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Page 172

1 Judges of this honourable Chamber. Unlike the prior submissions to

2 Your Honours, I'm not going to be speaking this morning about any factual

3 disputes at all. What I'm going to be making here is purely a legal

4 argument, and for the purpose of my legal argument, I'm going to assume

5 arguendo that all of the government witnesses in this case have told the

6 complete truth. And now I'd like to commence the legal argument I will

7 be making.

8 Mr. Beara was charged by the Prosecution and convicted by the

9 Trial Chamber of genocide. The genocide charge being that Mr. Beara was

10 a participant in a joint criminal enterprise to eliminate the Bosnian

11 Muslims of Srebrenica by killing the men and boys there and forcibly

12 removing from the area the women, young children, and elderly men. The

13 Trial Chamber found that Mr. Beara intended to destroy the Bosnian

14 Muslims of Eastern Bosnia, which included the Srebrenica and Zepa

15 enclaves as part of the Bosnian Muslim national ethnical group.

16 In finding Mr. Beara guilty of genocide, the Trial Chamber

17 acquitted him of the forcible transfer charge. In view of this

18 acquittal, our argument in a nutshell is that Mr. Beara must also be

19 acquitted on the genocide charge, since he did not have the genocidal

20 intent to destroy the Bosnian Muslims of Eastern Bosnia as a part of the

21 protected group. The balance of my argument is devoted to the

22 proposition that only a combination of the convictions for the mass

23 killings of the men and the forcible transfer of the women and children

24 that permits a finding of Mr. Beara's genocidal intent. Our argument is

25 strongly supported, we submit, by the case law of this Tribunal,

Page 173

1 particularly by the holding of the Trial Chamber and the Appeals Chamber

2 in the Krstic case, to which I now would like to turn.

3 Some ten years ago, in November 2003, I stood before this Appeals

4 Chamber as co-counsel for General Radislav Krstic. General Krstic had

5 been convicted by the Trial Chamber of genocide, forcible transfer, and

6 other crimes arising out of the mass killings in the Srebrenica area of

7 the military-aged men and the forcible transfer from the area to Bosnian

8 Muslim-held territory of some 25.000 women, children, and elderly men.

9 Granted -- and in finding General Krstic guilty of genocide, the

10 Trial Chamber stated as follows, and I'm quoting from paragraph 595 of

11 the Trial Chamber's opinion.

12 "Granted, only the men" -- this is what the Trial Chamber said.

13 "Granted, only the men of military age were systematically

14 massacred, but it is significant that these massacres occurred at a time

15 when the forcible transfer of the rest of the Bosnian Muslim population

16 was well under way. The Bosnian Serb forces could not have failed to

17 know, by the time they decided to kill all the men, that this selective

18 destruction of the group would have a lasting impact upon the entire

19 group. The Bosnian Serb forces knew, by the time they decided to kill

20 all the military-aged men, that the combination of those killings with

21 the forcible transfer of the women, children, and elderly would

22 inevitably result in the physical disappearance of the Bosnian Muslim

23 population at Srebrenica."

24 On the appeal from this conviction, I argued at that time that

25 though General Krstic was clearly involved in organising the bussing

Page 174

1 operation that effectuated the transfer of the women and children, that

2 this should not be considered as a factor in determining genocidal

3 intent, as the Trial Chamber had held. Our argument at that time,

4 largely based on an analysis of the legislative history of the

5 Genocide Convention of 1948, was that displacement of the population to

6 another area was not evidence of genocide and could not be legally

7 considered as such. To the contrary, we argued that the transfer of the

8 women, children, and elderly men to safe areas under Bosnian Muslim

9 control show that General Krstic's intent was not the indiscriminate

10 group killing of, say, the Nazi and the Rwanda genocides, but rather

11 indicated an intent to spare the group from any further harm.

12 Well, as this Trial Chamber knows, we lost that argument. And in

13 rejecting our argument, the Appeals Chamber stated - and I'd like to

14 quote from the Appeals Chamber's findings and this is in paragraphs 31 --

15 30 and 31 and 33, and this is what the Appeals Chamber said in rejecting

16 that -- our argument at the time:

17 "The Defence argues that the VRS decision to transfer, rather

18 than to kill, the women and children of Srebrenica in their custody

19 undermines the finding of genocidal intent. This conduct, the Defence

20 submits, is inconsistent with the indiscriminate approach that has

21 characterized all previously -- or previously recognized instances of

22 modern genocide.

23 "The decision of Bosnian Serb forces" -- continuing now with what

24 the Appeals Chamber said. "The decision by Bosnian Serb forces to

25 transfer the women, children, and elderly within their area -- within

Page 175

1 their control to other areas of Muslim-controlled Bosnia could be

2 consistent with the Defence argument. This evidence, however, is also

3 susceptible of an alternative interpretation. As the Trial Chamber

4 explained, forcible transfer could be an additional means by which to

5 ensure the physical destruction of the Bosnian Muslim community in

6 Srebrenica. The transfer completed the removal of the Bosnian Muslims

7 from Srebrenica, thereby eliminating even the residual possibility that

8 the Muslim community in the area could reconstitute itself."

9 And then finally, this quotation from the Appeals Chamber,

10 paragraph 33:

11 "The Trial Chamber - as the best assessor of the evidence

12 presented at trial - was entitled to conclude that the evidence of the

13 transfer supported its finding that some members of the VRS Main Staff

14 intended to destroy the Bosnian Muslims in Srebrenica. The fact that the

15 forcible transfer does not constitute in and of itself a genocidal act

16 does not preclude a Trial Chamber from relying on it as evidence of the

17 intentions of members of the VRS Main Staff. The genocidal intent may be

18 inferred, among other facts, from evidence of 'other culpable acts

19 systematically directed against the same group.'"

20 JUDGE ROBINSON: Can you just tell us where in the appeal brief

21 this argument is found? What paragraph?

22 MR. SEPENUK: The -- it's found, Your Honours, in the part of the

23 appeal brief which talked about the Trial Chamber erred when it

24 misapplied the element of mens rea required for the crime of genocide in

25 finding that Beara had specific genocidal intent to destroy the targeted

Page 176

1 group, the targeted group being the Bosnian Muslims. That's on page 7 --

2 71, I believe. I think it's 71, Your Honours, of the brief. And it's

3 ground 19. And also the fact that it was not the only -- what happened

4 was it was not the only reasonable inference on the evidence that

5 Mr. Beara had genocidal intent. More specifically, in paragraph 224 of

6 the trial brief where it said:

7 "It is respectfully submitted that the Defence in this case has

8 presented an abundance of evidence to support its claim that actions

9 taken in the enclave, particularly those against the male population,

10 were not taken with the intent to destroy the Bosnian Muslims of

11 Srebrenica and Zepa, though that Beara possessed at any moment such

12 intent."

13 JUDGE ROBINSON: Yes, please continue to develop your argument.

14 MR. SEPENUK: Thank you, Your Honour.

15 And I'd like to refer also to the partial dissenting opinion of

16 Judge Shahabuddeen, as this Chamber knows, a very distinguished former

17 member of this Chamber. And Judge Shahabuddeen in his partially

18 dissenting opinion agreed with all the notions of genocide intent that

19 the majority had mentioned. His partial dissent had to do with -- he

20 thought General Krstic was guilty of genocide, whereas the majority found

21 him guilty -- they reduced charge from being a principal perpetrator to

22 being an aider and abettor. But on the fundamental notion of genocidal

23 intent, both the majority and Judge Shahabuddeen were together on that.

24 And I think because his language is so precise and so accurate that --

25 bear with me, please, while I quote it.

Page 177

1 On paragraph 35 of his opinion, and he said this:

2 "Thus, standing alone, forcible transfer is not genocide. But in

3 this case the transfer did not stand alone, and that indeed is the basis

4 on which the Appeals Chamber rejected the Defence argument that it showed

5 that there was no genocide. It was part - an integral part - of one

6 single scheme to commit genocide, involving killings, forcible transfer,

7 and destruction of homes. In particular, it showed that the intent with

8 which the killings were done was indeed to destroy the Srebrenica part of

9 the Bosnian Muslim group. In my view, the judgement of the Appeals

10 Chamber has to be understood as affirming that, by taking on the role of

11 chief executor of the policy of forcible transfer," and here

12 Judge Shahabuddeen was referring to General Krstic who sort of organised

13 the bussing operation, "by taking on the role as chief executor of the

14 policy of forcible transfer - an inseparable element of genocide - the

15 appellant shared the intent of the Main Staff to commit the crime of

16 genocide."

17 And then again, just briefly, paragraph 57 of

18 Judge Shahabuddeen's opinion, where he said:

19 "No doubt, mere displacement does not amount to genocide. But,

20 in this case, there was more than mere displacement. The killings,

21 together with a determined effort to capture others for killing, the

22 forced transportation or exile of the remaining population, and the

23 destruction of homes and places of worship, constituted a single

24 operation which was executed with the intent to destroy a group in whole

25 or in part within the meaning of the chapeau to paragraph 2 of Article 4

Page 178

1 of the Statute."

2 Continuing Judge Shahabuddeen, just one more -- two more

3 sentences:

4 "It was this combination of factors to which the Trial Chamber

5 referred when it stated in paragraph 595 of its judgement that the

6 'Bosnian Serb forces knew, by the time they decided to kill all the

7 military-aged men, that the combination of these killings with the

8 forcible transfer of the women, children, and elderly would inevitably

9 result in the physical disappearance of the Bosnian Muslim population at

10 Srebrenica.'"

11 I believe it's fair to say that the Krstic appeals judgement has

12 become the leading and most authoritative case on the subject of

13 genocide, and particularly as to any alleged genocidal conduct that

14 occurred in the Srebrenica area at the times in question. Following the

15 Krstic appeals judgement, all of the Srebrenica cases have involved

16 indictments charging a combination of the killings and the forcible

17 transfer from Srebrenica. These include the Blagojevic and Jokic cases

18 and also they include the Tolimir, Karadzic, and Mladic cases. The

19 template for these latter cases was set by the Krstic appeal judgement.

20 In each of the subsequent cases, in each of these cases, the Prosecution

21 has followed the holding and rationale of the Krstic appeal judgement by

22 indictments which charge the commission of genocide by a combination of

23 the mass killings of the military-aged men and the forcible transfer of

24 the women and children, resulting in the destruction of the Bosnian

25 Muslims of Eastern Bosnia.

Page 179

1 For example, in the Tolimir trial judgement, involving

2 essentially the same set of facts of mass murder and forcible transfer in

3 Srebrenica, the Trial Chamber held at paragraph 1157:

4 "... the protected group - the Bosnian Muslim population of

5 Eastern Bosnia - was murdered and suffered serious bodily and mental harm

6 by acts of murder and forced movement, and that the conditions resulting

7 from the acts of Bosnian Serb Forces as part of the combined effect of

8 the forcible removal and murder operations, were deliberately inflicted

9 and calculated to lead to the physical destruction of the Bosnian Muslim

10 population of Eastern Bosnia."

11 Which brings me now to a discussion of the present case involving

12 Mr. Beara. What I call the Krstic appeal judgement template was used in

13 this case, in the case involving Mr. Beara, involving, as it did, the

14 charging of genocide by the Prosecution which combined the mass murders

15 of the men with the forcible transfer of the women and children. And

16 before turning to the indictment itself, we first note that the

17 Prosecution successfully moved for the joinder of Mr. Beara's case with

18 the other co-defendants and alleged as follows, and I quote:

19 "All the indictments relate to the same transaction, a common

20 scheme whose purpose was to ethnically cleanse the Eastern Bosnian

21 enclaves. Specifically, the scheme consisted of two interrelated joint

22 criminal enterprises. One to 'force the Muslim population from the

23 Srebrenica and Zepa enclaves' and the second 'to murder all the

24 able-bodied men captured from the Srebrenica enclave.'"

25 That's in paragraph 9 of the motion.

Page 180

1 And now, turning to the indictment itself in Mr. Beara's case,

2 the indictment alleges that Pandurevic, Beara, Popovic, Nikolic, and

3 Borovcanin committed genocide, and I'm looking at paragraph 26 now of the

4 indictment:

5 "With the intent to destroy a part of the Bosnian Muslim people

6 as a national ethnical or religious group.

7 "(A) kill members of the group by summary execution, including

8 both planned and opportunistic summary executions, as described in this

9 indictment;

10 "(B) cause serious bodily or mental harm to both female and male

11 members of the Bosnian Muslim populations of Srebrenica and Zepa,

12 including, but not limited to, the separation of able-bodied men from

13 their families and the forced movement of the population from their homes

14 to areas outside the RS."

15 And the indictment further alleged in paragraph 33 as follows:

16 "The forcible transfer of women and children from Srebrenica and

17 Zepa, as described in this indictment, created conditions known to the

18 accused that would contribute to the destruction of the entire Muslim

19 population of Eastern Bosnia, including, but not limited to, the failure

20 of the population to live and reproduce normally."

21 Based on this indictment alleging a combination of murder and

22 forcible transfer as acts of genocide, the Trial Chamber summarised the

23 theory of the Prosecution's case as follows, this is in paragraph 838 of

24 the Trial Chamber's opinion, and I quote:

25 "The Prosecution alleges that a decision was taken to destroy the

Page 181

1 Bosnian Muslim population of Eastern Bosnia, which was implemented

2 primarily by separating, forcibly transferring, and ultimately killing

3 members of the group."

4 Thus, the Prosecution, based presumably on the Krstic appeal

5 judgement holding, determined that the genocide conviction of Mr. Beara

6 required genocidal intent with respect to both the execution of the men

7 and the forcible transfer of the women and children.

8 Now, the Trial Chamber acquitted Mr. Beara on the forcible

9 transfer charge, and here's what the Trial Chamber said in paragraph 1334

10 of the opinion:

11 "The Trial Chamber has found that while Beara knew of the common

12 plan to forcibly remove the Bosnian Muslim population, he did not make a

13 significant contribution to it. Similarly, the evidence is insufficient

14 to establish that he aided and abetted forcible transfer in either

15 Srebrenica or Zepa, nor does it demonstrate that he is responsible for

16 forcible transfer through another mode of liability. The Trial Chamber

17 therefore finds that Beara is not criminally responsible for forcible

18 transfer as a crime against humanity."

19 In view of Colonel Beara's acquittal on the forcible transfer

20 charge, our argument is that he must also be acquitted of genocide. This

21 is so because the Prosecution and the Trial Chamber, in following the

22 holding and rationale of the Krstic appeal judgement, determined that the

23 relevant group was the Bosnian Muslims, that is, some 1.400.000 people,

24 the relevant group was the Bosnian Muslims, and that the part of the

25 group targeted for destruction were the Bosnian Muslims of Eastern

Page 182

1 Bosnia, including the Srebrenica and Zepa enclaves, approximately

2 40.000 people comprising some 2.9 per cent of the Bosnian Muslim

3 population. This was considered by both the Trial and Appeals Chambers

4 in the Krstic case to be a sufficiently substantial number to meet the

5 requirements of the law of genocide, particularly since the murders and

6 forcible transfer operation essentially resulted in the annihilation of

7 the Bosnian Muslim group in Eastern Bosnia, as both the Trial and

8 Appeals Chamber held.

9 By acquitting Colonel Beara on the forcible transfer charge, the

10 only genocidal conduct for which Mr. Beara could be held accountable is

11 the murder of an estimated 5300 men, which is the figure used by the

12 Trial Chamber in this case. Horrible as such killings, indeed any

13 killings, are, the Prosecution and the Trial Chamber have not claimed

14 that the killings of the men which comprise less than one half of

15 1 per cent of the Bosnian Muslim population, meets the substantiality

16 requirement of the law of genocide or constitutes a legally significant

17 part of the targeted group. This being so, how did the Trial Chamber

18 arrive at its finding that Colonel Beara -- that Mr. Beara was guilty of

19 genocide? Here's what the Trial Chamber held, paragraphs 861, 862, and

20 863 of the opinion:

21 "The Trial Chamber finds that the murder operation - from the

22 separations to detention to execution and burial - was a carefully

23 orchestrated strategy to destroy aimed at the Muslim population of

24 Eastern Bosnia. As found earlier, through this murderous enterprise, the

25 underlying acts of killing and the infliction of serious bodily and

Page 183

1 mental harm were committed. The Trial Chamber is satisfied beyond all

2 reasonable doubt that these acts were perpetrated with genocidal intent.

3 The Trial Chamber" -- the Trial Chamber is going on, paragraph 862:

4 "The Trial Chamber draws further support for its conclusion from

5 'the other culpable acts systematically directed against the same group'

6 in the same time-period, notably the forcible transfer operation and its

7 accompanying circumstances aimed at the population in Potocari. The

8 frenzied efforts to forcibly remove the remainder of the population,

9 while the male members of the community were targeted for murder,

10 provides further evidence that the intent was to destroy."

11 Finally in paragraph 863, and I quote:

12 "Thus the Trial Chamber is satisfied that genocide was committed

13 by members of the Bosnian Serb Forces, including members of the

14 VRS Main Staff, the VRS Security Branch, such as Popovic and Beara,

15 against the Muslims of Eastern Bosnia, as part of the Bosnian Muslims."

16 So clearly, the Trial Chamber, by also mentioning the forcible

17 transfer along with the murders, recognised that this -- it was this

18 combination of factors that resulted in a finding that Mr. Beara had the

19 genocidal intent to destroy the Muslim population of Eastern Bosnia.

20 However, the Trial Chamber acquitted Colonel Beara of the forcible

21 transfer charge with respect to the removal of the Bosnian Muslim

22 population from both Srebrenica and Zepa, nor was the evidence found

23 sufficient by the Trial Chamber to even sustain an aiding and abetting

24 charge as to either enclave on the forcible transfer issue. What the

25 Trial Chamber did find was:

Page 184

1 "... that while Beara knew of the common plan to forcibly remove

2 the Bosnian Muslim population, he did not make a significant contribution

3 to it."

4 And therefore acquitted him of the forcible transfer charge.

5 Our respectful submission is that it is not enough in finding

6 genocidal intent to justify Colonel Beara's genocide conviction because

7 he allegedly knew of the plan to forcibly remove the Bosnian Muslim

8 population. The special intent requirement of the law of genocide, the

9 dolus specialis, if you will, that we associate with genocide, the crime

10 of crimes, surely required the Prosecution to prove beyond a reasonable

11 doubt that Colonel Beara had the specific intent not only to murder the

12 men but to forcibly transfer the women, children, and elderly men from

13 Srebrenica.

14 JUDGE ROBINSON: Sorry, Mr. Sepenuk, but are you saying that the

15 genocidal intent can't be inferred from the killings on their own?

16 MR. SEPENUK: That's exactly what I'm saying, Your Honour, yes.

17 That it cannot. That you need a combination of the killings and the

18 forcible transfer, because if it was just the killings of the men, I

19 don't think that would show the intent to destroy the entire Bosnian

20 Muslim population of Eastern Bosnia. That's the requirement of the

21 Krstic appeal judgement, that the -- that the definition of genocide

22 under those circumstances is to annihilate, to eliminate, the whole

23 Srebrenica/Zepa enclave and the people therein. It doesn't have to do

24 with just the -- if it was just the men, that wouldn't destroy the

25 Bosnian Muslims of Eastern Bosnia, that would just be the military-aged

Page 185

1 men. I don't think it's substantial either -- number one, it doesn't

2 meet the test of substantiality; and number two, it would violate the --

3 what the Krstic decision --

4 JUDGE ROBINSON: You're saying 5.300 would not meet the test

5 of substantiality?

6 MR. SEPENUK: I don't think so. I don't think so. And, you

7 know, Your Honour, it's a difficult argument to make in terms of --

8 speaking now flatly as a humanitarian or as a member of the human race,

9 but I am saying that, yes, one-half of 1 per cent I don't think meets the

10 substantiality requirement. But more specifically, it doesn't show the

11 intent to destroy the Bosnian Muslims of Eastern Bosnia, which was the --

12 what the Krstic appeal judgement required and presumably what the

13 Trial Chamber in this case required. It was -- you know, there was no

14 idea that it was just the men as opposed to the Srebrenica enclave. It

15 was destruction of the Srebrenica enclave, and I'm saying: Yes, it's not

16 enough just to show the murders of the men, horrific and horrible and

17 terrible as that is.

18 JUDGE ROBINSON: Please continue.

19 MR. SEPENUK: What's that, Your Honour?

20 JUDGE ROBINSON: Please continue.

21 MR. SEPENUK: Thank you.

22 The genocidal intent required by the Krstic Appeals Chamber

23 imposed on the Prosecution the duty to prove beyond a reasonable doubt

24 that Mr. Beara intended to destroy the Bosnian Muslims of Eastern Bosnia

25 by a combination of the mass killings of the men and the forcible

Page 186

1 transfer of the women and children. By his acquittal on the forcible

2 transfer charge, the Prosecution has not proved the requisite genocidal

3 intent to destroy the Bosnian Muslims of Eastern Bosnia. Therefore,

4 Colonel Beara should be acquitted of the genocide, at the least. As

5 required by the well-established rule of this Appeals Chamber, a finding

6 of genocide is not the only reasonable conclusion to be derived from the

7 evidence in this case.

8 Unless there are any questions, that's the conclusion of my

9 argument, Your Honours.

10 JUDGE ROBINSON: An interesting argument. We'll, no doubt, hear

11 from Mr. Rogers on it.

12 MR. SEPENUK: Thank you.

13 JUDGE ROBINSON: Thank you very much.

14 MR. OSTOJIC: May I proceed, Your Honour?

15 JUDGE ROBINSON: Yes, yes, please.

16 MR. OSTOJIC: Thank you.

17 Yesterday in my overview, I shared with you the first part that

18 Mr. Sepenuk was going to proceed and argue. And also, I told you that we

19 were going to address the Trial Chamber's errors, both legally and

20 factually, as it relates to their findings with respect to Mr. Beara,

21 regarding the joint criminal enterprise to commit murder as well as their

22 finding with respect to the genocidal intent that purportedly he had. In

23 doing so, the Trial Chamber utilised certain evidence which, as we stated

24 yesterday, was unreliable, untrustworthy, and not corroborated. But

25 before we go into the detail, as I highlighted several individuals, the

Page 187

1 Court and every court, I believe, has to look at these outside or

2 extraneous factors. They look principally for three things: To make a

3 determination if an individual was a participant in a JCE to commit

4 murder in this case, and whether he significantly contributed to it, and

5 then they also look at those same factors for genocidal intent. Those

6 three factors, I think, is somewhat highlighted by the Trial Chamber,

7 although erroneously applied, were the words, were the physical presence,

8 as well as the actions. It's incredibly and, most respectfully,

9 important, I believe, that we properly distinguish each of those three:

10 The words, physical presence, and actions.

11 The Prosecution, unfortunately, mixes those three, simply in an

12 attempt to cloud the issues. I think not only should we distinguish each

13 three, but we should also make a further distinction as to each day as it

14 relates to Mr. Beara. The Trial Chamber noted on paragraph 1299 that

15 there was no direct evidence before it of Mr. Beara's participation in

16 the murder operation prior to July 13th.

17 It's not appeal, it's a fact that we accept and are living with.

18 But the implicit is that there is indirect evidence of his participation

19 in the murder operation. Before we address that, we should examine when

20 on July 13th was Mr. Beara allegedly a participant in this joint criminal

21 enterprise. We suggest, based on the trial record and what the

22 Trial Chamber found, it couldn't have been before his purported

23 8.00 meeting with Mr. Deronjic. The Deronjic evidence is highly suspect

24 for numerous reasons, as I've tried to outline yesterday. That is the

25 only individual who claims that Mr. Beara spoke to him and used the words

Page 188

1 "kill all." It is the basis of that conversation, those words, that the

2 Trial Chamber found that Mr. Beara was a participant in the joint

3 criminal enterprise. Unfortunately, the Trial Chamber seemingly relies

4 on other evidence to establish corroboration, but they mix the elements.

5 Who else was present with Mr. Beara when he allegedly used those words

6 "kill all" the Bosnian Muslims? No one. Dissecting the trial record as

7 often as you'd like, the only conclusion that a reasonable Trial Chamber

8 could have found was that that evidence was not corroborated.

9 In fact, the Trial Chamber in analysing whether they were going

10 to admit the evidence pursuant to 92 quater of Miroslav Deronjic on the

11 21st of April, 2008, stated as follows, and I quote:

12 "Deronjic's testimony includes evidence pertaining to proof of

13 acts and conduct of the Accused Pandurevic, Borovcanin, and Beara,

14 including the whereabouts of Pandurevic and Borovcanin in July 1995 and

15 Beara's alleged visit to and conversation with Deronjic in his office in

16 Bratunac in the evening of 13 July 1995."

17 And that was on paragraph 58.

18 It proceeds in determining whether it should admit this evidence

19 to state the following:

20 "The Trial Chamber acknowledges that Deronjic's evidence," one,

21 "contains a number of inconsistencies"; two, has "admissions of prior

22 false statements"; and three, "includes uncorroborated claims."

23 Interestingly, it makes the following observation:

24 "This is not disputed by the Prosecution."

25 The Trial Chamber at that point knew that the Prosecution

Page 189

1 acknowledged and did not dispute the lack of credibility and reliability

2 of the Deronjic evidence; however, in that decision perhaps the most

3 gleaning thing we can see is found on paragraph 62, page 15, where the

4 Trial Chamber states:

5 "What is uncorroborated is his evidence as to the specifics of

6 the meeting and conversation between him and Beara on 13 July."

7 Again, it's paragraph 62, page 15 of their April 21st, 2008,

8 decision.

9 The Prosecution has generally stated, even yesterday, we have to

10 look at the quantity of the evidence. I suggest we look at both, the

11 quality and the quantity of the evidence. The quantity alone may

12 establish certain issues with respect to physical presence or certain

13 issues with respect to action, but there is no evidence to corroborate

14 Deronjic's claim that Beara was in his office and Deronjic's claim that

15 Beara used the words "kill all."

16 The Trial Chamber erred when it accepted that evidence. The

17 Trial Chamber below erred because it mixed the three fundamental elements

18 and confused the issues of words, physical presence, and actions.

19 These issues, as the Trial Chamber at paragraph 1215 of its

20 decision stated, and they claimed, respectfully, that they were going to

21 exercise caution in assessing and attributing any weight to the Deronjic

22 evidence. And they stated that they:

23 "Looked for corroboration with reference to those parts that

24 relates to critical issues ..."

25 At 1215, they tell us they're going to look to find corroborating

Page 190

1 evidence to those parts that relates to critical issues. What more

2 critical issue can we have when a man is indicted and charged with

3 genocide and other crimes against humanity and the basis of that charge

4 and allegation is that he told someone purportedly, while they were

5 drunk, late at night, with no one else being present: Kill all?

6 Respectfully, the Trial Chamber grossly erred and should not at the first

7 instance admitted the evidence of Mr. Deronjic, but no reasonable

8 Trial Chamber would have given any weight to Deronjic's testimony as it

9 relates to Mr. Beara and that conversation.

10 Let me briefly highlight for you where the Trial Chamber used

11 that evidence of Deronjic, to show you that the impact it had poisoned

12 and infected the entire trial judgement as it related to Mr. Beara. With

13 respect to the JCE to murder, I invite you to look at the two paragraphs

14 of 1301 and 1302, where the Trial Chamber states, in connection with

15 Mr. Beara:

16 "... his contribution to the common purpose cannot be classified

17 as anything other than significant and by his actions," separate element,

18 "and words there can be no doubt that he," Beara, "shared the intent to

19 murder on a massive scale."

20 All three in my view - actions, words, and physical presence - in

21 some instances need to be present. The Trial Chamber found that the

22 actions and words -- what words? It goes on to say, and in order to

23 determine what words the Trial Chamber relied on when it stated this in

24 paragraphs 1301 and 1302, we simply have to look to the preceding

25 paragraph, 1300. At paragraph 1300, the Trial Chamber therein references

Page 191

1 the only words and they state as follows:

2 "The first evidenced act on the part of Beara illustrates well

3 the pivotal and high level role he played in the murder operation. He

4 arrives on 13 July at the offices of the President of the Bratunac SDS

5 with an order 'from the top' to kill all the Bosnian Muslim males housed

6 in and around Bratunac."

7 If the Trial Chamber properly excluded the unreliable evidence of

8 Deronjic and if it properly excluded this uncorroborative evidence, it

9 would not have concluded that Beara was either a member of the joint

10 criminal enterprise to murder and most certainly it would not have

11 concluded that Ljubisa Beara significantly contributed to the joint

12 criminal enterprise to murder.

13 There certainly is and exists other evidence other than Deronjic

14 as it relates to Mr. Beara, but with respect to those words, the

15 Trial Chamber relied solely and exclusively, in our opinion, or at the

16 very least predominantly on the evidence of Deronjic. The Deronjic

17 evidence has previously found to be notoriously uncorroborated

18 statements, grave inconsistencies in his testimony, his status as a war

19 criminal, benefitting from a plea agreement, the sole nature of his

20 evidence against Beara relates to the acts and conduct of Beara.

21 Interestingly another Trial Chamber in this courthouse, namely,

22 the Karadzic case, had a similar issue, where the Deronjic evidence was

23 offered by the Prosecution, despite the fact - and this is a public

24 record - despite the fact that the Prosecution knew and knows that it's

25 grossly unreliable and should be given no weight. The Trial Chamber in

Page 192

1 that case rejected the Prosecution's application to admit such evidence.

2 Curiously, the Trial Chamber in its decision, however, knowing of the

3 decision of the Trial Chamber in this case, they tried to distinguish the

4 case and merely distinguished it by stating that in the Karadzic case

5 Deronjic's testimony went to more inordinate acts.

6 There is no recognised standard that one act or more than one act

7 should or should not be the test or the degree to accept or exclude

8 evidence. The rule and jurisprudence is to look whether or not that

9 evidence is credible, whether it's reliable; and if reliable, not just

10 relevant, but if reliable, then you can determine to assess the weight to

11 be given. Given the law in this jurisprudence that there was no

12 corroboration of that very evidence, that Mr. Deronjic and the

13 Trial Chamber relied upon, we believe that it should be excluded and that

14 the case should be reviewed without the evidence of Mr. Deronjic. It

15 simply invalidates the Trial Chamber's convictions of Mr. Beara.

16 The Trial Chamber doesn't stop, though, to use the Beara

17 evidence -- I mean the Deronjic evidence against Mr. Beara just for joint

18 criminal enterprise, as I said. It relies on it extensively to establish

19 special intent in genocide. It even goes further and relies on it in its

20 sentencing of Mr. Beara. I invite you to look with respect to the

21 genocide issue at the Trial Chamber's decision paragraph 1314. This is

22 what they say and I'm highlighting some of it for you:

23 "... his grim determination to kill as many as possible as

24 quickly as possible. His encounters with Deronjic on the night of

25 13 July provide a chilling illustration of a mind set on destruction.

Page 193

1 He," Beara, "announces an intent to 'kill all' the detained men, and

2 without pause to consider or comment upon the horrific nature of his

3 'orders' he launches into a series of heated exchanges about the best

4 location for this reprehensible undertaking."

5 The Trial Chamber also says, as I stated earlier, at

6 paragraph 1311:

7 "There is no direct ... evidence that Beara had the requisite

8 specific intent for genocide ..."

9 But what they're looking at are the words purportedly stated by

10 Mr. Beara and rely heavily, as I've just highlighted on paragraph 1314,

11 the words that only one individual who was convicted, who lied on

12 multiple occasions in court, who changed his story multiple times, the

13 Trial Chamber relied on that evidence. We continue to object and we

14 believe that that evidence should be given no weight in the consideration

15 and should be excluded.

16 When we -- the Trial Chamber then also goes on and talks about:

17 Well, other people saw Beara at Bratunac SDS. It's interesting that the

18 people the Trial Chamber suggests are reliable and credible to confirm

19 his physical presence were Mr. Borovcanin, Mr. Simic, PW-161, and PW-170.

20 Well, we know Mr. Borovcanin, he did not testify in this case. His

21 interview with the Prosecution was admitted, again subject to 92 quater.

22 Again, does Mr. Beara have any rights? Should he not be presumed

23 innocent? Should he at the least not have the right to cross-examine the

24 witnesses which make any allegations as it relates to him?

25 Nevertheless, the Trial Chamber, we believe, erred because it

Page 194

1 used Borovcanin's statement to confirm what Deronjic stated. Borovcanin

2 was not present when the discussion between -- allegedly between Beara

3 and Deronjic occurred. Borovcanin does not say that he overheard Beara

4 ever using the word "kill all." The Trial Chamber just says that they

5 were present and Borovcanin allegedly saw them together arguing.

6 Similarly, the Trial Chamber relies heavily on another individual

7 with, I think, less credibility, if possible, than Deronjic, and that is

8 Momir Nikolic, another individual who is notorious for his inconsistent

9 statements, notorious for giving false statements, notorious for changing

10 his own plea agreements to benefit himself, and ultimately he claims,

11 without having any corroboration, that Beara at some point used words to

12 kill or destroy the Bosnian males in Bratunac. His evidence, likewise,

13 although admitted, should be given no weight whatsoever. Again, why? It

14 goes to critical issues of acts and conduct of Mr. Beara and it is not

15 corroborated.

16 We're not seeking, as the Prosecution, to say the quantitative

17 evidence corroborates it. We're dissecting it and saying: At that

18 instance, was that conversation corroborated by any individual who has at

19 least some trustworthiness, some credibility, some reliability? I submit

20 to you that the Trial Chamber erred when it utilised the evidence of

21 Borovcanin, Momir Nikolic, and Deronjic in assessing Beara's words and

22 his physical presence on July 13th, 1995.

23 No other evidence exists with respect to Mr. Beara about

24 July 13th, 1995. He comes to the scene late, he comes to the scene at

25 night supposedly, and he walks around aimlessly throughout the town of

Page 195

1 Bratunac by himself.

2 One witness the Court purportedly relies upon is a gentleman by

3 the name of Simic, Ljubisa or Ljubomir Simic. And you can see in

4 footnote 4118 of the trial transcript [sic], he states that someone told

5 him that Ljubisa Beara was in the offices of the SDS. And he goes on to

6 say he was told later that it was probably Beara. Deronjic's testimony,

7 as unreliable as it is, he suggests that Simic was asleep so he wouldn't

8 know.

9 We can't allow this purported corroborating testimony even for

10 the presence, the physical presence, of an accused or an individual when

11 it's solely given by unreliable and untrustworthy witnesses.

12 The Court also relies on PW-170, and that's on paragraph 1268.

13 It's glaring what the Court says about that Witness PW-170. In fact, it

14 concedes that PW-170 does not indicate Beara was at the meeting, but it's

15 using it as corroborating evidence. The logic utilised by the

16 Trial Chamber failed in many respects. It failed because I think the end

17 result was looked at respectfully and I think that they adopted,

18 unfortunately, the theory and themes of the Prosecution that quantity is

19 more important than quality.

20 We discussed briefly yesterday physical presence, we're turning

21 to 14th July, the evidence as to where Mr. Beara and his whereabouts on

22 the 14th July.

23 Egbers, one of the witnesses that was called and testified, and I

24 invited my colleague to give him the cites on it. Mr. Egbers, I stated,

25 was supposedly at a meeting where he was introduced to Mr. Beara and in

Page 196

1 that meeting was an individual by the name of Zoran Malinic. And the

2 Chamber invited me to give you some cites in the record. If we look at

3 just the Trial Chamber's judgement, paragraph 1220, as well as

4 paragraph 1260 specifically states that Zoran Malinic and an interpreter

5 were present during this encounter purportedly with Mr. Beara and Egbers.

6 Likewise, the opening statement of the OTP on the 21st of August, 2006,

7 they clearly start on page 41 -- or 411, lines 24 through 25, and

8 continuing on the next page, 415 -- 412, I'm sorry, 412, lines 1

9 through 5, that the OTP suggests that on or about July 13/14, although

10 it's confirmed now it was the 14th, DutchBat Lieutenant-Colonel or

11 soldier Vincent Egbers was in Nova Kasaba and the commander Malinic -

12 although they misspelled it in the transcript, they have it Malonic, but

13 I don't believe we have a dispute on that - introduce Beara: Here is my

14 commander.

15 Further to the evidence that this conversation was not simply

16 one-on-one was the transcript of the testimony of Vincent Egbers on the

17 19th of October, 2006, where he clearly states that he was with

18 Zoran Malinic at Nova Kasaba for two days, like -- and that was on

19 page 2818 and also on page 2855, the following day, October 20th. This

20 is what Egbers says:

21 "... I'd never ever heard of Colonel Beara, his existence" --

22 THE APPELLANT POPOVIC: [Interpretation] Your Honours.

23 JUDGE ROBINSON: Yes.

24 THE APPELLANT POPOVIC: [Interpretation] I must use the toilet, if

25 I may.

Page 197

1 JUDGE ROBINSON: Yes. Well, it's five past. We'll take the

2 break now for 20 minutes.

3 --- Recess taken at 11.05 a.m.

4 --- On resuming at 11.28 a.m.

5 JUDGE ROBINSON: Yes, Mr. Ostojic.

6 MR. OSTOJIC: Thank you, Your Honour.

7 Before the immediate break I was just going to conclude the

8 evidence with respect to Mr. Egbers and my comments yesterday. Egbers,

9 on October 20th, 2006, in his testimony on page 2855, lines 17 through

10 22, he states he's never heard of Beara. He's never heard of his

11 existence. And he was there with the interpreter and Zoran Malinic and

12 they told him about Colonel Beara.

13 The point of all this is the Prosecution makes a lot of claims

14 with respect to Mr. Beara's presence in or around the area of Bratunac

15 and Zvornik. So his presence is important. But present or not, you can

16 still have culpability in a crime. Obviously we understand just

17 peripherally that Karadzic wasn't in Bratunac or Zvornik and he's charged

18 with similar crimes. So presence is important but not as important as

19 the Prosecution would like us to believe. Nevertheless, when they allege

20 and assert that that presence is an indicator or a great factor that

21 should be applied, they're required under the law, under the

22 jurisprudence in this court, to corroborate that evidence.

23 I suggested yesterday that the burden of proof clearly falls on

24 them with respect to Mr. Egbers and whether or not Beara was at

25 Nova Kasaba on the 14th of July, 1995. They had access to and were

Page 198

1 responsible and were duty-bound to present corroborating evidence. If

2 Mr. Beara was there, why didn't the Prosecution call Zoran Malinic? If

3 Beara was at Nova Kasaba on the 14th of July, why didn't they call

4 Egbers' own interpreter? If Ljubisa Beara was really there on the

5 14th of July, 1995, why didn't they call any other DutchBat who was with

6 Mr. Egbers? There were at least six or eight of them. Each one of those

7 individuals surely would have remembered Mr. Beara or could have given

8 testimony. The inference, I believe, that the Trial Chamber erred in

9 making is that Mr. Beara was not there. The Trial Chamber should have

10 inferred with uncorroborated testimony that Mr. Beara was not present at

11 Nova Kasaba on the 14th of July, 1995.

12 Interestingly, I think if we look at a dissenting opinion in

13 Tolimir case, which is a public record, Mr. Egbers' credibility is

14 questioned, rightfully so. His demeanour was questioned at that trial,

15 his recollection was questioned. One honourable Judge in another case

16 suggested that Mr. Egbers' testimony should also be given no weight and

17 gave it no weight just like she gave no weight to Momir Nikolic and/or

18 other individuals and accused who gave testimony in that case. I suggest

19 the same be done here. Accepting Egbers' view, accepting Egbers'

20 testimony was erroneous. It invalidates the judgement as it relates to

21 Mr. Beara so far as physical presence, of him being present, is

22 considered as being a significant factor.

23 I'm only highlighting some of the evidence. Certainly other

24 people -- and we've questioned their identification of Beara, but to move

25 on to the next day, the 15th of July, 1995, the Trial Chamber again

Page 199

1 uniquely, unseen, in my view, respectfully, in other cases, it utilises

2 and examines the testimony of a Witness PW-165. That can be found in the

3 trial judgement at 1227 and 1228. The claim with respect to PW-165 was

4 Beara's presence with Popovic at the Standard barracks purportedly at

5 6.30 p.m. on July 15th. I don't know if you've read it and just indulge

6 me so I can just share it. The trial record in analysing that evidence

7 found that this PW-165 did indeed identify another accused in this case,

8 but it states as it relates to Mr. Beara at 1228:

9 "The Trial Chamber has previously found that PW-165's subsequent

10 identification of Popovic as one of the men that he saw, combined with

11 the evidence of what he was told, was sufficient to satisfy the

12 Trial Chamber that Popovic was present ..."

13 It goes on to say:

14 "This is not the same in the case of Beara, as PW-165 did not see

15 him at the time other than from the back and he was not able to

16 subsequently identify him, thus PW-165 does not directly identify Beara

17 as having been present ..."

18 So far we're probably all respectfully in agreement with that.

19 The Trial Chamber unfortunately and regrettably went further and erred as

20 it found on that same paragraph.

21 "However, the fact remains that PW-165 was told that this was

22 Beara and Popovic, and that information was confirmed in part by the

23 subsequent identification of Popovic ..."

24 We're talking about in this paragraph Beara's identification, but

25 the Trial Chamber's convinced that Popovic is there, right or wrong. But

Page 200

1 they're utilising the identification of Popovic to try to suggest that

2 that means that Beara was there even though this gentleman did not see

3 Beara at all and the Trial Chamber recognises that.

4 They go on further and their reasoning is what we're questioning

5 and what we've appealed here:

6 "When considered in combination with other evidence, especially

7 as to Beara's presence in the area at the time, the Trial Chamber is

8 satisfied that Beara was present with Popovic at the Standard Barracks in

9 the early evening of 15 July 1995."

10 They're satisfied? Did they meet what's required, that there was

11 no reasonable doubt that Beara was there? If it's as critical as the

12 Prosecution has stated it was and has indicated as it is, his physical

13 presence at all these sites, the Trial Chamber says it's true, he didn't

14 identify Beara; but because he identified Popovic, it's good enough for

15 now. No corroboration, no explanation that I respectfully believe is

16 reasoned with respect to this and other witnesses.

17 All this goes to the Court's -- Trial Chamber's finding of

18 special intent. At paragraph 1318 of its trial judgement, it highlights

19 certain factors that it considered and considered to be decisive in

20 finding that Ljubisa Beara had special intent. 1318, they rely on his

21 words, words that he create -- or words that Mr. Beara purportedly made

22 to whom, the Deronjic evidence, the unreliable, uncorroborated evidence,

23 his demonstrated determination to kill as many as possible. That's the

24 same quote they used when they cited and relied on solely the Deronjic

25 evidence, pursuant to his instructions, as if Mr. Beara was giving

Page 201

1 instructions to Deronjic, again relying on the Deronjic evidence.

2 It does list other acts, it does state that you look at the scale

3 and scope of the killing operation that was carried out with his

4 knowledge, but I suggest to you that if he was not present and he did not

5 utilise those words, what evidence would there be as it relates to

6 Ljubisa Beara? Scant at best.

7 The Trial Chamber erred and failed to distinguish between words,

8 physical presence, and actions, and instead they took the approach of

9 quantitative instead of qualitative evidence. I suggest, respectfully,

10 that in analysing Mr. Ljubisa Beara, that we carefully scrutinise each

11 and every instance when his conduct or his actions may lead to a

12 conviction. That is the only way that Mr. Beara can be afforded a

13 guarantee of a fair trial. I respectfully submit that the Trial Chamber

14 erred and the judgement should be invalidated.

15 If I may now turn in the interest of time to the question this

16 Chamber has asked me with respect to Jadar River and Trnovo. In our

17 view, respectfully, the Trial Chamber did not properly assess and

18 identify whether the physical perpetrators of the crimes committed were

19 members of the JCE. There is jurisprudence that suggests that there must

20 be a link, and I believe the link is necessary in order to convict an

21 individual for crimes that were committed by others outside of the JCE.

22 The Brdjanin Appeals Chamber suggests at pages -- at paragraphs 412 and

23 413:

24 "The existence of this link is a matter to be assessed on a

25 case-by-case basis."

Page 202

1 This was not done by the Trial Chamber below. However, it seems

2 that this may be co-perpetration -- strike that.

3 Nevertheless, the Court also looked at the Appellate Chamber's

4 decision in Martic and held that the Trial Chamber failed to make an

5 explicit finding in how members of the JCE used physical perpetrators,

6 paragraph 181. Perpetrators in those cases were identified as having

7 been used as tools, tools implying a high degree of control over those

8 perpetrators who committed those crimes. I believe the dissenting

9 opinion by Judge Kwon addresses the Trnovo issue, but likewise, I think

10 the issue with respect to Jadar River as well as other instances applied

11 to Mr. Beara but it should not be -- a conviction should not be held on

12 those.

13 Finally another appeals judgement addresses the issue of linking

14 and the necessary link and that is the Krajisnik appellate judgement. In

15 Krajisnik, the Trial Chamber held that the establishment of a link

16 between the crime and member of the JCE is a matter to be assessed on a

17 case-by-case basis, at paragraph 235, and it reviewed the Trial Chamber's

18 finding to determine whether this link was established and whether the

19 perpetrators were used by the JCE members --

20 THE INTERPRETER: Could counsel please slow down.

21 MR. OSTOJIC: Thank you. I was hoping not to hear that. I've

22 heard it. Thank you. I apologise.

23 The Krajisnik Appeals Chamber did the right thing when they found

24 that they lacked the necessary link and they quashed Krajisnik's

25 convictions in relation to a number of crime scenes and crime sites. In

Page 203

1 the instant case with respect to the Appellate Chamber's question on

2 Jadar River and Trnovo, we would like to expand it and suggest to the

3 Trial Chamber, if we accept that Ljubisa Beara was present at 8.00 p.m.

4 on July 13th in Bratunac, he joined purportedly the JCE that evening.

5 There's no evidence, as the Court stated in its trial decision, of his

6 direct participation prior to that. When did the Kravica murders happen?

7 That day earlier. The conviction with respect to the Kravica murders

8 should be quashed as well in our respectful submission.

9 I hope I've answered the question raised by the Trial Chamber

10 adequately enough. I'd like to turn, if I may, to just the next couple

11 of sections of our oral submissions, and we yesterday mentioned it's a

12 category that I've coined: Seeking the truth and exculpatory evidence.

13 We lump it together because we believe that if we get to the truth,

14 perhaps that truth will also be exculpatory to Mr. Beara. Indeed, I

15 believe that it is.

16 We'd like first to discuss, as we did orally yesterday, Exhibit

17 P886, and I've given it, I think -- if we could put it on the ELMO so

18 that everyone can see it. So we -- I'll just proceed and I think we can

19 catch up.

20 I invite this honourable Chamber to examine the evidence of the

21 trial record P886. It's important to note the date of this exhibit,

22 13th July, when the purported murder or the murder operation indeed

23 started and the killings started in Bratunac. Curiously, the drafter of

24 this memo or note was the chief of the centre of Zvornik public

25 security - it's up now - Dragomir Vasic.

Page 204

1 The contents are chilling, indeed. He states, Mr. Vasic, who's

2 part of the Zvornik public sector security centre, totally different from

3 Ljubisa Beara and others, he states that he had a meeting with Mladic

4 that same day, 13th July 1995, and they were informed that the VRS was

5 continuing operations towards Zepa, leaving all other work to the MUP as

6 follows:

7 1, the evacuation process. 2 is the part that I believe is

8 chilling. He states:

9 "Killing of about 8.000 Muslim soldiers whom we blocked in the

10 woods near Konjevic Polje. Fighting is going on. This job is being done

11 solely by the MUP units ..." solely by the MUP units.

12 The Prosecution knows this witness. The Prosecution has

13 identified him in their case, and this witness, I believe without any

14 dispute, sat here for two and a half weeks and ultimately was withdrawn

15 as a witness in the underlying trial. What consideration did the

16 Trial Chamber give, if any, to Dragomir Vasic's report? Scant, if at

17 all. It was not interested to see if this was credible, reliable. It

18 did not look at this as exculpatory or truthful for some reason. Why

19 not? It's an admission. The Trial Chamber desperately reached on many

20 occasions to suggest that Ljubisa Beara's words in intercepts meant

21 something other than their plain text, but here we have a document that

22 plainly states, a document that this gentleman probably -- or this

23 person, I should say, never would have imagined would be found or

24 published. He clearly states: "MUP was solely responsible." And the

25 MUP units were doing this job solely. He identifies what job; no need to

Page 205

1 speculate.

2 The next document I would like to just share briefly with the

3 Chamber is 1D374, and 1D374 is a document we discussed briefly yesterday

4 and it's a report from the United Nations Sector Civil Affairs unit by a

5 gentleman by the name of Edward Joseph who drafted it. He testified in

6 our case here. I would just like to direct the Appellate Chamber's focus

7 on the second page of that document. I'm not sure if it's up yet.

8 Oh, thank you. I don't have it on mine. That's why I was

9 waiting. Thank you.

10 If the Court looks at the second page of that document, it states

11 under paragraph number 1, subsection 3 there with the dash, it states:

12 "Up to three thousand were killed on the way, mostly by mines and

13 BSA engagements ..."

14 It would seem at first blush to be distasteful to discuss the

15 killings, but if we're discussing the truth, we're by no way minimising

16 the heroic efforts of the Bosnian Muslims in trying to reach freedom or

17 trying to get to their homeland or trying to save their lives. But this

18 Trial Chamber is required to look at all the evidence. The Trial Court

19 and the Prosecution don't consider this evidence at all. We questioned

20 their military expert, Richard Butler, on this issue. His responses were

21 rather unique. He identified a term called "legitimate combat

22 engagements," and he said it's legal, it's justified, and it's

23 acceptable. We asked him if he reviewed or considered this document in

24 his analysis, he stated he did not. He didn't think there was a need to.

25 When we talk about numbers in this case, if it's significant

Page 206

1 whether it's a thousand, which is a horrific number, much less 5.000 or

2 greater, one is unacceptable. But if we're going to create history and

3 if we're going to establish historically what had occurred, this document

4 should at the very least be given some consideration. Dismiss it. That

5 would be acceptable as long as it's a reasoned opinion. If this Court

6 finds that there was no legitimate combat engagements and that no one had

7 died during the attack on Srebrenica and that all the dead were a result

8 of a murderous operation, so be it. But I suggest to this Appellate

9 Chamber, that's not the case, that the evidence is clear, it's reliable,

10 it's corroborated, and it shows that 3.000 were killed as a result of

11 mines and legitimate combat engagements, as Butler suggested.

12 I have Butler's page number, if necessary, to look at his

13 testimony. I invite the Appellate Chamber to look at pages 20.244,

14 that's 20244, as well as 20245, among other references.

15 We discussed this exhibit specifically with him on page 20290 and

16 20291, where Butler acknowledges that this document was not considered at

17 all by him or any other member of his investigative team.

18 The Trial Chamber had spent some time in analysing the intercepts

19 and what Mr. Beara had said. They also discussed the intercept that we

20 thought was plain, should be accepted as reliable, and that is the

21 Exhibit 7D2D64 [sic].

22 The Trial Chamber -- and I'm trying to just get -- we get that up

23 for you.

24 The Trial Chamber addresses that exhibit in its judgement, and

25 surprisingly it finds that it's not reliable because they claim that

Page 207

1 Mr. Beara knew he was being listened to. So Mr. Beara would have

2 supposedly - and I know it seems speculative and I suggest that it is

3 nothing but speculation - would have put out this type of intercept in

4 order to somehow minimise his involvement. However, they don't use that

5 same logic when they use intercept evidence against Mr. Beara and when

6 they read-in what certain words mean in an intercept.

7 This Exhibit 7D2D64 clearly states and establishes what the

8 intent and mind-set of Mr. Ljubisa Beara was on 13 July 1995. He had at

9 all times and was at all times only interested in the prisoners getting

10 safe passage to the Batkovici camp, where they at that time would have

11 interviewed, as all POWs are. This exhibit, I believe, is credible, it

12 was not, again, created. It was an intercept that the Prosecution, in

13 their quantitative amount of evidence they provide, and it was a Croat

14 intercept, a third party provided this intercept. This intercept was not

15 considered at all by the Trial Chamber as to Mr. Beara's participation in

16 a joint criminal enterprise or as to his specific intent for the crime of

17 genocide. I suggest that the Trial Chamber erred when it failed to give

18 the proper weight to this evidence, and therefore its judgement is simply

19 wrong and should be invalidated.

20 I would like to address now just briefly the issues with --

21 relating to sentencing. We suggest that the Trial Chamber failed as a

22 matter of law to apply and reduce the sentence, after recognising and

23 accepting certain mitigating factors as being established and being

24 reasonable. We brought evidence in the Defence case of Mr. Beara's good

25 character, decent family, his actions of how he helped people prior and

Page 208

1 during the war of 1992 through 1995. We brought people of different

2 ethnic backgrounds, which established that he assisted not only

3 Bosnian Muslims, not only Croats, but also the Jewish community in

4 Croatia while he was there. The Court found that he did have good

5 character; however, it also found that they should give only limited

6 weight to that. I suggest the Trial Chamber was wrong in giving limited

7 weight to his good character.

8 Ljubisa Beara surrendered to this Tribunal, one of the first to

9 surrender. During the time when he pled, he urged others who were

10 indicted to come forward and they slowly did. In fact, within six months

11 four other individuals came forward. The Trial Chamber recognised that

12 his surrender was a mitigating factor, rightfully so, but again it gave

13 it limited weight.

14 I say the next mitigating factor with respect to Mr. Beara, it's

15 his age. We suggest that he's an advanced age and again we say it most

16 respectfully. The Court said that they'll give some minimal weight to

17 it.

18 We also suggested as a mitigating factor that the Trial Chamber

19 should examine the OTP's inconsistent theories of culpability and modes

20 of liability as it related to Mr. Beara. At the opening of the

21 underlying trial in this case, we played a tape of the OTP's -- not just

22 suggestion, but their comment that Ljubisa Beara was "an empty vessel."

23 The Trial Chamber addresses that and it believes that it has no

24 importance. We believe that it has great importance, not just in

25 sentencing but in the underlying aspects of culpability for Mr. Beara.

Page 209

1 If this Prosecution and the same gentleman in one case claims that

2 Mr. Beara was an empty vessel and was not directly involved in any of the

3 crimes by virtue of implication of using those words, how could this

4 Prosecution in another case claim that he has direct and whole

5 responsibility for those heinous crimes that occurred? It is our

6 respectful submission that if mitigating evidence exists and if it's

7 recognised and accepted by the Trial Chamber, then the sentence should

8 be, indeed must be, reduced. Mr. Beara received the harshest sentence

9 available: Life. No amount was reduced because of mitigating

10 circumstances.

11 The Trial Chamber further abused its discretion and erred when it

12 failed to grant proper weight to the mitigating evidence. It failed to

13 give the adequate amount of weight necessary for all those and other

14 factors. The Trial Chamber further erred in its aggravation analysis.

15 Respectfully, it should have looked at conduct for aggravation prior to,

16 ancillary, or subsequent to the crimes that were charged to determine if

17 a person has aggravating factors that should require or result in a

18 greater punishment. There was no evidence other than good, decent

19 character of Mr. Beara prior to or afterwards.

20 I could understand an aggravating factor of a person's conduct to

21 be utilised in aggravation to increase a sentence if his prior or

22 subsequent conduct was considered immoral, perhaps illegal, perhaps even

23 criminal. In this case, the Trial Chamber utilised the same underlying

24 conviction, the same underlying purported crimes committed by Mr. Beara,

25 and said: That's the reason we're going to sentence him and we found

Page 210

1 that there's aggravation. I suggest that that should not and is not the

2 law of this jurisprudence.

3 Utilising the same crimes for aggravation is cumulative, it's

4 unnecessary, and it's a violation of the decision authority of this

5 Chamber.

6 We'd overall suggest, Your Honours, that Mr. Beara was not

7 present during the times alleged, but more importantly, we assert that

8 the evidence when scrutinised carefully is not corroborated that he used

9 words which would justify him being a member and/or significantly

10 contributing to the joint enterprise of murder, and most definitely his

11 words did not constitute a finding that he had special intent for the

12 crime of genocide. The Trial Chamber, in essence, merely utilises the

13 evidence that they found erroneously of discriminatory intent and

14 essentially just utilises that evidence in the other counts that were

15 alleged against Mr. Beara for discriminatory intent, for crimes against

16 humanity, et cetera.

17 We believe that if we scrutinise the record carefully and examine

18 and find that there was no corroborating evidence, that a just verdict

19 can be entered in favour of Mr. Beara, whatever that may be. But as it

20 stands now with these errors, we believe that there has been a

21 miscarriage of justice.

22 Thank you very much.

23 JUDGE ROBINSON: Thank you very much.

24 [Appeals Chamber confers]

25 JUDGE ROBINSON: We'll hear from the Prosecutor.

Page 211

1 MR. ROGERS: Your Honours, yes. Mr. Gillett will be making the

2 majority of the submissions in this case, my colleague who sits behind

3 me. So we'll swap over and he can continue and begin those submissions.

4 JUDGE ROBINSON: Certainly. I know you will want to address

5 Mr. Sepenuk's point.

6 MR. ROGERS: Sorry, Your Honour, I didn't hear -- yes. Yes,

7 Mr. Gillett will deal with all those issues raised by Mr. Sepenuk and

8 also by my learned friend Mr. Ostojic, and I will deal with the question

9 at the conclusion, but he is prepared to deal with all of those matters.

10 JUDGE ROBINSON: Thank you.

11 MR. GILLETT: Mr. President, Your Honours, may it please the

12 Court. As mentioned, my name is Matthew Gillett, and I'll present the

13 arguments in response to the bulk of Mr. Beara's submissions in his brief

14 and that you've heard yesterday and today.

15 Your Honours, in July 1995, the Bosnian Serb forces

16 systematically murdered thousands of Bosnian Muslim men and boys from the

17 Srebrenica enclave. The Chamber held that Ljubisa Beara was instrumental

18 in the planning and implementation of this mass murder. He was rightly

19 convicted for his crimes, including extermination and genocide, and he

20 was sentenced to the only appropriate sentence: Life imprisonment. In

21 his appeal, Beara challenges almost every finding against him. He claims

22 he was not in the Bratunac and Zvornik areas on 13 and 14 July 1995, and

23 you've just heard that from his counsel at transcript page 40, he's

24 maintained that Beara was not present.

25 As you'll hear, that is incorrect, and that's incorrect on the

Page 212

1 basis of a variety of sources of evidence, independent sources,

2 intercepted conversations, documents, and witnesses from various

3 backgrounds --

4 THE INTERPRETER: The counsel is kindly asked to slow down for

5 the purposes of interpretation into B/C/S. Thank you very much.

6 MR. GILLETT: Apologies.

7 Your Honours, Mr. Beara claims that even if his alibi is false

8 and he was in these areas, he did not participate in the murder

9 operation. And then, failing that, he argues that even if he was

10 involved, heavily implicated in the murder of thousands of men and boys,

11 he should not have received a life sentence. Each and every one of his

12 arguments is flawed and his appeal should be rejected in its entirety.

13 Now, in my submissions, I'll first set out Beara's key

14 activities, his involvement in the murder operation. In the second part,

15 I'll address some of my learned friends' challenges to the reliability of

16 the evidence that the Chamber considered in reaching its findings. And

17 then in the third part, I'll address the arguments concerning the JCE

18 liability, joint criminal enterprise liability, and his conviction for

19 genocide. And I will address specifically the arguments you've heard

20 this morning.

21 Given the time constraints, we will not be able to address every

22 single one of his arguments, but we maintain our position in the

23 Prosecution response brief.

24 At the outset, I have to clear up some misstatements and

25 misconceptions that I've heard during the Defence arguments and that are

Page 213

1 present in its brief and in its reply. For example, at paragraph 341 of

2 his brief, Beara argues:

3 "The Chamber erred when it found that willing participation of

4 the accused constitutes an aggravating factor ..." and he refers to

5 paragraph 2154 of the judgement. He's repeated more or less the same

6 argument today.

7 If you actually look at paragraph 2154 of the judgement, you'll

8 see the Chamber found the exact opposite. It said that his willing

9 participation was not an aggravating factor because it had already been

10 taken into account. So it's simply not a fair reading of the trial

11 judgement that is being presented to you.

12 Secondly, there is a clear misunderstanding of the law that has

13 been presented to you, the law that applies at this Tribunal. You've

14 heard the Defence claim that the witness Vincent Egbers, who is a Dutch

15 Battalion officer, should not have been received without corroboration,

16 and that's at transcript page 28. They've said that the Office of the

17 Prosecutor had a duty to present corroboration for this witness. This is

18 fundamentally incorrect. It's well-established jurisprudence that the

19 testimony of a single witness - and Egbers did testify - on a material

20 fact does not require corroboration. That's in the Tadic appeal

21 judgement, paragraph 65; Aleksovski, paragraph 62; and the Kayishema

22 appeal judgement, paragraph 154.

23 Beara's arguments about Egbers simply repeat his trial

24 submissions. The Chamber took these into account and addressed them in

25 detail. This is an area for the Trial Chamber's discretion to assess.

Page 214

1 Egbers was introduced to Beara by name, and in fact the day after the

2 meeting, 15 July, he noted down that he had indeed met Colonel Beara the

3 previous day. This is an entirely reasonable basis for the Chamber to

4 rely on his evidence and the Defence fails to show any error therein.

5 Third, the Defence has completely ignored the Rules of Procedure

6 and Evidence that apply at this Tribunal. They've attempted to sneak the

7 evidence of the driver, Milos Tomovic, in through the back door and

8 they've attempted to get that on the record in yesterday's transcript at

9 page 101. If the Defence wanted this evidence, they should have called

10 him as a witness and let him be subjected to cross-examination, and then

11 we could have evaluated the weight of his evidence. They chose not to do

12 so. And he was on the Defence list, you can see that at transcript

13 page 31967.

14 The Defence is highly misleading in yesterday's transcript when

15 it said that an OTP investigator said Beara was in Belgrade on 13 to

16 15 July. This is untrue and they know it. What you've got is a

17 misstatement of a document that is not even in evidence being presented

18 to you. It is simply not worth your time to consider this argument. It

19 can be summarily dismissed - I'm not sure which category, it would

20 probably fit every category for summary dismissal.

21 Similarly, the Defence arguments referring to Malinic are a red

22 herring. He didn't testify; that's the end of the story. It's not

23 evidence. You've heard the Defence refer to document 1D374 just

24 previously, this is a report, they said the Chamber did not consider

25 this. Again, incorrect. Footnote 2256 clearly shows that the Chamber

Page 215

1 did consider this. The report is vague, has very general numbers, and if

2 you actually look in detail, it's notable that it leaves, if you do the

3 maths, 6.000 Bosnian Muslims unaccounted for. That's quite close to the

4 number that were, in fact, murdered during this killing operation. So

5 there's nothing inconsistent about this document with the findings and

6 it's certainly not a document that would have any impact on the findings.

7 Now, Your Honours, these are just simply some examples to

8 emphasise that you are going to have to take the Defence arguments with a

9 grain of salt.

10 You're also going to have to address the fact that the Defence

11 arguments concerning genocide that have been raised this morning are a

12 radical departure from its written brief. They are simply not contained

13 in there. In fact, the Defence brief argues the opposite. Today they've

14 said the Trial Chamber diverged from the Krstic Appeals Chamber's

15 findings. In their brief, if you look at paragraph 221, you'll see that

16 they say the Trial Chamber erred because it simply followed the Krstic

17 appeal judgement. Which way is it? These two arguments are not

18 compatible.

19 Now, Your Honours, I will address the arguments that have been

20 made, but they are an ambush and we may need to request extra time later

21 in this hearing, upon reviewing the transcript, to see whether all the

22 arguments have been covered.

23 With these caveats in mind, I'll now turn to address Mr. Beara's

24 activities --

25 JUDGE ROBINSON: I'm sorry, what do you mean by reviewing the

Page 216

1 transcript to see whether all the arguments have been covered?

2 MR. GILLETT: Well, we've heard these arguments for the first

3 time this morning; they're not contained in the brief. So we would

4 respectfully reserve the right to read the transcript at the end of

5 today's hearing and check whether everything has been covered

6 sufficiently because I am taken off guard and I am going to have to

7 address these on the fly --

8 JUDGE ROBINSON: Okay. And if you find that they have not been

9 covered, what would be your next step?

10 MR. GILLETT: We would make an application, and it would be for

11 Your Honours to determine whether or not there was a sufficient basis.

12 But we will cross that bridge when we come to it.

13 Your Honours, with these caveats in mind, I will now set out some

14 of Beara's key movements and activities in the killing operation, and

15 I'll use some slides to do so.

16 On the monitor we see a map of this area, of Bratunac and

17 Zvornik, and I'll just check that Your Honours can all see that map.

18 I see the time, Mr. President and Your Honours, and if you'd like

19 to break before I enter this next section of my submissions -- otherwise,

20 I can continue on.

21 JUDGE ROBINSON: Yes, we'll take the break. The break is for

22 one hour and 30 minutes.

23 --- Luncheon recess taken at 12.12 p.m.

24 --- On resuming at 1.46 p.m.

25 JUDGE ROBINSON: Yes, Mr. Gillett.

Page 217

1 MR. GILLETT: Thank you very much, Mr. President, Your Honours.

2 Before I resume my submissions, I'll just say that during the

3 lunch hour we've reviewed the transcripts and extra time will not be

4 necessary. I'm confident you'll be glad to hear.

5 I'll now presume -- I'll now resume with where I left off.

6 Your Honours, on the monitors in front of you, you should see a

7 map, this is Exhibit P2110, and this is a map of the areas where the

8 murder operation was carried out. This can be found at the end of

9 volume 2 of the judgement.

10 In the lower right corner you see Srebrenica. I've highlighted

11 it with a box. Above that you can see Bratunac, which I've also

12 highlighted with a box. If you continue up the road beside the river

13 Drina, about halfway up the screen you'll see Zvornik, which is also

14 surrounded by a box. And these are the key areas where Beara was active

15 during the murder operation. Your Honours, Beara has claimed an alibi

16 during this period. This could not be further from the truth. In

17 reality, he was ubiquitous during the formation and implementation of the

18 murder operation, and that's found -- that's noted at paragraphs 1300 and

19 1318 of the judgement.

20 The following are a very small range of examples of his relevant

21 activities and locations during these times.

22 Firstly, on 11 July, Beara was at the Drina Corps forward command

23 post - this is on the next slide - in Pribicevac, just south of

24 Srebrenica. He was there with fellow JCE member Vujadin Popovic and they

25 reported to Radislav Krstic. If we move to the next slide, you'll see

Page 218

1 that on 12th July he was seen in the centre of Bratunac with

2 Miroslav Deronjic. On the morning of that same day, 12th July, Popovic

3 and Momir Nikolic had been in the centre of Bratunac, the same town,

4 discussing the murder operation, as set out at paragraph 280 of the

5 judgement. On 13 July, on the next slide, as the prisoners poured into

6 Bratunac and as the larger killings began to occur, Beara's activities

7 intensified.

8 For example, that evening he met Momir Nikolic in the centre of

9 Bratunac and he sent him up to Zvornik to tell Drago Nikolic that the

10 prisoners would be sent there to be killed. That same evening he met at

11 the SDS offices in Bratunac with people, including Miroslav Deronjic, to

12 discuss the murder operation. Beara and Deronjic argued, as found by the

13 Chamber, the issue was not whether to kill the prisoners; the issue was

14 where to kill the prisoners. And that's noted at paragraph 1060.

15 Beara has claimed that the Chamber's findings in this regard are

16 based solely on the evidence of Deronjic. This is incorrect. At the

17 outset, in response to his challenges to the credibility and reliability

18 of Deronjic's evidence, I should note that that has been confirmed at the

19 appellate level, as you'll be aware, the admission of Deronjic's

20 evidence.

21 Furthermore, in disputing this finding by the Trial Chamber,

22 Beara ignores that there are multiple witnesses and other materials

23 corroborating the Chamber's findings. These include Momir Nikolic,

24 PW-161, PW-170, the accused Borovcanin, and others. And these are set

25 out in paragraphs 1264 to 1270 of the judgement.

Page 219

1 For example, Momir Nikolic testified that, on this evening, he

2 observed Beara and Deronjic at the SDS office in Bratunac. He noted that

3 they were arguing and they were arguing about where to carry out the

4 murder operation. That's in the judgement at paragraphs 1266 to 1270.

5 PW-161 also testified about meetings at these same SDS offices,

6 where the killing of prisoners and the burial was discussed. The subject

7 of the meetings that PW-161 was involved in was the burial of the

8 prisoners murdered at Kravica. And that's set out at paragraphs 438 and

9 1267 to 1268 of the judgement. And PW-161 confirmed that Beara was

10 present at these meetings. PW-161 knew Beara prior to this occasion so

11 he could recognise him at this time.

12 At today's hearing, Beara has argued and focused on the

13 discrepancies in the "specifics" of the witnesses' accounts of these

14 meetings on the evening of 13 July in Bratunac. However, the Chamber

15 expressly took these into account at footnote 4167. It's unsurprising

16 that the different witnesses have differences as to what they

17 specifically observed. As Deronjic himself stated, people were coming

18 and going at the time during these discussions on the evening of 13 July.

19 And that's in P3139 at transcript page 6448.

20 In making in his arguments, Beara also misunderstands the concept

21 of corroboration. It's well established that testimonies do not need to

22 be exactly identical in order to corroborate each other. The key is that

23 they lend probative weight to the other piece of evidence, and that can

24 be found, for example, in Munyakazi appeal judgement, paragraph 103, and

25 in the Mrksic appeal judgement at paragraph 125. And the assessment of

Page 220

1 corroboration is a factor falling squarely within the discretion of the

2 Trial Chamber, and that's in the Limaj appeal judgement, paragraph 203.

3 Beara's focus on the specific details of these meetings ignores the

4 common thread running through these witnesses' evidence, which is that

5 there was a series of meetings at the SDS offices that Beara was present

6 at and involved in to discuss the murder operation.

7 Moreover, Beara's activities that evening fit with his following

8 movements the next day. For example, on 14 July, as you see in the next

9 slide, he met with Popovic and Drago Nikolic at the Standard barracks,

10 and as found by the Chamber, they met to discuss the murder operation.

11 That same day, Beara went to Grbavci school in Orahovac which is also

12 near Zvornik. At the time, many hundreds of prisoners had been brought

13 to the school on the night before and on 14 July and were detained in

14 horrific conditions. The prisoners were then murdered a short distance

15 from the school.

16 Again on 14 July, Beara was at Petkovci, another location near

17 Zvornik. He was there overseeing the detention, transport, execution,

18 and burial of over 800 prisoners. That's paragraph 1279 of the

19 judgement.

20 On 15 July, Beara continued to drive forward the murder

21 operation. At 10.00 a.m. he was recorded calling Radislav Krstic, who

22 was the commander of the Drina Corps, and asking for more soldiers to

23 assist with the murder operation. He used a euphemistic code, referring

24 to parcels that had to be distributed. The Chamber found that this

25 conversation concerned troops to assist with the killing operation.

Page 221

1 This next slide contains an excerpt from the intercepted

2 conversation; this is P1179. The speaker designated with a B is Beara.

3 He explains his exasperation at not receiving the additional troops that

4 he needed. He then made a telling statement which I've highlighted with

5 a box. He says:

6 "I don't know what to do. I mean it, Krle. There are still some

7 3.500 'parcels' that I have to distribute and I have no solution."

8 Now, Beara disputes the authenticity of this intercept; however,

9 it was authenticated by three separate intercept operators who all

10 identified Beara and Krstic as the participants, as set out at

11 paragraph 1236.

12 On the next slide you can see that the same day as this

13 conversation was intercepted and he was recorded talking about

14 distributing over 3.000 prisoners, there were indeed somewhere between

15 2- and 3.000 prisoners detained at nearby locations, at the Rocevic and

16 Kula and the Pilica cultural centre. As the Chamber noted in

17 paragraphs 504 to 550, these prisoners were indeed executed that day and

18 in the following days.

19 On 16 July, the day after he had called for more troops to assist

20 with the killing operation, he personally went to Kula school where

21 hundreds of prisoners were detained. They were taken to nearby Branjevo

22 Farm and executed.

23 Now, there are a few points that become immediately apparent from

24 this slide show. The first is that Beara's alibi is untrue. This

25 evidence supporting these findings, as I've mentioned, comes from a

Page 222

1 variety of sources and was validly assessed by the Trial Chamber.

2 The second point, which is quite important, is the slides show

3 how his movements shadow the killings as they begin down in Bratunac and

4 as they move north up to Zvornik. This reflects his central role in

5 organising and implementing the killing operation.

6 Third, it's significant that he's present at these detention

7 locations because the conditions there were appalling. The heat was

8 stifling for the prisoners, the rooms were overcrowded, and frequent

9 beatings occurred. In many instances, prisoners were killed right there

10 at these various detention locations. Beara's callous disregard for the

11 suffering of these Bosnian Muslim prisoners in these conditions and his

12 relentless focus on killing as many of them as possible as quickly as

13 possible are confirmation of his murderous and genocidal intent.

14 I'll now turn to address some of his challenges to the

15 reliability of the evidence against him. Very briefly, it's necessary to

16 note a couple of words about the appellate standards at this stage.

17 When you review his submissions, you'll see that almost all of

18 them were raised at trial. This ignores the relevant jurisprudence,

19 which holds that an appeal is not an opportunity for a trial de novo.

20 Your Honours, in relation to the numerous witnesses that

21 identified Beara during this period, he argues, firstly, that the

22 witnesses' identifications are flawed; and secondly, that many of the

23 witnesses colluded together to falsely implicate him in these events.

24 Turning first to his identification arguments, and these are

25 contained in ground 10 of his brief. The Trial Chamber set out the

Page 223

1 appropriate standards in the judgement for assessing identification

2 evidence at paragraph 55, and it analysed the identification evidence and

3 his arguments in detail at paragraphs 1219 to 1229. His arguments amount

4 to mere disagreements of the Trial Chamber's assessments. His arguments

5 are erroneous. Many of the witnesses knew Beara and were able to

6 recognise him, these include PW-161, Milorad Bircakovic,

7 Miroslav Deronjic, and Momir Nikolic, for example. Other witnesses were

8 introduced to him by name, such as Egbers who I've mentioned, PW-162,

9 PW-104, and PW-165.

10 Beara was an extremely high-level figure in the VRS. He was the

11 head of the security administration, he had the rank of colonel. He's a

12 distinctive-looking individual. The idea that somebody was walking

13 around masquerading as Colonel Beara at meetings with local officials in

14 various places is simply untenable.

15 Moving to his second argument concerning witness collusion. In

16 ground 5 he names a group of local officials that he claims conspired

17 against him, these include Deronjic, PW-161, PW-162, Ljubisav Simic, and

18 Zlatan Celanovic. These arguments are a direct repeat of his trial

19 arguments, as you'll see, for example, at para 164 of his brief, and the

20 Chamber addressed these in detail. As the Chamber found, there was no

21 basis for his claims and the testimony of these witnesses does not

22 suggest falsification.

23 Fundamentally, he conflates two things. He conflates the fact

24 that some of these witnesses knew each other and talked to each other

25 with the contention that they actually falsely created their evidence to

Page 224

1 implicate him. Moreover, his arguments are self-contradictory. He

2 includes Zlatan Celanovic as one of the members of this supposed

3 conspiracy against him; however, later in his brief, he argues that

4 Celanovic's evidence is, in fact, exculpatory. You can see that, for

5 instance, at paragraph 111. This is inconsistent.

6 He also argues that there was a separate conspiracy against him

7 amongst VRS witnesses, Ostoja Stanisic and Marko Milosevic, who both gave

8 evidence concerning his presence at the Petkovci school on 14 July. The

9 Chamber addressed these arguments in detail and found that these

10 witnesses were straightforward in their answers. He shows no reason to

11 interfere with the Trial Chamber's reasonable exercise of its discretion.

12 And as a final point and a very important one in relation to his

13 identification arguments and his witness collusion arguments which are at

14 the core of his appeal, it's important to note that the corroborating

15 evidence comes from a variety of sources. For example, there's the

16 Zvornik Brigade duty officer notebook. As set out at paragraph 1276 of

17 the judgement, it records on 14 July:

18 "Colonel Beara is coming in (the following) order to Orovoc,"

19 namely, Orahovac, "Petkovci, Rocevic, Pilica."

20 The Defence haven't mentioned that today or yesterday, but this

21 is a telling entry in a separate document. 14 July is right during the

22 midst of the large-scale killings, and these are four of the locations

23 where those killings occurred.

24 Your Honours, there's also the intercepts and I've mentioned one

25 of them already. They were recorded contemporaneously but they continue

Page 225

1 to speak loud and clear as to his murderous and genocidal intent. The

2 Chamber took these into account and validly assessed their weight.

3 Your Honours, the trial -- Beara fails to show any error in the

4 Trial Chamber's assessment of the reliability of the evidence against

5 him.

6 With those statements in mind, I'll now turn to his arguments

7 concerning the joint criminal enterprise findings and the genocide

8 findings.

9 Looking first to the joint criminal enterprise findings, the

10 Chamber found that Beara was a driving force behind the murder operation

11 to kill the Bosnian Muslim men and boys from Srebrenica. It held that

12 the murder operation implicated personnel and units from the Main Staff

13 of the VRS through to the corps and the brigade level, and that the

14 security branch, of which Beara was the head of the security

15 administration, played a heavy hand throughout.

16 The evidence shows that he made multiple contributions to the

17 joint criminal enterprise. As I've already outlined, he identified

18 locations to implement the murder plan, he secured personnel and

19 equipment for the killings and burials, he oversaw the execution at

20 individual killing sites, and he co-ordinated with other participants in

21 the killing operation, including Popovic and Drago Nikolic. He was

22 omnipresent, in the words of the Chamber, throughout the scenes of the

23 mass killings; that's paragraph 1300.

24 Beara disputes these joint criminal enterprise findings by

25 essentially repeating his trial arguments and seeking to re-interpret the

Page 226

1 Chamber's findings on the evidence. Rather than addressing all of his

2 arguments, I'll focus on three that arise repeatedly throughout his brief

3 and he's touched on in his oral arguments.

4 First, he argues that the Chamber erred in concluding that he was

5 involved in the murder operation from 12th July. He contends that this

6 was an inference and that the Chamber failed to provide reasons for it.

7 For instance, you can find that at paragraph 178 of his brief. In this

8 respect, his arguments are misconceived.

9 First, it's well-established that a Trial Chamber can reach an

10 inferential finding as long as it is the only reasonable possibility on

11 the basis of the evidence; and second, the Trial Chamber provided its

12 reasons for exactly why this was the case.

13 It explained that on the morning of 12th of July, Popovic, who

14 was subordinate to Beara in the security branch, was discussing the

15 murder operation in Bratunac. And as I mentioned, Beara was in Bratunac

16 that same day. By this stage, the order for the murder operation had

17 emanated from Mladic, the commander of the VRS, as set out in

18 paragraph 1071. The fact that Mladic, who was superior to Beara, and

19 Popovic, who was his immediate subordinate, were both aware of the murder

20 operation, in conjunction with the role played by the security branch of

21 the murder operation from its beginning, is strong evidence that he was

22 aware of the murder operation as well. And as the Chamber explained,

23 it's consistent with his behaviour over the following days. Again, he

24 fails to show that this was an unreasonable finding.

25 Moving to his second argument concerning the joint criminal

Page 227

1 enterprise findings, this is his claim that the logistical assistance he

2 provided in relation to burials and personnel related to Muslims killed

3 during combat. And you can see this, for instance, in grounds 6, 15, and

4 19. This combat-related assistance claim is incorrect. In fact, the

5 evidence shows that his assistance related directly to the murder and

6 burial of detained Bosnian Muslims. The execution of detained people

7 cannot be classified as combat activity. For example, I've mentioned

8 that on 13 July Beara met with PW-161 at the SDS offices and sent him --

9 and PW-161 participated in the burying of the Kravica warehouse victims

10 at Glogova. Subsequently, Popovic ordered the reburial of these same

11 victims buried at Glogova as found at paragraphs 603 and 1158 to 1161.

12 If these were combat-related victims, why was Beara's fellow JCE member

13 ordering their reburial?

14 Further support for the Chamber's findings that his assistance

15 did not relate to combat-related victims comes from Witness PW-104. He

16 testified that on 14 July he was called for a briefing with Beara at the

17 Standard barracks at Zvornik. Beara said to PW-104:

18 "We have a lot of prisoners and it is very hard for us to control

19 them. They're at various locations in the Zvornik municipality. We have

20 to get rid of them. I expect assistance from the municipality."

21 THE INTERPRETER: Could counsel please slow down.

22 MR. GILLETT: PW-104 testified that by getting rid of them, Beara

23 meant burying the bodies of prisoners --

24 JUDGE ROBINSON: You're being asked to slow down.

25 MR. GILLETT: Apologies. Thank you for the reminder.

Page 228

1 Again, there is nothing combat-related about executing prisoners.

2 Moving to Beara's third argument concerning the joint criminal

3 enterprise findings, this is his claim that he only intended the exchange

4 of the detained Bosnian Muslims and not their execution. And this is

5 raised, for example, in grounds 6 and 7 of his brief.

6 This is contradicted by numerous sources of evidence, showing his

7 willing participation in the murder operation, as set out in the

8 judgement at paragraphs 1255 to 1288, and I won't go back through those

9 again. These specific pieces of evidence that he relies on to support

10 his exchange argument do not bear the weight that he seeks to place on

11 them.

12 He's talked about document 7D2D642. I believe earlier on the

13 transcript this came out as 7D2D64, but it should be 7D2D642, just for

14 references purposes. Now, this is the summary of an intercept at

15 11.25 a.m. on 13 July 1995. It refers to Beara being involved with the

16 transport of some Muslim prisoners from Kasaba to the Batkovic detention

17 camp. Now, the Chamber addressed this in detail and found it does not

18 vitiate the evidence showing his involvement in the murder operation.

19 This is a two-sentence summary. It doesn't contain the actual

20 conversation and we don't have the actual conversation in any other form.

21 We don't know who the other participant in the conversation was and we

22 don't know the specific terms that were used. What we do know is that

23 the murder operation was supposed to be carried out in secret, as set out

24 in 1057 to 1058 of the judgement. And we know that Beara was aware of

25 the vulnerability of phones to interception. We also know that rather

Page 229

1 than exchanging prisoners, Beara sent thousands of them to their deaths,

2 as set out at paragraph 1283, for example.

3 The next piece of evidence that he repeatedly cites in support of

4 his exchange argument is the testimony of Zlatan Celanovic. Celanovic

5 recounted Beara saying on 13 July that if the Bosnian Muslims detained at

6 Bratunac made it through the night, they would be sent to Kladanj the

7 next day.

8 Beara claims this shows he thought they would be exchanged.

9 However, he ignores the relevant circumstances.

10 First, Beara was at the SDS offices that same evening, 13 July,

11 advocating the murder of the Bosnian Muslim prisoners, not their

12 exchange. Second, as I've mentioned, the VRS was required to carry out

13 the murder operation in secrecy. The Chamber noted these considerations

14 in the judgement. In these circumstances, it's unsurprising that he

15 refrained from openly discussing the murder operation with

16 Zlatan Celanovic, who was a lawyer with no rank attached to the

17 Bratunac Brigade.

18 Additionally, Momir Nikolic said that this supposed sending of

19 some Muslim men to Kladanj was "a propaganda exercise." That's in his

20 statement C00001, page 3. Momir Nikolic explained that some Muslim men

21 were even put onto buses with the women and children on Potocari and sent

22 towards Kladanj for the benefit of the Dutch troops and for Serb TV, but

23 then removed from the buses before they reached Kladanj. And this

24 information was acknowledged in the judgement at paragraphs 334, 336,

25 and 338.

Page 230

1 In light of the circumstances, his exchange argument is

2 unconvincing. What these two pieces of evidence do confirm is, again,

3 that his alibi was untrue. They show he was in the area and that his

4 activities did relate to the Bosnian Muslim prisoners.

5 Your Honours, I've only touched on a small fraction of the

6 evidence showing his involvement and contributions to the joint criminal

7 enterprise, and it's set out in detail in the judgement. The Chamber

8 reached entirely reasonable findings in convicting him for his

9 participation in these crimes.

10 Having addressed these arguments, I'll now turn to his challenges

11 to the genocide convictions.

12 In ground 19 he argues that he did not have genocidal intent, and

13 you've heard again a development on these arguments this morning.

14 However, Beara fails to show any error, legal or factual, with the trial

15 judgement, and I should note that in his brief his arguments are

16 substantially primarily factual arguments on this ground.

17 The Trial Chamber found at paragraph 856 that:

18 "The scale and nature of the murder operation, the targeting of

19 the victims, the systematic and organized manner in which it was carried

20 out, and the plain intention to eliminate every Bosnian Muslim male who

21 was captured or surrendered proves beyond reasonable doubt that members

22 of the Bosnian Serb forces, including members of the VRS Main Staff and

23 Security Branch, intended to destroy the Muslims of Eastern Bosnia as a

24 group."

25 Beara was involved in the murder operation in all its key aspects

Page 231

1 and he had a clear overall picture of its massive scale and scope. As

2 the Chamber succinctly summarised - this is paragraph 1314:

3 "His vigorous efforts to organise locations and sites, recruit

4 personnel, secure equipment and oversee executions all evidence his grim

5 determination to kill as many as possible as quickly as possible."

6 Addressing the arguments you've heard this morning, the Chamber

7 found that the killing operation of many thousand Bosnian Muslim men and

8 boys targeted exclusively on the basis of their ethnicity, was sufficient

9 in and of itself to infer genocidal intent on the part of certain

10 perpetrators. That's important. It was enough in and of itself. It

11 then also referred to the forcible transfer operation being consistent

12 with that finding but not necessary, consistent. On the totality of the

13 evidence, it concluded that Beara was one of the individuals who

14 possessed genocidal intent.

15 The Defence have claimed that this is inconsistent with the

16 findings in the Krstic appeal judgement, and that is incorrect. The

17 Defence ignored that the Krstic appeal judgement confirmed that the

18 killing of many thousand men and boys from the Srebrenica enclave was

19 sufficient to infer genocidal intent. And I'll read some of the

20 paragraphs where it sets this out.

21 We can start with paragraph 21 of the Krstic appeal judgement.

22 "The Trial Chamber determined that Radislav Krstic had the intent

23 to kill the Srebrenica Bosnian Muslim men of military age. This finding

24 is one of intent to commit the requisite genocidal act - in this case,

25 the killing of the members of the protected group, prohibited by

Page 232

1 Article 4(2)(a) of the Statute. From this intent to kill, the

2 Trial Chamber also drew the further inference that Krstic shared the

3 genocidal intent of some members of the VRS Main Staff to destroy a

4 substantial part of the targeted group, the Bosnian Muslims of

5 Srebrenica."

6 They continue at para 26:

7 "The main evidence underlying the Trial Chamber's conclusion that

8 the VRS forces intended to eliminate all the Bosnian Muslims of

9 Srebrenica was the massacre by the VRS of all men of military age from

10 that community."

11 Paragraph 27:

12 "The killing of the military-aged men was, assuredly, a physical

13 destruction, and given the scope of the killings the Trial Chamber could

14 legitimately draw the inference that their extermination was motivated by

15 a genocidal intent."

16 Your Honours, the Defence has said that the victims were a very

17 small percentage of the overall Muslim population of Eastern Bosnia and

18 even of the overall Bosnian Muslim population. The Krstic Appeals

19 Chamber addressed this consideration, and they noted that the

20 Trial Chamber was entitled to consider the long-term impact of the

21 elimination of 7- to 8.000 men from Srebrenica on the survival of that

22 community. This is paragraph 28 of the Krstic appeal judgement.

23 They noted that:

24 "... given the patriarchal character of the Bosnian Muslim

25 society in Srebrenica, the destruction of such a sizeable number of men

Page 233

1 would 'inevitably result in the physical disappearance of the Bosnian

2 Muslim population at Srebrenica.'"

3 They continued:

4 "The physical destruction of the men therefore had severe

5 procreative implications for the Srebrenica Muslim community, potentially

6 consigning the community to extinction ..."

7 It's simply not a fair reading of the Krstic appeal judgement to

8 say that the Appeals Chamber required participation in forcible transfer

9 to infer genocidal intent. It doesn't say that.

10 Your Honours, Judge Shahabuddeen's dissent has been cited. That

11 doesn't reflect the majority's reasoning. That's why it's called a

12 dissent. It cannot be taken for that proposition.

13 In any event, the Chamber found that Beara was, in fact, aware of

14 the forcible transfer operation, he knew that these killings did not

15 occur in a vacuum, and you can see that in paragraph 1307. You can also

16 see it in the Chamber's findings concerning the chapeau elements for

17 crimes against humanity. Beara knew these killings were part of a

18 widespread and systematic attack.

19 Importantly, the Defence arguments also ignore a significant part

20 of Beara's conviction, the basis for his conviction. And this is the

21 serious bodily and mental harm he caused to the survivors of these

22 massacres. The Chamber found that the underlying acts of genocide

23 included killing and serious bodily and mental harm, not only to the

24 victims of the killings, but also to the male survivors and also to the

25 surviving family members and loved ones of the killed. That's the women,

Page 234

1 the children, the other people separated from the victims. These are set

2 out at paragraphs 842 to 847.

3 The Chamber found that Beara "committed the underlying act of

4 killing members of the group, and through this killing, inflicted serious

5 bodily and mental harm on the families of the victims and the survivors

6 of the executions ..." That's paragraph 1310. So his actions had

7 implications far broader than the immediate murder victims.

8 Your Honours, you should reject the Defence arguments based on

9 the Krstic appeal judgement. They're inconsistent with their written

10 arguments and they simply do not reflect the state of the jurisprudence

11 at this Tribunal.

12 An additional argument that Beara makes in his brief is that:

13 "Any actions taken by Beara with regard to the military-aged men

14 in the enclave were lawful, combat-related activities against a perceived

15 military threat."

16 This claim turns the law on its head. The suggestion there was

17 anything lawful about systematically murdering thousands of men and boys

18 who were detained and murdering them on an ethnic basis cannot be

19 countenanced. Moreover, the Trial Chamber was well aware of this

20 argument. It found at paragraphs 860 to 861 of the judgement that the

21 murder operation went well beyond any response to a legitimate threat.

22 It noted that no serious effort was made to distinguish between civilians

23 and soldiers. It found that any screening efforts were so sporadic and

24 void of superior direction or supervision that one cannot derive a

25 sincere intention on the part of the Bosnian Serb forces to carry out a

Page 235

1 legitimate screening operation. That's footnote 3453.

2 Moreover, it noted that the Bosnian Serb forces killed young

3 boys, old men with walking sticks, some women, and even a mentally

4 handicapped man. Many of the victims had their hands tied behind their

5 backs when they were killed and were blindfolded. What kind of military

6 threat did they present? Many of the victims had nothing to do with the

7 military. But what all the victims did have is one thing in common:

8 They were Bosnian Muslims. And that's who was really being targeted

9 here.

10 The Chamber's finding that the purpose went beyond any military

11 motivation is indeed consistent with the findings upheld by the

12 Appeals Chamber in Krstic as set out at paragraphs 26 to 27 of the appeal

13 judgement. Beara's challenge to these findings is simply an attempt at

14 revisionism to try and avoid facing full justice for his actions.

15 He intended to kill the Bosnian Muslims of Eastern Bosnia and

16 that's the finding entered in the judgement on the basis of the evidence.

17 Your Honours, in his reply he refers to the judgement of

18 Niyitigeka from the ICTR. Now, if you look at Niyitigeka, it doesn't say

19 that military motivations preclude a finding of genocidal intent. In

20 fact, it stands for the opposite proposition. The Appeals Chamber held

21 at paragraphs 49 to 53 that additional motivations, such as personal or

22 military motives, do not preclude a finding of genocide. At the ICTY the

23 jurisprudence has taken a similar line. In the Jelisic appeal judgement,

24 the Appeals Chamber held that the existence of a personal motive, such as

25 economic gain, political advantage, or some other form of power, does not

Page 236

1 preclude a finding of genocidal intent. That's at paragraph 49.

2 The evidence shows that, in reality, Beara engaged in the mass

3 killing of defenceless Bosnian Muslims with ruthless calculation. He

4 organised the systematic killing of every Bosnian Muslim his forces could

5 get their hands on.

6 His own words provide further evidence of his genocidal intent.

7 For example, in P1130, you'll see that on 13 July, when he was informed

8 that Bosnian Muslims were killing themselves, he said:

9 "You mean they are doing it amongst themselves? Well, excellent.

10 Just let them continue. Fuck it."

11 There are other examples I've referred to, examples where he said

12 he was getting rid of prisoners and he needed the assistance of the

13 municipality, and where he said he had 3.500 parcels to distribute, which

14 the Chamber found meant Bosnian Muslim prisoners to execute.

15 As the Trial Chamber observed at paragraph 1316, these words

16 capture clearly and succinctly the state of mind of a man bent on

17 destroying a group by killing all the members of it within his reach. On

18 the basis of the totality of the evidence, the Chamber's findings are

19 entirely reasonable.

20 The second ground I'll address in relation to the genocide

21 conviction is Beara's argument that the Trial Chamber erred by finding

22 that the Bosnian Muslims of Eastern Bosnia constituted a substantial part

23 of the Bosnian Muslims as a whole. And he challenges this in ground 21

24 of his brief. He argues that the Trial Chamber ignored the size of this

25 part of the group, and under the law, as you're well aware, the targeted

Page 237

1 part of the group must constitute a substantial part of the whole group.

2 When Beara says that the Chamber ignored the size of the group,

3 that's not correct. The Chamber looked first to the size of the targeted

4 group and it noted that it was a relatively small percentage of the

5 overall Bosnian Muslim population. At this stage, mid-1995, there were

6 over 40.000 Bosnian Muslims crowded, herded, into the enclave, which is

7 actually not an insignificant number of people in and of itself.

8 THE INTERPRETER: Counsel, please slow down.

9 MR. GILLETT: Apologies.

10 Nonetheless, as the Appeals Chamber has held in Krstic, the

11 importance of the Muslim community of Srebrenica is not captured solely

12 by its size. Other relevant considerations can be taken into account,

13 and the Trial Chamber indeed did so at paragraph 865. It looked at the

14 concentration of the Muslim inhabitants of the region into the enclave.

15 The elimination of this population would eradicate the entire region of

16 its Muslim population. It looked at the strategic importance of the

17 enclave. The capture and ethnic purification of Srebrenica would

18 seriously jeopardise the efforts of the Bosnian Muslim state to ensure

19 its viability. And it looked at the emblematic significance of

20 eliminating the Srebrenica Bosnian Muslims in the face of the

21 international assurances of safety. This would serve as a potent example

22 to all Bosnian Muslims of their vulnerability and defencelessness in the

23 face of the Bosnian Serb military forces.

24 During these events, thousands were murdered, tens of thousands

25 were expelled, and the Bosnian Muslim collective consciousness was

Page 238

1 indelibly harmed. Those who survived suffered profound physical and

2 psychological harm as a result of the murder operation. The Chamber

3 appropriately found that this mass killing, the largest in Europe since

4 World War II, constituted genocide. The Chamber's approach adheres to

5 the Appeals Chamber's findings in Krstic and adheres to the findings of

6 the International Court of Justice in the Bosnia genocide case at

7 paragraphs 290 to 297.

8 Beara was one of those most responsible for the genocide

9 perpetrated against the Muslims of Eastern Bosnia. The Chamber properly

10 convicted him, after giving a full hearing to his arguments, on the basis

11 of the evidence. His conviction and the sentence of life imprisonment

12 provide at least a small measure of justice for the victims, both living

13 and deceased, in the face of the massive crimes for which he is

14 responsible.

15 Your Honours, the Defence have said a few words about sentencing.

16 Our arguments are set out in our brief in this respect. Suffice to say,

17 the Trial Chamber noted that these mitigating circumstances were of

18 limited weight, and in the face of his high level of culpability for such

19 grave crimes, a sentence of life imprisonment was entirely appropriate.

20 Anything less would be manifestly inadequate, in our submission.

21 In summary, Beara has challenged every finding against him. At

22 the core of his arguments is the claim there was a vast conspiracy to

23 falsely implicate him in these events. This claim is thoroughly

24 discredited by the evidence. It's discredited by a variety of witnesses,

25 by documents, and by his own words in intercepted conversations. This

Page 239

1 powerful evidence points in one direction and that's Beara's

2 responsibility for the mass killings and genocide of the Muslims of

3 Eastern Bosnia.

4 Your Honours should dismiss his arguments and uphold his

5 convictions and sentence.

6 If you have no further questions, that concludes my submissions,

7 and I would pass over to Mr. Rogers.

8 JUDGE ROBINSON: Yes, thank you, Mr. Gillett.

9 MR. ROGERS: Good afternoon, Your Honours. I shall deal with

10 Your Honours' question posed to the parties, and my apologies to the

11 interpreters for my speed yesterday. I will make every effort to be slow

12 today. I hope it doesn't become too slow.

13 The question that Your Honours asked is discussed whether the

14 trial record supports a finding that the necessary link existed between

15 the principal perpetrators of the killings in Jadar River and in Trnovo

16 and Beara; and then secondly, more generally, whether this link existed

17 between the principal perpetrators of crimes who were not necessarily

18 members of the VRS and members of the JCE to murder. And we note in

19 particular the footnote to item 10, where Your Honours list specific

20 aspects of the trial judgement at paragraphs 794.1, .2, .7, and .9, and

21 we will address those.

22 Your Honours, of course, in terms of the law, it's well

23 established that crimes committed by persons who are not necessarily JCE

24 members themselves can be attributed to JCE members if the necessary link

25 between the perpetrators and one or more of the JCE members is

Page 240

1 demonstrated. That's obviously referring to Brdjanin at 413, and Martic

2 at 168, Krajisnik at 225, all appeals judgements.

3 And non-JCE members in these scenarios frequently referred to as

4 tools. Past cases at the Tribunal here have recognised a non-exhaustive

5 list of ways in which the link can be made between the principal

6 perpetrators and the JCE members. And those are referred to again in

7 Brdjanin at 365 and 411; Martic at 168; and Stakic at 65, again all

8 appeals judgements. But in broad terms, one of the ways is where a

9 member of the JCE is in a hierarchical relationship with the principal

10 perpetrators or where the principal perpetrators are working in close

11 co-operation with forces that are under the authority of a JCE member.

12 And Your Honours will recall from the Martic appeals judgement and

13 Krajisnik appeals judgement, Your Honours looked carefully at how those

14 links were established because the Appeals Chamber considered the

15 Trial Chamber in parts in those cases had some difficulty articulating

16 that link. We understand that is where Your Honours are driving with the

17 question today.

18 Of course, it's important to remember that the question of

19 whether a link exists in the particular circumstances of the case is a

20 factual question, and consequently, deference will apply to that factual

21 determination where it has been made unless it's so unreasonable that no

22 Trial Chamber could reach that conclusion. Again, the relevant

23 jurisprudence set out in Brdjanin, Martic, and Krajisnik. I'm not going

24 to repeat it again.

25 Popovic Trial Chamber understood that because it referred to this

Page 241

1 governing law at paragraphs 1029 to 1030 in its judgement. So it was

2 well aware of what was required.

3 In relation to the Jadar River, turning first to that, the

4 Chamber found that on the 13th of July, 1995, 15 Bosnian Muslims were

5 killed at the Jadar River. Perpetrators were found to be Bosnian Serb

6 forces which it defines in the judgement, in fact, and it included at

7 least one member of the MUP, Nenad Deronjic. That's found at judgement

8 paragraph 408. Paragraph 199 of the appeal brief, Beara accepts that the

9 perpetrators of the killing incident included members of the police in

10 his brief at paragraph 199. Your Honours, in relation to the Jadar River

11 killing and the other killings in and around Bratunac, the Trial Chamber

12 held that:

13 "Common elements, including the units involved,"

14 Bratunac Brigade, "the method and means by which the killings were

15 carried out, and the time-frame within which they occurred bring these

16 events within the scope of the common purpose."

17 That's at judgement 1074.

18 So, in other words, they understood the totality of what was

19 happening on the ground at the time in making their determination. And

20 the trial record provides ample support for the finding and demonstrates,

21 for example, that the Bratunac Brigade was closely co-operating with the

22 MUP units involved in the killings. Of course, the Bratunac Brigade and

23 the other VRS forces sitting underneath the command of Ratko Mladic, one

24 of the named JCE members.

25 PW-112, the one survivor of the Jadar River killings and a key

Page 242

1 witness for the incident, was together with other members of the column

2 on the 13th of July, when he was arrested by MUP members along the

3 Bratunac to Konjevic Polje road. That's referred to in the judgement at

4 paragraph 390.

5 The Trial Chamber found that there was a single operation by

6 Bosnian Serb forces on the 13th of July along that road, the

7 Bratunac-Konjevic Polje road, resulting in the surrender or capture of

8 many hundreds of Bosnian Muslims from the column. Bosnian Serb forces

9 involved in the operation included the Bratunac Brigade and various MUP

10 units, referred to in the judgement at 1458, 365, and 376 to 389. MUP

11 members involved in the operation were under either the authority of the

12 VRS or closely co-operating with them. For example, Your Honours can

13 find reference in the testimony of Mirko Trivic at trial

14 transcript 11844, who was the commander of the Romanija Brigade,

15 testifying that the Bratunac and Milici Brigades, in co-operation with

16 MUP forces, were ordered to secure the Bratunac to Konjevic Polje road

17 and the Konjevic Polje to Milici road. It's in the judgement at

18 paragraph 376.

19 Similarly, P00148, a Drina Corps intelligence service report of

20 the 12th of July, signed by Tolimir, notes that the commands of the

21 Bratunac, Zvornik, and Milici Brigades were to act in co-operation with

22 the police in securing the roads, including the Bratunac-Konjevic Polje

23 road.

24 Consistent with this, Momir Nikolic confirmed that on the

25 12th of July and the early morning of the 13th, through intelligence

Page 243

1 reports and other information, he was made aware that VRS and MUP forces

2 were capturing Muslim men in the area of Konjevic Polje. That's in his

3 statement of facts exhibited at C1. Bosnian Muslims captured during this

4 operation were killed in and around Bratunac or transported out of the --

5 to the Zvornik area and killed in locations there, referred to in the

6 judgement at 1449 to 53.

7 Your Honours, the way in which PW-112 and other victims of the

8 Jadar River incident were apprehended, interrogated, and then

9 significantly taken by bus to be killed by the Bosnian Serb forces,

10 including MUP units, fits with the operation and the other killing

11 incidents that were carried out that day, such as the Kravica warehouse

12 murders, also involving VRS and MUP forces, killing men from the detained

13 column. I refer Your Honours to the judgement at 408 and also 390.

14 Your Honours, PW-112 was captured by MUP members, he was

15 interrogated at a facility used by the VRS 5th Engineer Battalion, as

16 shown in Exhibit P00686, and was taken together with other victims later

17 to the execution site at the Jadar River on a bus. The perpetrators, at

18 least one of whom was identified as a MUP member, wearing military

19 camouflage uniforms.

20 Your Honours, in our submission, it was clear that the

21 Trial Chamber accepted that this incident was part of the operations by

22 Bosnian Serb forces, and in the totality of the circumstances, it was

23 appropriate to link it to one of the JCE members, in this case

24 Ratko Mladic as commander of the VRS forces, either directly or through

25 the mode of close co-operation, indicating that attribution thereby to a

Page 244

1 JCE member is made and thereby liability established across to Beara for

2 his part as a JCE member.

3 Of course, such close co-operation between units and VRS forces

4 is sufficient, as I've already said, in -- established in Martic.

5 Your Honours, then moving on to the Trnovo incident, Your Honour,

6 this is a slightly different set of circumstances. The Chamber found

7 that in July 1995, some six Bosnian men and boys were killed near Trnovo

8 town, approximately 150 kilometres from Zvornik, by a Serbian MUP unit

9 called the Skorpions. That's in the judgement at 597 to 599 and also

10 referred at 794.18.

11 The victims were all Bosnian Muslim men from Srebrenica,

12 judgement 1080, and they were last seen by their families in the

13 Srebrenica enclave in July 1995. That's in Exhibit P03248 and there's a

14 stipulation. At least one of the victims was at one point part of the

15 column. That's referred to in footnote 2166. The Chamber held that the

16 killings at Trnovo fell within the scope of the JCE to murder, stating

17 that it would be "an unreasonable inference that within the same relative

18 time-period in an adjoining area there was a separate, distinct murder

19 operation targeting precisely the same victims." That's at trial

20 judgement paragraph 1080.

21 Your Honours, in light of the circumstances of the victims, the

22 Chamber's finding was reasonable. The Trial Chamber correctly observed

23 that the victims were from the same group as the other victims of the

24 JCE 1 murder incidents in and around Bratunac and Zvornik.

25 Moreover, there is some evidence on the record showing that the

Page 245

1 Bosnian -- that the Skorpions were part of Bosnian Serb MUP forces

2 working together with the VRS in Trnovo in July 1995, and we refer you to

3 Exhibit P03794 and also to transcript reference 26860, together with

4 other references relating to the brigade structures at trial

5 judgement 185 and 244.

6 Your Honour, the combination of victims coming from Srebrenica

7 and the Skorpions operating with MUP forces in concert with the VRS is

8 powerful support for the incident falling within the JCE's common

9 purpose, and such co-operation between the Skorpions and the MUP units

10 together with VRS forces in the context is sufficient for JCE

11 attribution, as set out previously.

12 I turn to the next part of the question. I'm sorry it takes a

13 little while to get through these incidents.

14 Opportunistic killings are the second part of Your Honours'

15 question referring to 794.1 and.7 at the Vuk Karadzic school.

16 Your Honours, in paragraph 794.1, the Chamber found that on the 12th and

17 the 13th of July, between 40 and 80 Bosnian Muslim prisoners were taken

18 from a hangar behind the Vuk Karadzic school and killed. This is in the

19 judgement at 452 to 55. And in paragraph 794.7, the Chamber found that

20 between the 13th and the 15th of July, an unknown number of Bosnian

21 Muslim men were killed inside and outside the same school, again in the

22 judgement 460 to 63, and of course the paragraph referred.

23 Your Honours, VRS members were directly involved in both the

24 guarding and the execution of the prisoners. There's reference in the

25 trial judgement 406. At 406, the Bosnian Muslim prisoners in Bratunac

Page 246

1 town on the 12th to the 13th of July were guarded by members of the

2 Bosnian Serb forces, including military policemen of the

3 Bratunac Brigade. They were working together with members of the MUP in

4 those activities, and evidence underlying this finding includes that of

5 military police Mile Janjic, referred to at footnote 1424 of the

6 judgement; and Momir Nikolic explained in Exhibit C1 at page 6 that it

7 was decided at a meeting on the evening of 13 July at the

8 Bratunac Brigade headquarters that the prisoners in Bratunac should

9 continue to be guarded by elements of the Bratunac Brigade military

10 police, various civilian MUP forces, and armed volunteers from the

11 Bratunac town. That's at judgement paragraph 406.

12 Your Honours, it's inconceivable that those activities were not

13 being carried out together and as part of the whole operation. The

14 perpetrators of the killings of the prisoners from the hangar behind the

15 school were Bosnian Serb forces, including soldiers in camouflage

16 uniform, as set out in the evidence at PW-169, an example at

17 transcript 17324 to 17326. Indeed, Mladic himself came to the hangar on

18 the morning of the 13th of July and gave instructions to ten members of

19 Bosnian Serb forces who were guarding prisoners there, as set out in

20 paragraph 402 of the judgement.

21 Your Honours, the perpetrators of the killings of prisoners held

22 inside the Vuk Karadzic school and outside on buses were a mix of

23 soldiers and policemen, as testified to by Ahmo Hasic, one of the

24 survivors, at transcript 1180 to 1181, and 1188. And we refer

25 Your Honours also to trial judgement 461. Beara himself walked past the

Page 247

1 buses parked outside the Vuk Karadzic school on the 13th of July and saw

2 prisoners detained in and around the school, referenced in the judgement

3 at paragraph 1262.

4 Your Honours, based on the evidence, the killings in and around

5 the Vuk Karadzic school are linked to the JCE in several ways. The

6 killings were part of a joint operation by the VRS and MUP forces in

7 Bratunac. VRS members specifically being involved in them. And JCE

8 members such as Mladic and Beara on hand guiding and monitoring the work

9 of Bosnian Serb forces. Consequently, these killings are not separate

10 and distinct from the VRS/MUP operation to detain the Muslim prisoners.

11 And the findings that the killings were foreseeable consequences of the

12 implementation of the JCE to murder are thus entirely reasonable.

13 At 794.2, moving on to the next incident, this is another

14 opportunistic killing, this time in Potocari. On the 13th July 1995,

15 nine Bosnian Muslim men were killed in a field near a stream about

16 500 metres distant from the DutchBat compound in Potocari, judgement 354

17 to 59. And one Bosnian Muslim --

18 THE INTERPRETER: You are kindly asked to slow down for the

19 purposes of interpretation.

20 MR. ROGERS: I failed. I'm very sorry. I was doing my best.

21 Your Honours, just dealing with one Bosnian Muslim man was taken

22 behind a building near the White House at Potocari at killed, judgement

23 354 to 359. The Chamber reasonably found that it was the Bosnian Serb

24 forces who killed the nine men found near the DutchBat compound.

25 Potocari was taken over on the 12th July by VRS and MUP units operating

Page 248

1 together, as found at trial judgement paragraph 302. The MUP units who

2 participated in the take-over of Potocari included the Jahorina recruits

3 and the 1st PJP Company from Zvornik, both units under the command of

4 Borovcanin. That's found in the judgement at paragraph 185.

5 Indeed, Borovcanin was present in Potocari on the 12th July as

6 was Mladic, moving constantly through the area, referred to again in the

7 judgement, and seen personally handing out food. By the morning of the

8 13th of July, Bosnian Serb forces fully controlled Potocari and not even

9 DutchBat could walk freely, as set out in the judgement at paragraph 302

10 to 305 and 357. In those circumstances, it was entirely reasonable for

11 the Trial Chamber to find that the killings in Potocari were committed by

12 Bosnian Serb forces and were foreseeable consequences of the JCE to

13 murder. Indeed, when looking at the killings of the nine men, DutchBat

14 officers found that they were still warm when they examined them. They

15 were fired on by Bosnian Serb forces, that's DutchBat themselves were

16 fired upon, as noted in the judgement at 355 and 356. And again, the

17 perpetrators who killed the Muslim men behind the White House were

18 observed by DutchBat forces to be Serb soldiers wearing typical

19 camouflage uniforms, matching those of other Bosnian Serb forces who

20 controlled Potocari at the time. Suggesting they observed the killing

21 itself, they saw the men being taken behind by uniformed soldiers.

22 Given the involvement of forces under the authority of JCE

23 members such as Mladic in joint operation with the MUP and given his --

24 Mladic's personal involvement in directing Bosnian Serb forces in

25 relation to those detentions in Potocari, the Chamber properly found that

Page 249

1 the killings were linked to the implementation of the JCE.

2 Your Honours, I've just got one more to deal with. I'm conscious

3 we're coming up to a break. It will take me just a couple of minutes,

4 and then probably it's a good time, if it's suitable to Your Honours, to

5 break there.

6 JUDGE ROBINSON: Yes, go ahead.

7 MR. ROGERS: Thank you.

8 Final incident, 794.9, the Petkovci school. Your Honours, there

9 the Chamber held that on the 14th of July, 1995, several Bosnian Muslim

10 men detained at the Petkovci school were killed. This is in the

11 judgement at 498. This was also charged as an opportunistic killing

12 because the main killing of the Bosnian Muslim prisoners detained at the

13 Petkovci school was carried out at the Petkovci dam. Although there was

14 no specific finding as to the precise identity of the perpetrators for

15 the killings at the Petkovci school, the Chamber found that the killings

16 at the dam and other places were:

17 "... well organised and followed the same pattern: men were

18 detained, transported to an appropriate site, and summarily executed.

19 The Zvornik Brigade Military Police guarded the prisoners prior to their

20 execution, various Zvornik Brigade Battalions were involved, and the

21 Zvornik Brigade Engineering Company buried the bodies."

22 That's in the judgement at 1075.

23 Your Honours, there's abundant evidence showing that the

24 detention and killing of Bosnian Muslims at the Petkovci school was

25 connected with the implementation of the murder operation.

Page 250

1 Your Honours, in those circumstances it's our submission that the

2 Chamber was perfectly proper to associate this incident with the JCE and

3 attribute it in that way to members of the JCE, including Mladic and

4 Beara.

5 Your Honours, that completes my submission in relation to the

6 question and the Prosecution's submissions in response to Mr. Beara

7 before I completely lose my voice.

8 JUDGE ROBINSON: Thank you.

9 Did you say that's the end of the Prosecution's response?

10 MR. ROGERS: Yes.

11 JUDGE ROBINSON: Okay.

12 Well, we'll take the break and resume at 3.23.

13 --- Recess taken at 3.02 p.m.

14 --- On resuming at 3.25 p.m.

15 JUDGE ROBINSON: Yes, we'll hear the response for - how many

16 minutes? - 30 minutes, 30 minutes. And when that is over, in accordance

17 with the plan announced yesterday, we move on to the next counsel, so,

18 Mr. Bourgon, don't be caught off guard.

19 Okay. But I see you're ready. You're a good scout.

20 MR. OSTOJIC: Good afternoon, Your Honours. Thank you.

21 My initial observation, if I may respectfully submit, that I'm

22 not surprised that the OTP has ignored the crux of our argument submitted

23 orally and in written form. I would have expected at least, instead of a

24 regurgitation of the Trial Chamber's conclusions and factual findings,

25 that they would have addressed why any weight should have been given to

Page 251

1 the Deronjic evidence. The Trial Chamber's decisions with respect to

2 that evidence is consistent throughout all the findings against Beara.

3 They've criticised me for not understanding the aggravating

4 circumstances, but if you look specifically at the sentence at

5 paragraph 2166, the Trial Chamber utilised that same evidence from

6 Deronjic to find that Beara was cold and calculating. They used the same

7 underlying crimes to now find that he was -- it's an aggravating

8 circumstance.

9 I'm disappointed that they didn't even mention the Deronjic

10 evidence, more so than simply to say that the Appellate Chamber had

11 allowed that evidence to be introduced. We know that the first step is

12 to determine whether it's reliable, the next it provides extraordinary

13 caution to the Trial Chamber to give any weight to it. I believe in our

14 submissions, both orally and in writing, we've at least tried and

15 hopefully established that the Deronjic testimony is infected with

16 numerous defects, inconsistencies, and statements that were only

17 self-serving to Deronjic himself to implicate others.

18 My learned friend talked about our main claim being that there

19 was a collusion. He said there's no evidence of that, none whatsoever.

20 We suggest that the joint criminal enterprise members, if you will, at

21 that time included Deronjic, Momir Nikolic, Mr. Borovcanin, and

22 Dragomir Vasic. We saw in the exhibit that was tendered to the Court or

23 shown to the Court, I should say, 2D -- I mean 7 -- sorry, P886, where

24 MUP expressly states that they're taking the sole responsibility. I

25 tried in the brief minutes that we had to scan through the oral

Page 252

1 submissions to see if they've even addressed it. They don't. They

2 can't. They refuse to. Whenever - and I totally mean this - whenever

3 there is evidence that falls squarely against a Defence argument, the

4 Prosecution either ridicules it or sweeps it under the rug and gives no

5 adequate consideration. Unfortunately, the Trial Chamber below also

6 erred in failing to give a reasoned opinion as to why that evidence

7 should have been given its due weight as other evidence.

8 Collusion. Deronjic, Momir Nikolic, Borovcanin, and Vasic. Do

9 we know what Deronjic was convicted of? Yes, it's in the trial record.

10 We know he was convicted for crimes that he and other members of the

11 Bratunac area, political and MUP, were involved in killings in Bratunac

12 merely two to three years prior to the Srebrenica massacre. We know

13 specifically from his sentencing and his plea agreement that he was

14 convicted for the murders in Glogova. The Prosecution will have you

15 believe that Mr. Beara came to Bratunac and he's the one who searched out

16 and was looking for places to bury prisoners. All he had to do, if

17 that's true, is ask Deronjic: Where did you bury them a couple of years

18 ago? The truth of the matter is that there was collusion because they

19 all worked together, they conspired together, and together they committed

20 crimes merely two to three years ago in that same area.

21 They claim there's nothing to link Deronjic with Momir Nikolic.

22 Sure there is. They don't tell the Trial Chamber that Deronjic and

23 Nikolic are related by marriage. Is that not a relevant fact? It's

24 found at the footnote of the Trial Chamber's decision at 4134.

25 Collusion, indeed.

Page 253

1 Also in a footnote of the Trial Chamber's decision, it talks

2 about how Deronjic and Nikolic confronted each other and that there was a

3 denial or an argument with respect to whether or not Momir Nikolic was

4 even present at the SDS meetings, the same Momir Nikolic who testified

5 not only inconsistently but changed his testimony, admitted to crimes so

6 that he could get a lesser sentence and then retracted them when they

7 found that there was little or no evidence. So the Prosecution in good

8 faith couldn't even accepted his lies that he committed crimes. He was

9 ready to take responsibility for other crimes just so that he could get a

10 lower sentence.

11 Yes, I believe there was collusion. I believe the evidence

12 suggests that there indeed was collusion; however, that's not the thrust

13 of our argument. Our argument remains that if you strip down the trial

14 judgement's decision and its reasoning by giving no weight or,

15 respectfully, very, very limited weight to the Deronjic testimony and

16 evidence, you'll find that the Trial Chamber had insufficient evidence to

17 establish that Ljubisa Beara was a member of the joint criminal

18 enterprise to murder and that Ljubisa Beara did not significantly

19 contribute to that JCE to murder.

20 Likewise, if we strip down -- and I would have expected them to

21 say: We concede; or in the alternative, if you take away Deronjic's

22 testimony, there's enough there, but they know without Deronjic's

23 testimony there is not just scant evidence. There is some evidence, we

24 believe it's not credible, that's our opinion. There's some evidence

25 that he was present. They mock us indirectly and say: Well, in one part

Page 254

1 they accept Celanovic, but we do in part alternatively state that if it's

2 true and if this Chamber finds that Celanovic is a credible witness, what

3 did Beara say to him? Nothing criminal? Nothing illegal? Nothing

4 offensive? Nothing that would constitute him or this Trial Chamber to

5 conclude that he was a member who substantially contributed to the JCE.

6 We cannot make alternative arguments, but the Prosecution can. That

7 double standard should not exist and I believe that it does not exist --

8 THE INTERPRETER: Could counsel please slow down.

9 MR. OSTOJIC: Thank you, and I apologise.

10 My learned friend said in his oral statements that Beara was

11 advocating murder. Based on what? The Deronjic evidence. He doesn't

12 tell you that's what he bases it on. I would have hoped that they would

13 have argued that either it should give -- the Trial Chamber should have

14 given it all due weight, as it did, or that it shouldn't have given him

15 any weight or limited weight. They simply ignore it.

16 They state that some certain dissenting opinions don't carry much

17 weight. I cited one from the Tolimir case. But it's not a dissenting

18 opinion, it's a dissenting and separate concurring opinion on what

19 justice and the honourable justice -- Judge Nyambe said. She addressed

20 collusion among witnesses. She addressed witnesses who point the finger

21 at others because they want a reduction in their sentence. She cited to

22 Matthew Hale and she states as follows:

23 "This course of admitting of approver's hath been long disused,

24 and the truth is, that more mischief hath come to good men by these kinds

25 of approvements by false accusations of desperate villains, than benefit

Page 255

1 to the public by the discovery and convicting of real offenders."

2 She cites to Matthew Hale: "History of the Pleas of the Crown."

3 JUDGE ROBINSON: What year was that?

4 MR. OSTOJIC: What year was the cite --

5 JUDGE ROBINSON: [Microphone not activated]

6 MR. OSTOJIC: -- or the opinion? Pardon me?

7 JUDGE ROBINSON: Matthew Hale.

8 MR. OSTOJIC: Specifically, yes, it's 1800. She goes on to say

9 that centuries' old -- for centuries, Trial Chambers have taken with

10 extreme caution and scrutiny the testimony of people who have been

11 convicted, people who have shown to have an inconsistency, and people who

12 have shown to lie only to cover their own actions. There is, I believe,

13 no greater evidence than the evidence from Dragomir Vasic who plainly on

14 that date states MUP was solely responsible and they took over with the

15 goal of liquidating or killing 8.000 Bosnian men and boys.

16 Just briefly, I want to state that they quoted from an -- two

17 appellate records that said: If someone has a personal motive or even a

18 military motive, it does not preclude genocidal intent. However,

19 however, it indeed raises in the right case, in certain circumstances, in

20 the proper context, it raises reasonable doubt as to genocidal intent.

21 We're not suggesting it precludes it, but it certainly provides an

22 opportunity in the proper context to raise sufficient reasonable doubt.

23 The Prosecution has time and time again said we have failed, that

24 we haven't established things fully and completely. It's not our burden

25 at the trial level. That's why we're suggesting that the Trial Court

Page 256

1 erred, both factually and legally, and failed in its reasoning when it

2 included the evidence of Borovcanin, of Momir Nikolic, and of

3 Miroslav Deronjic. And we ask that this Court, if you consider the

4 Trial Chamber by looking at their legal and factual findings, you'll find

5 that without the Deronjic testimony that should be thrown out, that there

6 is very little, if any, evidence to implicate Mr. Beara.

7 Thank you very much.

8 JUDGE ROBINSON: Thank you.

9 MR. SEPENUK: Thank you, Your Honours. I'll be quite brief.

10 The Prosecution's burden in this case was to prove that Mr. Beara

11 had the genocidal intent to destroy the Bosnian Muslim community in

12 Srebrenica, which was the relevant part of the group. Mr. Beara's

13 acquittal on the forcible transfer charge negated that general intent, we

14 submit. This is clearly shown by paragraphs 31 and 33 of the Krstic

15 Appeals Chamber opinion which I cited at length this morning and won't

16 repeat here.

17 What I would like to repeat here, though, with Your Honours'

18 permission, very briefly, is that part of Judge Shahabuddeen's partially

19 dissenting opinion -- I want to make one thing clear. The Prosecution

20 said in effect - I don't want to be unfair to them - but in effect they

21 said in effect: Don't pay any attention to that opinion, it's a

22 dissenting opinion. That is a gross oversimplification and it's simply

23 not true. Because the only thing that Judge Shahabuddeen dissented on

24 was his opinion was and he found that General Krstic should have been

25 convicted of genocide. The majority reversed the finding of genocide by

Page 257

1 the Trial Chamber and found him guilty of aiding and assisting genocide.

2 But on all the relevant considerations of genocidal intent, including the

3 acquittal on the forcible transfer, Judge Shahabuddeen was on all fours

4 with the majority opinion, and I don't think the Prosecution wants us to

5 cite it again and I'll do it very briefly because it's so powerful and

6 it's so convincing and it's so logical and that is this, when he said in

7 paragraph 35:

8 "Thus, standing alone, forcible transfer is not genocide, but in

9 this case the transfer did not stand alone and that indeed is the basis

10 on which the Appeals Chamber rejected the Defence argument that it showed

11 that there was no genocide. It was part - an integral part - of one

12 single scheme to commit genocide, involving killings, forcible transfer,

13 and destruction of homes. In particular, it showed that the intent with

14 which the killings were done was indeed to destroy the Srebrenica part of

15 the Bosnian Muslim group."

16 Colonel Beara was -- Mr. Beara was acquitted on the forcible

17 transfer charge under the rationale of both majority in the Appeals

18 Chamber and Judge Shahabuddeen's opinion, I think it's quite clear that

19 the genocide conviction in this case must fall.

20 Thank you, Your Honours.

21 JUDGE ROBINSON: The Prosecutor also cited I think portions of

22 the Krstic judgement in which the Chamber said that the genocidal intent

23 could be inferred from the killings themselves.

24 MR. SEPENUK: [Microphone not activated].

25 Excuse me. It went on again in paragraphs 31 and 33 of the

Page 258

1 opinion, Your Honour, to clarify and amplify that, saying that you had to

2 consider also the forcible transfers because the destruction of the

3 relevant group was the entire Bosnian Muslim community of Eastern Bosnia.

4 That's the 40.000 people. A subpart of that 40.000 was the 5300,

5 whatever figure you want to accept, of the military-aged men. But it was

6 certainly not enough to just consider the military-aged men in that

7 equation. It had to be in connection with the destruction -- but that

8 was the only relevant group or relevant part of the group that was

9 accepted by the Trial Chamber, properly so, and charged by the

10 Prosecution as the relevant part of the group. It embraced the entire

11 community, some of which were killed, military-aged men, and many of

12 which, 25.000 or so, were deported. That was the destruction of the

13 Srebrenica and Zepa enclaves that the Court was talking about.

14 JUDGE POCAR: Counsel, is that -- just to try to understand

15 exactly which is your submission, it's your point that the targeted

16 group, the part of the group, must include the men targeted for killing

17 and the men targeted for transfer at the same time? And you don't have a

18 group targeting only the men that are targeted to be killed? Is that

19 your position?

20 MR. SEPENUK: Yeah, our position, Your Honour --

21 JUDGE POCAR: That when the rule says, the norm says, targeting

22 in -- destruction in whole or in part, that part must comprise both the

23 men in the military age have to be killed and the other part of the

24 population, women and children and elderly people, or that part may

25 include only the men that were targeted to be killed?

Page 259

1 MR. SEPENUK: Yes -- no, Your Honour, it's your first

2 supposition.

3 JUDGE POCAR: I'm trying to understand --

4 MR. SEPENUK: It's your first supposition, that the Bosnian

5 Muslims of Eastern Bosnia comprised the men and the transferred --

6 forcibly transferred population, the women, children, elderly. And that

7 was the charge of the -- this was nothing that was created by Mr. Beara.

8 That was the charge of the government in this case, that was their

9 indictment, that was the theory of their indictment, and we quoted that

10 one paragraph in the Trial Court's opinion, in which it summarised what

11 the Prosecution's theory was. And that was, indeed, the Prosecution's

12 theory and that was accepted - and we think rightly so - by the

13 Trial Chamber as being the Bosnian Muslims of Eastern Bosnia, comprising

14 the group that I just mentioned. That was the theory of the Prosecution

15 in this case. And by the acquittal again on the forcible transfer

16 charge, that negated genocidal intent because the intent was not to

17 destroy and annihilate the entire Bosnian Muslim group. The intent, if

18 anything, was -- assuming, conceding for a moment arguendo, the intent

19 was to kill the men and that's it. When I say "that's it," I don't say

20 that summarily, I say that with proper seriousness of purpose. But

21 that's the most the intent would show in this case, the most.

22 Murder, extermination, I don't -- my colleague Mr. Ostojic has

23 talked to those issues. But I'm assuming arguendo that if there's going

24 to be any conviction in this case, assuming arguendo that you reject,

25 let's say, Mr. Ostojic's argument, it would be for murder and for

Page 260

1 extermination but not genocide.

2 JUDGE POCAR: Can you perhaps elaborate on how you reconcile this

3 holistic notion of the group with the position that genocide must imply

4 the physical destruction of the group?

5 MR. SEPENUK: Well, you know, when I argued the Krstic case ten

6 years ago, Your Honours -- as a matter of fact, I believe you were on

7 that panel ten years ago. I could be wrong, but I think that's true.

8 JUDGE POCAR: [Microphone not activated].

9 MR. SEPENUK: And we did argue that it was necessary -- physical

10 destruction was absolutely required and that displacement of the

11 population could not be considered at all by the Trial Chamber and we

12 lost on that. The court of appeal -- this Appeals Chamber said: No,

13 that's just not so. Forcible transfer is an element, and that's where

14 they talked about it in paragraphs 31 and 33 of the opinion, and then

15 also obviously Judge Shahabuddeen. So that -- that notion has been

16 rejected. So under current law, and obviously we accept that, you can

17 have physical destruction even if -- on the theory, for example, that the

18 community could not reconstitute itself.

19 You know this -- the finding of the Krstic Appeals Chamber has

20 been strongly criticised by commentators including Mr. Schabas in his

21 article on genocide in the Florida Law Review, but we don't live in that

22 academic world. So I'm accepting, I'm accepting fully the rationale and

23 the holding, which we must, of course, as officers of this court,

24 accepting the Krstic Appeals Chamber judgement as absolutely binding

25 precedent for this case.

Page 261

1 JUDGE POCAR: Thank you.

2 JUDGE NIANG: Counsel, I just wanted to have some further

3 clarification on this point. So if I understand correctly, there are

4 three set of actions entailing genocide in this particular instance,

5 meaning the killings, the forcible transfer, and destruction of homes, if

6 I understand correctly --

7 MR. SEPENUK: I don't think and I'll have check with my lead

8 counsel here who has a superior knowledge of the facts -- yeah, no, we

9 don't have the destruction of homes. That was in the Krstic case.

10 JUDGE NIANG: In the Krstic --

11 MR. SEPENUK: Right. Now, here we have the murders of the men

12 and the forcible transfer, right.

13 JUDGE NIANG: I just want to understand your submission. Do you

14 mean to say that if we have proof of someone being involved in killings

15 and if that same person has not been involved in another set of

16 transactions that is part of the genocide, that person should be

17 acquitted; is that what you're saying?

18 MR. SEPENUK: Yes, Your Honour, that is. Because we read Krstic

19 as requiring the combination of the killings and the forcible transfer

20 because that's the only way you reach the conclusion that the genocidal

21 intent was to destroy a part, the relevant part being the Bosnian Muslims

22 of Eastern Bosnia. Killing of the men, again, it could be extermination,

23 it could be murder; it's not genocide.

24 JUDGE NIANG: Let me put it another way, then. Let's just assume

25 we are in a situation where the genocide only involved the killings, but

Page 262

1 there are many sets of killings, and here you have an accused being

2 involved in specific sets of killings and not in some other sets of

3 killings, would you say that still that person should be acquitted?

4 MR. SEPENUK: Well, it would depend, Your Honour, on the targeted

5 group. We have to define what is the part. The Bosnian Muslims in this

6 case, that was the ultimate group.

7 JUDGE NIANG: Yes.

8 MR. SEPENUK: The part of the group, as held by the Trial Chamber

9 and as advanced by the Prosecution, was the Bosnian Muslims of Eastern

10 Bosnia. So I'd have to know more in your hypothetical example of what

11 was going on.

12 JUDGE NIANG: Yeah, so -- because that I put it -- I just base it

13 on the facts that it seems here that the Trial Chamber did not say that

14 forcible transfer did not exist, but maybe -- it was a fact of

15 [indiscernible] --

16 MR. SEPENUK: A fact of -- I'm sorry. A fact --

17 JUDGE NIANG: The forcible transfer -- the Trial Chamber did not

18 say that it did not exist in this case. What the Trial Chamber says,

19 based on what you are saying now, is that he was acquitted, he was not

20 part of it.

21 MR. SEPENUK: Exactly.

22 JUDGE NIANG: But he was part of the killings, but still he

23 should be acquitted?

24 MR. SEPENUK: That's our submission, Your Honour.

25 JUDGE NIANG: Okay.

Page 263

1 [Appeals Chamber confers]

2 JUDGE ROBINSON: Yes, I think I'm going to ask Mr. Gillett to

3 comment on that particular point, your point that the targeted group from

4 your understanding of Krstic must be the whole community, the Bosnian men

5 and those who were forcibly transferred.

6 MR. SEPENUK: Yes, Your Honour.

7 JUDGE ROBINSON: I don't think you addressed that point. You did

8 point to parts of the judgement which substantiated the view that the

9 killings themselves can provide genocidal intent. But would you like to

10 comment on that point?

11 MR. GILLETT: Thank you, Mr. President, Your Honours, for the

12 opportunity to address this question and my learned friend's submissions.

13 As we read the Krstic appeal judgement - and I submit there is

14 only one way to read it - at no point does it insert a requirement of

15 proving forcible transfer or involvement therein in order to infer

16 genocidal intent. At paragraph 27 it says very clearly, the last

17 sentence of paragraph 27:

18 "The killing of the military-aged men was, assuredly, a physical

19 destruction, and given the scope of the killings the Trial Chamber could

20 legitimately draw the inference that their extermination was motivated by

21 genocidal intent."

22 The fact of the forcible transfer was an additional consideration

23 but not a necessary consideration. The targeted victims in this case

24 were the Bosnian Muslims of Eastern Bosnia, and the Trial Chamber's

25 finding that genocidal intent could be inferred from the killing of

Page 275

1 even if every other finding made by the Trial Chamber were to stand at

2 the end of this appeal, we submit respectfully that the sentence must be

3 lowered significantly. Our detailed arguments to that effect can be

4 found in paragraphs 1 to 45 of our appellant's brief at ground number 1.

5 Today I will focus on three issues. First of all, the errors in

6 assessing the gravity of the crimes for which Mr. Nikolic was found

7 guilty. Secondly, the impact of Drago Nikolic's personal character on

8 the sentence, which led to other mistakes by the Trial Chamber. And the

9 fact that the sentence imposed is a marked departure from sentences

10 imposed on other accused in -- for the same crimes in similar

11 circumstances.

12 Moving on to the gravity, this will be addressed into three

13 parts: The time-period, the Trial Chamber erred in identifying the

14 time-period of Drago Nikolic's involvement; the Trial Chamber erred in

15 the importance of the contribution of Drago Nikolic during the murder

16 operation as well as his overall involvement in the Srebrenica events all

17 together; and the Trial Chamber, lastly, the third point, in assessing

18 the contribution of Drago Nikolic in comparison to others involved in the

19 same events.

20 First of all, in terms of the time-period, well, the

21 Trial Chamber committed a mistake when it found that Drago Nikolic was

22 involved in the JCE to murder from 13 July on the evening until 16 July

23 in the afternoon. From a plain reading of the Trial Chamber's findings,

24 the contribution of Drago Nikolic and his involvement in the murder

25 operation ended on 15 July in the morning. It ended -- the last event

Page 276

1 was the alleged conversation he would have had with Acimovic, the

2 commander of the 2nd Battalion, whom he would have called to put pressure

3 on. We'll come back to this conversation which is actually one of our

4 arguments during this appeal. But for now let's assume that the

5 conversation took place. After this conversation, there is no longer any

6 involvement of Drago Nikolic in the murder operation. Early in the

7 morning he is on duty and he ends his shift or -- sorry, he doesn't end

8 his shift, he begins his shift early in the morning on 15 July. For sure

9 he begins his shift at 11.45, but according to the Trial Chamber he could

10 have begun his shift as early as 0440.

11 There is no finding from the Trial Chamber that he had any

12 involvement in Rocevic during the period from the 15th of July until the

13 16th. This is at judgement 1372. The Trial Chamber found that Nikolic

14 was not at Rocevic, 1370; and the Trial Chamber found that the last entry

15 in the log written by Drago Nikolic on the 16th of July was not linked to

16 the JCE. The Prosecution tried to say that this entry in the log-book -

17 and that is P377 at pages 148-149 - the Prosecution argued that this

18 entry meant that he was sending ammunition for the killings probably in

19 Branjevo Farm or Pilica cultural centre, and the Trial Chamber found that

20 this was not the case.

21 In the morning of 16 July he ended his shift. He is at Standard

22 barracks, the headquarters, the command of the brigade, but we don't know

23 what he's doing. What we know is that a little later he will go and have

24 lunch with his wife because it's her birthday. By the way, the

25 Trial Chamber missed that all together and this is in the statement of

Page 277

1 Vida Vasic, 3D474, and also in the transcript at 25935. And thereafter

2 Drago Nikolic took part in the preparations for the funeral of his

3 cousin, and he took part in the funeral ceremonies the next day, thereby

4 completely extracting himself from the murder operation.

5 But right in the morning, in the morning of 16 July, when he

6 finishes his shift and he is replaced, and the evidence shows that he was

7 replaced that morning by another duty officer, he's at the brigade and he

8 is not involved. We all know what's happening during this time-frame at

9 the Kula school, the Branjevo Farm, and later in the afternoon at the

10 Pilica cultural centre. He's just not there. And these are based on the

11 findings of the Trial Chamber.

12 Second point is what about the overall contribution of

13 Drago Nikolic in the Srebrenica events and during the murder operation?

14 What did he do exactly? We'll begin with the Srebrenica events.

15 The Srebrenica events, I mean this case is not just about what

16 happened in Zvornik, it started before that. It started as a minimum

17 with the launching of the Krivaja 95, an operation that was planned

18 months before, 2 July a preparation order. Then brigades send troops as

19 part of the battle that is about to take place to capture Srebrenica.

20 Then we capture Srebrenica. And then we separate the men from their

21 families. And then we do the forcible transfer of the women, the

22 children, and the elderly. And then we make the members of the column

23 prisoners. And then the executions begin at Cerska Valley. And then

24 more executions at the Kravica warehouse, thousands of people. And then

25 the transport of the prisoners are taken to Bratunac.

Page 278

1 My colleague in his last argument went out of his way to explain

2 how a security risk the presence of the prisoners in Bratunac was and how

3 at some point it was decided to take some of them to the Zvornik area.

4 And then we have the executions, five places: Orahovac, Petkovci,

5 Kozluk, Branjevo Military Farm, Pilica cultural centre. And then we

6 sweep the area to ensure that any Muslims left behind will be killed.

7 And then we got the Branjevo Farm survivors who disappear. And then we

8 got the Milici hospital prisoners who disappear. And then we do this

9 reburial operation.

10 This, at a minimum, and I cut short here is Srebrenica. Where is

11 Drago Nikolic in all of that? Well, here is where Drago Nikolic is:

12 He's there when he receives a phone call on the 13th of July, a phone

13 call that we are challenging. He's present at the school in Orahovac,

14 there's no point in denying this. Drago Nikolic said it himself when he

15 spoke to the Trial Chamber at the end of the trial. He was present at

16 some point in the day at Orahovac school. And then of course he was

17 involved - I put a circle around Kozluk and Rocevic because of those

18 conversations that we are challenging. Other than that, this is

19 Drago Nikolic.

20 We say the Trial Chamber erred in failing to see this. What

21 about his contribution during those -- that period? We already said that

22 it's limited from the 13th to the 15th. Well, during the 13th to the

23 15th, what he did during the 13th to the 15th, a junior officer, drawn

24 into specific aspects of an ongoing overwhelming operation that he

25 possessed limited knowledge of, that of a junior officer having no

Page 279

1 influence whatsoever executing the orders issued by the chain of command

2 through his superiors and sometimes to those who are not even his

3 superiors, that of a junior officer who succeeded in extracting himself

4 from this nightmare. We say that the Trial Chamber erred in not seeing

5 the real contribution of Drago Nikolic to this operation.

6 For the rest, of course, we know that we are challenging his

7 presence at Orahovac at the killing site. We are challenging the thing

8 about the uniform. And we are challenging the conversations with

9 Acimovic.

10 In terms of the gravity, of course, there is also the relative

11 contribution of Drago Nikolic in comparison with others. I will just use

12 two examples, the first one is Borovcanin and the second one is

13 Pandurevic.

14 Borovcanin, deputy commander of the special police brigade of the

15 MUP, involved and present in the separation of men from their families,

16 connected to the executions at the Kravica warehouse. According to the

17 Trial Chamber, he saw at least one busload of dead bodies on the site.

18 His acts in ordering his men to participate, according to the

19 Trial Chamber, constituted a substantial contribution to the crime of

20 forcible transfer. He's involved in the operations to block the column

21 and he had the authority and ability to influence these events. And as

22 we know, on the 15th of July, at midday, he meets with Dragan Obrenovic,

23 the Chief of Staff of the Zvornik Brigade, and Pandurevic, the commander

24 of the Zvornik Brigade, to talk about the upcoming operations to try and

25 block the column. He is much more involved than Drago Nikolic, and that

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1 the Trial Chamber did not take into account, Mr. President.

2 Pandurevic, the brigade commander, involved in the attack and

3 capture of Srebrenica, involved in the situation in Zepa. He has direct

4 access to Mladic. He has direct access to Krstic. He's involved in

5 fighting the column and in preventing the Bosnian Muslims from reaching

6 the 2nd Corps of the ABiH territory. Now, as of 15 July in the morning,

7 the Trial Chamber found that this man learned what was going on in his

8 territory. He knows that thousands of people are located in the Zvornik

9 area to be killed. And then the story goes on, and I'm not going to get

10 involved in Pandurevic's story, that's not my case. Then of course he's

11 involved in the killing of the patients on the Milici hospital, the same

12 people who while they were in the custody of Drago Nikolic were kept

13 safe, that's a finding from the Trial Chamber. And most of all is the

14 fact that the brigade commander, if someone had the authority, the

15 capability, the ability, and the guts to do this and to stop this from

16 taking place, it was the brigade commander. When we look at the

17 contribution of Drago Nikolic and the contribution of others, this must

18 be assessed, Mr. President, and the Trial Chamber, in our view, failed to

19 do so.

20 I see I have five minutes, I go on to my next point in terms of

21 the impact of Drago Nikolic's personal character. I'll try to speed up a

22 bit so I can finish this ground tonight.

23 In terms of his character, well, we know that Drago Nikolic is a

24 second lieutenant, again I started with this in this case in 2005 and

25 I'll say it again, the lowest possible rank in the military scale as

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1 compared to all those generals that have been charged and found guilty.

2 In terms of the character of Drago Nikolic, we have especially the fact

3 that he was not a graduate from the military academy, the fact that

4 nobody liked him or trusted him because he was not a real "officer." The

5 fact that because he was the chief of security and had to investigate on

6 his buddies that nobody liked him because nobody likes the security,

7 that's just part of the game when you have to investigate your

8 colleagues. The fact that the commander of the brigade, Pandurevic,

9 described Drago Nikolic as wearing a coat too big for him. He said the

10 security coat was much too big for him. And then Drago Nikolic, lastly,

11 was perturbed, to say the least, about what he was asked to do, even if

12 it was less than what the Trial Chamber thinks he was asked to do.

13 When he comes out of that meeting with Beara and Popovic on the

14 14th of July in the morning, he speaks to his driver, Bircakovic, and he

15 tells Bircakovic -- Bircakovic testifies, he says he was mad, he couldn't

16 believe what he was being asked to do for all those people coming in for

17 an exchange. Why not believe Bircakovic that this is what Drago Nikolic

18 said? Bircakovic was used, his testimony was used, in many other areas

19 where the Trial Chamber relied on Bircakovic's testimony. But for this,

20 no, he didn't say that because that would not be too convenient. Of

21 course, there's a link with the conversation the night before which we

22 will come back to.

23 Mr. President, I will stop here for today because I see the time

24 is running by. I just have one small argument to do tomorrow morning to

25 finish with this ground and that is simply the fact that this sentence,

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1 35 years' imprisonment, even if everything else is true and stands after

2 this appeal, is a marked departure from sentences imposed on others. And

3 the two examples I will use tomorrow is Krstic, the big general at the

4 top of the operation, convicted of aiding and abetting for 35 -- and

5 sentenced to 35 years, and Jokic, someone who's still higher than

6 Drago Nikolic but lower in the food chain and who also involved in

7 sending engineering equipment to the killing sites and he's also a duty

8 officer at the brigade, and I will also come back on this, and he got

9 nine years. So 35 years is a marked departure which is motived by only

10 one thing and it's simply because he was a security officer.

11 That ends my submissions for today, Mr. President. Thank you.

12 JUDGE ROBINSON: Thank you. We adjourn and we'll resume tomorrow

13 at 10.00.

14 MR. ROGERS: Your Honours, before we do, may I just raise a

15 housekeeping question?

16 JUDGE ROBINSON: Yes.

17 MR. ROGERS: Just conscious of the order of things tomorrow, I

18 anticipate that we will conclude Mr. Bourgon's client's case tomorrow

19 morning, which will take us to Pandurevic. And it is possible, I think,

20 having spoken with Mr. Haynes, that we may get through that tomorrow

21 afternoon. My question for Your Honours is whether you would intend to

22 start the Prosecution's appeal before you had completed the Defence

23 appeals from Mr. Miletic. I would presume Your Honours would not intend

24 doing that, but I wondered if I might just clarify that with you now. It

25 will assist us greatly if Your Honours could confirm.

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1 JUDGE ROBINSON: No, we wouldn't do that. We will finish --

2 MR. ROGERS: No, I didn't think you would. I just wanted to

3 check. Thank you.

4 JUDGE ROBINSON: Yes, so we're adjourned.

5 --- Whereupon the hearing adjourned at 4.45 p.m.,

6 to be reconvened on Wednesday, the 4th day of

7 December, 2013, at 10.00 a.m.