1 Monday, 2 December 2013
2 [Appeals hearing]
3 [Open session]
4 [The Appellants entered court]
5 [The Appellant Miletic not present]
6 --- Upon commencing at 9.45 a.m.
7 JUDGE ROBINSON: Madam Registrar, please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is case
9 IT-05-88-A, the Prosecutor versus Vujadin Popovic, Ljubisa Beara,
10 Drago Nikolic, Radivoje Miletic, and Vinko Pandurevic.
11 JUDGE ROBINSON: Thank you very much. May I have the
12 appearances, beginning with the Prosecution.
13 MR. ROGERS: Good morning, Your Honours. Paul Rogers for the
14 Prosecution, today, together with my colleagues, Ms. Lada Soljan,
15 Ms. Najwa Nabti, and our case manager, Mr. Colin Nawrot. And,
16 Your Honours, I apologise for the pillar. I can't see all of your
18 JUDGE ROBINSON: Well, I believe the apology should come from
19 somewhere else.
20 And for the Defence, beginning with Mr. Popovic.
21 MR. ZIVANOVIC: Good morning, Mr. President, and Your Honours.
22 For the Defence of Mr. Vujadin Popovic, Zoran Zivanovic and
23 Mira Tapuskovic. Thank you.
24 JUDGE ROBINSON: Thank you. And for Mr. Beara?
25 MR. OSTOJIC: Good morning, Mr. President, Your Honours. My name
1 is John Ostojic and I'm here along with my colleague, Mr. Norman Sepenuk,
2 on behalf of Ljubisa Beara.
3 JUDGE ROBINSON: Thank you. For Mr. Nikolic?
4 MS. NIKOLIC: [Interpretation] Good morning, Mr. President,
5 Your Honours. Jelena Nikolic, Mr. Stephane Bourgon, and Marlene Yahya,
6 we represent the Defence of Mr. Nikolic today. Thank you.
7 JUDGE ROBINSON: Yes. And Mr. Pandurevic?
8 MR. HAYNES: Your Honour, for today's purposes, myself,
9 Peter Haynes, and my case manager Helena Kaker.
10 JUDGE ROBINSON: Thank you. And Mr. Miletic?
11 MS. FAUVEAU: [Interpretation] Good morning, Your Honours.
12 Natacha Fauveau Ivanovic with my co-counsel Nenad Petrusic.
13 JUDGE ROBINSON: Thank you. Counsel for Mr. Miletic? I'm
14 observing Mr. Miletic is not present. And you will have something to say
15 to us about that?
16 MS. FAUVEAU: [Interpretation] Your Honour, may we go into private
17 session, please?
18 JUDGE ROBINSON: Yes, certainly. Private session.
19 [Private session]
11 Pages 61-63 redacted. Private session.
8 [Open session]
9 THE REGISTRAR: We are in back in open session, Your Honour.
10 JUDGE ROBINSON: Yes. Mr. Ostojic, the Chamber has considered
11 your request, filed the 27th November 2013, to allow Mr. Norman Sepenuk
12 to take part in the oral submissions and, indeed, to make part of the
13 oral submissions on Mr. Beara's behalf. The Prosecution has no objection
14 and the request is approved.
15 MR. OSTOJIC: Thank you, Your Honour.
16 JUDGE ROBINSON: I will now briefly outline the Trial Chamber's
17 findings and sentence, the appeals, and how we will conduct the
19 The trial judgement was rendered on the 10th of June, 2010, by
20 Trial Chamber II, composed of Judge Agius, Judge Kwon, and Judge Prost.
21 The late Judge Ole Bjorn Stole was the Reserve Judge.
22 The Trial Chamber found that a criminal enterprise existed to
23 murder able-bodied Bosnian Muslim men from Srebrenica in July 1995 and
24 that a joint criminal enterprise existed to forcibly remove the Bosnian
25 Muslim population from Srebrenica and Zepa in 1995.
1 With respect to Mr. Popovic and Mr. Beara, the Trial Chamber
2 found them guilty of committing, as participants in the JCE to murder,
3 genocide; conspiracy to commit genocide; extermination, as a crime
4 against humanity; murder, as a crime against humanity and as a violation
5 of the laws or customs of war; and persecution, as a crime against
7 Mr. Popovic and Mr. Beara were both sentenced to life
9 The Trial Chamber found Mr. Nikolic guilty of aiding and abetting
10 genocide; and committing, as a participant in the JCE to murder,
11 extermination, as a crime against humanity; murder, as a crime against
12 humanity and as a violation of the laws or customs of war; and
13 persecution, as a crime against humanity.
14 Mr. Nikolic was sentenced to 35 years' imprisonment.
15 The Trial Chamber found Mr. Miletic guilty, as a participant in
16 the JCE to forcibly remove, of murder, as a crime against humanity, by
17 majority, Judge Kwon dissenting; and persecution and inhumane acts,
18 forcible transfer, as crimes against humanity.
19 Mr. Miletic was sentenced to 19 years' imprisonment.
20 With respect to Mr. Pandurevic, the Trial Chamber found him
21 guilty of aiding and abetting murder, as a crime against humanity and as
22 a violation of the laws or customs of war, by majority, with Judge Kwon
23 dissenting; aiding and abetting persecution and inhumane acts, forcible
24 transfer, as crimes against humanity; and murder, as a crime against
25 humanity and as violation of the law or customs of war, pursuant to
1 Article 7(3) of the Statute.
2 Mr. Pandurevic was sentenced to 13 years' imprisonment.
3 Following the rendering of the trial judgement, the Prosecution,
4 Mr. Popovic, Mr. Beara, Mr. Nikolic, Mr. Miletic, and Mr. Pandurevic
5 appealed the trial judgement.
6 Let me now turn to the appeals.
7 In its grounds of appeal, the Prosecution requests the
8 Appeals Chamber to, inter alia, one, convict Mr. Pandurevic of committing
9 extermination as a crime against humanity, murder as a violation of the
10 laws or customs of war, and persecution as a crime against humanity
11 through his membership in the JCE to murder, or, alternatively, for
12 aiding and abetting extermination as a crime against humanity, murder as
13 a violation of the laws or customs of war, and persecution as a crime
14 against humanity of Bosnian Muslim civilians; two, convict Mr. Pandurevic
15 for having failed to prevent and punish his subordinates for their
16 criminal acts; and, three, revise Mr. Pandurevic's sentence.
17 In their responses, Mr. Pandurevic, Mr. Popovic, Mr. Nikolic, and
18 Mr. Miletic oppose the Prosecution's appeal as far as they are
19 individually concerned, while Mr. Beara did not respond.
20 Mr. Popovic's appeal brief did not follow the order of the
21 grounds set out in his Notice of Appeal. Rather, he raises contentions
22 under ten different titles, requesting the Appeals Chamber to reverse the
23 convictions entered by the Trial Chamber and to enter a verdict of not
24 guilty on all counts.
25 Alternatively, he requests the Appeals Chamber to quash all
1 convictions and to order a new trial or to reduce his sentence.
2 The Prosecution submits that the Appeals Chamber should dismiss
3 Mr. Popovic's appeal in its entirety.
4 Mr. Beara submits 40 grounds of appeal, requesting the Appeals
5 Chamber to grant him a new trial, to dismiss the charges or to
6 substantially reduce the sentence imposed on him.
7 In response, the Prosecution submits that Mr. Beara's appeal
8 should be dismissed in its entirety.
9 Mr. Nikolic advances 22 grounds of appeal. He requests that the
10 Appeals Chamber quash his convictions. Alternatively, he requests a
11 revision of sentence, and depending on which grounds of appeal are
12 granted, he proposes what the new sentence should be.
13 The Prosecution responds that Mr. Nikolic's appeal should be
14 dismissed in its entirety.
15 Mr. Miletic presents 28 grounds of appeal, requesting that either
16 the trial judgement be quashed and his case be remanded to the
17 Trial Chamber for a trial de novo or that his sentence be reduced. He
18 further submits that the Appeals Chamber should rescind the
19 confidentiality of the trial judgement which was rendered both in a
20 confidential and publicly redacted version.
21 The Prosecution responds that Mr. Miletic's ground of appeal
22 should be dismissed with the exception of ground of appeal 6 with respect
23 to forcible transfer as a crime against humanity.
24 Mr. Pandurevic presents four grounds of appeal, requesting the
25 Appeals Chamber to quash all his convictions and either, in addition or
1 in the alternative, to reduce his sentence.
2 In response, the Prosecution requests that the Appeals Chamber
3 dismiss Mr. Pandurevic's appeal in its entirety.
4 I bring to your attention the timetable set out in the order for
5 the agenda of the appeal hearing issued on 7th November 2013.
6 I encourage the parties to use their allotted time wisely, bearing in
7 mind the questions that the Appeals Chamber raised in the order for the
8 preparation of the appeal hearing of 6 November 2013. It has been well
9 said that brevity is the soul of wit. I say brevity is also the soul of
10 good lawyering.
11 I now invite counsel for Mr. Popovic to present his submissions.
12 I just make one other comment on housekeeping. It's that although the
13 breaks have been set at 15 minutes, evidently we were being overzealous,
14 and we have been asked by the technical people that the break be
15 20 minutes. So the breaks will be 20 minutes.
16 Counsel for Mr. Popovic, you may present your submissions.
17 MR. ZIVANOVIC: Thank you, Mr. President.
18 In presenting Popovic appeal today, I will argue that the
19 Trial Chamber made factual errors resulting in a miscarriage of justice.
20 These errors concern the joint criminal enterprise which allegedly
21 emerged before and in the morning on 12 July 1995 and Popovic's
22 participation therein.
23 JUDGE ROBINSON: Sorry to interrupt you. I neglected to say that
24 you have 75 minutes. Of course, nothing obliges you to use all of that
1 MR. ZIVANOVIC: Thank you, Mr. President.
2 I will then describe the subsequent errors related to the
3 conviction of Mr. Popovic for genocide, crimes against humanity, war
4 crimes, committed after the fall of Srebrenica in July 1995, and
5 Popovic's alleged genocidal intent.
6 I shall also show that the Trial Chamber's assessment of crucial
7 evidence departed from the standards for a reasonable trier of fact and
8 that of beyond a reasonable doubt. Such evidence includes that of PW101,
9 168, Srecko Acimovic, and Momir Nikolic, as well as some documents.
10 I will then turn the floor over to Ms. Tapuskovic and she will
11 respond to the questions put by Your Honours. And she will argue that
12 factual errors were made in respect of the numbers of victims including
13 the murders allegedly committed on 13 July 1995 at Jadar River,
14 Rasica Gaj and Cerska Valley, as described in our brief in paragraphs 203
15 through 210.
16 I will first demonstrate how the Trial Chamber's assessment of
17 the evidence was unreasonable.
18 Paragraphs 8 through 16 of Popovic's brief referred the
19 jurisprudence establishing the standards of reasonable Trial Chamber, and
20 the standard beyond a reasonable doubt. I will not repeat it in my oral
21 submission. As discussed in the brief, Momir Nikolic was the
22 Trial Chamber's sole source that the plan to murder Bosnian Muslim men in
23 Potocari began before the third Hotel Fontana meeting at 10.00 on
24 12 July 1995. This was in error. On the basis of Momir Nikolic's
25 evidence, the Trial Chamber found that Popovic had genocidal intent due
1 to his knowledge of the plan to murder from the time of its inception.
2 I refer to trial judgement paragraph 1178. Resting on his testimony
3 about discussion in Bratunac before the operation began and statement
4 that all balijas have to be killed. It's in paragraph 1179 of the trial
6 I'll not repeat our arguments set out in paragraphs 34 through
7 168 of the brief except to state that the Trial Chamber selectively read
8 the transcript as demonstrated in paragraphs 40 to 46 of the brief, that
9 the Chamber erroneously relied on the errors in Nikolic's statement of
10 facts, as described in paragraphs 47 to 49 of the brief, while
11 disregarding the flagrant inconsistencies between the statement of facts
12 and Nikolic's testimony, as described in paragraphs 50 to 64 of the
14 The Chamber also completely disregarded a bulk of evidence which
15 proves that the separation process dealt solely with the screening, as
16 described in paragraphs 65 through 73. Paragraph 66, footnote 107, of
17 Popovic's brief referred to evidence provided by Prosecution witnesses,
18 Muslim prisoners, DutchBat officers, and officers of the Army of
19 Republika Srpska who testified about the screening carried out on 12 and
20 13 July 1995. The list of war criminals dated on 12 July 1995 strongly
21 demonstrated that the main objective of the separation in Potocari was to
22 identify potential war criminals. Indeed, as a result of these
23 screenings, many Muslim men left Potocari to the Muslim-held territory,
24 as described in paragraphs 157 through 162 of the brief.
25 The screening efforts actually demonstrated the intent of the
1 Bosnian Serb forces to identify war crime suspects. The screening
2 process disproves that the plan to kill Muslim men in Potocari was the
3 only reasonable conclusion from the evidence.
4 Popovic also indicated that the prisoners from Potocari were in
5 the purview of civilian authorities from 11 until 14 July 1995.
6 Exhibit P10 proved that the citizens from Srebrenica who participated in
7 combat against Army of Republika Srpska were under jurisdiction of the
8 newly appointed commissioner for Srebrenica, Miroslav Deronjic, as
9 described in paragraph 81 of the brief. The DutchBat officer Boering
10 discussed the evacuation and separation issues after the third
11 Hotel Fontana meeting with the representatives of the civilian
12 authorities, as described in paragraph 80 and 83 of the brief.
13 Prosecution Witness 162's activities demonstrated that the
14 civilian authorities had jurisdiction over Srebrenica civilians. This
15 includes Mladic's introduction of Deronjic to international service as
16 such, as described in paragraph 84 and 85 of the brief.
17 Finally, Beara's conversation with Deronjic on the night of
18 13 July as recounted by the Trial Chamber at paragraph 1264 of the
19 judgement strongly indicated that, at that time, the civilian authorities
20 were responsible for the prisoners, as described in paragraphs 86 through
21 88 of the brief.
22 Therefore, a discussion, alleged discussion, between Popovic,
23 Momir Nikolic and Kosoric on the accommodation of prisoners in sites in
24 and around Bratunac, among them as military officers, would have been
25 outside the jurisdiction, outside their scope of responsibility and
1 therefore unfeasible, as described in paragraphs 74 through 88 of the
3 The brief established and the Trial Chamber neglected to
4 acknowledge that Momir Nikolic had every incentive to incriminate himself
5 for ordering of the execution of prisoners at Kravica warehouse and
6 Sandici, as described in paragraphs 89 through 99 of the brief. The
7 Trial Chamber overlooked that, in the course of plea agreement
8 negotiations, his purported confessions to such a terrible crime was at
9 first rejected by the Prosecution, prompting him to then falsely
10 incriminate others, including Popovic.
11 Knowing that the Prosecution was looking for the plan to murder,
12 Nikolic invented the conversation with Popovic and Kosoric on 12 July in
13 front of the Hotel Fontana. In the end, that was the only piece of
14 evidence about the plan to kill Muslim men emerging before 10.00 in the
15 morning on 12 July 1995.
16 The Chamber erroneously concluded that Nikolic diminished his
17 role and the responsibility in Potocari. However, Popovic asserts that
18 the parts of his statement concerning his coordinating role is false;
19 namely, only commanders of the units could have a coordinating role in
20 the command and control of various military units. Nikolic was not a
21 commander of any unit and could not coordinate activities of various
22 units in Potocari. As a non-commissioned officer, his military knowledge
23 was very limited. His statement of facts and subsequent testimonies
24 showed a lack of military -- of familiarity with key military terms. For
25 instance, his discussion of the coordination of various units neglected
1 that a coordinator holds command authority and issue orders, a fact that
2 he would deny to evade responsibility if he knew its true meaning. It is
3 described in paragraphs 115 to 118 of the brief.
4 The Trial Chamber was beguiled by Nikolic, arguing that his
5 demeanour was credible on certain issues but not others. The Chamber did
6 not explain how Nikolic's demeanour during untruthful part of his
7 testimony differed from when he allegedly testified truthfully. It is
8 addressed in paragraphs 119 through 121 of the brief.
9 In any event, the finding disregarded the obvious contradictions
10 in his evidence.
11 The Chamber's attempt to provide evidence to corroborate
12 Nikolic's testimony fell short. This is in -- these are paragraphs 284
13 through 288 of the judgement, and it was addressed in the brief in
14 paragraphs 122 through 126.
15 The Trial Chamber's finding of a plan to commit genocide centred
16 on the content of the purported conversation between Popovic, Nikolic and
17 others in front of the Hotel Fontana on 12 July. However, nothing in the
18 evidence used by the Trial Chamber corroborates Nikolic's testimony in
19 any way, supported the content of the discussion, if any, that the men
20 had to be killed at the time. Meanwhile, the testimony of Defence
21 Witness Kosoric, who denied the conversation described by Nikolic in
22 front of the Fontana Hotel, was conveniently dismissed. It was analysed
23 in paragraphs 127 to 157 of the brief.
24 The Trial Chamber also erred in finding that the plan to murder
25 expanded to include the captured men in the -- from the column. Though
1 the Trial Chamber found, for instance, that heavy combat operations were
2 ongoing on 12 and 13 July - for example in the paragraphs 365, 371, 376
3 of the judgement - the Trial Chamber nevertheless construed that Mladic's
4 order gagging all discussion of military activities was evidence of a
5 murder plan. The order restricted movements for uninvited persons in
6 Srebrenica and Zepa regions and closed roads leading to the battlefields.
7 The order instructed brigade commanders to ban and prevent the release of
8 information to media regarding combat activities, prisoners of war,
9 evacuated civilians, escapees. These restrictions obviously served to
10 prevent Muslim forces from becoming aware of the army's movement and
11 plans. A further list of contradictions and inconsistencies as to this
12 misconstruction may be found in paragraphs 171 through 178 of Popovic's
14 The Chamber also erred in relying on other evidence in order to
15 find that Popovic issued an order to Jokic not to mention prisoners in
16 written and radio communication and that that order was sent through the
17 line of command on 13 July. Popovic would not have issued such
18 instruction to Jokic; namely, Jokic was, as chief of the security --
19 namely, Jokic was the chief of engineering of the Zvornik Brigade.
20 Popovic would send such instruction to the commandant of the
21 Zvornik Brigade. Jokic was subordinate to Obrenovic at the time, who was
22 the Chief of Staff and acting commander of the Zvornik Brigade. As the
23 chief of engineering, Jokic could not issue the orders to the brigade.
24 If Popovic had wanted to give or convey any order, he would not have
25 issued to Jokic but to Obrenovic, who was the commander of the brigade at
1 the time. It was addressed in our brief in paragraphs 179 through 180.
2 Popovic also listed the evidence indicating that the plan to
3 murder did not exist before 14 July 1995. It is in paragraphs 181
4 through 202 of the brief. The errors demonstrated in that part of the
5 brief affects judgement's finding related to the expansion of the plan to
6 murder to the men from the column on 13 July, as mentioned in
7 paragraphs 857, 858, and 861 of the judgement.
8 Popovic's brief showed why the killings in the Kravica warehouse
9 and Sandici meadow were not a part of the plan to murder. They need to
10 be repeated today, but -- they need not be repeated today, but I invite
11 Your Honours to review paragraphs 211 through 214 of the brief.
14 (redacted), it's in paragraphs 223 --
15 MR. ROGERS: Your Honours, may we go into private session,
17 JUDGE ROBINSON: Private session.
18 [Private session]
10 [Open session]
11 THE REGISTRAR: Your Honours, we are back in open session now.
12 MR. ZIVANOVIC: I refer Your Honours to the jurisprudence on plea
13 agreement witnesses from Judge Prisca Matimba Nyambe's dissenting and
14 separate concurring opinions in the judgement in Tolimir. This is in
15 paragraph 5 to 13 of that judgement. The witnesses invented
16 intermediaries to convince the Prosecution to accept their pleas and
17 diverted attention away from their own culpability, as described in
18 paragraphs 233 through 237.
19 For all due caution, I would move to the private session.
20 JUDGE ROBINSON: Private session.
21 [Private session]
15 [Open session]
16 MR. ZIVANOVIC: The significant contradictions in the evidence of
17 the plea agreement witnesses set out in paragraph --
18 THE REGISTRAR: For the record, Your Honours, we are now in open
20 MR. ZIVANOVIC: Sorry.
21 The significant contradictions in the evidence of the plea
22 agreement witnesses set out in paragraphs 238 to 268 just confirm their
23 lies. These factual errors impact the Trial Chamber's findings that
24 Popovic knew about the plan to murder.
25 The Chamber furthermore erred by finding Popovic direct
1 participation in the murders in Grbavci school, Rocevic, and Pilica. It
2 is in paragraph 269 of the brief. Contrary to the Trial Chamber's
3 finding, Popovic was not present at the two execution sites: Lazete 1,
4 also known as Orahovac, in the evening of 14 July, and Branjevo on
5 16 July. No witness identified Popovic at any execution site. PW-101
6 described a Lieutenant Colonel or Colonel from the Drina Corps at the
7 execution site in Lazete 1 but did not know his name. He also did not
8 identify him. Instead, the Trial Chamber used circumstantial evidence to
9 find that this officer was Popovic. It was analysed in paragraphs 285
10 through 298 of our brief.
11 The testimony of PW-101 is in any event untrue, as described in
12 paragraph 299 through 308. In particular, Popovic extensively named
13 other evidence which contradicts the testimony of PW-101 as demonstrated
14 in paragraph 301. The credibility of this witness has been obviously
15 demonstrated after the judgement when he retracted highly relevant parts
16 of his testimony, denying even that he said --
17 MR. ROGERS: Your Honours, I'm sorry to rise at this point. This
18 is the -- this is subject to an outstanding Rule 115 application which
19 has not been ruled upon. This material is not in the record and should
20 not be submitted upon at this stage.
21 JUDGE ROBINSON: That would seem to be correct. Counsel?
22 MR. ZIVANOVIC: Okay. I agree. I'll omit it from my submission.
23 Thank you.
24 While his commander testified that PW-101 was sent to Orahovac in
25 order to pick up Sreten Milosevic, deputy commander for logistics in the
1 Zvornik Brigade, as described in paragraph 301(a), PW-101 inexplicably
2 recalled being sent there to drop off provisions. He also concealed from
3 the Chamber that he himself never went to the execution site while the
4 executions were taking place. According to Witness 3DW10, PW-101 never
5 saved young boy from the execution site, as described in paragraph 301(c)
6 and (d). Rather, he picked him up in front of the school nearby. PW-101
7 misrepresented that only he was with the boy in the van during the drive
8 to Zvornik, as described in 301(e), and that he drove the van straight
9 from the execution site to the Zvornik hospital, as described in
10 paragraph 301(f). But other witnesses clearly recalled accompanying him.
11 Finally, he lied that he was present at the execution site Lazete 1 on
12 the evening of 14 July. These executions took place in the night after
13 the executions at Lazete 2 had been completed. PW-110, a survivor of the
14 execution, attested to this. The account of the event from these various
15 witnesses is too inconsistent to prove to a reasonable Chamber, beyond a
16 reasonable doubt, that Popovic was present in Orahovac on 14 July.
17 It was addressed in paragraphs 305 to 307 of the appeal brief.
18 The Trial Chamber's credibility assessment of PW-101 is
19 unsustainable as he's the subject of a pending Rule 115 motion.
20 Therefore, the Trial Chamber's finding that the officer present at
21 Lazete 1 while the execution was taking place is not the only reasonable
22 conclusion from the evidence.
23 The Chamber made a more drastic error by finding that the officer
24 who was described by Drazen Erdemovic was Popovic. Erdemovic described
25 the officer as a very corpulent man with no mustaches or beard. Popovic
1 is 174 centimetres and had mustache at the time. Erdemovic did not
2 recognise Popovic in the photo lineup. The Trial Chamber nevertheless
3 concluded that this officer was Popovic. It was addressed in our brief
4 in paragraphs 271 through 282.
5 The Trial Chamber used -- the Trial Chamber's use of the fuel
6 request to bolster its findings about Branjevo erred in three ways.
7 First, the Chamber failed to acknowledge that Popovic did not necessarily
8 make the request personally. As assistant commander of the Drina Corps,
9 Popovic would need to request the fuel directly from his command. He
10 would not make such a request through the Zvornik Brigade. If he could
11 contact the Zvornik Brigade, he was also able to communicate with the
12 Drina Corps command. Second, meanwhile, timing of both the request and
13 its delivery did not effectively coincide such that it would in any way
14 assist the executions. Finally, a request for fuel is at odds with other
15 documents which concretely demonstrate that the machines used for burials
16 were filled at the gas station in Zvornik.
17 This topic and others have been additionally undermined by
18 evidence which we have submitted in Rule 115 motion. This finding is not
19 the only reasonable conclusion from the evidence.
20 Also, the Trial Chamber erred by finding that the intercept of
21 17 July 1995 was related to the killing and burials of the Muslim
22 prisoners. It is addressed in paragraph 341.
23 In its interpretation, the Chamber disregarded dots in the text
24 which clearly indicated missing words in the conversation, as described
25 in paragraph 343 through 345. In addition, the Trial Chamber disregarded
1 that Popovic received an order to visit Baljkovica in the afternoon of
2 16 July to deal with the opening of the corridor, as described in
3 paragraphs 346 to 350 of the brief.
4 According to the Defence Witness Rakic, the corridor was a highly
5 urgent and important issue at the time. Indeed, even three high-ranking
6 officers from the Main Staff were sent to double-check the reports about
7 the corridor submitted by Pandurevic and later Popovic.
8 I will next show how the Chamber also erred in finding that
9 Popovic had a coordinating role in Orahovac, Rocevic, and Branjevo. It's
10 paragraphs 283 through 284.
11 The role of Popovic, his alleged presence, acts and conduct in
12 Rocevici on 15 July in the morning is analysed in paragraphs 309 to 335
13 of Popovic's brief. According to the Trial Chamber, Popovic arrived in
14 front of the Rocevic school to kill prisoners, without men, ammunition,
15 trucks, or even a possible location to carry it out. The three
16 Prosecution witnesses who were present in front of Rocevic school - it is
17 in paragraph 318 of our brief - in no way confirmed Acimovic's testimony.
18 It is addressed in paragraphs 326 and 331 to 335 of the brief. The
19 Chamber did not clearly assess the testimony of two of them, as described
20 in paragraph 320, and distorted the evidence of one, as described in
21 paragraph 321 through 322. For corroboration, the Trial Chamber
22 illogically confused correlation with causation. The Chamber could only
23 find proof of Acimovic's account by looking at the subsequent acts of
24 Acimovic and others. This is not evidence of Popovic's accountability.
25 Moreover, their evidence as well as documents adduced strongly indicated
1 that Acimovic himself organised the provision of ammunition, vehicles and
2 men for execution of prisoners in Rocevici and determined Kozluk as the
3 execution site. However, he concealed the actual superior or superiors
4 who ordered him to do that as explained in paragraphs 317 and 326.
5 Finally, the Trial Chamber failed to acknowledge the testimony of
6 Prosecution Witness Dragan Todorovic who saw Popovic in Dragasevac at the
7 time when he was allegedly in Rocevic. It is transcript pages 14026.
8 I will now discuss how the Trial Chamber made errors as to
9 Popovic's custody of the ten wounded prisoners from the Standard
10 barracks. It is in the brief in paragraphs 357 through 360. The Chamber
11 misconstrued the content of two intercepts, as described in Popovic's
12 brief in paragraphs 361 through 365, and vehicle logbook for his Golf, as
13 described in paragraph 366 to 367. Moreover, the Chamber disregarded
19 Chamber found, inter alia, that Popovic's Golf car travelled to Zvornik
20 but did not resolve whether Popovic travelled in that car on that day.
21 The Chamber was also ambiguous about the stay of the Milic patients in
22 the Zvornik hospital before they transferred to the Zvornik Brigade, as
23 described in paragraph 369. The Trial Chamber disregarded the evidence
24 of Dr. Novakovic, who brought the wounded Muslims from Milici in the late
25 afternoon on 14 July but did not find them in the hospital in the morning
1 of 15 July, as described in paragraph 370 of the brief.
2 MR. ROGERS: Your Honours, I'm sorry, may we go briefly into
3 private session?
4 JUDGE ROBINSON: Yes.
5 [Private session]
18 [Open session]
19 THE REGISTRAR: Your Honours, we are back in open session.
20 MR. ZIVANOVIC: I think we should stay in the private session,
21 Your Honours. I apologise.
22 JUDGE ROBINSON: As a matter of caution, okay, yes, we will stay
23 in private session but tell us when we will exit.
24 MR. ZIVANOVIC: Yes.
25 [Private session]
6 [Open session]
7 THE REGISTRAR: We are back in open session, Your Honour.
8 MR. ZIVANOVIC: The Trial Chamber also disregarded the testimony
9 of Dr. Zoran Begovic who confirmed that all instructions as to these
10 patients he had received from Obrenovic who made all arrangements about
11 their transfer, accommodation, and medical treatment by the personnel
12 from the Zvornik hospital. He even instructed Dr. Begovic not to
13 register these patients into the register book of the Zvornik Brigade
14 infirmary. It is in paragraphs 371 through 373 of the brief; transcript
15 pages 9137 through 9138 and 9140.
16 The evidence also indicated that the securing of the Zvornik
17 medical centre arose on 14 July 1995, the same day when the wounded
18 Muslims were transferred from Milici. That task was carried out by
19 Obrenovic's subordinate, Mihajlo Galic, who would have done so only on
20 Obrenovic's order. It's paragraph 374. The information about the death
21 of one of the wounded Muslims in the Zvornik hospital, sent in the early
22 morning hours of 16 July, strongly demonstrated that the other wounded
23 Muslims had been already transferred to the Zvornik Brigade by that date
24 and not on the 20th, as the Trial Chamber held. It is described in our
25 brief in paragraphs 377 and 378.
1 One of the missing patients was treated in the morning on
2 14 July 1995 by Dr. Novakovic and sent to the Standard barracks - it is
3 in paragraph 379 of our brief - showing that these patients were sent to
4 Zvornik Brigade infirmary on 14 July. All these facts indicate that it
5 was not only reasonable conclusion from the evidence that Popovic killed
6 or facilitated killing of the wounded Muslim patients.
7 The next issue that I shall challenge involves Bisina. These
8 events were not the part of the indictment, as described in paragraphs
9 387 through 401. The Chamber disregarded the evidence presented by the
10 Defence, indicating that in the morning of 23 July, when the events in
11 Bisina took place, Popovic went to Zvornik where he met the manager of
12 the Vezionica factory, Vlacic. Although Vlacic could not remember the
13 exact date of the meeting but distinctly recalled that he asked about
14 Popovic's relative, Djordje Popovic, who was wounded and captured in the
15 action near Zepa. At 9.00 in the morning of 23 July, the duty officer of
16 the Drina Corps, Jevitski reported to the Drina Corps commander, General
17 Krstic, that Popovic went to Vlacic. It is in paragraph 395. The
18 vehicle logbook for the Golf used by Popovic also registered his travel
19 from Vlasenica to Zvornik and back, as described in paragraph 396. Two
20 other witnesses who worked on the construction of the barracks in Bisina
21 described that Popovic arrived there two or three hours after the trucks
22 and showed him the road. Popovic went there and came back shortly
23 thereafter. Cumulatively, these evidence confirm that Popovic arrived at
24 Bisina after the execution of the prisoners.
25 Popovic challenged the finding of the Chamber that Bosnian Serb
1 forces committed genocide, as described in paragraphs 19 through 32 of
2 the brief. According to the Chamber's definition, Bosnian Serb forces
3 include many thousands of members, the majority which had not any role in
4 the events in Srebrenica. The judgement did not identify any specific
5 member of the Bosnian Serb forces that possessed genocidal intent except
6 Popovic and Beara.
7 Judicial fairness requires that the genocidal intent of the
8 perpetrator must be established only on a case-by-case basis. For
9 example, the perpetrator of the execution of Muslim prisoners at Branjevo
10 military farm, Drazen Erdemovic, was not convicted for genocide, as he
11 lacked genocidal intent. So far, the ICTY tried 11 accused for the
12 Srebrenica mass killings. None -- none of the units' commanders from the
13 Drina Corps were found guilty for genocide, for the lack of genocidal
14 intent. Yet, according to the Trial Chamber, untold and unknown members
15 of the Bosnian Serb forces nevertheless possessed such intent.
16 The finding that members of the Bosnian Serb forces committed
17 genocide violates the presumption of innocence and introduced instead the
18 presumption of guilt of genocide for any members of the Bosnian Serb
19 forces. It is notable, however, that such a finding was necessary pillar
20 for finding Popovic's genocidal intent. Without such finding, the
21 genocidal intent would be restricted to just two medium-ranking VRS
22 officers, Popovic and Beara.
23 The acts of the Bosnian Serb forces at the time demonstrated that
24 they transported between 20- and 30.000 Muslims to the safety of the
25 Muslim-held territory. In addition, despite their awareness of the
1 movement of the Muslim military column breaking through the Serb-held
2 territory, the VRS sent its main forces in opposite direction, to Zepa.
3 These acts clearly demonstrated the lack of genocidal intent on the part
4 of the Bosnian Serb forces.
5 The Chamber took two elements as the proof of genocidal intent, a
6 significant coordination, as described in trial judgement -- in
7 paragraphs 882 and 933, and the vast process. It is Popovic's submission
8 that neither significant coordination nor a vast process are distinctive
9 elements of genocide. Indeed, war crimes or crimes against humanity, if
10 not all crimes with more than two co-perpetrators, may process the same
11 characteristics, as described by the Trial Chamber. Popovic analysed in
12 details these errors in paragraphs 19 to 32 of his brief.
13 I now give the floor to Mrs. Tapuskovic.
14 MS. TAPUSKOVIC: [Interpretation] Good morning, Your Honours.
15 Good morning to the colleagues from the Prosecution.
16 One part of the appeal brief for Vujadin Popovic relates to the
17 victims of Srebrenica, to the persons gone missing, executed, identified.
18 And in that appeal, we submit that the Trial Chamber erred in
19 establishing the total number of missing, in establishing the total
20 number of deceased, in including the total -- among those killed the
21 victims from Nova Kasaba, and including in the total number of killed the
22 victims that were at locations not alleged in the indictment, and in
23 going beyond the scope of the indictment in establishing, among those
24 killed, some who were not alleged in the indictment.
25 We would like to refer you right now to 607 paragraph from
1 Trial Chamber where it is stated that the precise number of deceased is
2 not necessary in order to reach a conclusion regarding the crimes alleged
3 in the indictment. And there we refer you to footnote 2214, a conclusion
4 as to the number of persons killed does not form an element of the crimes
6 However, the Trial Chamber also went on to say in the same
7 paragraph that, however, such an estimate is relevant, particularly to
8 the crime of genocide and extermination, a crime against humanity.
9 Now, and in paragraphs 457 and 461 of our appeal brief, we
10 asserted that the Trial Chamber erred in paragraph 659 and 664 by
11 including among the persons missing the identities of persons that could
12 not be matched with a single person from the list of missing, as well as
13 the persons exchanged in Batkovic, who were later found to be alive. The
14 Trial Chamber erred also by including in the total number of identified
15 those persons who were not identified by their first or last name but
16 only by their unique DNA profile. According to Janc, without
17 identification one could not be sure that the remains belonged to
18 individuals associated with the events following the fall of Srebrenica.
19 This is something that the Trial Chamber itself found at paragraph 651 of
20 the judgement. Consequently, the number of those identified should be
21 reduced by the number of those who could not be matched with the list of
22 missing, but in respect of whom we only have their unique DNA profile.
23 At paragraph 441 of our appeal, we found that the Trial Chamber
24 erred by adding to the number of persons executed also the surface
25 remains found at the Kozluk site; whereas elsewhere in the judgement, at
1 paragraphs 651, 659 and 660, other surface remains were excluded from the
2 total number of victims. Therefore, we believe that a consistent
3 approach should be adopted and the same approach should be adopted to
4 these Kozluk surface remains.
5 The Nova Kasaba victims were addressed in paragraphs 415 and 418
6 of the appeal brief.
7 JUDGE ROBINSON: Just a minute. Can you just clarify "surface
8 remains"? What is meant by "the surface remains"?
9 MS. TAPUSKOVIC: [Interpretation] Yes, Your Honour. The judgement
10 extensively addressed the issue of surface remains. In the report by
11 expert Janc, which is P4490, it was stated --
12 THE INTERPRETER: Can Ms. Tapuskovic please repeat the number of
13 the victims she referred to.
14 JUDGE ROBINSON: The interpreter is asking to you repeat the
15 number of victims that you just mentioned.
16 MS. TAPUSKOVIC: [Interpretation] It was stated that there was
17 648 sets of surface remains.
18 May I proceed, Your Honour?
19 Paragraph 30.3.1 of the indictment alleges the events at
20 Nova Kasaba. However, the victims from Nova Kasaba, as the Trial Chamber
21 itself found at footnote 6069, as alleged in the indictment, were not
22 proven. In our view, therefore, that the total of 90 victims that were
23 alleged to have been killed at Nova Kasaba should be deducted from the
24 total number of victims established in paragraph 664 of the judgement
25 because they were not proven to have been the victims of executions.
1 This applies to all of the four graves of Nova Kasaba, 1996, 1999, 2001
2 and the individual grave. This is to be found in the Prosecution exhibit
3 P4490, annex A, page 34 -- pages 3 and 4.
4 This reduction should be carried out according to the same
5 principle that was applied in paragraph 657, 661, 662, and 664 of the
6 judgement, where the Trial Chamber reduced the total number of victims by
7 12 sets of mortal remains from the Glogova 1 grave, those were bodies
8 that were brought back from Serbia, and by ten persons from the
9 Cancari Road 4 grave.
10 As stated by my colleague, Mr. Zivanovic, this was not alleged in
11 the indictment, the location of Bisina was not alleged in the indictment
12 and was only raised by the OTP as proof of the pattern of conduct of the
13 accused Popovic, of his participation in the murder operation, and this
14 is P4490, page 4, annex A, page 28. We believe that an error was made in
15 this way, when arriving at the number -- at the total number of victims
16 because these victims were not alleged in the indictment and were not
17 part of the Prosecution case.
18 In our appeal brief, paragraphs 460 and 463, those victims
19 addressed in other graves were dealt with, and according to Janc, these
20 were surface remains. This is P4490. In our submission, these persons
21 who were identified there should be treated the same as other surface
22 remains, as indicated in paragraph 651, 659 and 660, including 648. We
23 also have persons exhumed among them who were from unknown locations, and
24 since there was no information of their cause or place of death, Janc
25 himself believed that they were to be treated as surface remains.
1 Now, the Defence appeal brief at paragraph 6 -- 465 deals with
2 the victims whose remains were recovered in Serbia. There is no proof of
3 cause of death and therefore there is no proof of them being victims of
4 murder. This is P4490, annex A, page 35. In our view, therefore, they
5 should not be included among the total number of victims.
6 Here we have to point out that the Trial Chamber in Tolimir
7 arrived at entirely different conclusions and findings in their
8 judgement, which were not appealed by the Prosecution. We are aware of
9 the fact that the Trial Chamber in Tolimir used its discretion to
10 establish certain facts. However, it is the -- a mission of this
11 Tribunal to establish facts. It will be part of its legacy. And the
12 mission includes, among other things, the practice for the Trial Chambers
13 to rely upon the factual findings from other cases through adjudicated
14 facts. We believe that the interests of justice would make such a
15 conclusion imperative in this case as well.
16 In the Tolimir trial judgement, at paragraphs 546 and 569, the
17 Trial Chamber found that approximately 39 men were mentioned and alleged
18 in the indictment in respect of Bisina, although the Trial Chamber itself
19 found that 54 persons were killed. Although the number is bigger than
20 the one alleged in the indictment, nevertheless, it goes beyond the scope
21 of the indictment and the specific paragraph and therefore is not part of
22 the case against the accused.
23 As for the victims falling into the category of other graves,
24 they are mentioned in the Trial Chamber against Popovic, just as they
25 were in the Tolimir trial judgement.
1 Now, the Tolimir Trial Chamber found at paragraph 590 that the
2 forces of the Bosnian Serbs did not kill the victims mentioned in this
3 category as victims hors de combat with the exception of the victims of
4 Trnovo. In our case, unlike the Tolimir Trial Chamber, these victims
5 were included in the total number of victims. Now, in the Tolimir
6 judgement, the Kozluk surface remains were included in the category of
7 other graves but were not included among the total number of victims.
8 The Trial Chamber in our case did so.
9 As for persons identified in other graves and those identified in
10 Serbia, we can say the same thing that we said about Bisina; namely that
11 these locations were not included in the indictment. We did not have any
12 proof that this had to do with executions that were the result of the
13 execution of a joint criminal enterprise to murder and their number
14 should not be included in the overall number of victims.
15 The indictment only refers to locations sites referred to in
16 paragraphs 30.1 to 31.4, and other locations are not mentioned.
17 The possibility that the killings occurred at other sites as well
18 was not referred to by the Prosecution in their pre-trial brief,
19 paragraphs 47 through 130, and not in their opening arguments, and that
20 is an acceptable way to additionally clarify the indictment. That is
21 part of the jurisprudence of this Tribunal as stated in the Naletilic
22 judgement, paragraph 34.
23 Your Honours, now we would like to deal with the questions that
24 you put to the Popovic Defence.
25 The questions were put along the following lines, I'm going to
1 read out that in the English language now: [In English] To discuss
2 Popovic submission that the Trial Chamber erred in convicting him for
3 execution of more than thousand males at Kozluk on 15 July 1995, while
4 the indictment only charged him with killing about 500 Muslim men at that
6 [Interpretation] The first question of the Appeals Chamber was
7 how the Trial Chamber interpreted 30.10 and 30.8.1 in the indictment in
8 footnote 1839 of the trial judgement.
9 In paragraph 30.8.1 of the indictment, it is stated that
10 approximately 500 Bosnian Muslims, on the 14th or 15th of July, were
11 detained at the school in Rocevici. In paragraph 30.10 of the
12 indictment, it is stated that on the 15th of July, 1995, members of the
13 Army of Republika Srpska and/or the MUP of the Republika Srpska
14 transported about 500 Bosnian Muslims to a location near Kozluk and
15 executed them summarily, and on the following day they were buried.
16 That paragraph, 30.10 of the indictment, does not state where the
17 Bosnian Muslims had been brought from. By reading the indictment itself,
18 the school in Rocevici cannot easily be linked to Kozluk. However, the
19 body of evidence that was adduced during the trial, in terms of what
20 happened at the school in Rocevici and in Kozluk, unequivocally shows
21 that the detainees from the school in Rocevici were transported to
22 Kozluk. The judgement, in paragraph 516, states that the prisoners from
23 the school in Rocevici were transported to Kozluk together with the
24 corpses that had already been seen in front of the school, and that is
25 confirmed in footnote 1839.
1 The position of the Defence is that footnote 1839 of the
2 judgement is very clear. It is on page 199 of the judgement and the
3 title is: "The school in Rocevici and Kozluk." We wish to note on this
4 occasion that the prisoners from the school in Rocevici were killed in
5 Kozluk and these were the persons involved in one single transaction as
6 is defined in Rule 2 of the Rules of Procedure and Evidence. We believe
7 that the judgement, in terms of paragraph 516 and footnote 1839,
8 corrected a shortcoming of the indictment that did not properly link the
9 Rocevici school and Kozluk.
10 As regards the second question that was put by the
11 Appeals Chamber to the Popovic Defence, and it reads as follows: [In
12 English] Whether Popovic was convicted for any killings in excess of
13 those pleaded in these two provisions.
14 [Interpretation] In paragraph 524 of the judgement, the
15 Trial Chamber asserts that 1040 persons identified and linked to Kozluk
16 primary and secondary graves, seven of them on the road to Cancari 2, 3,
17 4, 5 in particular, 7, and 13.
18 The Defence believes that one of the basic principles of criminal
19 procedure is that one should not go beyond the scope of the indictment.
20 We believe that a Court cannot find someone responsible for anything that
21 goes beyond the allegations made in the indictment.
22 JUDGE ROBINSON: Counsel, just to observe that there is just
23 about three or four minutes before the break.
24 MS. TAPUSKOVIC: [Interpretation] Your Honour, I believe that I
25 will manage to finish within those three or four minutes, and thank you
1 for having said that. May I continue? Thank you.
2 Changing the number of victims is not a substantive change. That
3 is not a material fact in legal terms. It does not mean adding new
4 crimes in addition to the existing ones. All the elements of the crimes
5 that have been charged would remain the same. It is just a question as
6 to whether this number is part of the Prosecution case against the
7 accused. Whether there were 500 victims at one location or 1.000 victims
8 is a question of fact, not a legal question, but it is a legal question
9 whether somebody is -- whether somebody can be found guilty for over
10 1.000 victims and the indictment charges about 500.
11 In the judgement, in paragraph 523, Cancarski Put number 5 where
12 283 persons were identified, P4490, paragraph -- annex A, pages 11 and
13 37, the judgement links this to Kozluk because Janc also links it to
14 Kozluk. However, the Janc report, in the Tolimir case, links this grave
15 to Branjevo, a completely different location.
16 MR. ROGERS: Your Honours, I'm sorry to rise. It's really not
17 appropriate to refer to evidence in another case in this case when there
18 is no evidence on the record. If my learned friend wished to make
19 applications to bring that evidence into the record, Rule 115 is the
20 correct route to do so. And whilst I'm on my feet, there have been a
21 number of references to the Tolimir trial judgement. That also is not
22 appropriate, to make references to another judgement dealing with the
23 same issues or some of the same issues because, of course, the evidential
24 record in that case is different to the evidential record in this case.
25 So my learned friend should not make references to the other judgements
1 that may deal with these issues because they are not within the four
2 square walls of this case.
3 JUDGE ROBINSON: Just a second.
4 [Appeals Chamber confers]
5 JUDGE ROBINSON: We will take the break now, counsel.
6 20 minutes.
7 --- Break taken at 11.30 a.m.
8 --- On resuming at 11.57 a.m.
9 JUDGE ROBINSON: Mr. Rogers, I find that while there are elements
10 of correctness in your last submission, overall I conclude it's not
11 correct, it's not correct to say counsel can't refer to the -- to another
12 case. The cases are public document. Of course, it will be a matter for
13 the Appeals Chamber to determine what weight to attach, what value to
14 attach to the reference. In this particular instance, I note that the
15 Tolimir case is on appeal and the Appeals Chamber would, of course, take
16 that into account in assessing the value of the reference. In other
17 instances, we have the rule that factual findings by a Chamber in one
18 case are not binding on another Chamber. So in all the circumstances, I
19 believe that your submission, your objection, was a little extreme.
20 Counsel may make the reference and the Chamber will determine the value
21 to attach to it.
22 MR. ROGERS: Your Honour, may I make a brief comment?
23 JUDGE ROBINSON: Yes.
24 MR. ROGERS: Your Honour, my concern is this, that if evidence
25 from another case is being referred to, as my learned friend did in
1 relation to a report by a particular witness, that evidence should be on
2 the record in this case, and the route to do that is through Rule 115.
3 Otherwise, the Court will be taking into account considerations based
4 upon evidence that is not on the record in this case.
5 Likewise, if there are findings of fact from another case, then
6 the correct route would be an adjudicated facts motion but I simply can't
7 see how that could possibly occur in proceedings on appeal. The problem
8 with an appeal is that is ring-fenced by the evidence within the record
9 and any other material outside of the evidence on the record is simply
10 not admissible unless the Appeals Chamber has determined that it should
11 come in in an admissible form, and it has not. And so there are no
12 circumstances in which, on appeal, the Appeals Chamber can take notice of
13 factual or other findings in other cases, in my submission, to inform you
14 as to the arguments that are being made on the evidence on the record in
15 this case.
16 JUDGE ROBINSON: I still find it a little extreme. Yes?
17 MS. TAPUSKOVIC: [Interpretation] Thank you, Your Honours. Your
18 decision was made before I wanted to add just one sentence. I thought
19 that the Prosecution should have waited for me to finish the sentence
20 that I had started because I was not invoking any evidence from Tolimir.
21 I just wanted to invoke paragraphs 480, 481, 581, with footnote 2564, and
22 paragraph 596 of the Tolimir judgement. As for Cancarski Put number 5,
23 it links it to Branjevo not to Kozluk anymore. Because of the role of
24 this Tribunal and because of the need for historical facts to be recorded
25 properly, we need to take that into account as well. I shall proceed
2 JUDGE ROBINSON: Before you continue, just one housekeeping
3 matter has been brought to my attention. It's that if a particular party
4 concludes his or her submissions before the time allotted, then the other
5 party should be ready to take up the slack.
6 Thank you. You may proceed.
7 MS. TAPUSKOVIC: [Interpretation] Paragraph 480, 481, 486, 591,
8 link only 761 persons to Kozluk. If we were to subtract grave
9 Cancari Road 5, because it was established that it was related to
10 Cancari, we would have a number less than 1.000 victims related to
11 Kozluk. The Kozluk primary and secondary graves, that is. The position
12 of the Defence is that the number of over 1.000 Muslims killed in Kozluk
13 goes beyond what is stated in paragraphs 30.8.1 and 30.10 of the
14 indictment and was not part of the Prosecution case against the accused.
15 I think that in this way I responded to both of the questions put
16 by the Trial Chamber, and now I would like to go on for another two
17 minutes, speaking about the other matters related to the Popovic appeal.
18 In paragraphs 432 to 436 as regards Orahovac, the Defence would
19 like to say that in the case of Orahovac and the number of victims of the
20 execution at that location, the situation is the same as with Kozluk,
21 namely that one went beyond the indictment. As for Orahovac, the
22 indictment, in paragraph 30.6, says that on the 13th and 14th of July,
23 1995, hundreds of Bosnian Muslims were transported to the school in
24 Grbavci, and that on the 14th of July, they were transported to a nearby
25 meadow where approximately 1.000 Bosnian Muslims were executed.
1 In paragraph 1788, along with paragraph 492, the Trial Chamber
2 states that several witnesses testified about Grbavci, a total of four of
3 them, and they gave an approximation, approximate range, of 1.000 to
4 2.500 persons who were detained in the school. In the judgement, no
5 elements were provided to establish beyond a reasonable doubt that the
6 number of executed persons at that location could have exceeded the
7 number of 2.500. We believe that one went beyond the indictment there as
8 well because the number of 2.500 victims goes beyond the assertions made
9 in paragraph 30.6 of the indictment and were not part of the Prosecution
10 case against the accused.
11 In paragraphs 455, 472 through 474 of the appeal, there was a
12 reference to the Janc report. The Defence states that excessive
13 importance was attached to it because it does not meet the standards
14 required of an expert report. We have already pointed out the
15 differences in his summaries and the findings in the Tolimir case, and in
16 this case, that are based on his updated summaries, lead us to conclude
17 that his summary is unreliable and most importantly contradictory.
18 As regards all the other things stated in the appeal, with regard
19 to missing persons, victims, and other matters, we stand by what we said
20 in the appeal brief that will not be elaborated upon today. Thank you.
21 JUDGE ROBINSON: Yes, Mr. Rogers?
22 MR. ROGERS: Your Honours, I'm conscious of the scheduling order
23 and the time set out in the scheduling order, and I see we -- although
24 just having had a break, we've come to the time allotted for Your
25 Honours' lunchtime break. Does Your Honour wish me to continue for five
1 minutes, or are you and your colleagues going to alter the schedule to
2 extend it for a longer period of time? Just so that I have an idea of
3 how much longer you'd like me to address you.
4 JUDGE ROBINSON: I think it would be tidier to take the break
5 now, and resume at 1.40; is that correct?
6 MR. ROGERS: 1.45, I think, Your Honour, on the schedule. But
7 1.40 is fine too.
8 JUDGE ROBINSON: Then 1.40, an hour and a half from ten past.
9 Okay. Thank you.
10 --- Break taken at 12.10 p.m.
11 --- On resuming at 1.45 p.m.
12 JUDGE ROBINSON: Yes, Mr. Rogers.
13 MR. ROGERS: May it please Your Honours. Paul Rogers, again,
14 appearing on behalf of the Prosecution this afternoon.
15 Your Honours, in response to Mr. Popovic's appeal, the
16 Prosecution observes that, as in his appeal brief, Popovic seeks today to
17 focus on isolated aspects of the evidence, and by so doing to undermine
18 his convictions. But in our submissions, he files address the complex
19 matrix of findings which underlie those convictions and the Chamber 's
20 careful assessment and appreciation of the evidence when making its
22 In our response, I will make some general remarks concerning
23 Popovic's attacks on the Trial Chamber's assessment of the evidence and
24 its approach to the credibility of the witnesses. I will then provide an
25 overview of the basis of Popovic's convictions in order to show how the
1 Trial Chamber's holistic assessment of the evidence inevitably led to the
2 convictions that were entered.
3 After completing my overview, Ms. Soljan will address
4 Your Honours' questions and will make some further remarks concerning
5 Popovic's challenge to his conviction as a member of the JCE to murder
6 and as a genocidaire. And Ms. Nabti will make some submissions on
7 Popovic's genocidal intent.
8 Your Honours, turning then to deal with the assessment of the
9 evidence and the attacks to that. Your Honours, in sum, we have
10 addressed these attacks at length in our response brief, arguing broadly
11 that the Appellant's arguments are unfounded and that the vast majority
12 warrant summary dismissal.
13 Your Honours, of course, we adopt all of the submissions that we
14 have made in response to the Appellant's brief, and you will have
15 recalled, during the course of his submissions, his extensive reference
16 to his own appeal brief in support of the arguments he made today.
17 Your Honours, the appeal of Vujadin Popovic rests primarily on a
18 series of attacks on the Chamber's assessment of the overwhelming
19 evidence in this case against him. In particular, he seeks to undermine
20 the Chamber's assessment of certain witnesses' evidence. For example, he
21 recognises that the assessment of Momir Nikolic's evidence is
22 particularly important because Momir Nikolic places him at the heart of
23 the murder operation from the beginning, from the 12th of July, 1995.
24 And so it is that, again, he repeats his challenges to the reliability
25 and credibility of that witness. Likewise, he recognises that the
1 assessment of Witness PW-168 is also significant because PW-168
2 implicates Popovic in the murder operation in a number of ways. And so,
3 again, he challenges the reliability and credibility of that witness by
4 repeating his trial arguments and arguing for different interpretations
5 of the evidence.
6 Indeed, wherever evidence implicates him in the murder operation,
7 he reargues his failed case at trial or merely proffers alternative
8 explanations on the evidence without demonstrating why no reasonable
9 Trial Chamber could have reached the conclusion this Chamber did on the
10 totality of the evidence before it.
11 He prefers a piecemeal and isolated assessment of the strands of
12 evidence, ignoring that the Chamber looked at each piece of evidence
13 within the context of the whole of the evidence that it had before it,
14 before reaching its conclusions and drawing inferences and making
16 In doing this, the Chamber demonstrated it had correctly assessed
17 the evidence as a whole, carefully weighing and considering what it was
18 prepared to rely upon and what it was not and giving detailed reasons
19 where appropriate.
20 So to take Momir Nikolic as an example, Popovic does everything
21 he can to argue again why Momir Nikolic should be disbelieved, but he
22 does not address the Chamber's overall approach to the assessment of this
23 evidence and in particular how it assessed his evidence by reference of
24 the applicable standards.
25 Your Honours, the Trial Chamber set out in great detail its
1 approach to the evidence at paragraphs 7 to 85, devoting 23 pages of its
2 judgement to this. It directed itself correctly as to how it must assess
3 the evidence and recognised that it need not assess every factual
4 assertion in the indictment or explain every detail of its assessment of
5 the evidence presented to it in trial judgement at paragraph 15. It
6 correctly noted that where it may not have mentioned a specific piece of
7 evidence, that all relevant evidence had been considered. Again in the
8 judgement at paragraph 15, referring to the Kvocka appeals judgement at
9 paragraph 23.
10 Your Honours, it is trite to say that the assessment of the
11 evidence is supremely within the Trial Chamber's discretion because, of
12 course, that is its primary function. And great deference at this stage
13 of the proceedings is, and I know Your Honours will give great deference
14 to those assessments.
15 It's useful to note at this stage the size of the evidential
16 record in this case. It included over 5.000 exhibits, just under half of
17 which were adduced by the Defence. The Trial Chamber heard
18 182 Prosecution witnesses over more than 400 days, three-quarters of whom
19 were fully viva voce or with cross-examination via 92 ter, including
20 12 experts. 145 witnesses were heard from the Defence and the Chamber
21 itself called one witness. The transcript runs into over 34.000 pages
22 excluding closing submissions.
23 The judgement is extensively referenced and footnoted and running
24 into two volumes totalling 866 pages.
25 The Appeals Chamber jurisprudence recognises that the task of
1 assessing this massive material rests with the Trial Chamber. In Lukic
2 and Lukic, in appeals judgement at paragraph 296, Your Honours stated:
3 "The Appeals Chamber recalls that the Trial Chamber has the
4 advantage of observing persons, witnesses in person, and is thus better
5 positioned than the Appeals Chamber to assess the reliability and the
6 credibility of the evidence. It is therefore within the discretion of a
7 Trial Chamber to evaluate discrepancies and to consider the
8 reliability -- consider the credibility of the evidence as a whole
9 without explaining its decision in detail."
10 And footnoted to Kvocka et al, paragraph 23, Celebici appeals
11 judgement paragraphs 481 and 498, and the Kupreskic appeals judgement at
12 paragraph 32.
13 The Appeals Chamber has repeatedly recognised that "the task of
14 hearing, assessing and weighing the evidence presented at trial is left
15 primarily to the Trial Chamber. Thus, the Appeals Chamber must give a
16 margin of deference to a finding of fact reached by a Trial Chamber, and
17 only where the evidence relied upon by the Trial Chamber could not have
18 been accepted by any reasonable Tribunal of fact or where the evaluation
19 of the evidence is wholly erroneous, may the Appeals Chamber substitute
20 its own finding of fact for that of the Trial Chamber."
21 Again Kupreskic appeals judgement paragraph 30; Mrksic appeals
22 judgement paragraph 14; and it's also referred to in Lukic and Lukic
23 appeals judgement.
24 THE INTERPRETER: The counsel is kindly requested to slow down
25 when reading.
1 MR. ROGERS: Yes, thank you. I note the interpreters.
2 The Celebici appeals judgement at paragraph 481 confirms "the
3 Trial Chamber is not required to articulate in its judgement every step
4 of its reasoning in reaching particular findings."
5 It went on:
6 "The Trial Chamber is not obliged to recount and justify its
7 findings in relation to every submission made during trial. It was
8 within its discretion to evaluate the inconsistencies highlighted and to
9 consider whether the witness, when the testimony is taken as a whole, was
10 reliable and whether the evidence was credible."
11 And that final part is from Celebici appeals judgement 498.
12 Your Honours, in this case, the Trial Chamber could not hope to,
13 and nor was it required to, address every piece of evidence. Indeed, as
14 much of the evidence was viva voce, it did not need to assess every
15 difference between witnesses or within a witness's own testimony.
16 However, the Trial Chamber in this case was very careful to articulate in
17 detail its approach to the evidence in general and again specifically
18 when dealing with certain categories of evidence and with certain
19 witnesses and types of witness.
20 In relation to Momir Nikolic, the Trial Chamber addressed its
21 approach to his evidence generally at paragraphs 48 to 53 and
22 specifically with regard to the third Hotel Fontana meeting between
23 paragraphs 280 and 287. Your Honours, it was mindful of all of the
24 Appellant's strong attacks to his credibility. It wasn't just
25 Mr. Popovic who attacked his credibility. Everybody attacked his
1 credibility. And it was mindful of those attacks, including those of
2 Borovcanin, as it listed them in detail in footnote 72.
3 In its assessment, it specifically considered Momir Nikolic's
4 lies made in an effort to secure a plea agreement vis-ā-vis the Kravica
5 warehouse at paragraph 49. It considered his attempts on occasion to
6 downplay aspects of his own involvement in the events, paragraph 51, as
7 well as recognition that sometimes he made statements that implicated
8 himself further in the events, in the judgement at paragraph 284, for
9 example, in relation to Nikolic's acceptance that the conversation on the
10 12th was about the plan to murder and that he, Momir Nikolic, was
11 involved in implementing it by suggesting places of detention and places
12 of execution.
13 It considered specifically his broad consistency, at 52 in the
14 judgement, and his demeanour overall, at paragraph 53. It considered the
15 content of his plea agreement and the statement of facts and acceptance
16 of responsibility, at 281 to 282. It considered whether there was any
17 corroboration of the account given by Momir Nikolic of the 12 July
18 meeting by the events that had happened and, for example, by video
19 evidence placing him there on 12 July, at paragraphs 285, 86, and 87.
20 It considered the testimony of Kosoric, at paragraph 288, and in
21 a detailed explanation in the footnote at 938, it explained how it
22 considered Kosoric was extremely evasive in the questions that were being
23 asked of him and consequently why it rejected his account. It considered
24 whether Momir Nikolic, in the words of the Trial Chamber, "constructed
25 his evidence of this conversation to correspond to the events which
1 subsequently unfolded." And it rejected that as not being a reasonable
2 possibility because the conversation substantially incriminated him in
3 the murder operation at that early stage, judgement 287.
4 It considered other aspects of his evidence such as the
5 corroboration of a meeting between Beara and Deronjic that he talked
6 about in 1269 and 1207, and the corroboration of his own meeting with
7 Drago Nikolic through the evidence of PW-168 whom it also found to be
9 Your Honours, the Chamber recognised that it did not need to
10 corroborate a witness such as Momir Nikolic - in the judgement at
11 paragraph 26 and also referring to Lukic and Lukic appeals judgement at
12 paragraph 128 - but it expressed its intention to treat that person's
13 evidence with caution, citing at footnote 36 to the Appeals Chamber's
14 jurisprudence from Krajisnik at paragraph 146, where the Appeals Chamber
16 "A Trial Chamber should at least briefly explain why it accepted
17 the evidence of witnesses who may have had motives or incentives to
18 implicate the accused. In this way, a Trial Chamber shows its cautious
19 assessment of the evidence."
20 Your Honours, the Chamber gave detailed reasons for its
21 acceptance of the evidence of Momir Nikolic, where it chose to rely upon
22 him and generally.
23 For example, on the issue of the 12 July conversation with
24 Popovic outside the Hotel Fontana prior to the third meeting, it
25 recognised that Momir Nikolic remained consistent on this subject and on
1 the subject matter discussed at that meeting, despite extensive
2 cross-examination on the point. Trial judgement 282 and footnote 927.
3 Popovic attacks that finding again in his reply brief and he alleges at
4 paragraph 33 that the judgement "corroborated its finding that Nikolic
5 remained consistent despite much cross-examination" by referring to
6 Judge Prost's question regarding Nikolic's evidence, but he
7 misunderstands the nature of that finding and fails to record the other
8 citations referring simply to Judge Prost's question. The Chamber's full
9 citation demonstrates that where Momir Nikolic was examined and
10 cross-examined at length about the content of the conversation, and in
11 particular about the reference to the places of detention and execution,
12 and the places that you can find those discussions and the evidence of
13 the extensive cross-examination is found in the transcript at 32916 to
14 32918, 32920 on to 32922, 33031 to 34, 33040 to 41, 33043 to 33049, and
15 at 33328.
16 The Trial Chamber decided that Momir Nikolic was credible on the
17 question of the conversation, and its contents and the discussion about
18 the places of execution, at judgement 282. And in particular, it
19 considered the part about detentions and executions was true because this
20 incriminated Momir Nikolic in the organisation of the murder operation,
21 as he was discussing and volunteering places of detention and murder.
22 That's in the judgement at 284.
23 Your Honours, this self-incrimination supported the reliability
24 of the statement as a whole and, in addition, it relied the Chamber on
25 other factors to corroborate the circumstances of the conversation, in
1 judgement at 285, including, for example, the next day when Beara
2 examined the brick factory as a potential place of execution and
3 detention. Referred to in the judgement at 286, 452 to 455, and 460 to
5 And in any event, Momir Nikolic's evidence was not the only
6 evidence from which Popovic's convictions could be sustained. He was
7 inside the Hotel Fontana on the 12th July with Mladic and seen outside of
8 it, judgement 1098 and PW-109. He was staying in the hotel on the nights
9 of 11 and 12 July, corroborated by the hotel receipts referred to in the
10 judgement at 1098. As Drina Corps chief of security he had access to the
11 resources through the Drina Corps brigades, recorded in the judgement at
12 294, 296, 1069 to 1070, 1094, and 1281 to 1284.
13 THE INTERPRETER: Kindly slow down, please. Thank you very much.
14 MR. ROGERS: On the evening of the 13th of July, Popovic conveyed
15 to Zvornik -- Drago Nikolic -- to the Zvornik Brigade area, to
16 Drago Nikolic, Mladic's order to execute the prisoners in the Zvornik
17 Brigade area of responsibility, following which Drago Nikolic immediately
18 began working on the new task by leaving the forward command post, being
19 present with the Zvornik Brigade MP commander Jasikovac and others at the
20 Grbavci school on the night of the 13th of July and into the morning of
21 the 14th of July.
22 It's corroborated on the 14th of July, after his 15- to 20-minute
23 meeting at the Standard barracks with Beara and Drago Nikolic, referred
24 to in the judgement at 1106, Popovic accompanied a half-kilometre long
25 column of prisoners and soldiers to the Grbavci school at Orahovac,
1 referred to in the judgement at 1107 and 1108, and he remained present at
2 the school and oversaw the execution, referred to in the judgement at
3 481, 483 to 488, and 1111 to 1112.
4 And throughout it all, he contributed to ensuring there was
5 sufficient fuel supplies for the work being done, and that's referred to
6 in the judgement at 1110.
7 It also refers to his presence on the 15th of July at the Rocevic
8 school when he sought trucks for transportation of prisoners and
9 personnel to carry out the executions at Kozluk, referred to in the
10 judgement at 511 to 516, and 1118 to 1120.
11 THE INTERPRETER: Interpreter's note: Could counsel kindly slow
12 down. Thank you.
13 JUDGE ROBINSON: I think I have to make the request explicitly
15 MR. ROGERS: Yes, Your Honour, I'm sorry. I'm trying not to go
16 too fast.
17 On the 16th of July, he was present in the Pilica area, directing
18 the 10th Sabotage Detachment members in relation to the executions at
19 Branjevo Farm and also at the Pilica Dom, and continuing to ensure again
20 fuel. And that's referred to in the judgement at 1124 to 1127, and 1130
21 to 1134.
22 On the 17th of July, he reports the killing and burial operation
23 job, gets an A, trial judgement 1142, and on or about the 23rd of July he
24 facilitated the killing of the 10 Milici prisoners, referred in the
25 judgement at 1153 to 1156. Corroborative of his findings overall -- of
1 the findings overall relating to his involvement in the killing operation
2 is his presence at the Bisina executions on the 23rd of July and, in
3 September 1995, his involvement in the reburial operation, including,
4 again, by obtaining fuel, referred to in the judgement at 1158 to 1161.
5 Your Honours, taking all of that together and the careful
6 assessment of Momir Nikolic's evidence, the Chamber demonstrated that it
7 was very careful in its approach not just towards Momir Nikolic but also
8 to the approach to Witness PW-168. Again, in relation to PW-168, the
9 Trial Chamber gave a detailed explanation of why it considered him to be
10 credible. It's in the judgement at 1347 referring to the judgement at
11 paragraphs 28 to 47.
12 The Chamber was fully cognisant of the many challenges to this
13 witness's reliability, in particular with regard to the conversation
14 between Obrenovic and Drago Nikolic on the night of the 13th July 1995 in
15 which Drago Nikolic informed Obrenovic that Popovic had ordered
16 Drago Nikolic to make preparations for a large number of Bosnian Muslim
17 prisoners coming into the Zvornik sector and that on Mladic's order they
18 were to be shot.
19 It's in the judgement at 1345 to 6.
20 The Chamber gave detailed reasons as to why it accepted PW-168's
21 account, noting much of the content of the conversation was supported by
22 other evidence. It's in the judgement at 1349. For example, in the
23 conversation, Drago Nikolic requested to be relieved from duty at the
24 IKM, forward command post. The fact of his release was supported by the
25 testimony of Mihajlo Galic and the Zvornik Brigade forward command post
1 logbook. And in addition, the evidence of PW-168 that Drago Nikolic,
2 Jasikovac, and members of the Zvornik Brigade MP participated in
3 preparing the detention sites was corroborated by PW-143 and other
4 evidence, the judgement at 1350.
5 Your Honours, this same careful approach is demonstrated by the
6 Chamber's assessment of the evidence of Srecko Acimovic and also in its
7 assessment of PW-101. Your Honours, all of these witnesses testified.
8 Their evidence was received over very many days and subjected to
9 extensive testing through cross-examination. The Trial Chamber was thus
10 in a perfect position to assess the reliability and credibility of the
11 witness. It had the opportunity to observe them, to assess their
12 demeanour, an opportunity not afforded to this Chamber.
13 And indeed, where the Chamber was not sure about evidence
14 implicating Popovic, they rejected it. For example, they rejected
15 evidence of Popovic's presence at the Petkovci dam, in the judgement at
17 Your Honours, it's trite but this is not a trial de novo. Yet in
18 his challenges to the assessment of the evidence, this is in reality what
19 Popovic seeks. Popovic must fail in his challenges to the approach the
20 Chamber took to the assessment of the witness evidence and the
21 conclusions arising from that approach.
22 Your Honours, I turn now to deal with a broad overview of the JCE
23 to murder. Because of the connections between all of the accused, it's
24 important to understand how the Chamber saw this as a holistic whole in
25 understanding the interrelationships. And as a start, I would like, if
1 I may, please, to just say a few words about the organisational structure
2 of the forces involved in the operation. And, Your Honours, we have
3 created a slide which is fully referenced to the judgement in the bottom
4 left-hand corner you can see, I hope, on your screens, when it comes up.
5 I'll just pause and wait to make sure Your Honours all have it or can at
6 least see one of them.
7 I hope Your Honours can all see it.
8 Tried to make sure the font size is sufficiently large to be --
9 for our eyes, mine included. The Tribunal should invest in 17- and
10 21-inch screens but I daren't suggest that. Looking at the slide, what
11 we tried to demonstrate here is the structures on one page so you have an
12 understanding of the connections. The top box shows in broad terms the
13 VRS Main Staff. Doesn't have everybody on it but just the people that
14 are significant for this discussion.
15 At the top, of course, Mladic is the commander, and attached to
16 him is a line to the 65th Protection Regiment. That's there simply to
17 indicate it's one of the units that you've heard about and where it fits.
18 Coming down from Mladic and the first line we see Gvero on the left-hand
19 side for morale, legal, and religious affairs. Obviously previously one
20 of the accused in this case. Then coming along we have Milovanovic, the
21 Chief of Staff, and below him, within the staff sector, sits Mr. Miletic.
22 Then going across to the right-hand side, we see Tolimir as the
23 general responsible for security and intelligence within the Main Staff,
24 and sitting beneath him, Salapura and Beara. And attached to Salapura,
25 the 10th Sabotage Detachment.
1 And then coming down out of the Main Staff to the corps level,
2 which is the middle box, we see how the corps sits. Of course, under the
3 Main Staff are various corps structures, the Drina Corps being the
4 relevant one here. See the command is there marked as Zivanovic and
5 General Krstic. Of course, Krstic replacing Zivanovic on the
6 13th of July.
7 Then on the left-hand side, Borovcanin sits as a temporary
8 attachment to the Drina Corps, and to the right-hand side sits Popovic,
9 obviously with others, but that's the connection as chief of security in
10 the Drina Corps.
11 And then we move down below to the brigade levels and on the
12 left-hand side the Bratunac Brigade. Sitting in the Bratunac Brigade is
13 Blagojevic as the commander, Momir Nikolic as the security organ within
14 the Bratunac Brigade. Of course, it's helpful to understand who he is
15 and where he sits as we hear so much about him. And then there is a
16 reference to Jankovic as the commander of the military police.
17 Moving across to the Zvornik Brigade, we see its commander,
18 Vinko Pandurevic, and then sitting below him is Obrenovic, the Chief of
19 Staff. And going through the Chief of Staff, Jokic, the engineering
20 commander, and Jasikovac, the military police commander. And then
21 sitting to the right-hand side, Drago Nikolic, the security organ within
22 the Zvornik Brigade.
23 And Your Honours see the dotted line joining the security organs
24 representing their professional reporting line, it's a dotted line, not a
25 solid line, but it represents their professional reporting line. And how
1 they are connected together at least in that regard.
2 I hope that gives some useful insight at least on one page as to
3 how the structures fit together.
4 As the judgement found, the murder operation was "a coordinated
5 effort reaching from the VRS commander," Mladic, "and some members of the
6 Main Staff through the Drina Corps, the MUP and down to the Zvornik and
7 Bratunac Brigades and the battalions thereof."
8 They went on:
9 "... it is clear that individual units from across the VRS worked
10 together in the implementation of the common purpose."
11 Judgement 1065.
12 Your Honours, I think we can remove the structure from the screen
13 if that's distracting.
14 They went on:
15 "Further, what is clear is from the evidence before the
16 Trial Chamber is that such an operation, on a massive scale, involving
17 the participation of a multitude of VRS members from the Main Staff down,
18 could not have been undertaken absent the authorisation and order of the
19 VRS commander Mladic," judgement 1071.
20 It concluded:
21 "The Trial Chamber is satisfied that Mladic was a driving -- a
22 central, driving force behind the plan to murder and its implementation."
23 Judgement 1071.
24 Your Honours, in order to implement this order on such a massive
25 scale, the Trial Chamber recognised that the concerted effort from many
1 was needed. And in relation to the security administration, it
3 "... while various battalion, brigade and corps commanders,
4 forces and individual members were drawn into the plan as participants
5 and perpetrators, each contributing in different ways, this was an
6 operation steadily organised and directed by the security branch of the
7 VRS." Judgement 1070.
8 Your Honours, with ruthless efficiency, the forces of the
9 Drina Corps, including MUP units and in particular the Zvornik Brigade,
10 have been mobilised to exterminate a thousand men at Kravica warehouse on
11 the 13th of July, between 800 and 2 and a half thousand at Orahovac on
12 the 14th of July, over 1800 men at Petkovci and Kozluk on the
13 15th of July, and between a thousand and 2.000 in the Pilica area on the
14 16th of July. One day later, on the 17th of July, the bodies had been
15 removed from site and buried. Within five days, those fathers, brothers
16 and sons had simply vanished.
17 We agree with Vujadin Popovic when he argues at paragraph 181 of
18 his brief "the highest echelons of the Main Staff could not have any
19 preconceived plan to commit mass murder without resolving the most basic
20 logistics, at least, one, when, two, where, and three, who would carry it
21 out. And that at paragraph 182 when he says:
22 "Further, this plan required various resources, manpower,
23 ammunition, vehicles, machines, and fuel."
24 We agree. It did. The operation required massive coordination
25 and cooperation between many forces on the ground. The Trial Chamber
1 found that in relation to this, Popovic played a pivotal role in the
2 organisation, coordination and implementation of the killing operation,
3 judgement 1168.
4 It found as for Beara that he played a key role in orchestrating
5 the murder operation by planning, coordinating, and overseeing the
6 detention, execution and burial of the victims, judgement 1299.
7 Together, Popovic and Beara organised other security officers to assist
8 including Drago Nikolic and Momir Nikolic, judgement 1068. In Zvornik
9 area, Popovic, Beara and Drago Nikolic worked closely together to
10 translate the murder plan into actions by their planning and physical
11 preparations, judgement 1391 to 2. But their organisation would come to
12 nothing without the use of the brigade assets and the support of the
13 brigade and the corps commanders. This is illustrated by the need for
14 Drago Nikolic to obtain permission from Obrenovic, Chief of Staff of the
15 Zvornik Brigade, to be released from duty at the IKM of the
16 Zvornik Brigade to implement the murder plan, and for permission to use
17 brigade assets, in this case Jasikovac and the MP. It's found in the
18 judgement at 1345.
19 Likewise, Beara, a Main Staff officer with the security
20 administration, reporting directly to Tolimir, the Main Staff general,
21 needed to obtain additional troops from Krstic, the Drina Corps
22 commander, on the 15th of July, to distribute 3500 parcels which the
23 Chamber found was a euphemism for the killing of the prisoners, as
24 demonstrated by the intercepted conversation with Krstic on the
25 15th of July and referred to in the judgement at 1282.
1 The fact that so many were killed in such a short space of time
2 and their bodies dumped into mass graves is a testament to the ruthless
3 efficiency of the killing operation operated by Popovic, Beara and
4 Nikolic and supported logistically by the Zvornik and Bratunac Brigades.
5 Without their guards, their transport, their munitions, without those
6 willing to kill, without their machinery and the men to bury the bodies,
7 this operation could not have been successful.
8 The fact there were but a handful of survivors shows the
9 calculated determination to eliminate every last one of the victims, to
10 make sure that the details of this terrible crime could never come to
12 Thankfully, miraculously, some survived, some hidden under the
13 corpses of friends and brothers, some managing to escape and live despite
14 terrible wounds. Their voices were heard, together with the voices of
15 those who carried out the killings, those who buried the bodies, those
16 who organised the logistics, and testified to the organisation.
17 Together, the Trial Chamber was able to build a clear picture of what
18 happened on those notorious days between the 11th and the 17th of July,
19 1995, and in relation to the cover-up in the months that followed.
20 Your Honours, I turn now to the events of the 11th to the
21 17th of July and how the team of Popovic and Beara and Nikolic
22 accomplished the killings. Your Honours, let me first give a short
23 outline of the events leading up to the formation of the murder plan.
24 11th of July, Srebrenica fell, judgement 260. Thousands of
25 Bosnian Muslims fled from Srebrenica to Potocari, judgement 264. As they
1 fled the enclave they were shelled and shot at, judgement 265. On the
2 evening of the 11th of July, many able-bodied men gathered at Susnjari,
3 having separated from their families on the road to Potocari, as they
4 feared they would be killed if they remained in the Srebrenica enclave
5 once it fell into Bosnian Serb hands, judgement 267. A fear that was
6 evidently well-founded.
7 Before midnight, a column of 10- to 15.000 men formed between
8 Susnjari and Jaglici approximately ten kilometres long and started to
9 move towards Konjevic Polje via Nova Kasaba and on to Tuzla,
10 judgement 269. The column presented a significant challenge for the VRS
11 forces in Bratunac and Zvornik, and on the 11th of July, VRS forces were
12 ordered to block it and carry out ambush activities on it, judgement 364.
13 Your Honours, I'll just ask you to look now at a map. This is
14 Exhibit P02111. I just want to orientate you around the region, so if
15 the places are not fully familiar, at least they may become familiar.
16 Your Honours can see on the map, and towards the bottom, Srebrenica, and
17 if we drive up the road from Srebrenica towards Potocari, going north, we
18 can see coming from Potocari to the left is a little road towards Jaglici
19 and Susnjari. Does Your Honours have that on the screen?
20 JUDGE ROBINSON: I believe we need some help.
21 MR. ROGERS: Ah, forgive me.
22 JUDGE ROBINSON: Yes. Please start over.
23 MR. ROGERS: Yes. If I can just orientate Your Honours, if
24 I make sure all of Your Honours have got it now, yes. Thank you. If we
25 go to Srebrenica, down at the bottom, the large town or large words of
1 the town, then we can find it, and then drive north, imagine we are on a
2 road driving north and we come a fork in the road and there is Potocari.
3 Now we can carry on north to Bratunac or we can turn left just before
4 Potocari and drive in our car towards Jaglici and Susnjari. And there,
5 you will see two red lines. And the two red lines travel northwest
6 towards Nova Kasaba, if you follow them you will arrive at Nova Kasaba
7 and Konjevic Polje. That indicates the direction of movement of the
8 column, from -- when it started to move towards Konjevic Polje. And if
9 we get to Konjevic Polje, Nova Kasaba, and then drive back towards
10 Bratunac on the road, we will drive through Sandici, Kravica and Glogova,
11 and then finally we arrive back in Bratunac.
12 So, Your Honours, just having orientated you around the
13 locations, I just want to speak now a little bit about the 12th of July
14 and I'll come back to the map in a minute.
15 Your Honours, the 12th of July was about the separation of the
16 remaining men from the women and children in Potocari. Women and
17 children were bussed away and the men detained. In addition, orders were
18 given on the 12th to secure the Konjevic Polje to Bratunac road, from the
19 column of the Muslim men seeking to break through to Tuzla. That's in
20 judgement 365.
21 The Chamber found that the murder operation began on the
22 12th July with the separation of the men from the Bosnian women and
23 children gathered in Potocari, at judgement 1050. Buses and trucks to
24 transport the civilians away began to arrive in the afternoon, judgement
25 316, arranged on the orders of Mladic on the 11th of July. 293 in the
1 judgement. The men were separated by Bratunac Brigade MPs supervised by
2 Momir Nikolic, the security organ for the Bratunac Brigade in whose area
3 of responsibility at that time the prisoners were held. Sometime before
4 the third Hotel Fontana meeting that morning, Popovic told Momir Nikolic
5 that these separated men were all to be killed. Momir Nikolic, using his
6 local knowledge, assisted Popovic, Drina Corps security chief, with
7 identifying locations to detain and also to execute prisoners. He
8 identified the Vuk Karadzic school and the hangar in Bratunac, both
9 locations where hundreds of prisoners were subsequently held.
10 Popovic argues in his brief and again today that Nikolic's
11 account of this meeting should be rejected, that he was unclear and
12 inconsistent about whether he suggested detention and execution sites or
13 whether only Popovic or Kosoric mentioned it, in his appeal brief at 75
14 to 77. But the Trial Chamber was clear that it considered Nikolic
15 remained consistent in his account of the discussion and the content of
16 that discussion on the morning of the 12th July outside the Hotel Fontana
17 and, as I've already outlined, gave detailed reasons why it accepted his
18 evidence, 280 to 288. The Chamber carefully analysed his statement of
19 facts from the 6th of May, 2003, and indeed made it an exhibit in the
20 case, Exhibit C1.
21 THE INTERPRETER: Could the counsel please slow down for the
22 purposes of interpretation. Thank you.
23 JUDGE ROBINSON: Yes, I think you have to make a more determined
25 MR. ROGERS: I'm trying, Your Honour. I'm sorry. I usually run
1 into [indiscernible].
2 Your Honours, to resume the narrative, the separated men were
3 detained at the White House in Potocari on both the 12th and the
4 13th of July, guarded by Bosnian Serb forces including MUP and VRS
5 soldiers. In Potocari, some men made it on to buses with the women and
6 children, going towards Kladanj to the west. But at Tisca, the buses
7 were stopped, VRS soldiers searched them, removed the men, and on one
8 occasion 70 or 80 were taken away in the direction of the forest. And
9 later, on the 13th of July, around 20 men were separated at Luke near
10 Tisca and that night taken to a field and shot in the back of the truck,
11 the sole survivor fleeing into the forest. He had heard the soldiers
12 discussing Kravica and how "they had finished with the balijas."
13 Returning to Potocari, eventually the men from the White House
14 were transported to Bratunac. We will just return now to the map. We
15 have animated just to show you the movement, from Potocari to Bratunac.
16 In Bratunac, they were, as I've described already, held in
17 various locations where they were guarded by Bosnian Serb forces. We
18 will just keep the map there because I'll return to it in a minute.
19 On the night of 12/13 July, elements of the column attacked VRS
20 forces along the road. That's the Bratunac to Konjevic Polje road.
21 Turning now into the 13th of July, in summary, this was a day
22 when the prisoners were being transported to the Bratunac area and
23 detained to await their fate. It was a day also when the killings began:
24 At Kravica warehouse, a thousand; in Cerska Valley, 150; Jadar River, 16.
25 Bratunac was to be the collection point for the majority of the
1 prisoners. The executions were originally planned to be nearby, but the
2 plan had to change, resulting in the transportation of prisoners to the
3 Zvornik area of responsibility.
4 On the 13th of July, a fresh order from the VRS Main Staff to the
5 Drina Corps, Zvornik, and other brigades, was issued to block, disarm and
6 capture Muslim groups and prevent them from crossing into Muslim
7 territory, judgement 379. As part of that initiative, Bosnian Serb
8 forces issued an ultimatum to members of the column to surrender or be
9 killed. As a result, thousands surrendered. They were initially
10 detained at various sites at Konjevic Polje area including the Sandici
11 meadow and at Nova Kasaba. And an intercept timed at 5.30 p.m. on the
12 13th of July indicates over 6.000 men were being held at three locations
13 in the Bratunac area.
14 Your Honours, to continue with the arrow sequence, just want to
15 show you some of the movements. There was an intersection between
16 Bratunac-Konjevic Polje road to Nova Kasaba. If you find the Konjevic
17 Polje there in the north-west, there was a small movement to a warehouse
18 in Konjevic Polje. It's referred to in the judgement at 389. Also on
19 the 13 of July, from the warehouse in Konjevic Polje, there was a
20 movement to the Nova Kasaba football field.
21 Also, on the 13th, at Sandici, so to just travel along the road
22 towards Sandici, please, on the Bratunac road, you'll find there is a
23 movement from there to the Kravica warehouse. It's in the judgement at
24 388 and 421. Also from Sandici to Bratunac, referred to in the judgement
25 at 388.
1 Back to Konjevic Polje, from the warehouse in Konjevic Polje to
2 Bratunac, judgement 389. And finally, from the Nova Kasaba football
3 field to Bratunac, so south of Konjevic Polje there is a movement there.
4 So Your Honours can see, on the 13th of July, there is a
5 collection of prisoners broadly in the Bratunac area.
6 There is a number of common themes relating to them which
7 demonstrate that they were marked to be killed. For the most part, they
8 were not fed or provided with adequate water or access to medical
9 facilities. No adequate records, apart from a few, were made of their
10 existence. Names and details were not taken in relation to the detention
11 of the prisoners. There was some evidence of that but not for the vast
12 majority. Their personal belongs were piled up, identity documents were
13 removed, money and gold were stolen from them. They were held in
14 appalling conditions, overcrowded and insanitary. They were abused.
15 They were insulted. And for many they were bound, they were blindfolded,
16 and then they were murdered.
17 On the night of the 13th of July, Beara, in Bratunac, announced
18 himself to Deronjic as the man who had "come to kill all the Bosnian
19 Muslims that were being warehoused in schools and buses in Bratunac."
20 Judgement 1264.
21 But the reaction of the local SDS was that the killings were not
22 to be carried out in the Bratunac area and there was an argument.
23 Judgement 1264 and 1270. New locations were needed. But by this time,
24 the Kravica warehouse killings had already happened in the late afternoon
25 of the 13th of July, so there was already a burial problem. Solutions
1 for the burials of the dead were debated through the early hours of the
2 14th, resulting in Beara ordering PW-161 later to go with an MP to find a
3 place to bury the Kravica bodies. They did. They were buried at Glogova
4 and Ravnice. And.
5 In order to solve the problem of continued executions, the
6 Zvornik Brigade became involved as new places of detention and murder
7 away from Bratunac were required. That evening, on the 13th of July,
8 Beara ordered Momir Nikolic to go to the Zvornik Brigade forward command
9 post to tell Drago Nikolic that Bosnian Muslim prisoners were to be
10 detained and killed in the Zvornik area.
11 Drago Nikolic called Obrenovic, the Chief of Staff of the Zvornik
12 Brigade, to be asked to be relieved of duty at the IKM so that he could
13 make preparations for prisoners from Bratunac who were to be brought to
14 the Zvornik Brigade area of responsibility and killed.
15 Nikolic told Obrenovic -- Momir Nikolic told Obrenovic -- sorry,
16 Drago Nikolic told Obrenovic that Popovic had called him and asked him to
17 make arrangements and that Popovic and Beara would bring the prisoners.
18 Nikolic also asked to be given Jasikovac and a company of MP for the
19 task. Your Honours can find it this in the judgement around 1345.
20 That evening, on the 13th of July, Zvornik Brigade MP under the
21 command of Jasikovac went to the Grbavci school to begin preparations to
22 receive prisoners. Drago Nikolic was at the school that night giving
23 orders to the MP there to guard the prisoners, and prisoners arrived from
25 The 14th of July, Popovic, Nikolic and were working together to
1 transport and detain the prisoners and coordinated their murders.
2 Popovic and Nikolic coordinated the transport, detention and murder, and
3 throughout the day and night, burials of the dead continued.
4 The last map I'll show you on the slide, please, indicates just
5 in broad terms, between the 14th and 16 July, the movements of the
6 prisoners from Bratunac up north to the places where they were killed.
7 So starting with the arrow on the left, after it splits, the arrowhead
8 ends Orahovac. The second arrowhead ends at Petkovci. And then there is
9 a movement from the Petkovci school to the dam shown by the little arrow.
10 The third arrowhead ends in Rocevic, and there is a movement to Kozluk.
11 And the final arrowheads split to the Kula school at Branjevo, near
12 Branjevo, and Pilica Dom, the cultural centre, and the movement from the
13 Kula school to Branjevo Farm. Obviously, the arrow doesn't indicate
14 precisely where they physically went. It's not suggesting for a moment
15 this that they went through the territory of the FRY. It's just
16 indicative of the movement of the prisoners north over the 14th, 15th,
17 and into the 16th.
18 So on the 14th of July in the morning, at around 8.00 a.m.,
19 Nikolic, Popovic and Beara meet at the Standard barracks, that is the
20 Zvornik Brigade headquarters in Karakaj. And Karakaj is just to the
21 west -- to the east of Orahovac, north of Zvornik. The Chamber found
22 that that meeting concerned the murder operation, judgement 472.
23 Following that, Beara returned to Bratunac in order to attend to the task
24 of burying the dead from the Kravica murders and finding places to detain
25 and murder other prisoners. And after the meeting, Popovic left to
1 accompany the convoy of prisoners from Bratunac. In Bratunac, Popovic
2 led the convoy, judgement 1108, to the Grbavci school in Orahovac,
3 stopping in Divic to pick up Drago Nikolic. Popovic was in Orahovac as
4 the prisoners were herded into the school. Drago Nikolic was seen
5 throughout the day in Orahovac directing operations as between 800 and
6 2500 prisoners were detained there, moved to a field about a kilometre up
7 the road and murdered. And in the afternoon of the 14th of July, Zvornik
8 Brigade engineers and excavators were digging a large pit at Orahovac at
9 the execution site, in judgement 482. The prisoners were kept in
10 appalling conditions in the school, they were blindfolded, they were
11 bound before being herded on to the trucks and driven to their deaths.
12 481 to 484.
13 Soldiers from the 4th Battalion Zvornik Brigade and logistics
14 personnel escorted the prisoners to the site, 483. And trucks, including
15 Zvornik Brigade trucks, transported the prisoners throughout the
16 afternoon and the evening --
17 THE INTERPRETER: Can the counsel please slow down? It's
19 MR. ROGERS: I'm very sorry.
20 JUDGE ROBINSON: I think you really have to make an effort.
21 MR. ROGERS: I'm trying.
22 JUDGE ROBINSON: Perhaps you should be recruited to the UK's
23 Olympic team. You might find that your speed on the track is as fast as
24 your speech.
25 MR. ROGERS: Your Honour, thank you. I have to lose some weight
1 first, I think, but thank you.
2 At least one member of the 4th Battalion participated in the
4 The Trial Chamber found that both Drago Nikolic and Popovic were
5 present during the killings at Orahovac and were directing those
6 killings. Judgement 1112.
7 As the Orahovac killings were taking place, a new request for
8 digging equipment was made to the Zvornik Brigade in relation to the task
9 "being performed by Popovic and Beara." That's found in the judgement at
11 And Beara was seen at the Grbavci school in Orahovac. He was
12 also seen at the school near Nova Kasaba football field and, later that
13 afternoon, back at the Zvornik Brigade headquarters at the Standard
14 barracks where he was complaining:
15 "We have a lot of prisoners and it's very hard for us to control
16 them. They are at various locations in the Zvornik municipality. We
17 have to get rid of them. I expect assistance from the municipality."
18 Judgement 1278.
19 By this assistance, the Chamber found he meant to get rid of the
20 dead; that is, to kill them and bury their bodies.
21 Beara said he was in command of the barracks and that the orders
22 came from "the two presidents," judgement 1278.
23 Jokic, the engineering man, called Beara at the Bratunac Brigade
24 headquarters complaining that there were big problems with the parcels,
25 meaning prisoners, judgement 1280. The Zvornik Brigade notebook records
1 at 3.00 p.m., "Colonel Beara is coming in (the following) order, to
2 Orovoc," that is Orahovac, "Petkovci, Rocevic, and Pilica." Judgement
3 1276. Later that evening, Beara was seen at the Petkovci school with
4 Drago Nikolic, judgement 1279, and the Chamber found that Beara
5 coordinated the detention, transport, execution, and burial of the
6 prisoners detained at Petkovci.
7 Meanwhile, also on the 14th of July, other prisoners were being
8 moved to the Kula school near Pilica and to the Rocevic school near
9 Kozluk. Drago Nikolic, as well as his involvement in the operation at
10 Orahovac, was in contact with the 1st Battalion Zvornik Brigade asking
11 Slavko Peric, the assistant commander for security intelligence, to go to
12 the Kula school to ensure there were no problems with local civilians.
13 Ten to 15 members of the 1st Battalion then went to the school to secure
14 it for the arrival of the prisoners, judgement 527. Prisoners arrived
15 and were again detained in the school in abysmal overcrowded, insanitary
16 conditions. Food and water were scarce. No medical treatment was
17 provided. Prisoners were beaten if they wanted to use a toilet and so
18 they soiled themselves, judgement 529. Guarding by the 1st Battalion
19 continued throughout the day and night of the 14th, 15th, and into the
21 At Rocevic school, Bosnian Muslim prisoners were detained and
22 guarded by Bratunac Brigade soldiers including MP, and between the
23 14th and 15th of July, those numbers swelled to around a thousand,
24 judgement 1117. And in the afternoon of the 14th, Srecko Acimovic,
25 commander of the 2nd Battalion, called the Zvornik Brigade headquarters
1 and spoke there to Popovic about the prisoners. Popovic said they would
2 be exchanged the next day. Judgement 1113.
3 Moving into the 15th, Popovic, Beara and Nikolic continued to
4 work together to ensure the killing operation continued at pace. The
5 burials at Orahovac continued and the killings at Kozluk of the prisoners
6 from Rocevic began and the killings of the Petkovci school detainees also
8 In the early hours of the 15th, Drago Nikolic was acting as the
9 duty officer at the Zvornik Brigade. A message was sent from the
10 Zvornik Brigade headquarters to Acimovic, the 2nd Battalion commander, to
11 form a platoon to be sent to Rocevic to kill the prisoners there. At
12 about 0230, Nikolic followed up the telegram insisting that the order be
13 carried out, judgement 1368. When Acimovic refused, Nikolic said he
14 would meet Acimovic that morning at the school, and reported that Beara
15 was coming to the Standard barracks at around 9.00 a.m. At around 10.00,
16 Popovic met Acimovic at the school. Popovic was angry, asking why the
17 executions squad had not been brought as ordered, judgement 511 and 1118.
18 He was angry when only one truck turned up to transport the prisoners to
19 the execution site, saying that they would have to be killed at the
20 school. Judgement 513.
21 Acimovic ordered the prisoners to be taken to Kozluk where
22 ultimately they were killed by the 2nd Battalion Zvornik Brigade,
23 including at least one MP. They were guarded by the 2nd Battalion MPs.
24 They were blindfolded and bound and loaded on to 2nd Battalion trucks,
25 518, and transported to the killing site at Kozluk. Three crates of
1 ammunition for automatic rifles were sent to the Rocevic school by the
2 2nd Battalion, and one of the 2nd Battalion soldiers testified of the
4 "They were half dead, exhausted, without water or bread, nobody,
5 nobody begged for their lives. And this worries me greatly. Nobody
6 said, 'Spare my life.'"
7 Judgement 518.
8 The prisoners were shot on the banks of the river. That morning,
9 around 10.00 a.m., Beara called Krstic asking for ten -- 15 to 30 men to
10 help in the murder operation. He told Krstic he had 3500 parcels to
11 distribute, in other words to kill, and he couldn't do anything without
12 the additional men. He was told to take soldiers from the Bratunac
13 Brigade, judgement 1282. There were still around 3.000 men distributed
14 between Rocevic, Kula school, and the Pilica cultural centre.
15 Meanwhile, still on the 15th, the burials at Orahovac continued
16 with Zvornik Brigade engineering assets, and trucks were being used to
17 remove prisoners and bodies from the Petkovci school. Those detained at
18 the Petkovci school were told to remove most of their clothes, had their
19 personal materials taken from them. They were blindfolded and bound,
20 loaded on to 6th Battalion Zvornik Brigade trucks, transported to the
21 Petkovci dam killing field and murdered. In the evening, Popovic and
22 Beara met at the Zvornik Brigade headquarters.
23 By the 16th of July, only the Kula school and the Pilica Dom
24 cultural centre prisoners remained to be killed, the last stretch in the
25 operation, between a thousand and 2.000. Beara and Popovic, the
1 judgement found, arrived at the Kula school around noon that day with
2 around 10 to 12 soldiers in a van and an empty bus. Soon after, the
3 prisoners were bound, some were blindfolded, they were driven away, taken
4 to the Branjevo military farm, a Zvornik Brigade asset, and in groups of
5 ten they were murdered. The killing was undertaken by eight to ten men
6 of the 10th Sabotage Detachment and continued from 10.00 in the morning
7 until 3 or 4 in the afternoon when the killers were joined by soldiers
8 from Bratunac.
9 One survivor testified: "When they opened fire, I threw myself
10 onto the ground. My hands were still tied behind my back and I fell on
11 my stomach, face down. And one man fell on my head. I think he was
12 killed on the spot. And I could feel the hot blood pouring over me. The
13 shooting continued and then they ordered soldiers to shoot people
14 individually. And I could hear a voice saying that they shouldn't shoot
15 people in the heads, so that their brains wouldn't spill out, but rather
16 to shoot them in their backs."
17 Judgement 539.
18 The Trial Chamber found that Popovic was the lieutenant colonel
19 who arrived at the farm in the morning in company with two MPs and the
20 10th Sabotage execution squad, judgement 1131 to 33.
21 A short distance away at the Pilica cultural centre of all
22 places, prisoners had been brought a few days earlier. They were guarded
23 by Bosnian Serb forces. And in the afternoon, they were all murdered
24 there in the cultural centre. Popovic was in the area at that time,
25 according to the judgement, ordering 500 litres of fuel to be delivered
1 to Pilica "or else," as recorded in an intercept at 1.58 p.m. on the
2 16th, "the work he's doing will stop.
3 The Trial Chamber rightly considered that this fuel was related
4 to the transport, execution, and burial of the prisoners.
5 A lieutenant colonel also ordered men from the 10th Sabotage to
6 go to the Dom, the cultural centre, from Branjevo Farm to kill the
7 prisoners. Judgement found this was Popovic. 540, 1133. He had been in
8 the cafe at Pilica a few metres from the Dom, the judgement found, and a
9 soldier reported to him after the killings there that "everything is
10 finished." Judgement 1133.
11 When the Branjevo Farm executions and the Pilica Dom killings
12 completed everything was finished. The prisoners were all dead. At
13 about 9.16 p.m. that evening, Popovic is intercepted reporting:
14 "Tell the general ... I've finished the job ... I finished
16 Intercept P01201A, judgement 1136.
17 The only thing to be done after the killing was the burying of
18 the bodies, and on the 17th of July, Popovic reported, the judgement
19 found, on the satisfactory completion of the murder operation. The
20 burials were completed on the 17th, the judgement found, between 542 to
21 547, with engineers and equipment from the Zvornik Brigade. And in the
22 afternoon of the 17th, Popovic reported:
23 "Everything is okay, that job is done ... everything's been
24 brought to an end, no problems ... basically that gets an A ... an A ...
25 the grade is an A" --
1 JUDGE ROBINSON: I have to interrupt you, Mr. Rogers. I'm
2 informed by my colleague that the French interpreters are not able to
3 follow you because of your speed.
4 MR. ROGERS: Okay. I'm nearly finished, you'll be pleased to
6 JUDGE ROBINSON: Not surprising.
7 MR. ROGERS: Your Honours, just to conclude with this: I'll just
8 reread this part. In the afternoon of the 17th, Popovic reported:
9 "Everything is okay, that job is done ... everything's been
10 brought to an end, no problems ... basically that gets an A ... an A ...
11 the grade is an A, everything's okay."
12 It's the intercept at 4.22 p.m., P01224A, judgement 1142.
13 And the Trial Chamber found that the job that was being referred
14 to was not anything innocent but was the murder and burial operation.
15 But Popovic's work was not quite complete. On the 23rd of July,
16 after the main killings between the 13th and 16th, a sweep operation was
17 put in place throughout the Zvornik Brigade area of responsibility and
18 elsewhere in the Zvornik and Srebrenica area. Ten Bosnian Muslim wounded
19 prisoners had been taken to the Milici hospital and, on the 23rd of July,
20 they were transferred to the Standard barracks. Pandurevic sought advice
21 from the Drina command as to what to do. In itself revealing. Popovic
22 was duly dispatched from the corps command, the judgement found, 1153.
23 The patients were taken away and they were never seen again. PW-168
24 testified that Obrenovic had been told by Pandurevic that Popovic had
25 arrived with an order from Mladic for the injured men to be liquidated
1 and they were driven away.
2 Trial Chamber also found on the same day of the Milici patient
3 killings that Popovic was involved in the mass killings at Bisina, when
4 prisoners were taken five at a time from trucks and shot. Judgement 1143
5 to 1152.
6 And finally, in September 1995, the Chamber found Popovic was
7 involved in the reburial operation of the bodies at Glogova, which the
8 Chamber rightly considered as corroborative of his role in the murder
9 operation, judgement 1161.
10 Your Honours, in conclusion, Popovic was in it from the
11 beginning. He was in Potocari on the 12th of July explaining the murder
12 plan before the separations began on the 13th. He enlisted VRS members
13 such as Momir Nikolic, Drago Nikolic, and Srecko Acimovic to accomplish
14 the plan. He organised and led the transportation of prisoners to the
15 Grbavci school at Orahovac. He was present at many of the places of
16 detention, including Rocevic and the Kula school. The Chamber found he
17 was at Branjevo Farm and close by the Pilica cultural centre. He
18 organised fuel for the killings, transport, and executioners. He
19 reported on the success of the work he had done and participated in its
20 cover-up through the reburial of those murdered. He was committed and
21 dedicated to the task he had been given. He was rightly and justly
22 convicted for his major role in this atrocity, and his appeals must be
24 Your Honours, this completes my overview and my submissions. And
25 I will pass over, I suspect after the break, to Ms. Soljan and Ms. Nabti.
1 JUDGE ROBINSON: Your suspicion is right. We will take a break
2 now and resume in 20 minutes.
3 --- Break taken at 3.00 p.m.
4 --- On resuming at 3.27 p.m.
5 JUDGE ROBINSON: Yes, counsel, as far as your pace is concerned,
6 think of it as in horse racing terms, not a gallop but somewhere between
7 a trot and a gallop, a canter. I think that would serve us well.
8 MS. SOLJAN: Thank you, Your Honours, message understood.
9 Good afternoon, Your Honours. Good afternoon, everybody. My
10 name is Lada Soljan and I'm here on behalf of the Prosecution today.
11 Your Honours, in my submission today, I will briefly summarise
12 Popovic's whereabouts during the relevant time period, to demonstrate how
13 omnipresent he was in the Bratunac and Zvornik Brigade areas of
14 responsibility from the day that Srebrenica fell. By doing this, I aim
15 to address his overarching challenge that he was just a security officer
16 who was not authorised to coordinate and who was simply carrying out his
17 regular duties while the thousands of Bosnian Muslim men and boys were
18 being executed. As argued in our response brief, the only reasonable
19 conclusion based on many strands of interconnecting and mutually
20 corroborating evidence - the conclusion that the Trial Chamber reached -
21 is that Popovic significantly contributed to the murder operation through
22 his robust and vigorous participation. This is at judgement 1178 and
23 1180. He was properly convicted for persecutions, murder, extermination,
24 and genocide on this basis. Finally, Your Honours, I shall respond to
25 your questions in relation to the Kozluk gravesite. As for the rest, the
1 Prosecution stands by its written submissions. I will of course be happy
2 to answer any questions that you may have.
3 Your Honours, you should be seeing on your screens an exhibit, a
4 map, this is Exhibit P2110, same exhibit as Mr. Rogers showed earlier,
5 and I would like to use it to highlight some aspects of Popovic's
6 participation in the murder plan, in other words, to show how ubiquitous
7 he was from the fall of Srebrenica to less than a week later, when
8 thousands of Bosnian Muslim men and boys lay buried in the Bratunac and
9 Zvornik Brigade areas of responsibility.
10 Your Honours, any addition to the original map is based entirely
11 upon the finding in the judgement and it's reflected by the trial
12 judgement paragraphs therein.
13 So on the 11th of July, Your Honours, Popovic was seen walking
14 with General Mladic and other senior VRS officers through the empty
15 streets of Srebrenica town. On 12 July, he was outside the Hotel Fontana
16 in Bratunac, prior to the third Hotel Fontana meeting. This is where he
17 told Momir Nikolic "all the balija have to be killed" and discovered
18 possible detention sites -- and discussed possible detention sites and
19 execution sites in the area. Judgement 1097.
20 Popovic attended the third and final Hotel Fontana meeting at
21 which the separations and screening of war criminals were mentioned, and
22 he was also present with Bosnian Serb forces in Potocari throughout that
23 day on the 12th.
24 Your Honours, on the 13th of July, Popovic attended a meeting at
25 the Bratunac Brigade headquarters with Mladic, Vasic and General Krstic.
1 Around this time, Mladic angrily confronted Popovic outside the
2 headquarters over his perception that Popovic was not getting on with his
3 work. This is at trial judgement 1100. That evening, at around 7 or
4 8 p.m., Popovic called Drago Nikolic and informed him that a large number
5 of prisoners were to be brought from Bratunac to Zvornik to be killed and
6 he asked Nikolic to assist. Trial judgement 1104 and 1345.
7 The next morning, Your Honours, on July 14, Popovic was at a
8 short 15- to 20-minute meeting in Standard barracks with both Beara and
9 Drago Nikolic. In light of the timing of this meeting, the position of
10 these three individuals, as well as their prior and subsequent actions,
11 the Trial Chamber reasonably found that the meeting concerned the
12 organisation and coordination of the murder operation, at trial judgement
14 After the meeting, Popovic went to Bratunac, from which he led a
15 large convoy consisting of VRS soldiers and Bosnian Muslim prisoners to
16 Grbavci school in Orahovac. A large pit was dug in a field a short
17 distance away from the school and machine operators were requested to go
18 to Orahovac "in relation to the task being performed by Beara and
20 The Chamber found that between 800 and 2500 Bosnian Muslim men
21 were executed at Orahovac that day and that, in light of the totality of
22 the evidence, there was no other reasonable conclusion but that Popovic
23 was at Orahovac on 14 July and directed the executions there.
24 Your Honours, we have fully briefed the issue of PW-101, the
25 witness who places a lieutenant colonel at this execution site. We've
1 done this in our response brief at paragraphs 169 to 190.
2 THE INTERPRETER: Please slow down. Thank you.
3 MS. SOLJAN: I apologise.
4 JUDGE ROBINSON: That's the gallop not the canter.
5 MS. SOLJAN: I'll go back to a trot if I can.
6 In addition, we have made further submissions regarding PW-101 in
7 our response to the sixth Popovic Rule 115 motion.
8 Your Honours, by the evening of 14 July, Bosnian Muslim men were
9 detained inside both Rocevic and Kula schools under similar conditions as
10 the prisoners at Grbavci school had been, and Popovic had a telephone
11 discussion with Acimovic concerning the prisoners there. The next
12 morning, 15 July, Popovic was at Rocevic school. He was coordinating the
13 execution of prisoners, he was procuring trucks from Standard barracks to
14 take the prisoners to the execution site, and he was attempting to engage
15 Zvornik Brigade soldiers and volunteers to shoot them. Judgement 511 to
17 The Chamber found that over 1.000 prisoners were executed at
18 Kozluk that day, based on eyewitness testimony and forensic evidence.
19 Your Honours, in his briefs, as well as today, Popovic challenges
20 the Chamber's reliance on Acimovic in reaching its findings regarding his
21 coordination of on-site logistics for the executions of the Rocevic
22 school prisoners at Kozluk. We stand by our response brief at
23 paragraphs 198 to 217.
24 Around 6.30 p.m. that evening, Popovic again met Beara at the
25 Standard barracks. Meanwhile, 1.000 to 2.000 prisoners had been detained
1 in the Pilica area, judgement 1124. On the 16th of July, Your Honours,
2 Popovic was seen at the Zvornik Brigade headquarters and he joined,
3 together with two MPs, members of a 10th Sabotage Unit, which had been
4 ordered to execute busloads of Bosnian Muslims at the Branjevo military
5 farm. Popovic arrived at the Kula school with Beara around noon and,
6 upon his arrival, the prisoners were driven to Branjevo military farm and
7 executed. The Chamber found that around 3 to 4 p.m., a lieutenant
8 colonel, in other words, Popovic, obtained volunteers who were deployed
9 at the Branjevo military farm to go to the Pilica Dom to execute the
10 500 Bosnian Muslims detained there and they then left with Popovic and
11 the two MPs.
12 Between 1.000 to 2.000 Bosnian Muslims were executed in Pilica
13 and Branjevo Farm and the Pilica cultural centre on 16 July.
14 Your Honours, in his appeal brief and again today at transcript
15 references pages 21 to 23, Popovic disputes the findings that he
16 coordinated logistics on site and that he was the lieutenant colonel
17 present in the Pilica area on June -- on 16 July. He does so primarily
18 by attacking Erdemovic's inability to identify Popovic as well as by
19 advancing numerous speculative and piecemeal alternative interpretations
20 of evidence. However, as developed in our response, paragraphs 218 to
21 228, the Chamber has reasonably based its findings on the totality of
22 mutually reinforcing pieces of evidence before concluding that the
23 identification was objectively reliable.
24 Specifically, the Chamber took into account his rank, lieutenant
25 colonel. It took into account the fact that no other lieutenant colonel
1 was present in the area at that time. It reasonably took into account
2 his movements during the 16th of July in the Pilica area, including,
3 first, his presence at the Kula school at noon together with Beara, and
4 then later, the fact that a note in the Zvornik Brigade duty officer
5 logbook at 4.40 indicated that he was in the Pilica area at that time,
6 around the time of the Branjevo executions. The Trial Chamber also took
7 into account his prior role in coordinating the executions in Orahovac
8 and in Rocevic.
9 The Chamber further relied on evidence concerning his requisition
10 of fuel, including the 1.58 p.m. intercept that Popovic urgently required
11 500 litres of fuel to be delivered to Pilica "or else the work he's doing
12 will stop," and a contemporaneous note at 2.00 p.m. in the Zvornik
13 Brigade duty officer logbook that Popovic requested a bus with a full
14 tank and 500 litres of D2. The Chamber reasonably found that even a
15 later intercept at 7.12 p.m. concerning "the request that Zvornik sent"
16 referred to the delivery of fuel. This is at judgement 1128. And it
17 considered the evidence of driver Branko Bogicevic, that he indeed
18 transported 500 litres of fuel from Standard barracks to Pilica on the
19 same day. Additionally, his vehicle log indicated he had travelled to
20 Pilica that day.
21 Based on all this mutually corroborating evidence, Your Honours,
22 the Chamber reasonably found that Popovic's request for fuel and its
23 delivery were related to the operation of executing and burying the
24 prisoners at Branjevo military farm.
25 Later that night, Your Honours, at 9.16 p.m., Popovic was
1 intercepted on a call he made from the Standard barracks in which he
2 stated: "I've finished the job." Taking into account all of the
3 evidence and Popovic's activities in the days leading up to this
4 conversation, the Trial Chamber concluded that the only reasonable
5 interpretation of this evidence is that "the job" refers to the killing
7 THE INTERPRETER: Slow down, please. Thank you.
8 MS. SOLJAN: Now, Your Honours, as Mr. Rogers has already
9 indicated, the job referred to in the intercept you have before you for
10 the 17th of July refers to the operation to kill and bury the Bosnian
11 Muslim men in Zvornik between 13 and 17 July. It is Popovic's report
12 that the job gets an A.
13 Your Honours, the Chamber found that Popovic killed or
14 facilitated the killing of ten wounded Bosnian Muslim prisoners from
15 Milici hospital who were placed in his custody around 23 July. This is
16 at judgement 577 and 1156.
17 The Defence repeated its prior challenges here about the
18 underlying -- for the basis of this finding. Again piecemeal. This
19 finding was based on evidence besides just witness testimony, this
20 finding was based on the evidence of two intercepted conversations on
21 that day, which mentioned that Popovic would arrive to sort the matter
22 out, as well as a contemporaneous note in the Zvornik Brigade duty
23 officer logbook that:
24 "8.30 hours - Lieutenant Colonel Cerovic relayed message from
25 commander that LTC Popovic will arrive by 1700 hours."
1 This is at judgement 1153 and footnote 3761.
2 There was also testimony that Popovic had arrived with an order
3 from Mladic for the injured men to be liquidated and that they were
4 driven away, as well as vehicle log records that the car assigned to
5 Popovic had travelled from Vlasenica to Zvornik. Judgement 1154 and
7 The Chamber also found he had been involved with and present
8 during the executions of prisoners at Bisina. It concluded that his
9 presence at the Bisina execution site and his participation in the
10 reburial operation in September of 1995 corroborated his participation in
11 the JCE to murder. Judgement 1161 and 1166.
12 Your Honours, in paragraphs 84, 88, 93 to 97, and 232 to 238 of
13 the Prosecution response brief, we address Popovic's arguments
14 challenging the conclusion that he and the security branch played a key
15 role in organising and directing the murder operation. Your Honours,
16 Popovic was not a powerless security officer with no authority and no
17 access to personnel or resources, as he has been arguing both at trial
18 and now on appeal. On the contrary, he had a major coordinating role in
19 realising the murder plan. He was ubiquitous, as the Trial Chamber found
20 at judgement 1179, in particular in the Zvornik area during the mass
21 executions from 14 to 16 July, as well as thereafter. The Chamber
22 properly assessed his role as security branch officer, along with
23 evidence clearly demonstrating that together with Beara, he obtained
24 access to resources and personnel through the Drina Corps brigades in
25 order to carry out the detention, execution and burial of thousands of
2 Your Honours, I now turn to your question.
3 In section 5 of our response brief, at paragraphs 272 to 317, we
4 have provided the response to all the Defence challenges regarding the
5 Chamber's evaluation of the forensic and DNA evidence, including the
6 challenges repeated here today. We rely on those responses -- on that
8 Now, as one of his challenges to the number of victims, Popovic
9 has argued that the Trial Chamber erred in convicting him for the
10 execution of more than 1.000 males at Kozluk on 15 July, while the
11 indictment only charged him with killing about 500 Muslim men at that
12 location. It's at Popovic appeal brief paragraphs 438, 442 to 443, as
13 well as reply at para 132.
14 The first part of your question, Your Honours, invites the
15 parties to discuss the Trial Chamber's interpretation of
16 paragraphs 30.8.1 and 30.10 of the indictment at footnote 1839 of the
17 trial judgement; and second, we are invited to discuss whether Popovic
18 was convicted for any killings in excess of those pleaded in these two
20 Your Honours, the short answer to both parts of your question is
21 that the indictment provided Popovic with notice that there were
22 approximately 1.000 victims at Kozluk. Popovic was therefore not
23 convicted for killings in excess of those pleaded.
24 To provide a bit more detail to the first part of your question,
25 Your Honours, the Trial Chamber at footnote 1839 noted as follows:
1 "The indictment alleges that approximately 500 Bosnian Muslim
2 males were detained in the Rocevic school and then transported to a site
3 near Kozluk and executed. Indictment paras 30.8.1 and 30.10. The Trial
4 Chamber notes that the victims detained at Rocevic school are the same
5 killed near Kozluk."
6 Your Honours, based on a plain reading of the indictment, the two
7 paragraphs referred to by the Trial Chamber in this footnote are
8 cumulative. They are not overlapping. Specifically, paragraph 30.8.1
9 alleges that approximately 500 Rocevic prisoners were taken to Kozluk and
10 executed, while paragraph 30.10 alleges that about 500 other
11 Srebrenica-related prisoners captured from the column or separated at
12 Potocari were executed at Kozluk.
13 Read together, these two paragraphs put Popovic on notice that
14 there were approximately 1.000 victims at Kozluk. The Prosecution
15 pre-trial brief, at paragraphs 83 to 87, also did the same.
16 In any event, Your Honours, even though the trial footnote --
17 Trial Chamber footnote might be a little ambiguous, it is clear that the
18 Trial Chamber understood what the Prosecution was charging because at
19 paragraph 794(11), it found that: "On 15 July, over 1.000 Bosnian
20 Muslims were killed at Kozluk." It did so referring to paragraphs 517 to
21 524, and it based its conclusion upon eyewitness and forensic evidence
22 available at trial.
23 As a result, to answer your second question, Your Honours,
24 Popovic was not convicted for any killings in excess of those pleaded in
25 these two provisions.
1 In any event, Your Honours, the indictment has at all times
2 provided Popovic with fair notice of the large scale of allegations that
3 he faced. Since the earliest form of the indictment against Popovic, he
4 has been on notice that he was charged for his participation in the joint
5 criminal enterprise to murder which resulted in the summary execution of
6 over 7.000 Bosnian Muslim men and boys from Srebrenica. This is at
7 indictment paragraphs 25, 27 to 29, and 37. At no point in the
8 Prosecution's case did this total figure of alleged victims change.
9 This concludes my submissions, Your Honours. Unless you have any
10 questions, my colleague Ms. Najwa Nabti will conclude our response to
11 Popovic's appeal challenges.
12 JUDGE ROBINSON: Thank you very much.
13 MS. NABTI: Good afternoon, Your Honours. My name is
14 Najwa Nabti, and I will address Popovic's arguments regarding his
15 conviction for genocide.
16 Popovic has challenged the Trial Chamber's finding that he had
17 genocidal intent, as well as its general finding that a genocide was
18 committed. I will address his arguments in turn, starting with his own
19 genocidal intent.
20 As you have just heard, Popovic knew about and participated
21 vigorously in almost every step of the murder operation, from the
22 formulation of the plan to the large-scale killings and burials. At
23 Orahovac, Rocevic school and Pilica alone, Popovic participated in the
24 killing of thousands of Bosnian Muslims, securing executioners, fuel,
25 vehicles, whatever was needed to get the job done. Popovic's own words,
1 the systematic exclusive targeting of Bosnian Muslims, and his
2 destructive and discriminatory acts against them provided further
3 evidence revealing his state of mind. These findings are at the trial
4 judgement paragraphs 178 to 180. On this evidence, the Chamber was fully
5 justified in finding that Popovic intended to destroy the Muslim
6 population of Eastern Bosnia. Given the strength of the Trial Chamber's
7 conclusion, it is no surprise that Popovic challenges the underlying
8 findings throughout his brief.
9 My colleagues have already addressed the reasonableness of those
10 findings and they are fully canvassed in our brief.
11 Popovic does not challenge the Trial Chamber's reliance on such
12 factors as the scale of the atrocities, or the intent to commit the
13 underlying acts, to infer genocidal intent, nor could he, as appellate
14 jurisprudence clearly supports the Trial Chamber's approach. See the
15 trial judgement paragraph 823 with citations to Jelisic, Blagojevic and
16 Jokic, and the Krstic appeal judgements. The Trial Chamber's conclusion
17 on Popovic's genocidal intent is well-founded and should be affirmed.
18 In addition to its finding on Popovic's liability for genocide,
19 the Chamber found that a genocide occurred. Popovic's challenges to this
20 finding primarily pertain to the inference that the mass killings were
21 perpetrated with genocidal intent. Since Popovic was convicted of
22 committing genocide as a JCE member, proving the genocidal intent of the
23 physical perpetrators of the underlying acts was not required, and so
24 this finding was not a necessary pillar to his conviction as he suggests.
25 This has been recently confirmed by the Appeals Chamber in its
1 Rule 98 bis judgement in Karadzic at paragraph 79. Nonetheless, the
2 Trial Chamber's findings that there was a -- that a genocide was -- had
3 occurred were eminently reasonable.
4 The Trial Chamber found that, in a matter of days, members of the
5 Bosnian Serb forces systematically rounded up, detained, transported,
6 executed, and buried thousands of Muslim men and boys. As the Defence
7 points out, the Trial Chamber relied on significant coordination and the
8 vast process entailed by this operation, but this only formed part of the
9 Trial Chamber's analysis, which appears at paragraphs 856 to 863, leading
10 to its conclusion that:
11 "The scale and nature of the murder operation, the targeting of
12 the victims, the systematic and organised manner in which it was carried
13 out, and the plain intention to eliminate every Bosnian Muslim male who
14 was captured or surrendered proves beyond reasonable doubt that members
15 of the Bosnian Serb forces, including members of the VRS ... and security
16 branch, intended to destroy the Muslims of Eastern Bosnia as a group."
17 In addition, the Trial Chamber drew further support for genocidal
18 intent from other culpable acts systematically directed against the same
19 group, in particular the frenzied efforts to forcibly remove the
20 remainder of the population while the male members of the community were
21 targeted for murder. That's at paragraph 862.
22 Popovic's claim that the Chamber found that all members of the
23 Bosnian Serb forces committed genocide is unjustified, as it clearly
24 mischaracterises the Trial Chamber's conclusion that genocide was
25 committed by "members of the Bosnian Serb forces, including members of
1 the VRS Main Staff and the VRS security branch, such as Popovic and
2 Beara ..." That's at trial judgement paragraph 863.
3 Popovic also faults the Trial Chamber for declining to specify
4 which of these members committed genocide. However, the Appeals Chamber
5 in Krstic confirmed that the inference of genocidal intent for a
6 particular atrocity may be -- can be made without attributing that intent
7 to specified individuals. That's at the Krstic appeal judgement
8 paragraphs 34 and 35.
9 In addition, the Defence answers its own complaint that some
10 others who were involved in the killing, who are not on trial here, have
11 not been convicted of genocide, by pointing out "that the genocidal
12 intent of the perpetrator must be established only on a case-by-case
13 basis." That's transcript of today's hearing at page 27. The
14 Trial Chamber did so in this case, with respect to the convictions
15 entered for genocide.
16 With regard to Popovic's remaining challenges, the Trial Chamber
17 has considered and rejected these arguments and its approach is
18 consistent with appellate case law. Specifically, Popovic argues that
19 for genocidal intent to be inferred, all Bosnian Muslims in Srebrenica
20 would have to be targeted. He claims that the women, children, the
21 elderly, and the members of the 28th ABiH column, which broke -- division
22 column which broke through to ABiH-held territory were spared.
23 First, the law is clear that killing all members of the group is
24 not required to prove genocidal intent, as "the intent to destroy formed
25 by a perpetrator of genocide will always be limited by the opportunity
1 presented to him."
2 That's in the Krstic appeal judgement at paragraph 13.
3 Second, Popovic's arguments ignore the facts. The Chamber found
4 that not even a cursory attempt was made to distinguish between civilian
5 and soldier in separating the Bosnian Muslim males targeted for
6 execution. Some children and elderly persons were among those executed.
7 Indeed, the Trial Chamber heard evidence about the killing of a boy who
8 pleaded for his life. They surely were not spared. Those findings are
9 in the trial judgement at paragraphs 519, 779, 860, 866, and 990. And as
10 noted, the frenzied efforts to forcibly remove the remaining population,
11 described today by counsel as the transport of 20 to 30.000 Muslims to
12 safety, provided further support for genocidal intent as other culpable
13 acts systematically directed against the same group. That's at trial
14 judgement paragraph 862.
15 The Trial Chamber's approach is consistent with the
16 Appeals Chamber's assessments on this issue in Krstic at
17 paragraphs 31 to 33, and Blagojevic and Jokic at paragraph 123.
18 The Trial Chamber also considered and rejected Popovic's argument
19 that executing the thousands of Bosnian Muslim males was in response to
20 any serious military threat they posed. Those targeted had already
21 surrendered. Whether or not the column itself was a legitimate military
22 target has nothing to do with the slaughter of the thousands of men and
23 boys in custody.
24 Popovic also misrepresents the fate of the ABiH 28th Division
25 column by suggesting that there was no intent to destroy the men in the
1 column who were ultimately allowed to pass. There is no question that
2 Bosnian Serb forces would have killed these men if they were able to.
3 Bosnian Serb forces attacked the column on 12 and 13 July and induced
4 thousands to surrender, only to execute them shortly afterwards. Trial
5 judgement paragraphs 380 to 383.
6 The surviving members of the column were only allowed through
7 when it was determined that blocking them was not feasible. Trial
8 judgement paragraphs 551 to 560.
9 Bosnian Serb forces then scoured the terrain to find those who
10 did not make it through, ensuring "that no Bosnian Muslim male escaped
11 the grasp of the VRS Main Staff and security branch." That's at trial
12 judgement paragraph 860.
13 The perpetrators of the genocide fully seized the opportunity
14 presented to them after the fall of Srebrenica, killing as many as they
15 could as quickly as they could. And again, Popovic gets no help from
16 appellate jurisprudence which clearly supports the Trial Chamber's
17 approach, in the Krstic appeal judgement at paragraphs 26 and 27.
18 Finally, Popovic 's arguments ignore the Chamber's findings that
19 Bosnian Serb forces perpetrated genocidal acts against the survivors who
20 suffered profound physical and psychological harm as a result of the
21 murder operation. In paragraph 30 of his reply brief, Popovic suggests
22 that there was insufficient evidence of the physical and psychological
23 harm to the surviving family members which he equates with "the harm of
24 everyone who has lost his family member or friend under any
25 circumstance." His claim that "the mental harm suffered by the relatives
1 of the deceased is a natural part of everyday life" is not only repugnant
2 but is contradicted by the evidence in this case.
3 The extreme emotional and psychological distress caused by the
4 taking and killing of thousands of fathers, sons, husbands, and brothers
5 was evident not only from the Rule 92 bis statements of surviving family
6 members but also from the testimony of witnesses to the suffering, expert
7 evidence, and judicially noticed adjudicated facts. For example,
8 Rahima Malkic, who fled her village near Srebrenica, recalled the moment
9 when Serb soldiers took her husband away in Potocari. He looked at his
10 family and said this was his fate. She also lost two sons but can't bear
11 the thought of going to identify their bodies. She said:
12 "I don't want to go back to my village. I can't take going back
13 through Kravica because that's where my son was killed ... it's hard for
14 me when I see young boys going to school ... I see the pictures of the
15 fall of Srebrenica in my mind ... the pictures of my children come to
17 That's at Exhibit P3229.
18 Equally devastating is the evidence of PW-121, whose 14-year-old
19 son was forcibly taken from her at Potocari, which can be found in
20 Exhibit P2226, with further information about her child's tragic fate
21 referenced in the Prosecution's closing arguments at T 34208 to 34210.
22 The suffering inflicted on Rahima Malkic and PW-121 cannot
23 possibly be characterised as mental harm suffered "as a natural part of
24 everyday life." Rather, their evidence clearly shows that they suffer a
25 grave and long-term disadvantage to their ability to lead a normal and
1 constructive life. And yet, it is not unique. Thousands of Bosnian
2 Muslims have suffered such a loss as a result of the mass killings, as
3 described in the trial judgement at paragraphs 846 and 847.
4 Others who have borne witness to their suffering came to testify.
5 UN Military Observer Colonel Kingori described the tearful and terrifying
6 separation process at Potocari, when men and boys were forcibly taken
7 from their families. That's at transcript pages 19251 to 19257.
8 UNPROFOR Civil Affairs Officer Edward Joseph testified that the
9 overwhelming source of distress for the refugees who arrived in Tuzla
10 around 12 or 13 July 1995 "was their concern about the fate of their men,
11 be they husbands, fathers, sons or brothers, whom they had left behind."
12 Transcript pages 14151 to 14152.
13 The serious physical and mental harm inflicted as a result of the
14 killings is further supported by expert evidence in Exhibit P2228 and by
15 adjudicated facts 505 to 513.
16 On all the evidence, Your Honours, Popovic was rightly convicted
17 of committing genocide against the Muslims of Eastern Bosnia by killing
18 members of the group and inflicting serious bodily and mental harm on the
19 victims, their families and survivors. He was at the heart of the
20 operation that accomplished the violent eradication of thousands of
21 Bosnian Muslim men and boys in only a few days' time, and inflicted
22 emotional and physical scars on the surviving population that will
23 persist for generations.
24 Your Honours should affirm his conviction and life sentence.
25 Unless Your Honours have any questions, that concludes the
1 Prosecution's submissions.
2 JUDGE ROBINSON: I thank you very much. It appears to be
3 convenient for us to take the break now, and resume at -- we will take
4 the break for 25 minutes, a Solomonic decision.
5 --- Break taken at 4.10 p.m.
6 --- On resuming at 4.34 p.m.
7 JUDGE ROBINSON: Yes, counsel, for the reply?
8 MR. ZIVANOVIC: Thank you, Mr. President.
9 A complex matrix of findings as mentioned by the Prosecution does
10 not immunise the judgement from assessment on appeal. Contrary to the
11 Prosecution assertion, these key evidentiary and factual findings
12 highlighted in the appeal when undermined no longer sustain Popovic's
14 The Defence submits that the standards in the jurisprudence
15 relied on by the Prosecution in the beginning of its submissions wholly
16 apply to this situation. Indeed, it is the Defence submission that it is
17 dubious and the Trial Chamber managed to find Momir Nikolic and PW-168,
18 in particular, to be credible on the crucial matters of fact that led to
19 Popovic's conviction for genocide and where no direct corroboration was
21 The executions described in that event are indeed tragic, but it
22 is notable how even that handful of survivors or executioners at the
23 killing sites were entirely unable to identify Popovic as present. The
24 Defence would encourage Your Honours not to abide by the Prosecution's
25 efforts to affect your emotions in lieu of your reason in making your
2 The Prosecution's assertion that all the evidence was carefully
3 reviewed is not apparent in respect of the challenged portion of the
4 judgement indicated today and in the brief where it was argued that the
5 Chamber had completely disregarded the evidence.
6 This is especially true where Popovic has argued that no mention
7 of major discrepancies were made, or where they were unfairly diminished
8 to the prejudice of the accused despite the major contradictions of the
9 evidence. For example, the appeal brief, paragraph 301, judgement
10 footnote 1772. There is a serious danger where findings on the totality
11 of mutual reinforcing pieces of evidence, as stated by the Prosecution at
12 page 79 today, are molded with a goal of securing conviction rather than
14 The Prosecution's citation to the trial judgement at length
15 presumes the impugned judgement's legitimacy as though it were an
16 infallible record of fact. Indeed, the Prosecution can cite only
17 indirect or circumstantial evidence to corroborate the most extensively
18 challenged findings of fact in the appeal, ones that link Popovic
19 directly to responsibility or command at execution sites.
20 As explained in the appeal brief, the Trial Chamber applied
21 obvious double-standards to witnesses depending on the incriminating
22 value of their account. This is particularly true in respect of Kosoric,
23 who provided substantially different evidence and who, as a witness, was
24 severely disadvantaged in comparison to Momir Nikolic. The Trial Chamber
25 therefore failed to apply the in dubio pro reo standard to prejudice of
1 Mr. Popovic.
2 Momir Nikolic was found by the Chamber to be only partially
3 credible. It is worth repeating that this credibility assessment was
4 selective. Only the most incriminating accounts were believed, whereas
5 other accounts were not accepted without corroboration. In this way, the
6 Chamber deviated from its own standard for its assessment of witnesses
7 noted at paragraph 53 of the judgement.
8 Reliability of the statement is not bolstered by Momir Nikolic's
9 self-incrimination relating to the Hotel Fontana meeting. Specifically,
10 Momir Nikolic's plea agreement was only accepted upon his addition of
11 this account to his testimony, implying that he had a strong incentive to
12 incriminate himself further.
13 The Defence also submits that the Trial Chamber erred in relying
14 on post hoc evidence to support major factual findings. It could be seen
15 in appeal brief paragraphs 125, 126, and 316, and 319. This was by
16 definition unreasonable.
17 In respect of Your Honours' question, the Prosecution
18 misrepresents the notice of the cause of killings. I will quote
19 footnote 1839 for Your Honours:
20 "The indictment alleges that approximately 500 Bosnian Muslim
21 males were detained in Rocevic school and then transported to a site near
22 Kozluk and executed." It is in the indictment paragraphs 30.8.1 and
23 30.10. "The Trial Chamber notes that the victims detained at Rocevic
24 school are the same killed near Kozluk."
25 The Prosecution argued that Popovic erroneously cited only one
1 paragraph of the indictment as relevant to the Kozluk executions, ignored
2 the related allegations concerning the Rocevic school, where
3 approximately 500 Bosnian Muslim males were detained before being
4 executed on the bank of the Drina River near Kozluk on 14 and 15 July,
5 and that provided sufficient notice. On the contrary, the Trial Chamber
6 explicitly noted that the victims detained at Rocevic school were the
7 same killed near Kozluk. The indictment charged that 500 men,
8 footnote 1839, fails to explain its decision to double the murder number
9 of victims.
10 It is a dangerous and indeed irresponsible precedent to
11 flagrantly - or as the Prosecution conceded at paragraph 83 a little
12 ambiguously - double the number of killings charged or to suggest the
13 death of 500 more people is somehow immaterial or not requiring notice.
14 At transcript page 80, the Prosecution repeats a major
15 translation error that was addressed at length in his brief. Pandurevic
16 was not told that Popovic would arrive to "sort the matter out." As
17 noted in Popovic brief at paragraphs 361 through 364, he would come to
18 say "what should be done." Not to sort the matter out. There are far
19 more serious implications in the latter than the former.
20 The Prosecution's argument that the Bosnian Serb forces had
21 genocidal intent possesses a dangerous precedent as well to encourage the
22 Appeal Chamber and condone the Trial Chamber's decision to impute
23 genocidal intent onto an entire group of people who have not been
24 identified and who have had no opportunity to confront the evidence or
25 witnesses which allege this.
1 In response to other assertions made by the Prosecution today,
2 Popovic stands by his submissions in his appeal and reply and they need
3 not be repeated here.
4 Thank you.
5 JUDGE ROBINSON: Thank you very much.
6 [Appeals Chamber confers]
7 JUDGE ROBINSON: Yes. We are going to continue the proceedings,
8 moving now to the appeal of Mr. Beara, and we'll hear from counsel for
9 Mr. Beara.
10 Mr. Ostojic, we will stop at 5.15.
11 MR. OSTOJIC: Thank you, Your Honour. May it please the Court.
12 Your Honours, again, my name is John Ostojic. On behalf of Mr. Beara,
13 I'm here with my colleague Norman Sepenuk, and we will be providing the
14 oral submissions to our appellate brief and to try to establish for this
15 Chamber where we believe the Trial Court made several rather significant
16 errors, both legally and in the factual basis of some of the evidence.
17 I'm going to just initially in my opening remarks perhaps give
18 you a road map as to where I think our submissions will lead. Initially,
19 we were going to start with Mr. Sepenuk addressing from a strictly legal
20 standpoint the issue of genocide. The issue of genocide and how it
21 relates to Mr. Beara and how it was an erroneous decision by the Court as
22 a matter of law.
23 Following that submission, I will address this Chamber and
24 particularly one item, the JCE 1, to commit murder. I think when this
25 Chamber -- as our submission will reveal, the Trial Court relied on
1 specifically one piece of evidence that we believe should not have been
2 relied upon and most definitely there should have been no weight given to
3 that evidence, specifically the testimony, as I'm sure you've read from
4 the trial record is -- and from our briefs, is the testimony of a person
5 called Miroslav Deronjic. He was submitted as a witness pursuant to
6 92 quater and we've objected at that time to his evidence being submitted
7 because it goes strictly and specifically to the acts and conduct of
8 Mr. Beara.
9 The Trial Chamber at that time erred, although I'm going to
10 highlight for you are their opinion, when they state that they will with
11 extreme caution or at least with caution examine his testimony and make
12 sure that there is corroborating evidence as to any acts or conversations
13 that Mr. Deronjic would relay to this Chamber. They failed to do that.
14 They not only failed to keep their promise, they, in fact, did the
15 opposite. They relied solely on Mr. Deronjic's testimony in order to
16 convict Mr. Beara. They relied solely on Mr. Deronjic's testimony to
17 find him as a participant in the JCE 1 to commit murder.
18 We believe that the trial record, as my learned colleague
19 Mr. Rogers said, should be examined on the four squares that it is
20 presented to you and not through extraneous or misleading or speculative
21 reasoning. The Trial Chamber did just that. They went beyond the four
22 squares to reach conclusions, to reach conclusions that were adverse to
23 Mr. Beara and we believe that it was the convictions that led to
24 Mr. Beara were erroneous by the Trial Chamber.
25 I will in detail address Mr. Deronjic tomorrow on the acts and
1 the conversations that the Trial Chamber relied upon, and I'm just giving
2 you a brief overview.
3 Next we are going to talk about the whereabouts of Mr. Beara.
4 I think, with all due respect to the Trial Chamber, they misunderstood
5 and certainly misapplied the Defence position with respect to the
6 whereabouts of Mr. Beara.
7 We contend and we've established through what we believe was
8 credible evidence of where Mr. Beara was at certain critical times. We
9 will examine for this Chamber not all the witnesses, so we will not go
10 through each witness painstakingly, but we will highlight one witness and
11 that witness that we will highlight for the benefit of my learned
12 colleagues is Mr. Egbers.
13 Mr. Egbers was a UN DutchBat officer. He was one witness who
14 claims that he saw Mr. Beara at Nova Kasaba on July -- I believe it was
15 the 13th or 14th of 1995. Who has the burden of proof in this case?
16 According to the Trial Chamber, the Defence does. There was no
17 corroboration of Mr. Egbers' testimony other than his self-corroborating
18 statements or records. There was no extrinsic evidence to find that
19 Mr. Beara was at Nova Kasaba. The Prosecution was required under the law
20 of this jurisprudence to bring in corroborating evidence. Did they?
21 Before we answer that question, I think perhaps it's more
22 important to note, could they have? Could the Prosecution have brought
23 in corroborating evidence if they believed it? They know the answer is
24 yes, for a number of reasons. One, their own 65 ter witness on their
25 list was a gentleman by the name of Zoran Malinic. Zoran Malinic
1 purportedly was at this meeting with --
2 MR. ROGERS: I don't think it's appropriate to be referring to
3 evidence outside of the record if it is not in the record as to what it
4 may have been because it invites the speculation that criticism is being
5 made of the Trial Chamber and is now inviting to you speculate on what it
6 might have been. It's not proper. If my learned friend thinks that
7 there is additional evidence that could be brought by 115, he should have
8 done it.
9 MR. OSTOJIC: No. In fact, that's incorrect and I respectfully
10 disagree. The evidence by Mr. Egbers identifies Zoran Malinic being at
11 the meeting. The Prosecution argued in their opening statement, which is
12 part of the record, and in their brief which they cite also both
13 pre-trial and in other manners that Zoran Malinic was present. But, yes,
14 their fallback argument is that he's probably a Serb, which he was, a
15 member of the VRS --
16 JUDGE ROBINSON: Before you proceed, you had earlier said,
17 according to the Trial Chamber, the Defence has the burden of proof. Do
18 you mean by that that the Trial Chamber explicitly said that or do you
19 mean that that is something that can be fairly deduced from the record?
20 MR. OSTOJIC: Thank you, Your Honour. By no means would I ever
21 suggest that they expressly stated that. It's clearly implicit when they
22 took the evidence of Mr. Egbers and failed to understand why and who had
23 the burden of proof to corroborate that evidence. So indeed it was not
24 expressly stated by the Trial Chamber, but we believe just looking at
25 that evidence which we'll share tomorrow that, in fact, they did shift
1 the burden of proof. And instead of suggesting that the Prosecution
2 bring corroborating evidence, they simply relied on that evidence and
3 dismissed the Defence evidence on that issue.
4 JUDGE ROBINSON: Speaking personally, I would prefer if you,
5 rather than give the overview, give us your submissions.
6 MR. OSTOJIC: Well, it's quite lengthy but --
7 JUDGE ROBINSON: Because I don't want to you spend the time
8 giving us an overview, the remaining time, we want to hear your
10 MR. OSTOJIC: Well, this is part of my submission. Within the
11 submission I did have this part of the overview, so I am highlighting it
12 and then we are going to go into detail on it but --
13 JUDGE ROBINSON: Well, it's your time.
14 MR. OSTOJIC: The Prosecution not only had the opportunity and
15 the burden of proof to call --
16 [Appeals Chamber confers]
17 JUDGE SEKULE: I just wanted to understand so that I can follow
18 on my part. Your learned colleague said that that wasn't -- the issue
19 that you addressed previously was not in evidence and you make -- you did
20 give a response to that. I want to know that kind -- that response, is
21 it your submission that that evidence that you referred to is actually
22 into evidence? I just want to understand that aspect. Arising from what
23 was your learned colleague's submissions. If you may clarify, I just
24 simply want to understand exactly what is the position.
25 MR. OSTOJIC: Thank you, Your Honour. To clarify, is it
1 evidence, I suggest that it is and it's found in the testimony of
2 Mr. Egbers, number 1. It's part of the trial record below as the briefs
3 are, as counsel cited to his initial pre-trial brief. That evidence is
4 at least those two instances. It's also present in our request to try to
5 bring the witness but I don't believe that was marked as evidence. But I
6 believe that in at least those two separate occasions, that evidence was
7 presented to the Trial Chamber. And also, if recollection serves me
8 well, I believe it was also addressed in their opening statements.
9 JUDGE POCAR: Counsel, can you please give us, for our -- the
10 references in the trial record as to that?
11 MR. OSTOJIC: Your Honour, I will be able to do that tomorrow
12 morning, and I apologise for that. I don't want to give you the wrong
13 cite. I will prepare that and make sure you have that first thing in the
15 JUDGE POCAR: Thank you, counsel.
16 MR. OSTOJIC: So as I've stated, we will talk about how the
17 Trial Chamber erred as a matter of law and as a matter of fact, both as
18 to Mr. Deronjic, and highlight the second part as a matter of fact with
19 respect to Mr. Egbers and the evidence about Mr. Beara's whereabouts.
20 Next, we will talk about or we expect to discuss with this
21 Chamber another witness, a gentleman by the name -- or another person by
22 the name of Milos Tomovic, and that goes to whereabouts also. The
23 Trial Chamber misunderstood the argument that we had with Milos Tomovic.
24 He was a witness that the Prosecution was expecting to call. It was a
25 witness the Prosecution actually took, I think, twice met with him and
1 got his statement, and ultimately it was a witness that the Prosecution
2 interviewed without the assistance of counsel, without him being sworn,
3 it was at that, and we tried to submit that to the Trial Chamber, and
4 part of that evidence was in -- specifically introduced through the
5 cross-examination of Mr. Pandurevic. In those questionings by the
6 Prosecution, they expressly asked Mr. Tomovic, by prefacing the question,
7 "We know at that time," namely, the 13th through the 15th, "that Beara
8 was in Belgrade." The Trial Chamber failed to recognise the importance
9 and significance of that.
10 Who was Milos Tomovic? And why is he important? He was
11 Mr. Beara's driver. He was a critical witness that could substantiate or
12 verify either the Prosecution's case or the Defence case. Was it our
13 burden of proof or the Prosecution's? They chose not to call him.
14 We'll further discuss portions of our Defence case that I believe
15 the Trial Chamber erroneously summarily dismissed without giving a
16 reasoned opinion. The Trial Chamber's conclusions with respect to the
17 Defence case did not meet the requirements of a reasoned opinion.
18 Compounding this lack of reasoning are the Trial Chamber's inconsistent
19 and contradictory findings as they relate to Mr. Beara.
20 Ultimately, and early on we will address the question that the
21 Court raised with us, specifically the necessary link with respect to
22 Jadar River and the Trnovo killings. Our next piece or portion of our
23 argument is going to relate to seeking the truth that the Tribunal and
24 all of us have an opportunity to try to the best of our abilities to get
25 to the truth.
1 We will highlight several pieces of evidence that have been
2 introduced in this case, specifically when we talk about the victims,
3 when we talk about the numbers on this case, not to be cold, not to be
4 dismissive of the terrible things that occurred to those people and those
5 families, a UN officer, Mr. Egbers, and I think my learned colleague
6 mentioned him -- I'm sorry, not Mr. Egbers, Mr. Ed Joseph, excuse me. He
7 mentions in his report early on that his observation was that
8 3.000 Bosnian Muslim men were killed in legitimate combat engagements,
9 mines, and during other activities. The Trial Chamber simply ignores
10 that, dismisses that evidence as if it's non-existent. It was not a
11 report created or generated by a Bosnian Serb. It was indeed from a
12 third party, a UN staff officer.
13 So when we are seeking the truth, we should examine all the
14 evidence and try to determine was it 2.000, 5.000 or 7.000 that
15 unfortunately suffered the fate in July of 1995.
16 Other what I consider to be items that the Court simply ignored:
17 When the Court balanced Mr. Beara's purported words, it cautiously,
18 methodically stated that Mr. Beara was using code, didn't want people to
19 know. When we presented the evidence of Mr. Vasic, Dragomir Vasic, who
20 was the head of the MUP, the police, in his report he essentially says
21 the VRS are no longer in charge of these prisoners and essentially he
22 claims that he's going to liquidate 5.000 of them. In the evidence of
23 Mr. Butler, his response when confronted on cross-examination as to who
24 bore the responsibility to detain and who ultimately stated expressly
25 directly that they were going to liquidate and kill those people,
1 Mr. Butler claims he didn't mean it, as if he knew. The Trial Chamber
2 ignored that evidence which points directly in a different direction than
3 it does to Mr. Beara.
4 We'll also talk about what I've coined exculpatory evidence.
5 There is two things. We have mentioned one with Milos Tomovic,
6 Mr. Beara's driver, but the other significant piece of evidence that
7 I think we should address is what we coined previously as the Croat
9 Mr. Beara was being overheard in certain conversations. This one
10 intercept in the middle of what was the worst crimes that had occurred
11 since World War II, Mr. Beara does not discuss killings, in code or
12 otherwise. He clearly says: Move the men to Batkovici camp, which was a
13 known, recognised detention centre, not to Pilica, not to some other area
14 or other school, but to the detention centre where everyone expected them
15 to go. The Trial Chamber surprisingly, without any reasoning behind it,
16 simply stated this was code again. Mr. Beara knew he was being listened
17 to. Mr. Beara knew that someone was going to overhear him so he misled
18 everyone by giving this Croat intercept. If that's true, and we accept
19 that logic, how then can they claim the other intercepts point towards
20 Mr. Beara for either being a participant in the JCE 1 or having any
21 genocidal intent?
22 Finally, with your permission, we will address sentencing. The
23 two aspects of it we believe that the Court, the Trial Chamber, legally
24 erred or erred as a matter of law, I should say, excuse me, when it
25 failed to apply the law once it recognised that there existed mitigating
1 circumstances. It recognised three, but at the end of the day it gave
2 Mr. Beara the harshest sentence available. Likewise, the Trial Chamber
3 erred in fact because they didn't give sufficient weight to those
4 mitigating circumstances, giving only limited or what they called nominal
5 weight to those mitigating circumstances.
6 Finally, we will address the aggravating factor where the Court
7 we believe failed as a matter of law and only -- erred as a matter of law
8 and only utilised the same underlying facts that they convicted him to
9 suggest that they were an aggravation and thereby sentenced him too
11 The Trial Chamber has indeed applied the wrong legal standard in
12 assessing Ljubisa Beara's contribution to the JCE.
13 I believe that it might be a good time to stop, with your
14 permission, so that we don't overlap. And I'll tomorrow present specific
15 details and address the questions that were raised today.
16 MR. ROGERS: Your Honours, before you rise, may I just make one
17 small point relating to my concern about Mr. Malinic. So that it's clear
18 what my concern is because it may arise tomorrow if there is reference to
19 other witnesses that did not testify. My concern is not that there may
20 have been mentioned to Zoran Malinic as being someone who may have been
21 present but more to what he might have been able to say, which is
22 speculative. Obviously if there had been interviews or it was known to
23 the Defence that there were interviews relating to the individual, that's
24 one thing, but it's not appropriate to refer, and I don't know whether my
25 learned friend was going to, to refer to anything that that witness may
1 have said because that is not in the record. And that was my concern,
2 and just so we are all clear about what the nature of my concern is,
3 I hope that's now clear. There shouldn't be reference, speculative
4 reference about what witnesses who did not testify might have said.
5 That's inappropriate.
6 MR. OSTOJIC: If I could respond.
7 JUDGE ROBINSON: Yes. That's --
8 MR. OSTOJIC: I appreciate my learned colleague trying to assist
9 us in this manner, but I think he either misunderstood me or perhaps
10 I wasn't eloquent in the rush to try to get it done. We are not going to
11 suggest what Mr. Malinic said. We are suggesting that if there is
12 evidence with respect to the whereabouts of Mr. Beara, there should be
13 some corroboration of each of those witnesses and I know that they would
14 rather have a quantity, and they talk about quantity more than quality,
15 but I suggest to this Chamber that you should look at each witness and
16 determine from that each witness whether there was corroborating
18 With respect to Mr. Egbers, the Prosecution had the burden of
19 proof, they had the opportunity, they interviewed him, they know what he
20 said, they identified him, they did not bring him in court. The
21 inference that I can draw is that he would have been adverse to them and
22 that's accurate. The inference the Trial Chamber should have drawn was
23 that he was going to be inconsistent and would not corroborate his
24 testimony, but I do appreciate my learned friend's guidance on that.
25 JUDGE ROBINSON: Well, let us wait until tomorrow to see what is
1 your precise submission, and what, if any, is the precise response from
2 opposing counsel, though I should encourage the parties to allow the
3 appeal to proceed as quickly as possible and with the least interruption.
4 I'm not accustomed to appeals being conducted in a manner where there are
5 objections. It looks more like a trial. That I'm accustomed to. So let
6 us try to proceed as smoothly and as quickly as possible tomorrow, with
7 as little interruption as possible.
8 Thank you. We are adjourned.
9 --- Whereupon the hearing adjourned at 5.12 p.m.,
10 to be reconvened on Tuesday, the 3rd day of
11 December, 2013, at 10.00 a.m.