 Trial Chamber in the Djordjevic case, intent can be inferred only from

Page 34611

1 facts that are clearly alleged in the indictment.

2 Equally, the Prosecutor may not now infer General Miletic intent

3 from the knowledge he allegedly had of acts and conducts prior to

4 March 1995. If the Prosecutor sought to prove his intention through

5 events that were prior to the 8th of March, 1995, the Prosecutor had to

6 say so in the indictment, which he did not do. It was not done either in

7 the pre-trial brief or in the opening statement.

8 Further to the Appeals Chamber established case law, the

9 Prosecutor is not allowed to change his case without formally seeking

10 leave to amend the indictment if the trial proceedings, as they progress,

11 do not confirm the Prosecution's initial case. Equally, the

12 Trial Chamber is not allowed to base its findings on facts that have not

13 been properly alleged in the indictment.

14 Let me say a few words about the section of the Prosecution's

15 final brief about the Muslim column that left Srebrenica.

16 At paragraph 1700, the Prosecutor makes allegations on the part

17 played by General Miletic in the follow-up of the Muslim column. At the

18 hearing of the 3rd of September, 2009, the Prosecutor expressed their

19 novel, previously unheard of position that the column and the people in

20 the column were part of a forcible transfer. I shall not repeat the

21 arguments showing that this column was a legitimate military target,

22 which was confirmed, by the way, even by the Prosecutor's military

23 expert, Richard Butler, on the 23rd of January, 2008; transcript

24 pages 20244 and 20245. I wish to underscore the Prosecutor's statements,

25 who said, on two occasions, in no uncertain terms, that this column was,

Page 34612

1 indeed, a military column, that it attacked Serbian positions, and

2 especially that it was not part of the indictment. This was said on the

3 1st of November, 2006, page 3382, and on the 7th of February, 2007,

4 transcript page 7041.

5 The Prosecutor's interpretation of the facts at the hearing of

6 the 3rd of September, 2009, runs contrary to the testimony of

7 Richard Butler, who testified that in spite of the presence of civilians

8 in the column, the column was a legitimate military target. But even

9 more serious than that, this new interpretation by the Prosecutor stands

10 in contradiction to the Prosecutor's very statement regarding the column.

11 The Prosecution cannot change tacks as it suits them. If the

12 acts aimed at neutralising militarily the column are to be interpreted as

13 a contribution to JCE, the Prosecutor should not have said that the

14 column was not part of the indictment. The entire -- the accused is

15 entitled to know the charges against him, and when the Prosecutor said,

16 on the record, that the column was not part of the indictment, how could

17 the accused surmise that the Prosecutor would change their case in their

18 closing arguments?

19 But that's not all. The Prosecutor, lacking any evidence against

20 General Miletic, is now trying to incriminate him for other facts that

21 have never been alleged. The Prosecutor never alleged that

22 General Miletic played any part in requisitioning the buses that were to

23 transport the population. However, in their closing brief, the

24 Prosecution is seeking to accuse General Miletic of mobilising, of

25 requisitioning. Of course, there is no evidence to show any link between

Page 34613

1 General Miletic and the requisitioning operation. But if the allegation

2 was part of the alleged contribution of General Miletic to the JCE, it

3 should have been stated expressly in the indictment. The same applies to

4 the arms supplied to Drina Corps units during the Krivaja operation.

5 There is no evidence to support the Prosecution's case. But further than

6 that, the Prosecutor never alleged that General Miletic was in any way

7 involved in supplying weapons.

8 Also, the Prosecutor never alleged that General Miletic or the

9 officers of the operations organ were in any way involved in drafting the

10 orders of the 10th and the 13th of July, 1995. These are Exhibits P181

11 and P45.

12 Drafting orders is no evidence; it is a material fact, just as

13 requisitioning is, just as supplying arms is. A possible participation

14 by General Miletic in these acts could be found as the accused's

15 contribution to JCE. However, if such acts are to represent

16 General Miletic's alleged contribution to the JCE, they should have been

17 set out expressly in the indictment, and they were not. Neither were

18 they in the pre-trial brief or the opening statements. Even during

19 Rule 98 bis arguments at the end of the Prosecution case, the Prosecutor

20 never alleged that General Miletic did in any way take part in drafting

21 the orders, in requisitioning buses, and in supplying the Drina Corps

22 units with weapons.

23 Furthermore, on several occasions in their final brief, the

24 Prosecution alleged that the officers of operations -- for operations

25 subordinated to General Miletic committed certain acts. With regard to

Page 34614

1 General Miletic's responsibility, his alleged participation in JCE, the

2 Prosecutor must prove that he had a personal contribution to it through

3 his personal and individual acts. What other officers may have done,

4 even if they were General Miletic's subordinates, may not be held against

5 him for the sake of his participation to the joint criminal enterprise.

6 Lastly, allow me a few remarks on paragraph 75(B) and (C) of the

7 indictment. These paragraphs contain the English word "monitor." This

8 word has always been translated into B/C/S -- into the B/C/S version of

9 the indictment with the word "supervise." At the hearing of the 26th of

10 November, 2008, the Prosecutor explained that this was not about

11 supervision, but about follow-up. However, the Prosecutor never sought

12 to correct the B/C/S version of the indictment. He just said that B/C/S

13 is not an official language of the Tribunal.

14 JUDGE AGIUS: One moment.

15 For the record, I think, because it will be better, what's the

16 word in B/C/S that is used in the B/C/S version of the indictment,

17 please?

18 MS. FAUVEAU: "Nadzirati," n-a-d-z-i-r-a-t-i.

19 The rules governing official languages do not apply here. What

20 applies is Article 21.4.A of the Statute that guarantees that the accused

21 is entitled to know the nature and the cause of the charges in a language

22 that he understands.

23 To the extent that General Miletic could understand the

24 indictment, he was charged with supervising specific activities. A new

25 term was used in November 2008, over two years after the commencement of

Page 34615

1 the trial, and this is obviously prejudicial to the accused.

2 Furthermore, this change was made after the testimony of two Defence

3 witnesses, who confirmed that General Miletic was not in charge of

4 supervising the activities of VRS units or of supervising the activities

5 of enemy units. These were Ljubomir Obradovic, 17th of November, 2008,

6 transcript pages 28288 and 28295; and Novica Simic, 19th of November,

7 2008, transcript pages 28511.

8 The indictment is a Prosecution instrument. The Prosecutor

9 should have made sure that the B/C/S translation met their intentions.

10 The word "monitor" can be translated in two ways into B/C/S, by the word

11 "supervising" or the word "follow-up." So this is not a translation

12 error. This is about an ambiguous term used by the Prosecutor that

13 cannot be held or interpreted to the detriment of the accused.

14 Before analysing the case against General Miletic, I'd like to

15 say a few words about the evidence. First of all, I'd like to speak

16 about the testimony of General Milovanovic.

17 Basically, the entire Prosecution case against General Miletic,

18 and especially the section regarding the post and position of

19 General Miletic, as well as his role in drafting Directive number 7, rely

20 on the testimony of General Milovanovic. General Milovanovic is a

21 Prosecution witness. However, even the Prosecutor challenged his

22 credibility when it came to Directive number 4, in their brief, and

23 Directive number 7 at the hearing of 2nd of September, 2009. We agree

24 with the Prosecutor here, when he says that the testimony of

25 General Milovanovic lacks credibility with regard to the directives, but

Page 34616

1 we also believe that General Milovanovic is not credible when he speaks

2 about the duties and the position of General Miletic. The reason why he

3 testified is simply that he was seeking to elude or at least minimise his

4 own potential responsibility. Unfortunately, when General Milovanovic

5 testified, the Defence did not have in their possession documents showing

6 that he was present, he being General Milovanovic, he was present at the

7 Main Staff headquarters in the spring of 1995. The Defence did not have

8 documents showing that he was fully cognizance of Directive number 7 and

9 showing acts that he undertook in the Drina Corps area of responsibility

10 and until the 1st of June, 1995. All these documents were obtained much

11 later. The key document, which is the diary of President Karadzic's

12 secretary, was obtained only in September 2008.

13 Indeed, a large amount of documents, most of which were

14 favourable to the Defence, were obtained in this trial at a very late

15 stage of the proceedings. We do regret the situation, but I'd like to

16 underline that we do not mean to say that the Prosecutor behaved

17 improperly.

18 With regard to the other evidence, I'd like to dwell for a moment

19 on intercepts that are a considerable part of the case file. They must

20 be assessed with the utmost care, especially when the intercepts contain

21 remarks showing that there are disruptions or changes in voices. We also

22 must pay particular care to dates, names of participants, and the names

23 of people being mentioned. Errors cannot be ruled out.

24 The remarks on disruptions and changes in voices show that

25 audibility and, therefore, understanding conversations was a difficult

Page 34617

1 task, therefore, the margin or likelihood of errors in these

2 conversations is higher. The content of an intercept that was not

3 corroborated by other evidence should be disregarded.

4 Let me remind you the testimony of PW-147, an operator who

5 admitted that in specific situations the events that actually took place

6 were the opposite of what had been noted in the conversation. This was

7 said on the 24th of January, 2007, transcript pages 6329/6330. Even

8 though the case law does not require testimony to be corroborated, this

9 is necessary for testimony under 92 bis when the author of the statement

10 is not called to testify and when the witness could not be

11 cross-examined. Elements of such a statement cannot lead to a finding of

12 guilt if they are not corroborated.

13 I would like to deal with a point of law that we raised in

14 paragraph 610 and 611, which has to do with the -- with deporting the

15 Muslim men from Zepa. These arguments have been set out regarding Zepa.

16 They apply as well to the column that left from Srebrenica and to

17 forcible transfer that would - according to the new positions taken by

18 the Prosecutor - that would apply to the column. As said in our brief,

19 we took note of the case law for victims of crimes against humanity, but

20 I hail from civil law and I find it somewhat difficult to accept this

21 position. Criminal law calls for a restrictive and strict

22 interpretation. The Statute of this Tribunal has the force of law.

23 Article 5 of the Statute imposes general conditions that have to

24 be met for any crime against humanity. The Article provides that the

25 International Tribunal shall have the power to prosecute persons held

Page 34618

1 responsible for the following crimes, when committed in armed conflict,

2 whether international or internal in character, and directed against any

3 civilian population. Article 5 is different from the provisions that can

4 be found in other international texts regarding crimes against humanity,

5 including in the Statute for the ICTR and the Statute of the ICC, which

6 require that crimes must be committed as part of a general, wide-scale,

7 and systematic attack, that's for the ICTR, and large-scale and

8 systematic for the ICC. In this Tribunal, the requirement of a

9 systematic or wide-scale attack was added by jurisprudence as a necessary

10 requirement for the crime to be a crime against humanity. This is

11 understandable, but this does not prejudice the accused, and this is not

12 outside a restrictive interpretation of the law. However, this

13 generalised or systematic attack is a requirement established by case

14 law. It is not a statutory requirement.

15 Article 5 of the Statute makes no mention of a generalised or systematic

16 attack. The only mention is a mention of an armed conflict. Since there

17 is no mention of attack in the wording, the civilian population mentioned

18 in Article 5 cannot be the target of the attack, but only of crimes that

19 are mentioned in the wording. This Article, at least in its French

20 version, requires that crimes be directed against a civilian population.

21 This being said, let me specify that we are of the view that the

22 presence of a few military inside a civilian population is not going to

23 change anything to the civilian character of the population, but also

24 that a military unit or a group of combatants able to fight that would be

25 totally separated from the civilian population cannot be held as victims

Page 34619

1 of a crime against humanity, as set out in the ICTY Statute.

2 With regard to the column that left from Srebrenica, those who

3 joined the column did so in order to contribute to the military actions,

4 which was the break-out of the 28th Division from Srebrenica towards

5 Central Bosnia. As they had joined a military formation, they became

6 combatants. This applies to the members of the 285 Brigade of Zepa and

7 those who joined them. Both the 28th Division and the 285th Brigade left

8 Srebrenica and Zepa with the intent of joining or going to Muslim-held

9 territory and, if need be, to fight the Serb forces. Activities by Serb

10 forces directed against such groups were purely military activities.

11 Before I move to analyse the alleged participation of

12 General Miletic in the JCE, I want to stress that there is no evidence

13 showing that General Miletic ordered or planned the alleged crimes, which

14 has been alleged by the Prosecution in their brief. Although the

15 Prosecutor hinted that a host of documents transmitted by General Miletic

16 incurred his responsibility for ordering criminal acts, the Prosecution

17 failed to specify a single order or a crime that would have resulted from

18 carrying out such an order.

19 If, further to the Tribunal's case law, a person can be held responsible

20 for ordering, even if that said person did nothing but transmit the order,

21 and if the order was not issued in a particular form, the Prosecutor has to

22 specify the particular order giving rise to the accused's responsibility

23 for ordering a criminal offence that would constitute a crime under the

24 Tribunal's Statute. The Prosecution must also prove that the order was

25 unlawful and had been transmitted in the knowledge that a crime could

Page 34620

1 have been committed in carrying out the said order. Finally, the

2 Prosecutor must prove that the ordered crime was, indeed, committed. In

3 the present case, the Prosecutor has failed to adduce any evidence that

4 General Miletic ever ordered a crime.

5 At paragraphs 1741 and 1743 of their brief, the Prosecution

6 alleged that General Miletic planned the crimes. Paragraph 1743 is, in

7 and of itself, contradictory because the Prosecutor first alleged that

8 General Miletic assisted in planning the crimes, only to say later that

9 he had a central role in planning the strategy that was later implemented

10 by the RS and VRS leadership which eventually led to the enclaves being

11 taken and the population -- the Muslim population being moved.

12 First of all, planning a crime and planning a strategy that may

13 have led to a crime being committed are two very different things. The

14 first implies the direct planning of a criminal act; for instance, moving

15 the population. The second, in terms of planning an act that is

16 perfectly lawful, but then later led to a crime being committed, planning

17 a strategy that led to the commission of a crime is not planning as

18 understood in Article 7(1) of the Statute, but it can be tantamount to

19 contributing to a joint criminal enterprise.

20 There is no evidence in the case file to support the case that

21 General Miletic planned criminal acts. Later on, I shall return to the

22 role General Miletic played in drafting Directive number 7, but for the

23 time being let me just say that the case that General Miletic planned the

24 strategy that was later implemented by the RS leadership is totally

25 illogical. It is obvious that the strategy applied by the political and

Page 34621

1 military leaders could only be planned by the latter, and certainly not

2 by an officer who was not among the leaders.

3 The Prosecutor tells you that he does not seek the conviction of

4 General Miletic because he was the chief of the Administration for

5 Operational Affairs and Training in the VRS, but that's precisely what

6 the Prosecutor does. He accused precisely General Miletic and solely

7 because of the position he held. Look at the entire case against

8 General Miletic. The Prosecutor's brief, their closing arguments,

9 everything relies on the phrase that "he should have known." Only last

10 Friday, page 34279, the Prosecutor said the following sentence:

11 "It is inconceivable for the chiefs of operation not to know."

12 But that's not the question at issue, and it should not be the

13 question at issue for a criminal trial.

14 But let's start with the beginning, and it must be said that the

15 Prosecutor mis-characterised the position held by General Miletic

16 throughout the war. For instance, it emerges from paragraph 69 of the

17 Prosecutor's brief that Colonel Lasic was subordinate to General Miletic.

18 The Prosecutor refers to not a single shred of evidence confirming this,

19 and he could not have, because Colonel Lasic left the Department for

20 Operations of the Main Staff on the 21st of May, 1993, was never

21 subordinated to General Miletic. This is confirmed by Exhibit P3178.

22 Also, the Prosecutor claims at paragraph 1662 of their brief that

23 General Miletic was the assistant chief for operations before he became

24 the chief of operations in June 1993. First of all, the position of

25 chief of operations is not known within the VRS, and it is impossible to

Page 34622

1 understand whether the Prosecutor had in mind the chief of Administration

2 for Operations and Training or the chief of the Department for

3 Operations. It must be said, for the Prosecutor, that

4 General Milovanovic, whose testimony was mentioned by the Prosecutor, was

5 very vague on this point. However, concrete evidence of the position

6 held by General Miletic is given by Exhibit P3178. It shows clearly that

7 General Miletic was never the assistant chief for the Administration of

8 Operations and Training and that he never held any position or duties in

9 the Department for Operations. Exhibit P3178 is credible evidence that

10 was, by the way, referred to on many occasions by the Prosecutor.

11 At paragraph 1662, the Prosecutor alleged that General Miletic

12 was in the organs for operations at the time Directive 4 was drafted and

13 also at the time when there were military activities in Cerska, end of

14 1992, beginning of 1993, but such allegations are not supported by any

15 evidence and run contrary to this exhibit I have already mentioned,

16 P3178.

17 The Prosecutor also claims that General Miletic was involved in

18 drafting the analysis on combat readiness for the year 1992 and that he

19 had to help his superior, Dragutin Ilic, draft the analysis. The

20 Prosecutor refers to Richard Butler, who testified that General Miletic

21 was subordinated to Dragutin Ilic, but who never said that he was

22 involved in drafting the analysis. Furthermore, what General Miletic had

23 to do was of no significance. The Prosecutor should have proven what

24 General Miletic actually did, but the Prosecutor failed to prove any

25 involvement of General Miletic in drafting the analysis on combat

Page 34623

1 readiness for the year 1992.

2 The Prosecutor alleged -- made allegations about the duration of

3 General Miletic's participation in Operation Spring. It was wrong.

4 Dragisa Masal said that the operation lasted, at most, one week to ten

5 days. He said so on the 2nd of December, 2008, transcript pages 29143.

6 Indeed, the Operation Spring lasted exactly five days, from the 3rd to

7 the 8th of May, 1993. The 1st of May, 1993 order, Exhibit P2742,

8 mentioned by the Prosecutor shows that the operation started on the 3rd

9 of May, and the operation did, indeed, end with the creation of the safe

10 area in Zepa on the 8th of May, 1993, which has been acknowledged by the

11 Prosecutor.

12 Let us look at the meaning of this 1st of May order and what

13 General Miletic may have understood of it. In paragraph 16 -- the

14 Prosecutor reaches a conclusion that is obviously wrong when he says that

15 the order given by General Miletic on the 1st of May, 1993, is an attempt

16 to reach the third strategic objective, which is to move Muslims out of

17 the Drina Valley. The 1st of May, 1993 order is not an order given by

18 the man who was then Colonel Miletic; it is an order by

19 General Milovanovic.

20 Furthermore, the Prosecutor concluded that this operation aimed

21 at deporting or transferring Muslims, and this is not a reasonable

22 conclusion; quite the contrary. The sole objective of this order is

23 clearly spelled out in the points -- items 4 and 5. It was exclusively

24 to attack the Muslim forces. The order provided for the possibility for

25 the Muslim population to stay or to leave for Central Bosnia. This

Page 34624

1 possibility did not mean that the population would be forcibly

2 transferred. Movement of population was not necessarily the objective of

3 the attack. It was often the consequence of military activities and of

4 the change of rule. In the 1st of May, 1993 order, this possibility was

5 foreseen, but it was not envisaged with the aim of forcing the population

6 to leave, but in order to make sure that it would be safe if it decided

7 to leave.

8 The Prosecutor acknowledges that the attack in Zepa in May 1993

9 ended with the creation of the safe area. Together with the safe area

10 being created, Zepa should have been demilitarised. It is obvious that

11 the VRS thought that the objectives of the Spring operation had been

12 achieved with the zone being demilitarised, which is something the VRS

13 Main Staff believed in at the time. The end of military activity, when

14 the zone was demilitarised, shows that the purpose of the operation was

15 not to transfer population; that it was, indeed, to neutralise Muslim

16 forces, which is a natural and legitimate objective in any armed

17 conflict.

18 Directive number 6, Exhibit P3919, also shows that transfer of

19 the Muslim population was not an objective of the VRS. This directive

20 was issued in 1993, after the demilitarised zones were created, and it

21 did not mention the Drina Valley among the objectives of the VRS.

22 Demilitarisation of the zones under Muslim rule in the Drina Valley was

23 the purpose of all the VRS activities in the zone.

24 The documents of the VRS cannot be interpreted in a vacuum or in

25 the light of events that occurred two years later. Any document must be

Page 34625

1 assessed in the context in which it was written. The possibility was

2 given to civilian population to go in the order of the 1st of May, but it

3 was not expressing an intention to transfer the Muslim population; it

4 only expressed the fact that a population often follows their army. So

5 contrary to the Prosecutor's allegation, the sentence shows that when the

6 order was drafted, all the steps were taken to ensure the safety of the

7 civilian population.

8 The way the Prosecutor interpreted this order shows that the

9 Prosecutor totally disregards the armed conflict, the objective of which

10 was to defeat the enemy forces. Contrary to the Prosecutor's conclusion,

11 there can be no unlawful meaning to be attributed to VRS documents when

12 there is a reasonable military explanation. The 1st of May, 1993 order

13 is a military document that is perfectly regular and lawful that allows

14 for no other interpretation.

15 The participation of General Miletic in the Spring operation was

16 militarily justified, was perfectly lawful. No criminal intent can be

17 inferred therefrom.

18 The way the Prosecutor interpreted the 1st of May, 1993 order is

19 very relevant, and, indeed, the Prosecutor endeavours to assign to all

20 VRS documents, regardless of their actual contents and objectives, an

21 unlawful purpose because it -- the Prosecutor interprets them ex post

22 de facto, seeking in them a harbinger of tragic events that took place in

23 July 1995. Such an approach is not helpful for the Trial Chamber because

24 the Trial Chamber cannot infer criminal intent from an act if there is

25 another reasonable conclusion. The Prosecution identifies General Miletic

Page 34626

1 with Main Staff and attributes all Main Staff actions to General Miletic.

2 Throughout the trial, the Prosecutor sought to position

3 General Miletic at a post or a position that was not his and to ascribe

4 to him knowledge regarding the situation on the front, insubordinate

5 units in the sector of intelligence, logistics, mobilisation, and in any

6 other facet of the work done by the VRS, knowledge that went way beyond

7 the commander's actual knowledge. Obviously, this case cannot be

8 supported and is not supported by any single evidence, and it is totally

9 wrong.

10 General Miletic is not the Main Staff. His possible contribution

11 to the alleged JCE can only be assessed on the basis of his own conduct.

12 The acts by the Main Staff cannot be ascribed to General Miletic unless

13 they are acts in which his participation has been established.

14 General Miletic was not the commander of the Main Staff. He was not

15 supposed to know everything that may have happened at the level of the

16 Main Staff. He cannot be held responsible for each and every action by

17 the Main Staff.

18 Whatever the position and the duties held by General Miletic, the

19 function, the position, in and of itself, cannot be the evidence of his

20 alleged membership in the JCE, nor of his alleged contribution to it.

21 The Prosecutor spent a large part of this trial and of his final brief to

22 the general's duties in order to conceal the paucity of evidence they had

23 to prove his alleged criminal responsibility.

24 I am not going to address the arguments we have in our final

25 brief as to his duties. They show clearly that General Miletic never had

Page 34627

1 the authority and the powers of the chief of staff and that never he was

2 the main advisor to General Mladic. I shall just underline some of the

3 Prosecutor's conclusions that are totally unfounded.

4 When he tried to explain what General Miletic's duty was, the

5 Prosecutor referred mainly to General Milovanovic's testimony. In

6 paragraph 635 to 653, the Prosecutor mentioned General Milovanovic

7 25 times. But the Prosecutor says so, himself; he said that

8 General Milovanovic was not a credible witness. And when the Prosecutor

9 does not refer to General Milovanovic, he quotes the regulation, 7DP410,

10 applicable to corps -- army corps, whereas corps are units with a

11 structure, organisation, and operation that are very different from those

12 of the Main Staff. So this evidence is just as inclusive as

13 General Milovanovic's testimony when it comes to General Miletic's

14 responsibility. This evidence fails to reflect the true duties of

15 General Miletic, do not allow to infer what he really did. This evidence

16 says nothing as to his tasks at the time of the activities around

17 Srebrenica and Zepa.

18 When the commander, the chief of staff, and many assistant

19 commanders were absent from the Main Staff, and when the situation was

20 very remote from the regular situation described by General Milovanovic,

21 and was very different from the situation set out in the above-mentioned

22 regulations, let it be noted that the regulation applied to corps units

23 and also that they were to be applied in peacetime.

24 You will find an illustration of the utter uselessness of this

25 evidence in the Prosecutor's allegation that General Miletic should have

Page 34628

1 made suggestions to General Mladic as to the way to engage the units.

2 Not surprisingly, the evidence quoted by the Prosecutor is

3 General Milovanovic's testimony. However, what matters in this trial is

4 not whether General Miletic could or should have suggested the way to

5 engage units, but whether he did so for the Drina Corps units for the

6 period from March to August 1995. There is no single piece of evidence

7 to confirm that General Miletic would have done so. There is, indeed, no

8 evidence that General Miletic made any suggestion at all to

9 General Mladic or that General Mladic ever consulted him.

10 General Milovanovic was General Mladic's confidant

11 throughout the war. He said so himself. General Mladic,

12 himself, acknowledged at the end of the war that General Milovanovic held

13 a privileged position. He made a speech at the beginning of 1996 in

14 which General Mladic expressed his gratitude and his thankfulness to

15 General Milovanovic in the following terms:

16 "Once again, a special thank you to you, General Milovanovic, in

17 particular, my right hand, who very successfully stood in for me at all

18 difficult moments and helped me enormously."

19 At the hearing of 7 of September, the Prosecutor stated that the

20 presence of General Milovanovic at the Main Staff headquarters did not

21 change much as to the position held by General Miletic. However, in

22 paragraph 11 of the indictment, the Prosecutor described General Miletic

23 as the main advisor to General Mladic precisely because he represented

24 General Milovanovic. But if General Milovanovic was present at the

25 Main Staff headquarters, nobody could have represented him.

Page 34629

1 The Defence contends that General Miletic was never

2 General Mladic's main advisor, whether Milovanovic was present or not.

3 However, the statement by the Prosecutor that the return of General

4 Milovanovic changed nothing to the situation for General Miletic is, in the

5 ambit of the Prosecutor's case against General Miletic, devoid of any logic.

6 Furthermore, the Prosecutor uses different methods to assess the

7 role of General Miletic and the role played by General Milovanovic. If

8 the Prosecutor is to be believed, the mere fact that General Milovanovic

9 left the Main Staff headquarters would exonerate him of any

10 responsibility, although he was sent on the ground precisely to assess

11 the situation and precisely in order to gather information that he would

12 take to General Mladic. On the other hand, it is said that

13 General Miletic, even when he's on leave in Belgrade, could have sought

14 to be informed as to the situation. This is absurd, especially so if you

15 factor in that General Milovanovic was, without the shadow of a doubt and

16 throughout the war, the main associate -- the closest associate, the most

17 appreciated associate of General Mladic.

18 It is not disputed that General Miletic worked with Milovanovic.

19 He was subordinated to General Milovanovic. But this is of no assistance

20 to the Prosecutor, because General Milovanovic, under the indictment, is

21 not a member of the joint criminal enterprise.

22 General Miletic never found himself in the position of

23 General Milovanovic. Therefore, it is certain that General Mladic did

24 not inform him of any planned or decided military action.

25 (redacted)

Page 34630

1 (redacted)

2 (redacted)

3 (redacted). The Prosecutor fully disregards differences in activities

4 that happened at various levels, at strategic, operational, and tactical

5 levels, and contrary to all evidence, assigns the same role to

6 General Miletic, whatever the action may have been.

7 General Miletic did not belong to the inner circle of the

8 Main Staff. He was not part of the decision-making process.

9 General Mladic did not mention him as one of his close associates in the

10 speech he made at the end of the war. This is Exhibit 5D1441.

11 The Prosecutor remained silent regarding General Mladic's speech,

12 although the speech is crucial evidence when it comes to assessing the

13 parts played by General Miletic. General Mladic was speaking in front of

14 his associates, in front of officers who knew what roles the members of

15 the Main Staff played, and in front of people in front of which he had no

16 reason not to mention his close associates. General Miletic was present

17 when General Mladic made the speech, and if he had been one of his close

18 associates, it is sure that General Mladic would not have forgotten to

19 mention him.

20 Since General Miletic was not among the inner circles of

21 General Mladic's closest team workers, team members, it is hard to

22 imagine that he may have been in the unique position of advising

23 General Mladic. Indeed, for General Miletic to be in the position of

24 providing advice to General Mladic, it would have been necessary for

25 Mladic to give him the opportunity to do so, therefore, to ask him for

Page 34631

1 advice. The Prosecutor failed to provide any evidence that

2 General Mladic ever addressed or turned to General Miletic for advice or

3 that General Miletic ever provided such advice. The only such piece of

4 evidence is document 5D1016, a 1994 document. However, in this document

5 General Miletic did nothing but pass on to General Mladic a proposal made

6 by the Drina Corps commander. Furthermore, this document shows that

7 General Mladic did not accept the proposal made by the Drina Corps

8 commander and that he had a different opinion than General Miletic or,

9 rather, that General Miletic did not agree with General Mladic's

10 decision.

11 At paragraph 1650, the Prosecutor alleges that the influence of

12 General Miletic in the Main Staff increased and that his proposals were

13 complied with, were accepted. All this is not supported by evidence.

14 General Miletic was the only general in the Main Staff who was not

15 mentioned expressly in General Mladic's speech at the end of the war.

16 Furthermore, the conversation between General Mladic and

17 General Tolimir on the 24th of July, 1995 - this is Exhibit P1327 - is a

18 good indicator of the degree to which General Mladic would respect and

19 accept proposals made by General Miletic. In this conversation,

20 General Mladic did not even take into account the opinion expressed by

21 General Miletic, and he ordered precisely the opposite to

22 General Tolimir.

23 Equally, the Prosecutor has no evidence to substantiate his

24 allegations that General Miletic had an essential role in each of the

25 decisions taken to further the objective of the alleged JCE and that

Page 34632

1 General Miletic's decisions were crucial in the efforts undertaken to

2 defeat, militarily, the Muslim forces and to transfer the Muslim

3 population out of Srebrenica and Zepa. The Prosecutor fails to refer to

4 any decision by General Miletic. He can't do so because there is no such

5 thing as a decision issued by General Miletic.

6 At paragraph 131 of their brief, the Prosecution quoted

7 General Nicolai, who testified that the answers -- useful answers to the

8 VRS Main Staff could be obtained only from generals because generals were

9 probably the only one authorised to make any decisions. General Miletic

10 was a colonel until the end of June 1995. Therefore, if General Nicolai

11 is to be believed, and supposedly the Prosecutor believed him because he

12 quoted him, General Miletic, at least until the end of June 1995, at

13 least until the end of June 1995, could not have played any essential

14 role in the decision-making process.

15 General Mladic was the commander of the VRS and is certainly

16 better placed than General Nicolai to say who, within the Main Staff,

17 took part in the decision-making process. That's precisely what he did.

18 In this speech that I've mentioned several times, General Mladic listed

19 the officers who took part in taking decisions. In doing so, he made no

20 mention of General Miletic.

21 Let me now address the issue of humanitarian aid before I tackle

22 the issue of the directive, because I think there is no link between the

23 two.

24 First of all, there is no evidence of a specific policy by the

25 VRS regarding the supply of humanitarian aid to the Eastern Bosnian

Page 34633

1 enclaves.

2 With regard to humanitarian aid, the Defence found themselves in

3 a quandary because, as was stated in our brief, and as you've noted

4 yourselves, certain important facts that were unfavorable to the Defence

5 were taken judicial notice of, and the position for the Defence was even

6 more difficult because documents regarding humanitarian aid are held by

7 organisations that are in no obligation to cooperate with the Tribunal.

8 We are all aware of the position adopted by international

9 humanitarian organisations when it comes to producing their documents,

10 and there's no need to dwell on the issue. However, although the Defence

11 had the burden of adducing evidence to refute facts and judicial notice,

12 the Prosecutor had the burden of proof beyond any reasonable doubt, yet

13 the evidence adduced at trial cast a serious doubt on the Prosecution's

14 allegation. The evidence adduced at trial no longer allowed the finding

15 that in early 1995 there were less and less humanitarian convoys that

16 reached Srebrenica. It is no longer possible to find that the Bosnian

17 Serbs deliberately tried to impede access to enclaves and that blocking

18 humanitarian convoys was part of a plan.

19 You have a chart on page 21 of Exhibit P4145. It proves beyond

20 all reasonable doubt that humanitarian aid was supplied to the

21 Eastern Bosnian enclaves, including Srebrenica and Zepa, on a regular

22 basis until June 1995. There was no reduction that would have resulted

23 from the Directive number 7 being issued. This exhibit, P4145, is

24 undoubtedly the best evidence with regard to the humanitarian aid

25 supplied to the enclaves. This exhibit proves that the Srebrenica and

Page 34634

1 Zepa enclaves were better supplied than the other enclaves in Bosnia,

2 that the aid supplied in March, April, and May 1995 actually increased

3 compared to February 1995, and that, at any rate, in 1995, until

4 June 1995, it was supplied much more regularly than it was in 1994.

5 Exhibit P4145 is a document that comes from the organisation that

6 is best positioned to know the situation, in terms of humanitarian aid,

7 and the volumes of humanitarian aid provided. It would not make sense to

8 disregard this exhibit for the sake of testimony that, in the light of

9 this exhibit, appeared to be totally wrong. I can only regret that this

10 international organisation did not wish to let the Defence access their

11 archives. The requests made to the Serbian authorities and the answers

12 could not be accessed, either. These are documents that could have

13 demonstrated with even more cogency that there was no plan to restrict

14 humanitarian aid.

15 This testimony referred to by the Prosecutor in support of their

16 case is evidence that in the absence of further evidence, led this

17 Tribunal to determine in previous cases that humanitarian aid had been

18 deliberately restricted as of the beginning of 1995. I'm speaking of the

19 testimony of DutchBat members, of Johannes [as interpreted] Rutten, for

20 instance, who can only remember a single UNHCR convoy in 1995, whilst

21 Exhibit P4145 shows us that 11 convoys reached the enclave.

22 Witness Rutten does not remember a single UNHCR convoy in April, whilst

23 there were 10 that brought larger quantities of humanitarian aid than the

24 11 convoys in March. This testimony by witness Robert -- by Rutten is to

25 be found in page 5231 hearing of 7th of December, 2006, but this is also

Page 34635

1 what Robert Franken testified: He could not remember any problems with

2 the UNHCR. He only remembered after he read an excerpt of the NIOD

3 report, 5D54. He only then remembered that he had tried to impose a

4 control of the UNHCR convoy. But he could not remember that the said

5 convoy had failed to enter Srebrenica precisely because of what he had

6 done, because of what he had decided; 18th of October, 2006 hearing,

7 transcript pages 2639/2640.

8 We're now in June 1995. The Muslim forces have launched a

9 generalised offensive on the Serb positions, including in Sarajevo, but

10 the forces in Srebrenica and Zepa also contributed, as is shown by

11 Exhibit 5D229. However, the UNHCR convoy bound for Srebrenica was

12 allowed to pass through by the Serb authorities. It went through the VRS

13 check-point, but it did not enter Srebrenica.

14 In June 1995, the humanitarian situation was difficult

15 everywhere. It was difficult in Srebrenica as well. But Robert Franken,

16 the assistant commander of the DutchBat, decided, at the ABiH request, to

17 impose control of the UNHCR convoy, which caused the convoy to depart,

18 which caused the convoy not to supply the aid it had brought.

19 Robert Franken forgot the UNHCR convoy. He also forgot that the DutchBat

20 that he commanded in second would -- used to seek supplies from Bratunac.

21 Of course there were restrictions, but they were limited in nature, and,

22 above all, they had not been imposed in order to create living conditions

23 that would be unbearable for the Muslim populations. They were the

24 result of numerous abuses by the ABiH and by those who transported

25 humanitarian aid. Nobody can rule out the possibility that restrictions,

Page 34636

1 if any, were justified.

2 Let me take the example quoted by the Prosecutor, the case of a

3 truck transporting school supplies. This ban seems odd. Why should one

4 ban school supplies? Very simply, because the request was made in June.

5 In June, children are on holiday. However, the ABiH could make good use

6 of copy books that were to be used initially by children. Everybody

7 remembers the copy books used by the intercept operators. Just have a

8 look at them. Look, for instance, at P2328. You will see that these

9 were copy books used by children, but this time they had been used for

10 military purposes by the Army of Bosnia and Herzegovina.

11 I would like to add a few words regarding medical supplies.

12 The Prosecutor claims that there was nobody left in Potocari when

13 5D1446, this report, was drafted. The report only supports the excerpt from

14 the NIOD report whose number 5D53 was inadvertently omitted from footnote 568

15 in our Defence Final Brief. Of course, there was still wounded people in

16 Potocari on the 13th of July, 1995. They were evacuated only on the 18th

17 of July, 1995. Even Robert Franken admitted that there were wounded left

18 in the Potocari base after the population had been evacuated.

19 Eelco [as interpreted] Koster testified, too, in his 92 ter statement

20 that the wounded stayed in the DutchBat base.

21 The UNMO report of 17th of July, 1995, P524, confirms that on the

22 17th of July, 1995, the wounded people were still in Potocari.

23 Could we move to closed session, Mr. President?

24 JUDGE AGIUS: Let's go into private session, please.

25 [Private session]

Page 34639

1 Prosecutor, who elsewhere alleged that there were no medical supplies in

2 Potocari, seriously suggested that these notifications should not have

3 been sent and that the evacuation of wounded -- of the wounded was not

4 necessary.

5 Let us now address the issue of the transmission of messages

6 mentioned by the Prosecutor on the 2nd of September, P1237. The Defence

7 does not challenge that General Miletic could have transmitted the

8 message, and it is possible that this message was about the evacuation.

9 However, the conversation in which General Miletic was mentioned does not

10 allow any conclusion as to the knowledge General Miletic may have had of

11 the very subject of the request made, and even less as to

12 General Miletic's intention. The only conclusion this conversation

13 allows is that General Miletic was not authorised to take a decision.

14 What could General Miletic do, faced with such a situation? Was

15 he supposed to turn down and refuse the message to be transmitted and,

16 therefore, to block this evacuation that was requested by all

17 international organisations in BiH, including the UNPROFOR? We do not

18 think that document P260, which was transmitted at 17 hours on 18th of

19 July, has any link with the conversation that took place at 21 hours on

20 17th of July, P1237. It is very unlikely -- it is improbable that

21 Colonel Jankovic would have waited 24 hours to make his request.

22 Furthermore, Exhibit P260 refers to the 18th of July events, and these

23 events could not have been the topic of a conversation that was taking

24 place the day before.

25 Let me return briefly to the issue of humanitarian aid. The

Page 34640

1 Prosecution case, that the Serbian authorities demanded responsibility --

2 reciprocity and made their conditional [as interpreted] of humanitarian

3 aid to Muslims conditional on aid being provided to the Serbs, stands in

4 contradiction to the case that the restrictions aimed at creating an

5 unbearable situation for the Muslim population. If reciprocity had been

6 the condition set by the Serbs, the restrictions that were in any way

7 limited cannot be ascribed to the intent of creating unbearable

8 conditions for the Muslims, but rather to the will to make sure that the

9 Serbs had the best possible conditions. However, this case, even though

10 it is to some extent favourable to the Defence, is incorrect.

11 Reciprocity was requested one single time -- what is alleged by the

12 Prosecutor in paragraph 226, footnote 513, namely, that fuel was

13 authorised for the enclaves only if Serbs were to receive some as well,

14 this allegation is incorrect. Further to Exhibit P2689, the fuel for

15 Srebrenica was authorised unconditionally.

16 When the Serb authorities asked humanitarian aid supply for the

17 Serbs to allow the passage of a convoy, the convoy was not destined for

18 the Muslim population. It was destined to supply the UNPROFOR. This was

19 said on -- this happened on the 1st of July, 1995, P2554.

20 In our closing brief, we mention problems linked with

21 humanitarian aid in June 1995, problems that were not at all linked to

22 Serb policy. In June 1995, the UNHCR had foreseen 1250 tonnes of

23 humanitarian aid for Banja Luka. Exhibit P4145, page 19, shows that

24 nothing reached its destination. When I say nothing arrived, nothing at

25 all arrived. Faced with such a situation, once and only once did the

Page 34641

1 Serb authorities request reciprocity, which did not in any way jeopardise

2 supplies destined for the Muslim populations.

3 The humanitarian aid convoys and the UNPROFOR convoys were

4 different in every respect. They also had to undergo different

5 procedures. This is an essential difference, because contrary to what

6 the Prosecutor alleged, the coordination organ did give authorisations

7 for humanitarian convoys. This was mentioned in paragraph 322 to 342 of

8 our brief. Furthermore, the Prosecutor has original Main Staff documents

9 regarding the convoys which were, incidentally, stipulated between the

10 Prosecution and the Miletic Defence. This is Exhibit 5D1447. All these

11 documents have to do with UNPROFOR convoys.

12 If the procedure had been the same, we would have found, among

13 these documents, documents related to humanitarian convoys. But I'm not

14 interested in the confusion between humanitarian convoys and UNPROFOR

15 convoys which pervades the entire Prosecutor's brief, but I'm interested

16 in the confusion between the part of the brief regarding the alleged

17 contribution of General Miletic to restrictions to the convoys,

18 paragraphs 1679 to 1687, and the general part regarding restrictions to

19 humanitarian aid, paragraphs 215 to 250.

20 In paragraph 219 of their brief, the Prosecution described the

21 procedure by which authorisations were given to UNPROFOR convoys. The

22 Prosecutor acknowledged that General Miletic did not take any decisions.

23 The Prosecution further acknowledged that General Miletic did not draft

24 any notifications. Indeed, the Prosecutor acknowledged that the part

25 played by General Miletic was to sign a notification and to send them to

Page 34642

1 subordinate units. Although the Prosecutor acknowledged that

2 General Miletic did not play any part in taking decisions or in

3 determining the contents of notifications, in paragraph 1679 of their

4 brief, despite the evidence in its totality and in contradiction to their

5 own case as set out in paragraph 219, the Prosecutor alleged that

6 General Miletic refused to grant passage for the convoys with school

7 supplies, would have limited MSF personnel rotation, and would have

8 specified a request for control.

9 In the same paragraph, the Prosecutor alleged that

10 General Miletic was involved in sending notifications on the 6th and the

11 10th of March, 1995, referring to unsigned copies of the notifications,

12 P2522 and P2531. The original and signed versions of the notifications

13 have been admitted into evidence; 5D1311 and 5D1312. These notifications

14 were not signed by General Miletic. They were signed by Colonel Pandzic,

15 who was not even a subordinate of General Miletic. There is no evidence

16 that General Miletic ever saw the documents.

17 Furthermore, the other notifications referred to by the

18 Prosecutor in paragraph 1679 are all unsigned copies. Taking into

19 account the fact that there are many notifications bearing the name, but

20 not the signature of General Miletic, which emerges from the stipulations

21 between the Defence and the Prosecutor, 5D1447, there is no conclusive

22 evidence that the notification, the signed version of which was not

23 available, were ever signed by General Miletic.

24 One has also to say that the sending of the notifications did not

25 contribute at all in the questions of humanitarian aid for as much as

Page 34643

1 they had to. The notifications did not have, as a goal, to prevent the

2 passage of the convoys, but to allow it. No convoy could pass the

3 control point or check-point without having been announced by a

4 notification of the Main Staff. Even when a notification contained the

5 information concerning an unauthorised convoy, it had no impact on the

6 passage of the convoy, because until the notification authorising convoy

7 and supplies reached the check-point, the convoy could not go through,

8 could not pass. And announcing the convoys and the control of the same

9 was quite licit and conformed to the Geneva Conventions.

10 Let's just see what General Miletic knew about the humanitarian

11 aid. When General Milovanovic was not at the Main Staff, the name of

12 General Miletic was on the notification. He signed a certain number of

13 them, but he never took the authority of the general for substantial

14 matters linked to humanitarian aid, so authority of General Milovanovic

15 were taken over by other officers of the Main Staff, including by

16 General Mladic.

17 General Miletic did not take part in the meetings of UNPROFOR.

18 He did not take part to the meetings of the international organisations.

19 He was not a superior to Colonel Djurdjic, who was in charge of the

20 convoys. He did not give him any instructions. General Miletic was not

21 a member of the inner circle of the Main Staff and took no decisions.

22 Besides, in the section of his brief concerning the Serbian policies of

23 the political and military authorities concerning humanitarian aid,

24 paragraph 246 to 250, the Prosecutor did not mention General Miletic,

25 thereby acknowledging implicitly that General Miletic had no role in the

Page 34644

1 devising of this policy.

2 General Miletic had no role in the follow-up of the convoys

3 because the reports concerning them were not sent to his administration,

4 but to the Intelligence Administration; P260. Precisely in this context,

5 one should interpret notification of the 29th of June, 1995, P2551,

6 mentioned by the Prosecution at paragraph 1683. Although this

7 notification contains a note concerning specific instructions sent to

8 Momir Nikolic, there is no evidence that General Miletic knew about this

9 instruction which had certainly been -- knew anything about the content

10 of this instruction which certainly had to be sent to Momir Nikolic

11 directly through the -- from the Intelligence Sector and Security Sector.

12 Also, the reports concerning the convoys were directly sent and

13 personally sent to General Mladic, as was the case for the 23rd of June,

14 1995; P2496.

15 General Miletic knew nothing, in particular, about questions

16 concerning humanitarian aid. What General Miletic knew was that

17 the notification had to be sent in order to enable the passage of a

18 convoy. No officer would have refused to sign and send such a

19 notification. This notification question shows no personal intention of

20 General Miletic.

21 Indeed, the only document and the only evidence which can inform

22 us of the position of General Miletic about the passage of convoys is the

23 intercepted conversation of the 24th of July, 1995, P1327, concerning the

24 problems linked to the passage of convoy to Gorazde described also in a

25 document from the Drina Corps, P3035. This conversation shows that

Page 34645

1 General Miletic, when he knew about the problems concerning the passage

2 of a convoy, considered that such problems had to be solved.

3 Let us now speak about Directive number 7. This is the centre of

4 the case against General Miletic. We agree with the Prosecution that

5 during the drafting of this directive, the complete method was used.

6 Within the framework of this complete method, which had been decided by

7 the commander and the commander only, General Miletic was able only to do

8 his own part of the work. We agree with the Prosecution that the

9 different elements of the directive were transmitted to General Miletic

10 by the different sectors of the Main Staff and that General Miletic then

11 compiled them to make a single document. While acknowledging that

12 Directive number 7 was drafted by an application of the complete method,

13 the Prosecution implicitly acknowledged that General Miletic was not the

14 author of the contents of this directive. The only fact of having taken

15 part in the drafting of Directive number 7 does not mean that

16 General Mladic contributed to the joint criminal enterprise --

17 General Miletic, as alleged in the indictment. The Prosecutor could

18 speak of a contribution of General Miletic if he had proved that

19 General Miletic had drafted the offending parts of the directive or that

20 he had accepted them, adhered to them. Yet the Prosecution did not prove

21 any such thing.

22 The Prosecutor acknowledged in paragraph 1680 that

23 General Miletic had seen the document of the Drina Corps in which the

24 commander of the Drina Corps proposed some solutions for the elimination

25 of the enclaves. Beyond the fact that this proposal shows very well that

Page 34646

1 the corps commanders were making proposals to the commander of the Army

2 of Republika Srpska, this tells us nothing about the position of

3 General Miletic. He saw it, but there is no evidence that he was in

4 agreement with it or that this proposal had been included in the draft

5 directive drafted by General Miletic. Besides, the Prosecution alleges

6 that General Miletic compiled the part of the directive concerning the

7 tasks of the units on the basis of the proposals of organs charged with a

8 different army corps; paragraph 1663. General Miletic compiled the whole

9 project of the directive on the basis of the elements obtained from the

10 different organs, as the Prosecutor acknowledges in paragraph 141. On

11 the basis of the evidence in the case file, it is impossible to say who

12 supplied him with the proposal for the part concerning the tasks of the

13 units.

14 The text drafted by General Miletic was the draft of the

15 directive. The text of this draft is not known, and there is no evidence

16 which enables us to conclude that this draft contained the offending

17 passages of Directive number 7.

18 In his brief, at paragraph 142, the Prosecution admits that

19 President Karadzic could amend the draft directive drafted by

20 General Miletic. This also means that President Karadzic could add the

21 incriminated passages and in the offending passages. Contrarily-wise to

22 what the Prosecutor alleges, the directive was not issued under the name

23 of General Miletic. Also, it was not sent to the corps as a document

24 from the general who at the time was Colonel Miletic, but as a document

25 from president and supreme command, Radovan Karadzic.

Page 34647

1 The Prosecutor's allegation according to which General Miletic

2 should have known every word contained in these directives before signing

3 his name on the text is absurd. The name of General Miletic on

4 the text of this directive means he prepared the draft directive and

5 certainly doesn't mean that he approved the final text of the directive.

6 The final text belonged to President Karadzic, who had the single and

7 exclusive authority to approve it, which he did by putting his signature

8 on it. General Miletic could have known and should have known every word

9 of the draft directive that was sent to President Karadzic for signing,

10 but as for the final text of the directive, General Miletic could not

11 know it before it was transmitted to him, yet there is no evidence in the

12 case file to show that General Miletic would have seen the final text of

13 Directive 7 before he started working on the draft Directive 7/1.

14 In his closing argument on the 2nd of September, 2009, the

15 Prosecution stated that there was no evidence which would have confirmed

16 that General Miletic might have not taken part in the finalisation of

17 Directive 7. Contrarily-wise to -- in this business, there is no

18 evidence that General Miletic would have taken part in the finalisation

19 of the directive.

20 General Simic, indeed, spoke about the finalisation, but it was a

21 finalisation of the draft, because all the processes which General Simic

22 has described takes place before the draft was sent for his signature on

23 the 19th of November, 2008; page 28511. This statement made by

24 General Simic helps in no way the Prosecution in its efforts to show that

25 General Miletic would have taken part in the finalisation of the

Page 34648

1 directive after the changes brought by -- after the changes

2 President Karadzic may have brought to it.

3 The onus of proving this remains with the Prosecution, and the

4 Prosecution has to prove each and every one of his allegations beyond any

5 reasonable doubt. The Defence has not got the same onus. It suffices

6 for it to adduce evidence showing that another possibility is reasonable.

7 Evidence, of course, which is circumstantial, as they may be, show, in

8 fact, that General Miletic did not take part in the finalisation of the

9 final text of Directive 7.

10 The Defence agrees with the Prosecution that General Miletic

11 should have told General Milovanovic, as he had seen the offending parts

12 of the text or the directive. We consider that there exists at least a

13 reasonable possibility that General Miletic did so. The directive bears

14 the date of the 8th of March, 1995, while it was sent to the corps only

15 on the 17th of March, 1995. The agenda of President Karadzic,

16 Exhibit 5D1322, shows that on the eve of the transmission of the

17 directive to the corps, General Milovanovic had a meeting with

18 President Karadzic. The only reasonable explanation of this meeting,

19 which lasted four hours and which took place on the 16th of March, 1995,

20 would have been about a discussion on Directive number 7.

21 The Prosecution stated also that General Miletic could have done

22 something else and could have acted contrarily if he had not been in

23 agreement with the directive. We entirely agree. General Miletic could

24 have refused to send the directive to the corps. The Prosecution will

25 certainly tell you that there is no evidence that General Miletic refused

Page 34649

1 to transmit Directive 7 to the corps, and in a certain sense he is right,

2 but only partially, because if there is no evidence that General Miletic

3 refused to transmit the directive to the corps, we do have the proof that

4 he did not further it or forward it; P5 and 5D971 confirms this.

5 The only thing which is proven in this case concerning the final

6 version of Directive 7 is that it was transmitted to the subordinate

7 units by General Milovanovic. Since General Miletic did not transmit

8 Directive 7 to the corps, there are only two options concerning the

9 knowledge he may have had of the final text. Either General Milovanovic

10 transmitted the final version of Directive 7 to the corps as soon as he

11 was back from the meeting with President Karadzic without telling

12 General Miletic, or General Miletic was unwilling to forward it.

13 The Prosecution adduced no evidence which might have supported

14 his case according to which General Miletic adhered to the final version

15 of Directive 7. The evidence, circumstantial evidence, leads to the

16 conclusion of the opposite, which is General Miletic was not in agreement

17 with the directive. This is a possible and reasonable conclusion, which

18 explains the meeting which General Milovanovic had with

19 President Karadzic on the 16th of March, 1995. And the belated or

20 delayed transmission of the directive, practically ten days after the

21 date indicated on the text of the directive, and the fact that

22 General Miletic did not forward it.

23 General Miletic did take part in the drafting of Directive 7/1,

24 and his role in the drafting of Directive 7.1, it was identical to his

25 role in the drafting of Directive 7. Such participation cannot be

Page 34650

1 interpreted as his adhering to the text of Directive number 7, since the

2 text of Directive 7/1 does not contain the offending passages contained

3 in Directive 7.

4 The very existence of Directive 7/1 asks us the question of why

5 this directive was drafted. Before Directive 7, only Directive 6 came

6 from President Karadzic. This is Exhibit P3919. Following Directive 6,

7 the Main Staff did not draft Directive 6.1. On the contrary, when

8 President Karadzic considered that the text of Directive 6 had to be

9 changed, he did so by a document which he signed, himself, 5D964.

10 Directive number 7 indicated the tasks to be performed by the

11 corps, and it was transmitted to the corps. There is no military reason

12 for the Main Staff to embark in the drafting of Directive 7/1 immediately

13 after the transmission of Directive 7. This was not necessary for the

14 performance of Operation Spreca, since General Milovanovic had sent the

15 order to the corps for this operation; 5D972. Operation Sadejstvo

16 planned at the Main Staff did not require either to dispatch Directive

17 7/1 at the end of March 1995, since all the details of this operation

18 were sent to the corps only towards the end of the month of April; P4202.

19 One of the possible explanations, and a perfectly reasonable explanation,

20 for issuing Directive 7/1 was precisely that this directive, that is,

21 Directive 7/1, was made to replace Directive 7 in the subordinated units.

22 Almost in every sentence related to General Miletic, the Prosecutor quotes

23 General Milovanovic, although he does not consider him credible. He

24 completely ignored his explanation about Directive 7.7 -- Directive 7. It

25 is indicative, though, that precisely General Milovanovic, who denied any

Page 34651

1 part in the drafting of these two directives, and who proclaimed that he

2 had no knowledge of their existence, declared that General Mladic was

3 risking to be arraigned in front of a martial court because he had

4 omitted parts of Directive 7 in the documents which he subsequently

5 drafted. There is no doubt that General Milovanovic was more

6 specifically speaking of directive 7.

7 The part taken by General Miletic in the drafting of Directive 7

8 and 7/1 cannot be interpreted as his adhering to the offending parts of

9 Directive 7. The existence of his name on Directive 7 and 7/1, to the

10 utmost, allows to conclude that when Directive 7/1 was drafted, he had

11 cognizance of the final text of Directive 7. Such knowledge does not

12 mean that he adhered to the offending parts of Directive 7. Subsequent

13 events show that General Miletic had no significant part in the events

14 concerning Srebrenica and Zepa, that he was absent during the military

15 operation at Srebrenica, that he had no sufficient knowledge concerning

16 the events on the ground, and that his acts and behaviour do not allow an

17 inference about his intention to contribute to forced transfer.

18 The Prosecution stated that Directive 7 concerned the inception

19 of the attack, yet during the hearing of the 10th of December, 2008,

20 page 24489-24490, the Prosecution declared that the Army of

21 Republika Srpska did not change its behaviour after Directive number 7

22 and that this behaviour was the same as at the beginning of the war. We

23 agree with the Prosecution that no change can be noted in the behaviour

24 of the Army of the Republika Srpska after the issuance of

25 Directive number 7, but in that case it is difficult to understand how

Page 34652

1 Directive 7 represented the beginning of the attack. Besides, there is

2 no evidence that a systematic attack or generalised attack against the

3 population -- civil population would have started in March 1995.

4 Be that as it is, General Milovanovic was present at the general

5 headquarters of the Main Staff for a long period following the issuance

6 of Directive 7. No evidence allows to conclude that General Miletic knew

7 about the incidents linked to the bombing, or snipers, or other

8 activities around Srebrenica and Zepa, inasmuch as such activities are

9 established. The only bombing which is reported to the Main Staff was

10 that which took place on the 25th of May, 1995, yet General Milovanovic

11 was there; Exhibit 3D-5D1161.

12 It is absurd to establish a link between the training programme

13 of snipers and the possible use, in an illegal way, of snipers. The body

14 was one in charge of operational matters and training, was in charge of

15 organising and planning training, this organ could not determine the

16 content of the training, since every training requires specific knowledge

17 and since the content of this training was precisely determined by

18 specialised organs for different subjects. Anyway, the programme

19 mentioned by the Prosecutor was not meant to -- was not meant for an

20 illegal use of snipers, but precisely for the correct use of snipers.

21 Snipers are not a forbidden weapon, and the existence of a training

22 programme has no specific meaning.

23 Finally, it remains unknown when the programme was drafted and

24 when it was transmitted to the corps. The programme which we have in the

25 case file was transmitted to the 5th Corps, which in 1995 didn't even

Page 34653

1 exist.

2 The Prosecutor alleges that the acts and decisions of

3 General Miletic were crucial to defeat, militarily, the Muslim forces and

4 to transfer the population of Srebrenica and Zepa. I have already said

5 that General Miletic was not even in a position to make decisions, but I

6 shall not belabour this point. Rather, I would like to underscore the

7 confusion created between acts which are destined to defeat, militarily,

8 Muslim forces and those which were destined to forcibly transfer the

9 population.

10 Military defeat of the enemy, which for the Army of Republika

11 Srpska, were the Muslim forces, is a natural and legitimate objective for

12 any army in an armed conflict. On the other hand, the forcible transfer

13 of population is a forbidden act and is a crime. In order to prove

14 forcible transfer and, in particular, the intention of the accused, the

15 Prosecutor should have made a clear distinction between the military

16 objectives and the criminal objectives. Indeed, when an act may

17 reasonably be interpreted as being destined or meant to achieve a

18 legitimate military objective, the Prosecutor cannot attribute to him a

19 criminal intention. This intention can only be inferred from facts which

20 cannot reasonably be explained by a legitimate military objective and

21 which allow no other conclusion than what was meant for the transfer of

22 the Muslim population.

23 It is difficult, in a conflict like this one, indeed, to

24 distinguish between the facts connected with a military attack and the

25 facts connected with criminal acts, yet the Prosecutor has the duty to do

Page 34654

1 so. In the present case, the Prosecutor stated several times that the

2 separation of the enclaves was a legitimate military goal; in particular,

3 in the preliminary statement of 21st August 2006, page 398. He cannot

4 now, for the purpose of his own closing argument, make a confusion

5 between this legitimate part of the attack and a criminal objective.

6 We agree with the Prosecutor when he states that the intent will

7 determine the legitimacy of an act and that a legitimate act,

8 accomplished with a criminal intent, may become criminal. Yet if

9 intent confers a criminal character to an act which, without

10 such intent, would have been legitimate, this act will only be criminal

11 in respect to those who acted with a criminal intention, but will be

12 legitimate for those who did not act with such intention. For

13 General Miletic, the Prosecutor did not prove that he acted with a

14 criminal intention.

15 The Prosecutor alleges that General Miletic followed

16 the Drina Corps activities and forwarded the information he

17 obtained to General Mladic and

18 President Karadzic. The Prosecutor alleged that precisely this

19 information would have enabled General Mladic and President Karadzic to

20 make the decisions and to apply the policy of forced -- forcible

21 transfer. First of all, the Prosecution did not prove that

22 President Karadzic took decisions on the basis of the reports sent by

23 General Miletic. The Prosecutor did not even indicate which would have

24 been the information which would contribute to the decisions of

25 President Karadzic. We have indicated in paragraph 492 of our brief the

Page 34655

1 sources from which President Karadzic obtained the information. There

2 are many of them. The decisions concerning Srebrenica and Zepa were

3 certainly not made on the basis of the reports sent by General Miletic,

4 daily reports. As for General Mladic, he had no need of the reports of

5 General Miletic. He received direct information from the commanders of

6 the corps which were subordinated to him.

7 The evidence in this case shows that the civilian authorities

8 informed President Karadzic. This evidence shows that a delegation of

9 Skelani was to meet President Karadzic after the action at Zeleni Jadar

10 in order to find a solution to put an end to this action which the

11 civilian authorities considered as incomplete. This is Exhibits 5D1374.

12 The evidence in this case also shows that President Karadzic

13 sometimes had much more information than the Main Staff. Intercept of 16

14 July 1995 shows that precisely President Karadzic informed the Main Staff

15 of the opening of the Zvornik corridor. In the daily reports of the

16 Main Staff, we have a description of the military situation on the ground

17 in all the territory of the Republika Srpska. Their goal was no other

18 than to inform President Karadzic and the commander of the corps of this

19 military situation, and no other interpretation may reasonably be

20 attributed to such reports. Neither the follow-up of the military

21 situation which General Miletic could not keep track of, except on the

22 basis of the reports he received, nor the transmission of this

23 information, could reasonably be interpreted as contributing to the

24 criminal enterprise as alleged. None of these acts is illicit. These

25 acts constitute the regular and daily duties of General Miletic.

Page 34656

1 On the 2nd September, 2009, the Prosecutor started his final

2 speech by the duty for officers to complete their duty, the duty of the

3 officer in charge of operational matters is to draft and transmit

4 reports. These acts are precisely what the general did. These acts are

5 precisely what the general did. These acts are the acts of any officer

6 in charge of operational matters and what any officer would have done.

7 No officer in charge of operational matters would have done otherwise.

8 No criminal intention may be inferred from the report sent by

9 General Miletic because for these reports there is another logical and

10 reasonable explanation which, by the way, is the only reasonable

11 explanation about it. General Miletic was doing his job. This job was

12 legal, licit, regular, and necessary for the furthering of legitimate and

13 justified military activities. He did so without any criminal intent.

14 JUDGE AGIUS: Is this a good time?

15 We'll continue tomorrow morning at 9.00.

16 MS. FAUVEAU: [Interpretation] Mr. President, I would probably

17 need 15 minutes extra.

18 [Trial Chamber confers]

19 JUDGE AGIUS: I don't think that's a problem.

20 --- Whereupon the hearing adjourned at 1.44 p.m.,

21 to be reconvened on Friday, the 11th day of

22 September, 2009, at 9.00 a.m.