Tribunal Criminal Tribunal for the Former Yugoslavia

Page 284

 1                           Wednesday, 4 December 2013

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           [The Appellant Miletic not present]

 6                           --- Upon commencing at 9.59 a.m.

 7             JUDGE ROBINSON:  Yes, Mr. Bourgon.  I note the Appellant Miletic

 8     is not present, but we are in receipt of a document indicating his

 9     waiver.

10             Mr. Bourgon.

11             MR. BOURGON:  Thank you, Mr. President.  Good morning, honourable

12     Judges.  Good morning, everyone in and around the courtroom.  I will move

13     on with my next argument; however, before I do so I would simply like to

14     come back briefly and finish the part on the sentence with a couple of

15     things that I forgot to mention yesterday.  And the first one deals with

16     the gravity, the assessment of the gravity that -- in which the

17     Trial Chamber erred, and that is by looking at Drago Nikolic's role

18     during the events from 13 July to 16 July 1995.

19             The part I'd like to draw the attention of the Appeals Chamber to

20     is the events that took place on the 15th of July.  Now, we all know that

21     on the 15th of July, the Chief of Staff of the Zvornik Brigade,

22     Dragan Obrenovic, along with the commander of the Zvornik Brigade,

23     Vinko Pandurevic, were both together at the Zvornik Brigade command, at

24     which point they were discussing both the blocking of the column.  And

25     they also discussed, according to the Trial Chamber, what was going on

Page 285

 1     with the prisoners.

 2             Now, this is a very critical time for the Zvornik Brigade, with

 3     both of the senior officers being together that morning.  At the same

 4     time, you have Drago Nikolic, who is the brigade duty operations officer.

 5     Drago Nikolic at that moment is sitting in the operations room.  And yet

 6     that morning, despite what is going on with the prisoners and the

 7     executions, of which both persons are aware, no one will go and speak to

 8     Nikolic, nobody.  They just leave him alone.  If there was any truth to

 9     be said as to his involvement, as reported by the Chief of Staff, then

10     for sure somebody would speak to him and say:  What did you do on the

11     14th?  What did you do on the 13th?  Nobody will speak to him.  And we

12     believe that this is significant in assessing the importance of his role.

13     He was just somebody that was not being consulted.

14             The second event is later that day in the afternoon,

15     Drago Nikolic is still the brigade operations duty officer, and he has

16     regular contacts, as evidenced by the brigade duty officer's log-book,

17     with the IKM, the forward command post of the Zvornik Brigade.  The

18     commander, Vinko Pandurevic, is at the IKM and he is, of course,

19     preparing for the big battle.  But he knows about the prisoners at that

20     moment and there are contacts between the brigade and the IKM but not a

21     word to Drago Nikolic about what he did or what he could do.  He is

22     simply a nobody that is not being consulted.  I cross-examined the

23     commander, Vinko Pandurevic, on this and he said that he did not feel any

24     need or the urge to speak to Drago Nikolic, and it was for Drago Nikolic

25     to report to him if he had done something wrong.  And you find this,

Page 286

 1     Mr. President, at transcript 30954 to 30955.

 2             Now, this is mentioned simply to show you that Drago Nikolic did

 3     not have an important role during these events.

 4             I move on also to the -- in assessing the gravity with the

 5     overall contribution of Drago Nikolic to the Srebrenica events.  I showed

 6     a long list yesterday, and I showed you that Drago Nikolic was only

 7     involved in a couple of these events, albeit important.  This is not

 8     being brushed aside, in no way.  But the one issue I'd like to come back

 9     to is the reburial operation.  Drago Nikolic was not involved in the

10     reburial operation, and that speaks for itself.  There's direct evidence

11     that he was not involved, and that is Damjan Lazarevic at

12     transcript 14507-14508.  The person who was entrusted with running the

13     reburial operation on behalf of the brigade was Milorad Trbic and not

14     Drago Nikolic.

15             There is also an intercept as some evidence which shows that

16     Drago Nikolic was not involved in this operation.  Now, this intercept,

17     the evidence is -- the number of the intercept is 2391, P2391.  It's a

18     conversation between Popovic and a man called Mihalic, but Mihalic's

19     nickname appears to be Nidjo, which, the Prosecution said, Nidjo must be

20     Drago.  And the Trial Chamber said:  Yeah, of course, if Drago is Nidjo,

21     Nidjo, Mihalic, it's all the same, we'll take it as being a conversation

22     that comes from Nikolic.

23             Well, in this conversation, Mr. President, Drago Nikolic says to

24     Popovic - and I quote and I apologise for the language in advance - but

25     he said:  "Fuck it.  I'm out of it."  Clearly.


Page 287

 1             And then when Popovic asked Drago Nikolic:

 2             Well, what about Trbic, is he working on this?

 3             And then Nikolic answers:  Yes, yes, he is.

 4             Now -- and then later in that intercept you see that Popovic is

 5     asking more questions and then Nikolic answers:  "Okay, okay," and then

 6     they move on.  We feel, Mr. President, that this is significant evidence

 7     that was not given due consideration in the overall involvement of

 8     Drago Nikolic in the events in Srebrenica.

 9             If I can move in closed session, please.

10             JUDGE ROBINSON:  Yes.

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 4                           [Open session]

 5             THE REGISTRAR:  Your Honours, we're back in open session.

 6             MR. BOURGON:  I planned on going on and coming back to what I

 7     said yesterday about the marked departure from sentences imposed, and I

 8     referred yesterday to General Krstic and I referred also to Major Jokic.

 9     I won't come back on this, but I invite the Appeals Chamber to look

10     carefully at the role of these officers in the overall scheme of things.

11     And it will be clear that the sentence imposed on Drago Nikolic is simply

12     out of touch with these sentences.

13             Now, fully aware of the fact that you can't really compare apples

14     and oranges, that everybody has an individualised role in the operations.

15     I'm not trying to say anything otherwise.  However, in this context I

16     think you need to look at the role of all the players when it comes to

17     sentencing because the events are so close together.

18             I move on to my first topic of the day, which is the finding of

19     the Trial Chamber that Drago Nikolic would have offered some uniforms to

20     members of the 4th Battalion in order to convince them to stay at

21     Orahovac and to participate in the killings.  Before I do that, I need to

22     simply take a minute here to offer some information to the

23     Appeals Chamber which is critical in understanding our next three grounds

24     of appeal, and that is information which deals with communications within

25     the VRS.  This evidence is on the record, and I refer here to the


Page 289

 1     testimony of Jevdjevic at 29660 to 29664; to the expert military witness,

 2     Landry at 20415 to 20416; and the testimony of Markovic, an expert in the

 3     field of radio communications, at 27656 to 27673.

 4             I have a little sketch before you, Mr. President, which shows

 5     basically how communications work, and in order to assess the evidence,

 6     this is the basic -- the basics that must be understood.  And the basics

 7     is that the communications between the Drina Corps, Main Staff, and the

 8     Zvornik Brigade were on a kind of telephone that could be intercepted

 9     because it's like a mobile phone.  On the contrary, communications

10     between the Zvornik Brigade, the IKM, and the battalions are on a secure

11     line.  It's what you call a military induction phone.  It's a little wire

12     with a little phone and you turn the handle and you get a line, and this

13     type of line cannot be intercepted.  So when we will look at the

14     evidence, this must be understood.

15             Now, also on the same drawing you have the radio communications

16     centre.  What is that?  Well, that is simply a centre that was

17     established a couple of kilometres away from the brigade command simply

18     because where Standard was located, it was not possible to speak by radio

19     to somebody in the field because of the positions of the mountains around

20     Standard.  So they established this radio communications centre.  And

21     then from there, there would be radio communications.  But this one

22     witness, Markovic, will tell you that the 4th Battalion could hardly be

23     reached at least from some of the areas around the radio communications

24     centre.

25             If we try and look at the conversation, the alleged conversation

Page 290

 1     of 13 July at night between Popovic, Drago Nikolic, and then

 2     Dragan Obrenovic, we see that the part of the conversation between

 3     Popovic and Drago Nikolic would have gone over a line that could be

 4     intercepted, but it was many other same conversations were intercepted

 5     but not this one.  We say it's simply because there was no such

 6     conversation and there was no such intercept available.  The other part

 7     of the conversation between Drago Nikolic and Obrenovic is, of course, on

 8     a secure line, cannot be intercepted, no evidence.  The only evidence is

 9     that can be found about the conversation itself.

10             I move to my first part about the uniforms in Orahovac.  The

11     finding of the Trial Chamber can be found at paragraph 1361 as well as in

12     footnote 4416.  Now, I have five arguments or five parts to the argument

13     in order to challenge this finding.  Now, I know, Mr. President, that

14     challenging a factual finding before the Appeals Chamber, we're perfectly

15     aware that we must reach a very high threshold, we're aware of this.  But

16     we are convinced that once I finish looking through all of these

17     arguments, that you will have no other choice but to conclude that no

18     reasonable Trial Chamber could have made the same finding.  So these are

19     the -- what I will look at for each of these arguments related to the

20     arguments -- to the uniforms at Orahovac.

21             I will start by looking at, of course, the importance of this

22     finding, and of course the importance cannot be -- of course cannot be

23     diminished because the Trial Chamber used this finding both in regards of

24     the mens rea for the JCE to murder, it used this finding for the

25     knowledge of the genocidal operation, and it also used this finding for


Page 291

 1     the sentence.  Of course, it's also an important finding because the

 2     Prosecution also uses it to try and say that Drago Nikolic had the

 3     genocidal intent and also to get and ask for a life sentence for

 4     Drago Nikolic.

 5             What is interesting is the source of this finding and the

 6     evidence related to it, and I would like to move in closed session at

 7     this time, Mr. President.

 8             JUDGE ROBINSON:  Yes, closed session.

 9                           [Private session]

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14                           [Open session]

15             THE REGISTRAR:  Your Honours, we're back in open session.

16             MR. BOURGON:  The situation, Mr. President, about the uniforms,

17     that, of course, there is no evidence that was led by the Prosecution

18     that there was such a need for uniforms that people would kill to get

19     one.  There's no evidence that there was uniforms available to be

20     obtained by Drago Nikolic and to be given to anyone.  Now, the

21     Prosecution, of course, tried to use in cross-examination the testimony

22     of Milosevic to show otherwise.  Now, this is interesting because

23     Milosevic was actually a Prosecution witness who was withdrawn, which the

24     Defence -- whom the Defence called by way of subpoena, to show that there

25     were no uniforms, amongst many other things.


Page 300

 1             Well, he testified, and as part of his testimony the Prosecution

 2     pulled out a document and that document is -- that document is P4600.

 3     Now, here we say, Mr. President, one of two things.  First of all, that

 4     document does not establish that uniforms were anywhere obtained by

 5     Drago Nikolic or could be obtained by Drago Nikolic.  At best, it shows

 6     that the Zvornik Brigade could obtain some uniforms because they would

 7     have obtained some uniforms on a certain date.  It establishes no link

 8     whatsoever with the situation that took place on the 14th of July.

 9             What's more important is that this document had been in the

10     possession of the Prosecution for years and it was never disclosed to the

11     Defence, and it was just pulled with someone who was their own witness

12     during cross-examination on the last day of the trial.

13             And then we come to the last point, Mr. President, which is the

14     credibility of the witnesses, and that is the credibility of

15     Lazar Ristic.  Why would the Trial Chamber not believe Lazar Ristic?  He

16     was a Prosecution witness, not a Defence witness.  In all phases of his

17     testimony, he was straightforward and the Trial Chamber actually used his

18     testimony in many respects to establish the beginning of the attack on

19     Srebrenica -- sorry, the attack on Baljkovica, to establish the acts of

20     Vinko Pandurevic on 16 July in Baljkovica, and they believe his

21     testimony.  They also believe that he did get a phone call on 14 July at

22     12.00 or thereabouts to send some men to Orahovac because there were

23     security problems with the prisoners.

24             And Lazar Ristic in all of his statements, because he gave

25     statements before his testimony and before meeting with Lazar -- with --


Page 301

 1     I need to go back in private session, Mr. President.

 2             JUDGE ROBINSON:  Yes.

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 2                           [Open session]

 3             THE REGISTRAR:  Your Honours, we're back in open session.

 4             MR. BOURGON:  When the Appeals Chamber will have looked at all

 5     the evidence related to this conversation and related to the events with

 6     Lazar Ristic and his testimony, there will be no other choice but to

 7     conclude that no reasonable Trial Chamber could reach such a conclusion.

 8     I will now ask my colleague to continue with the next argument.

 9             MS. NIKOLIC: [Interpretation] Thank you.  Good morning,

10     Your Honours.  Good morning, colleagues.  I shall not repeat these

11     grounds except some of the arguments relating to Ground 24.  I shall

12     revert to the events of the morning of 14 July.

13             Had the Trial Chamber appropriately taken into account the key

14     evidence adduced about the appellant's role on that day, 14 July, in

15     connection with the events at Kula, it would have arrived at the only

16     possible conclusion that the appellant had no role or any influence (...)

17             MR. ROGERS:  Your Honours, I do appear to have any translation.

18             JUDGE ROBINSON:  I'm in the same position --

19             THE INTERPRETER:  Interpreter's note:  We do not have the text

20     before us and it is being read out too fast.

21             JUDGE ROBINSON:  Did you hear that?

22             You'll have to speak more slowly.

23             MS. NIKOLIC: [Interpretation] My apologies to the interpreters.

24             The -- had the Trial Chamber taken into account the key facts and

25     evidence about the events involving the 14th of July at the school in

Page 305

 1     Kula, there would have been the only conclusion that the appellant had no

 2     role or any influence on the conduct of the members of the 1st Battalion

 3     in the detention at the school in Pilica and the subsequent events.

 4             Quite the contrary, in the findings of the Trial Chamber the

 5   appellant was not informed of the killing operation during the meeting with

 6  Popovic and Beara in Zvornik on the 14th of July and this is clearly evident

 7   from the testimony of Bircakovic, 11120, page of the transcript, that the

 8  Trial Chamber totally disregarded.  And it was confirmed that the appellant,

 9   once he left this meeting, clearly said to his driver, Mr. Bircakovic, that

10    he was angry, that he had not been consulted and that he had only received

11     orders to find some accommodation for people who were to be exchanged.

12             The Trial Chamber should not have ignored this fact that came

13     from Bircakovic because in all its other findings in the judgement, and I

14     quote paragraph 486, 1363, and a number of footnotes, they relied on the

15     Bircakovic testimony heavily.

16             Peric said unambiguously and categorically that his conversation

17     with the appellant he did not understand as instructions to commit

18     crimes, transcript page 11443, 11469, 11470.  Thus, no reasonable

19     Trial Chamber could establish that the appellant -- could conclude that

20     the appellant had discussed with Peric knowing that these crimes would be

21     committed and that the detainees would be killed.

22             Furthermore, I would like to point out the fact in paragraph --

23             THE INTERPRETER: The interpreter did not hear the number -- 1063.

24             MS. NIKOLIC: [Interpretation] -- the engagement of the battalion

25     of the Zvornik Brigade was done in the same manner; in other words, the

Page 306

 1     orders had come from the Zvornik Brigade down the chain of command.  The

 2     deputy commander of the 1st Battalion, Pelemis, was informed by the

 3     Zvornik Brigade of the arrival of the detainees, following which, in the

 4     morning hours, a telegram arrived from the brigade at the 1st Battalion

 5     headquarters, where all the members who were present, the members of the

 6     1st Battalion, including Slavko Peric, Babic, Petrovic, the witnesses for

 7     the Prosecution, understood to be the only order that had arrived at the

 8     battalion.  Transcript pages are quoted in our brief.  That this was the

 9     only order sent to the 1st Battalion - and I mean the call to Pelemis,

10     the commander, and the telegram - is evidenced by the reactions by

11     Petrovic and Slavko Peric, the witnesses for the Prosecution, who

12     contacted the brigade in order to try to find out what was going on and

13     where the problems with the detainees had come from.

14             When Slavko Peric was asked at the Zvornik Brigade, when he

15     visited the Zvornik Brigade, why he didn't ask for Drago Nikolic in order

16     to check this information, he said:  I didn't want to see Drago Nikolic

17     because I knew that he couldn't do anything about this problem relating

18     to the detainees in Kula, page 11442 to 44 of the transcript.  And I

19     would like to underline once again that Peric never classified the -- or

20     understood the instructions and the conversation that he received from

21     Peric as an order.  Quite the contrary, Witness Peric categorically,

22     after several questions by the Prosecutor, said:  No, you are trying to

23     impute to me that Drago Nikolic had ordered me to go to the school.

24     Transcript page 11375 and 11380.

25            All these facts have been completely ignored by the Trial Chamber.

Page 307

 1             In light of the above-mentioned facts, the particular error of

 2     the Trial Chamber was its finding in paragraph 1359 of the judgement,

 3     where the Trial Chamber concludes -- the Trial Chamber understood it -

 4     Peric's conversation with the appellant - as such, completely ignoring

 5     and rejecting all the facts that I have mentioned a moment ago.

 6             Peric clearly testified in detail, during the questioning by the

 7     Prosecution, that the only thing he was told by the appellant was that it

 8   would be a good idea to go to the school, transcript page 11376 through378,

 9   indicating that the appellant suggested and not ordered certain action.  I

10   will not repeat the rest of the arguments, they're all in paragraph 388.

11             The Trial Chamber also ignored that Peric clearly said that his

12     going to the school an hour or so later with some of the members of the

13     1st Battalion was their decision and their agreement and not the result

14     of their conversation with the appellant, page 11379.  Peric also clearly

15     said that he would have gone to Kula school in any case because he was

16     living nearby and he was concerned about his family and friends who were

17     nearby, the same page of the transcript.

18             The Trial Chamber erred in fact when it concluded that Nikolic

19     could also issue orders to Slavko Peric along the professional line.  In

20     support of this conclusion, the Trial Chamber cites its findings in

21     paragraphs 121 to 124, but there are no such findings there.  Quite the

22     contrary, these two paragraphs, which are segments of footnote 4411,

23    clearly state, as established by the Trial Chamber, that the principle of

24    the unity of command existed and was applied in the VRS, that the

25    specialty line did not overstep the regular chain of command, that the

Page 308

1     security organs received instructions and worked on counter-intelligence,

 2     and that the technical leadership chain of security organs only served to

 3     provide additional guidelines and did not have the right to command.  The

 4     quotations are from transcript pages 23330, 19635, 19636, Prosecution

 5     expert Butler.

 6            All in all, the fact that all this evidence was ignored occasioned

 7     a miscarriage of justice, because, had the Trial Chamber, when assessing

 8     these facts related to 14 July and the appellant's conversation with

 9     Slavko Peric, applied the standards from the Celebici Judgement,

10     paragraph 458, I will not quote them, the Honourable Chamber will know

11     what I am referring to, the only reasonable conclusion in this would be

12     that Drago Nikolic had no role in the events in Branjevo, Pilica, and

13     that he did not have any participation in this joint criminal enterprise

14     of detentions, killings, nor did he in any way contribute to the crimes

15     in Branjevo, Pilica, and in the final analysis, any knowledge of

16     genocidal intent or others, and of course the determination of the

17     sentence imposed on Drago Nikolic.

18             MR. BOURGON:  Mr. President, I would just like to confirm that my

19     time will be up at 11.30 and how many minutes I have left.

20             JUDGE ROBINSON:  I will just check.

21                           [Appeals Chamber and Legal Officer confer]

22             JUDGE ROBINSON:  11.15.

23             MR. BOURGON:  15?

24             JUDGE ROBINSON:  Yes.

25             MR. BOURGON:  Thank you, Mr. President.  I'll move on to my next

Page 309

 1     ground of appeal which is the one that deals with Acimovic and the

 2     conversations that he said he would have had with Drago Nikolic to

 3     pressure him to execute an order coming from above.  All I will say

 4     concerning this ground of appeal, Mr. President, is that there are two

 5     main errors that were committed by the Trial Chamber, of course, in

 6     addition to all of the contradictions.  The first one deals with the

 7     assessment of the evidence provided by Acimovic.  The Trial Chamber

 8     recognised that during his testimony he tried to diminish his role, he

 9     tried to shield himself from responsibility, and that whenever he gave

10     conflicting answers it was linked to his attempt to reduce his

11     responsibility.

12             However, when it came to assess the conversations with

13     Drago Nikolic, then the Trial Chamber said:  Well, that part we'll take

14     as being honest because of his demeanour on the stand.  Mr. President,

15     this was the main mistake, and when the Appeals Chamber will be looking

16     at all of the inconsistencies and the contradictions, you will have no

17     choice but to see that it was an integral part of his lie and of his

18     attempt to diminish his responsibility.

19             The second major mistake with respect to this ground of appeal is

20     the Trial Chamber's conclusion that the manner in which the telegrams

21     were received that night was a peripheral issue.  Mr. President, it was

22     nothing but -- it was anything but a peripheral issue.  Why?  Because

23     that issue of the coding of the telegrams, this came out in one of his

24     statements.  Early in time he did not mention that those telegrams --

25     that those conversations and telegrams were coded.  Out of the blue in

Page 310

 1     one of his statements, he comes with the fact that the conversation --

 2     sorry, the telegram was coded.  But there's a reason why he included this

 3     in his statement, and that was because he did not want anyone to be able

 4     to talk about the telegrams themselves because he did not want -- he had

 5     to find a way to justify why he went to Rocevic school on the morning of

 6     15 July to participate in the executions.

 7             Now, all of this is explained in our brief so I'm not going to go

 8     to repeat, but the coding of the conversation is critical because all of

 9     the evidence that was led goes to show that this was a secure line.

10     There was no need for -- to use codes on that line.  And there's a basic

11     misunderstanding as to what a telegram actually is.  It's not a telegram

12     that you push on a button and a paper comes out.  A telegram is no more

13     than a telephone conversation noted down by an operator.  There was no

14     need for codes, and all the story of the codes is to hide the fact that

15     it didn't take place.  For the rest I will refer the Trial Chamber [sic]

16     to our arguments in our brief.

17             Moving on to the next ground of appeal and that deals with the

18     alleged presence of Drago Nikolic on the execution site in Orahovac.

19     Now, at the execution site, this finding of the Trial Chamber was based

20     on the evidence provided by Witness PW-101.  Our brief explains exactly

21     what our position is with respect to this witness, PW-101.  Today I would

22     simply focus on the main mistake, the main error, of the Trial Chamber in

23     assessing this evidence, and that is when it looked at the evidence of

24     3DPW10.

25             If I can move in closed session, Mr. President.


Page 311

 1             JUDGE ROBINSON:  Yes.

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 5                           [Open session]

 6             THE REGISTRAR:  Your Honours, we're back in open session.

 7             MR. BOURGON:  Thank you, Mr. President.

 8             The lack of knowledge of key aspects of the genocidal

 9     operation -- enterprise on 13 July is the key aspect of this ground.

10     Drago Nikolic, at best, would have learned of the arrival of the

11     prisoners on 13 July at night.  Of course, we are challenging this

12     finding.  But for the sake of argument, let's say that he did learn of

13     the arrival of prisoners.  The Trial Chamber noted that he knows nothing

14     where these prisoners -- he doesn't know who these prisoners are.  The

15     Trial Chamber said he probably knew -- no, the Trial Chamber says he

16     knows they are Muslim.  Okay.  I don't think that can be disputed.  But

17     he doesn't know how they came to be prisoner, where they were made

18     prisoner, for what reason they are prisoner, exactly who are these

19     people, where they come from, how many they represent according to the

20     group, he knows nothing of this information.  And as we said earlier,

21     he's not there in the planning of the execution or the killing.  He's not

22     familiar or privy to the decision to kill.  He's not privy to the

23     decision to force -- to forcibly transfer the women, the children, and

24     the elderly.  He has no knowledge whatsoever until we arrive on

25     13 July 1995.


Page 315

 1             Now, during those four days, first of all, his involvement is

 2     only between the 13th and the 15th.  And in addition, Mr. President, is

 3     that this 24-hour period, how could he gain knowledge that a genocide is

 4     going on?  Even assuming that he gets information in a meeting on

 5     14th of July in the morning with Beara and Popovic, first of all, it

 6     would be difficult to say that they told him about the -- everything, the

 7     locations and the killings, when you look at the fact that Popovic did

 8     not even know anything about where to kill, who to kill, and how to kill

 9     on the 15th of July in the morning.  So it would be difficult for him to

10     tell Drago more information during that meeting.

11             But what Drago Nikolic is aware, he's aware of a massive killing

12     operation, and that is, of course, in itself very bad, no doubt about

13     that.  But how does he know that this is meant to destroy the group?  He

14     doesn't.  He does not gain any information during those four days that

15     will allow him to say that he knows that he's destroying the group.

16             The association with Popovic and Beara is significant.  The

17     Trial Chamber says:  We infer from his association with these two

18     officers that he must have known of their genocidal intent.  He might

19     have seen that they were determined to kill if, indeed, he was present at

20     the execution site in Orahovac.  First, he's not there, but even if he is

21     there, he sees a man who is determined to kill.  But that same man did

22     not kill the kid, so how can he gain genocidal knowledge of this man?

23     The kid was saved.

24             Now, Drago Nikolic also has limited information coming from the

25     fact that there's a column of men coming along, a column of men who are

Page 316

 1     attacking his brigade.  So what is the relationship between the group,

 2     the people who are prisoners, and the people who are attacking the

 3     brigade?  How can that be linked to a genocide to kill all of the

 4     Muslim -- Bosnian Muslims in Eastern Bosnia?

 5             Mr. President, the -- look at the knowledge of other people who

 6     have not been charged by genocide who have been acquitted.  Look at the

 7     knowledge of Vinko Pandurevic, what he knows.  He's -- he has access to

 8     Krstic, he has access to Mladic, he knows about Zepa, he knows about the

 9     forcible transfer, he knows about the prisoners, he knows about

10     everything.  The only thing is, of course, he's not a security officer so

11     he's acquitted of genocide and the Prosecution does not even raise a

12     ground of appeal.  I think they rightly do so.  They're right in not

13     raising a ground of appeal because Pandurevic did not know, did not have

14     any genocidal knowledge, but Drago Nikolic neither, Mr. President.

15     Drago Nikolic at his level and the fact that he does not have the means

16     to gain information from the outside knows nothing, that this is massive

17     killing operation, no matter how atrocious it is, is an operation to kill

18     prisoners but certainly not to destroy a group.

19             Thank you, Mr. President.  This concludes my submissions, unless

20     you have some questions.

21             JUDGE ROBINSON:  Thank you, Mr. Bourgon.

22             We'll take the break now and resume at 25 minutes to 12.00.

23                           --- Recess taken at 11.15 a.m.

24                           --- On resuming at 11.37 a.m.

25             JUDGE ROBINSON:  Yes, please.


Page 317

 1             MR. SCHNEIDER:  Good day, Your Honours.  Todd Schneider for the

 2     Prosecution.

 3             Your Honours, before I commence, if I could just ask or request

 4     clarification, we have our next break scheduled in 40 minutes,

 5     approximately at 12.15.  We plan to be about an hour between the two

 6     members of Prosecution team submitting.  Could we go through our full

 7     submissions and take a break after that is what I will request?

 8             JUDGE ROBINSON:  I think so, yes.  Yes, that seems reasonable,

 9     yes.

10             MR. SCHNEIDER:  Thank you very much, Your Honours.

11             Your Honours, Drago Nikolic planned and organised the mass murder

12     of thousands of Bosnian Muslim prisoners in the Zvornik area in just a

13     few days.  His contributions to the JCE to murder extended from Orahovac

14     to Kula school to Rocevic and all the way to the reburial operation.

15     Throughout it all, he worked closely with Popovic, Beara, and others to

16     arrange the detentions and the executions of the prisoners.  He was not

17     some bit player, as the Defence has argued, or someone who was unaware of

18     what was going on.  No, he was fully aware of the enormity of the crimes

19     that he was committing as a member of the JCE to murder.  And he did

20     whatever it took to ensure the murder operation, the killing machine,

21     kept running smoothly.

22             My colleague, Ms. Proulx, and I will be responding today to the

23     arguments from the Defence.  I will first discuss why the Trial Chamber's

24     findings that Nikolic was a member of the JCE to murder and that he aided

25     and abetted genocide were eminently reasonable.  Ms. Proulx will then

Page 318

 1     address the Defence challenges to Nikolic's sentence.

 2             For the remainder of the Defence challenges, we would rely on our

 3     response brief.

 4             Preliminarily, I would note that, just as in its appeal brief,

 5     the Defence has made several arguments warranting summary dismissal, most

 6     notably yesterday and today it has re-argued its submissions from trial

 7     without showing any error by the Trial Chamber.  My learned friend even

 8     acknowledged this yesterday, that he was repeating his arguments from

 9     trial.

10             Turning now to the Chamber's findings that Drago Nikolic shared

11     the intent for the JCE to murder and made a significant contribution.

12     You've heard from the Defence that Nikolic played a small role in the

13     murder operation, that he didn't know much about what was happening.  The

14     best repudiation of that argument is the judgement itself and what the

15     Chamber found Nikolic actually did and actually intended.  His efforts to

16     keep the killing operation running smoothly touched every school

17     detention site in Zvornik and four of the major execution sites.  He was

18     at the very heart of the JCE to murder as it unfolded throughout Zvornik,

19     his area of responsibility as the Zvornik Brigade chief of security.

20             And I'm going to briefly recap for you these findings.

21             Contrary to what the Defence has argued in its appeal, the actual

22     starting point for Nikolic's involvement is 13 July 1995, when the mass

23     murder operation is already in full swing.  It is at this point that

24     Nikolic joined the JCE to murder, as the Trial Chamber reasonably found,

25     paragraph 1389 of the judgement.

Page 319

 1             Your Honours should have on your screen, and everyone throughout

 2     the courtroom, a map I'll be referring to.

 3             On 13 July, Nikolic was on duty as the Zvornik Brigade forward

 4     command post in Kitovnice.  Popovic called him on the phone.

 5     Momir Nikolic then confirmed to him in person.  Both told him that

 6     Nikolic's help was needed to deal with a large number of prisoners coming

 7     to Zvornik to be killed.  Nikolic didn't hesitate.  He called Obrenovic.

 8     He asked to be relieved from duty.  He asked for a squad of military

 9     police.  All so Nikolic could carry out the murder plan.  Obrenovic

10     agreed.

11             And as the Trial Chamber found, Nikolic left his post and went to

12     Orahovac, to Grbavci school.  The squad of military police that he asked

13     for went from Standard barracks to Grbavci.  Once there, Nikolic

14     supervised the military police during the night of 13 July, who were

15     guarding the prisoners already present there.  And this can be found at

16     paragraphs 470 through 471 and 1345 to 1356 of the judgement.

17             The Defence has failed to rebut the abundance of evidence

18     underlying these findings.

19             Now let's turn from 13 July to 14 July.  Again, the Defence tries

20     to limit Nikolic's involvement on this day, but in fact, as the

21     Trial Chamber found, on this date Nikolic was involved in three school

22     detention sites in Zvornik - Orahovac, Kula, and Petkovci - in addition

23     to planning the overall murder operation.

24             In fact, Nikolic started the day, as you can see on the next

25     slide, by meeting with Popovic and Beara at the Zvornik Brigade

Page 320

 1     headquarters in Standard barracks to plan the murder operation,

 2     paragraphs 472 and 1357 of the judgement.  Nikolic then went to Vidikovac

 3     hotel in Divic to meet the convoy of prisoners being led by Popovic.

 4     Once the convoy arrived, he ordered his driver, Milorad Bircakovic, to

 5     join the convoy.  Nikolic followed in his own car and went to Orahovac.

 6     And this is from paragraphs 472 to 474 and 1358 of the judgement.

 7             Once Nikolic got to Orahovac, he was there throughout the day and

 8     night, where prisoners were packed in so tightly at the school that they

 9     were forced to sit on each other's laps, where they were moved in groups

10     to the execution site 1 kilometre away, lined up, and shot dead, until

11     the bodies piled up on top of each other.  Between 800 and

12     2.500 prisoners were murdered there in a single day, judgement

13     paragraph 478 to 492.

14             Where was Nikolic in all this atrocity?  As the Trial Chamber

15     reasonably found, he was directing the military police who guarded the

16     prisoners until they could be killed.  Together with Popovic, he was

17     directing the soldiers at the execution site itself.  He was doing

18     whatever it took to ensure the killing machine kept running smoothly.

19     When Lazar Ristic tried to withdraw his 4th Battalion soldiers from the

20     school, Nikolic stepped in.  He offered the men new uniforms if they

21     would stay to help with the murder operation.  The men accepted Nikolic's

22     bribe; they stayed and helped.  Paragraphs 486 and 1361 to 1365 of the

23     judgement.

24             You've heard a lengthy challenge today from the Defence about the

25     uniforms.  The Defence has claimed the only source for this finding was


Page 321

 1     PW-168 and it is argued today that there is no other corroborating

 2     evidence.  This is simply not correct.  PW-168's testimony that Nikolic

 3     used Sreten Milosevic to bribe soldiers with new uniforms to stay at

 4     Orahovac was supported by, among others, a material list for uniforms,

 5     which you will see in a moment.  This exhibit showed that just three

 6     days -- and I believe now you have that Exhibit P4600 in front of you.

 7     This exhibit showed that just three days after the executions at

 8     Orahovac, 19 new uniforms were issued to the Zvornik Brigade and that

 9     this order was signed by Sreten Milosevic himself.  This was all noted in

10     footnote 4416 of the trial judgement.

11             This finding was also supported by the fact that, contrary to

12     what you've heard today, members of the 4th Battalion did assist with the

13     executions at Orahovac, paragraph 481 of the judgement.

14             Your Honours, the Trial Chamber reasonably rejected

15     Lazar Ristic's and Sreten Milosevic's contrary testimony when they were

16     evasive on this point, which implicated them in the murders.  And again

17     this was discussed at that same footnote of the judgement, 4416.

18             Your Honours, if we could go into private session out of an

19     abundance of caution.

20             JUDGE ROBINSON:  Yes.

21                           [Private session]

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

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 3   (redacted)

 4   (redacted)

 5                           [Open session]

 6             THE REGISTRAR:  Your Honours, we're back in open session.

 7             MR. SCHNEIDER:  I would also note at this point that Nikolic has

 8     not contested his presence at Orahovac, noted by the Trial Chamber at

 9     paragraph 1365 of the judgement.  However, contrary to the Defence

10     arguments, Nikolic's contributions on 14 July were not just limited to

11     Orahovac.  Looking at the top of the slide we see the 1st Battalion

12     command.  In the morning of 14th July 1995, the 1st Battalion command

13     received a telegram ordering them to prepare Kula school for incoming

14     prisoners.  As the Trial Chamber reasonably found at judgement

15     paragraphs 1359 through 1360, about an hour later Nikolic followed up on

16     this telegram.  He called Slavko Peric, an assistant commander.  He

17     ordered Peric to secure the prisoners at Kula school.  Because of

18     Nikolic's call, Peric and 10 to 15 soldiers from the 1st Battalion went

19     to the school.  They prepared it for the prisoners, and once the

20     prisoners got there these same soldiers remained to help guard the

21     prisoners that day.

22             Hundreds of prisoners were detained at Kula school in awful

23     conditions till 16 July when they were transferred to Branjevo Military

24     Farm and shot dead, judgement paragraphs 527 through 539.

25             Nikolic has not disputed that he called Peric and ordered him to


Page 323

 1     go to the school.  Whether it was an order, as the Trial Chamber

 2     reasonably found, or only a suggestion, as Nikolic has argued in his

 3     appeal brief and reply brief, what matters is that Peric and his men went

 4     to the school because of Nikolic's intervention.  The Defence is wrong

 5     when it has argued today that he had no role in this.

 6             For the remainder of their challenges on this point, I would

 7     refer Your Honours to our response brief, paragraphs 109 through 114.

 8             Finally for the 14th of July, I want to note that Nikolic went in

 9     the late afternoon to Petkovci school, and as the Trial Chamber

10     reasonably found at judgement paragraph 1366, he was with Beara at a

11     crossroads near the school.  At this time, over 800 prisoners were being

12     held at the school in terrible conditions.  Early the next morning, the

13     prisoners were taken to Petkovci dam and murdered en masse.

14     Paragraphs 494 through 503 of the judgement.  Again, Nikolic has not

15     contested that he was at the crossroads with Beara on 14 July, and that's

16     at paragraph 10 of his reply brief.

17             We now leave 14 July and turn to 15th July.  The Defence is wrong

18     when it has claimed he did nothing for the murder operation on the 15th.

19     We see that on that day he was the duty officer at Standard barracks.

20     Between 1.00 and 2.00 a.m. that day, the 2nd Battalion received a

21     telegram from Zvornik Brigade command, ordering them to send an execution

22     squad to Rocevic school.  Nikolic followed up on the telegram, just as he

23     did the day before with Kula school.

24             And as the Trial Chamber reasonably found in paragraphs 1367

25     through 1369 of the judgement, Nikolic called 2nd Battalion commander

Page 324

 1     Srecko Acimovic at 2.30 a.m.  Nikolic told Acimovic the order for the

 2     execution squad came from above and had to be carried out.  A few hours

 3     later, Nikolic called again.  He asked Acimovic if he sent the execution

 4     squad.  When Acimovic said no, Nikolic got angry.  He ordered Acimovic

 5     himself to go to Rocevic and meet Nikolic there.  Acimovic went to

 6     Rocevic, where he met Popovic instead.  And when Popovic demanded his

 7     help, Acimovic got volunteers at the school to help with the execution.

 8     And these were the Chamber's findings at paragraphs 508 through 511 of

 9     the judgement.

10             More than a thousand prisoners were held at the school and then

11     moved to a gravel pit in Kozluk that same day, 15 July.  They were shot

12     dead there, even a 12- to 14-year-old boy, paragraphs 517 to 524.

13             THE INTERPRETER:  Could counsel please slow down.

14             MR. SCHNEIDER:  I apologise for going too fast.

15             For the remainder of the Defence's challenges on this point,

16     including the telegram that was referred to earlier today, we refer to

17     our response, paragraphs 228 to 266.

18             That concludes 15 July.  However, contrary to the arguments

19     you've heard, his contributions to the JCE to murder did not end there.

20     Nikolic was involved in the reburial operation.  As the Trial Chamber

21     reasonably found at judgement paragraphs 1381 through 1384, on

22     22 September 1995, Nikolic informed Popovic that fuel to be used for the

23     reburial operation had not yet arrived.  In addition, Nikolic discussed

24     the reburial operation in November 1995 with Obrenovic.  The Defence

25     argument today about the underlying evidence is not correct.  And if we

Page 325

 1     can go to the next exhibit.

 2             This is the exhibit the Defence referred to earlier today,

 3     P2391e, which was - contrary to what the Defence suggested - explicitly

 4     referred to and reasonably relied on at footnote 4476 of the judgement.

 5     You heard some excerpts from this exhibit at the beginning and middle.  I

 6     would take Your Honours, if I would for a moment, towards the bottom

 7     where at the bottom we see P, which we know is Popovic, and M, which the

 8     Chamber reasonably found was Nikolic.

 9             P says:

10             "Could you please find out if it came," in this context the fuel,

11     "if it arrived.  Call the gas station."

12             And Nikolic says:

13             "Okay.  Okay."

14             Popovic repeats that request and Nikolic agrees.

15             The Trial Chamber therefore reasonably found that Nikolic had

16     been involved in the reburial operation, albeit as the Chamber noted to a

17     limited extent.  Your Honour, my, hopefully, brief summary of the

18     Chamber's main findings show that it reasonably found that Nikolic shared

19     the intent for the JCE to murder and made a significant contribution.

20             I'm going to turn now to the Defence challenges regarding his JCE

21     convictions and his conviction for aiding and abetting genocide.  I'm

22     going to focus on two main arguments.  First, his level of involvement

23     and awareness; and second, the credibility of the witnesses who

24     implicated him.

25             Starting with Nikolic's level of involvement and awareness,

Page 326

 1     despite the findings I've just summarised, the Defence has argued the

 2     following:  Nikolic's role was limited, his contributions were limited,

 3     his awareness was limited.  How can it do so?  Only by making this

 4     argument:  That Nikolic could have done more, he could have committed

 5     more crimes in more places for a longer period of time.  And this is in

 6     the Defence appeal brief, particularly 13 through 16, 28, 31, and

 7     elsewhere.

 8             As if somehow, Your Honours, Nikolic's planning and organising

 9     the murder of thousands of Bosnian Muslim prisoners in just a few days

10     was not a sufficiently grave crime on its own.  Such an argument should

11     be summarily rejected.

12             The Defence similarly argues that Nikolic was unaware, clueless,

13     as to what was going on around him.  They argue this despite Nikolic's

14     on-the-ground presence during the course of the murder operation, his

15     working together with Popovic, Beara, and others, and his arranging for

16     soldiers to help with detentions and executions.  Given the weight of

17     these Trial Chamber findings, the Defence ends up making the argument

18     that Nikolic only intended the murder of thousands of prisoners, but not

19     genocide or persecution.  For example, in its appeal brief in

20     paragraphs 110, 118, and 153.  As if this would justify Nikolic's

21     criminal conduct.

22             In any event, contrary to what you've heard today, Nikolic was at

23     a minimum well aware of the genocide to which he was contributing.  I say

24     "at a minimum" because the Prosecution has appealed the Trial Chamber's

25     failure to convict Nikolic for committing genocide.

Page 327

 1             In any event, the Trial Chamber reasonably found at

 2     paragraphs 1404 through 1407 that Nikolic was aware that he was assisting

 3     the crime of genocide based on what he saw and learned on 13 and 14 July,

 4     including, among others, that he knew of the scale and scope of the

 5     murder operation, that he saw the ruthless determination that every

 6     detained Bosnian Muslim male would be killed, and that he would have

 7     known of Popovic and Beara's genocidal intent based on his interactions

 8     with them.

 9             This is a good place for me to briefly address the Defence

10     arguments yesterday and today that Nikolic allegedly only had limited

11     interactions with Beara and Popovic.  Your Honours, the Trial Chamber

12     reasonably found the opposite, that Nikolic worked closely with them to

13     plan and co-ordinate the murder operation, based on the facts that

14     Popovic called Nikolic on 13 July about the murder operation, that

15     Nikolic met with Popovic and Beara on 14 July at Standard barracks to

16     discuss the same operation, that he was on 14 July with Popovic at

17     Orahovac and with Beara in Petkovci, and finally, that he updated Popovic

18     about the fuel situation during the reburial operation.  And this is

19     noted at various paragraphs, between paragraphs 1345-1381 of the

20     judgement.

21             I will also draw Your Honours' attention to paragraph 1069 of the

22     judgement where the Trial Chamber discussed how these three accused

23     worked together to implement the murder operation.

24             Turning to the Defence's second challenge, its other main line of

25     attack has been to challenge the credibility of numerous witnesses who

Page 328

 1     implicated Nikolic.  And it is a number of witnesses that they have to

 2     challenge because the Trial Chamber's findings regarding Nikolic's

 3     criminal conduct rested on at least 15 witnesses, as set out in our

 4     response brief, paragraph 100.  As well as numerous supporting documents,

 5     including Zvornik Brigade log-books and notebooks from the relevant

 6     time-period.

 7             The Defence, though, repeatedly argues as if there's only one

 8     piece of evidence or just one witness supporting a particular finding

 9     when, in fact, there's a consistent pattern of numerous pieces of

10     evidence supporting each other in the Trial Chamber's ultimate finding.

11             To highlight one example of this which the Defence has

12     challenged, the Chamber's findings at judgement paragraphs 1345 through

13     1356, that Nikolic joined the JCE to murder on 13 July and went to

14     Grbavci school that night to supervise the military police there.  This

15     was based on, first, PW-168's testimony about the call from Popovic to

16     Nikolic and Nikolic to Obrenovic; second, Momir Nikolic's testimony that

17     he told Nikolic in person; third, Mihajlo Galic's testimony that he

18     relieved Nikolic at the forward command post on 13 July; fourth, a

19     log-book entry showing Galic did relieve Nikolic on that date; fifth,

20     PW-143 and Dragoje Ivanovic's testimony that they saw Nikolic at

21     Grbavci school on 13 July; and sixth, Zvornik Brigade vehicle log that

22     Nikolic went to Orahovac on 13 July.  And you can find the references in

23     footnotes to paragraphs 1345, 1350, and 1354 of the judgement.

24             The Defence, though, has ignored this wealth of evidence

25     underlying the Chamber's findings.

Page 329

 1             I'll just note briefly a few other examples where corroborating

 2     evidence supports the witnesses challenged by the Defence.

 3             We've already discussed PW-168's testimony about the uniforms.

 4     I'll turn to another example which is PW-101's testimony that Nikolic was

 5     present at the execution site in Orahovac.  This was corroborated by,

 6     among others, the testimony of PW-143, a member of the military police

 7     who saw Nikolic drive towards the site, paragraph 1362 and footnote 4420

 8     of the judgement.

 9             The Trial Chamber reasonably rejected the Defence's challenges to

10     PW-101's testimony at footnotes 1772 and 4421.  The Defence has merely

11     repeated these same arguments today without showing any error by the

12     Trial Chamber.

13             For the remainder of the Defence challenges on this point, we

14     would refer you to our response brief at paragraphs 267 to 289.

15             Another example touched upon today by the Defence,

16     Srecko Acimovic's testimony that Nikolic called him to follow-up on the

17     order for an execution squad was supported by, among others, the

18     testimony of Mitar Lazarevic, also from the 2nd Battalion, who

19     corroborated Acimovic as to a telegram requesting an execution squad and

20     then a follow-up phone call, paragraph 509 and footnote 1864 of the trial

21     judgement.

22             These same examples I've just noted further show that the

23     Defence's general attacks at the hearing and in its brief on the

24     credibility of PW-168, Momir Nikolic, Srecko Acimovic, PW-101, and others

25     are unfounded.  Indeed, these arguments repeat the Defence trial

Page 330

 1     submissions on these same witnesses, which the Trial Chamber fully

 2     considered and then rejected.  For example, judgement

 3     paragraphs 48 to 53, 506 to 509, and 1346 to 1356.  These arguments

 4     should be dismissed again on appeal for the detailed reasons noted in our

 5     response at paragraphs 174 to 343.

 6             Furthermore, with respect to the Defence's specific attacks on

 7     the credibility of PW-168 and Momir Nikolic as to his involvement in the

 8     murder operation from 13 July 1995, I note that Nikolic accepts that he

 9     is criminally responsible for his part in the Orahovac murders.  He

10     accepts that his conduct is best formulated as planning or ordering and

11     invites a conviction for the Orahovac murders as a violation of the laws

12     or customs of war under Count 5.  And I refer Your Honours to the Defence

13     Notice of Appeal, paragraph 92.

14             Of course, the Prosecution does not accept that this correctly

15     reflects his role and notes that any acceptance of responsibility was

16     only offered at the close of trial, as noted at paragraph 1365 of the

17     judgement.  But this acceptance does place Nikolic at the murder

18     operation in Orahovac ordering and/or planning these crimes, which begs

19     the questions:  How and why did he come to be there?

20             The evidence of PW-168 and Momir Nikolic provide the only

21     reasonable answer on the totality of the evidence.  He came to be there

22     because on 13 July he was told by Popovic to make preparations for the

23     large number of prisoners coming from Bratunac to Zvornik to be killed.

24     He made preparations that same night and attended the meeting the morning

25     of the 14th with Beara and Popovic where the details of those day's

Page 331

 1     events would be discussed, explaining his presence at the operation on

 2     the 14th.

 3             The evidence of all the other witnesses who implicate Nikolic in

 4     the events at other schools and places of detention is also entirely

 5     consistent with his role in the killings at Orahovac.  Nikolic's

 6     acceptance significantly undermines his arguments about the unreliability

 7     and credibility of PW-168 and Momir Nikolic.

 8             To conclude, Your Honours, Drago Nikolic "played an important

 9     role in the JCE to murder in terms of planning and organisations

10     detentions and executions."  Trial judgement paragraph 2171.

11             The Trial Chamber properly found Nikolic to be guilty through JCE

12     of murder, extermination, and persecution, and of aiding and abetting

13     genocide.  The Defence challenges on these issues should be dismissed.

14             And this concludes my presentation, unless Your Honours have any

15     questions.

16             JUDGE ROBINSON:  Thank you.  The response --

17             MR. SCHNEIDER:  Apologies, Your Honour, we now -- I now hand --

18     if there are no questions, I will hand the floor to my colleague, if you

19     give us just one brief moment.

20             JUDGE ROBINSON:  Yes, yes -- [overlapping speakers] -- the

21     Prosecution.

22             MS. PROULX:  Good morning, Your Honours.  My name is

23     Marie-Helene Proulx, and I will briefly address the Defence's arguments

24     relating to sentencing.

25             Your Honours, Nikolic was sentenced to 35 years' imprisonment for

Page 332

 1     aiding and abetting genocide and for planning, ordering, and committing,

 2     as a member of the JCE to murder, extermination, murder, and persecution.

 3     Nikolic's sentence is far from excessive.  In fact, as we will argue in

 4     our own appeal, it is manifestly inadequate.

 5             I will address the three issues raised by the Defence yesterday

 6     and this morning; namely, the gravity of the crimes, Nikolic's personal

 7     characteristics, and the comparison with other cases.

 8             First, the Defence argued yesterday that the Trial Chamber erred

 9     in its assessment of the gravity of the crimes.  However, in doing so,

10     they ignored the paragraphs of the trial judgement dealing with this very

11     issue, and that is trial judgement at paragraphs 2148 to 2152.  Instead,

12     they challenged various factual findings regarding Nikolic's involvement

13     in the crimes he was found guilty of.  The Defence's challenges to these

14     Trial Chamber's findings were discussed earlier by my colleague

15     Mr. Schneider and I will not repeat them here.  Your Honours, if the

16     Trial Chamber erred in its assessment of the gravity of the crimes for

17     the purposes of sentencing, it is by minimising the gravity of Nikolic's

18     conduct, not by overstating it.

19             The second point I would like to address is the Defence's

20     argument that the Trial Chamber erred when assessing the impact of

21     Nikolic's personal character.  Your Honours, in their oral arguments as

22     well as in their appeal brief, the Defence merely repeats arguments made

23     at trial, such as the fact that Nikolic held a relatively low rank, that

24     he was allegedly disturbed by what he was asked to do, his

25     characteristics as a good soldier, or his alleged expression of remorse

Page 333

 1     or empathy.  These factors were already considered by the Chamber at

 2     trial judgement paragraphs 2173 to 2178.  The Defence ignores the broad

 3     discretion of Trial Chambers in accepting or rejecting and in determining

 4     the weight to be given to aggravating and mitigating factors.  See, for

 5     example, the Dragomir Milosevic appeal judgement at paragraph 297 and the

 6     Mrksic appeal judgement at paragraph 352.

 7             And even if the mitigating factors put forward by the Defence had

 8     been found to have any or more weight, the Defence does not show that

 9     considering the horrendous nature of the crimes he was found guilty of as

10     well as his persistent and determined contribution to these crimes, this

11     would have lowered his already insufficient sentence.  These arguments

12     must fail.

13             Finally, the Defence relies on misguided comparisons between

14     Nikolic's case and those of other accused before the Tribunal.  However,

15     such comparisons, if they are to be of any assistance, must at least be

16     to comparable cases.  This is not so here.  While the Defence cites to

17     Srebrenica-related cases, it ignores other crucial facts, such as the

18     crimes the accused were convicted for, their role in these crimes, and

19     aggravating and mitigating factors.  I refer to our response brief at

20     paragraphs 31 to 38.

21             Your Honours, none of the cases cited by the Defence today or in

22     their brief show any unfairness and certainly nothing that could compel

23     the Appeals Chamber to reduce Nikolic's sentence.

24             Your Honours, for the remainder of Nikolic's challenges against

25     his sentence, we rely on our response brief.


Page 334

 1             Unless Your Honours have any questions, this concludes our

 2     response to Nikolic's appeal.  For all of the reasons explained today and

 3     those contained in our written brief, the Prosecution requests that

 4     Nikolic's appeal be dismissed in its entirety.

 5             Thank you.

 6             JUDGE ROBINSON:  Thank you very much.

 7                           [Appeals Chamber confers]

 8             JUDGE ROBINSON:  All right.  We'll take the break and resume at

 9     1.50.

10                           --- Luncheon recess taken at 12.20 p.m.

11                           --- On resuming at 1.51 p.m.

12             JUDGE ROBINSON:  Yes, counsel, for the response.

13             MR. BOURGON:  Good afternoon, Mr. President.  Good afternoon,

14     honourable Judges.  I will be the one replying to the Prosecution

15     response to Drago Nikolic's appellate arguments.  Let me begin,

16     Mr. President, by saying that I've always thought that a response should

17     to arguments put by the appellant.  What we have heard this morning is

18     nothing more again than a narrative based on findings in the trial

19     judgement.

20             My colleague from the Prosecution this morning mentioned

21     something about summary dismissal; it's a common theme that we find in

22     almost every Prosecution brief that is put forward, summary dismissal

23     because they raise issues that were debated at trial.  Yes, we did raise

24     some issues that were debated at trial, of course we did.  But those are

25     issues on which the Trial Chamber made errors.  If we speak about the


Page 335

 1     credibility of a witness which was debated at trial and on which the

 2     Trial Chamber did pronounce, that doesn't preclude the fact that the

 3     Trial Chamber may have erred in its assessment of that witness and is

 4     perfectly legitimate for the appellant to raise such an issue.

 5             This brings me to my first topic I would like to raise in reply

 6     this afternoon concerning the credibility of witnesses.  Prosecution

 7     states that there would be so many witnesses that would not be credible

 8     that this in itself would make probably a case against Drago Nikolic

 9     true.  But let's take a quick look at the witnesses mentioned by the

10     Prosecution.  They begin by mentioning Witness P-168, and I'd like to

11     move in closed session, Mr. President.

12             JUDGE ROBINSON:  Yes.

13                           [Private session]

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 336

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11                           [Open session]

12             THE REGISTRAR:  Your Honours, we're back in open session.

13             MR. BOURGON:  Thank you, Mr. President.

14             Regarding Momir Nikolic, the second witness mentioned by my

15     colleague.  Momir Nikolic is a witness who negotiated a guilty plea with

16     the Prosecution, and he was found by the Trial Chamber initially in his

17     case not to have been truthful.  And the recommended sentence actually

18     between the Prosecution and the Defence was not -- was not followed by

19     the Trial Chamber which imposed on him a 27-year sentence rather than a

20     20-year sentence because he was not truthful.  That was changed on appeal

21     later and we went back to a sentence of 20 years.  But the main issue is

22     that in this case there were issues with Momir Nikolic, such issues that

23     led the Prosecution to say:  We want to withdraw this witness because we

24     don't believe him.  The Prosecution filed a motion to say:  We withdraw

25     the witness.  And the witness was withdrawn.  Where does this evidence


Page 337

 1     come from?  Because the Trial Chamber at the end of the case decided that

 2     they needed his testimony and they called him pursuant to Rule 98, even

 3     though the Prosecution said they did not believe their own witness.  And

 4     that's the same witness who concluded an agreement with the Prosecution

 5     to be truthful forever after.

 6             The next witness I'm going to talk about which is mentioned by my

 7     colleague is PW-143.  Again, an interested witness.  Why is this so?

 8     Well, because this witness by his own testimony was involved in following

 9     the trucks between the Orahovac school and the Lazete killing site.  But

10     that's not so bad in itself.  Other witnesses have also said that they

11     were following the trucks.  (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19             He ended up in Kozluk as part of the execution squad.  This was

20     testified about --

21             JUDGE ROBINSON: [Microphone not activated] -- redact that,

22     Madam Registrar.

23                           [Appeals Chamber and Registrar confer]

24             JUDGE ROBINSON:  Okay.  We go into private session.

25                           [Private session]


Page 338

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10                           [Open session]

11             THE REGISTRAR:  Your Honours, we're back in open session.

12             MR. BOURGON:  The next witness mentioned by the Prosecution is

13     Acimovic.  And Acimovic, of course, is the man who would have received

14     the phone calls.  But even my colleague this morning said that Acimovic

15     was involved in terms of the selection of the killers.  He was involved

16     also in getting ammunition.  He was involved in getting shooters.  And he

17     was involved in getting trucks.  This, Mr. President, is certainly a

18     witness who was interested in finding a way to reduce his responsibility

19     in terms of the witness who can testify to that effect on the record at

20     transcript 13377 to 13378, 13387, 13388, and then again at 13392 to

21     13393.

22             Now, since we're talking about Acimovic, because he's the last

23     witness that was really mentioned as the witnesses which have to be found

24     to be not reliable by the Defence, when you look at Acimovic, what the

25     Prosecution did not say this morning, they thought that -- they said his


Page 339

 1     evidence was corroborated and they gave you for an example

 2     Mitar Lazarevic.  Mitar Lazarevic testified but he contradicted his boss

 3     on almost every single aspect of the telegrams and the conversation.

 4     Whereas Acimovic talked about two conversations and two telegrams;

 5     Mitar Lazarevic said one conversation, one telegram.

 6             More importantly, when the issue of the name of the person who

 7     called in the morning between 7.00 and 8.00, allegedly Drago Nikolic,

 8     when this name came up, Mitar Lazarevic said:  I know that Acimovic had a

 9     telephone conversation.  I don't know who he was speaking to.  So he

10     can't corroborate certainly that Acimovic is speaking with Nikolic.

11             Now, more importantly, Acimovic in his testimony said:  I

12     discussed the matter with the people in my command.  But no, he did not

13     discuss because Mitar Lazarevic said:  We did not discuss this.  There's

14     even a more important issue.  Acimovic in his testimony said:  I

15     discussed this with the company commanders.  Company commander, of course

16     he's a battalion commander and he has four company commanders and he

17     says:  The telegram told me:  Discuss this with your company commander.

18     Not only do you get shooters to go to Rocevic, but make sure you discuss

19     that with your company commanders.  In itself is not believable.  But he

20     said that this negotiation or this information to the company commanders

21     took place over a secure line.  Well, Mitar Lazarevic said:  No, no, no,

22     no, the company commanders were already at the command, we called them.

23     They were summoned and they came to the command.  It's not something that

24     you would forget, it's not something.  It's the fact that both Acimovic

25     and Mitar Lazarevic are lying to protect Acimovic.


Page 340

 1             I move to the issue of Orahovac.  My colleague this morning,

 2     talking about Orahovac, said that -- actually, he underscored the

 3     involvement of Drago Nikolic in these events, starting from the night of

 4     the 13th to the 14th, and he said that we think his involvement was

 5     limited.  Mr. President, when we said Drago's involvement was limited, we

 6     did not mean to say that his involvement was not serious.  That's not

 7     what we meant to say at all.  We meant to say that when you look at all

 8     of these events, his contribution compared to that of others is much more

 9     limited.  And we asked the Appeals Chamber to draw special attention to

10     the fact that he extracted himself from those events.  Not a word was

11     said this morning about Drago Nikolic extracting himself.  The fact that

12     on the 16th in the morning he is doing nothing at Standard barracks, the

13     command, he's not on duty, and yet people are organising killings in Kula

14     school, Pilica, and Branjevo Farm and he's not there.  He has lunch with

15     his wife, I said that yesterday already.

16             Now, talking about Orahovac and we have the evidence of PW-101.

17     Now, PW-101, unlike the other people I've mentioned, is not an interested

18     witness.  We cannot say that he has any reasons not to provide true

19     evidence.  So that's one way.  (redacted)

20   (redacted)

21   (redacted)

22             JUDGE ROBINSON:  Yes.

23                           [Private session]

24   (redacted)

25   (redacted)

Page 341

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8                           [Open session]

 9             THE REGISTRAR:  Your Honours, we're back in open session.

10             MR. BOURGON:  Thank you, Mr. President.

11             Regarding the evidence of Drago Nikolic being at the execution

12     site, the only evidence on the record, direct evidence, is PW-101.  If we

13     remove the evidence of PW-101, then what is left?  My colleague from the

14     Prosecution this morning mentioned Witness 143 who would have seen

15     Drago Nikolic drive away in a car.  You know, Mr. President -- should I

16     stop here?

17             JUDGE ROBINSON:  No, no, go ahead.

18             MR. BOURGON:  You know, Mr. President, that Witness PW-143 is the

19     object of one of our grounds of appeal because what he stated we feel is

20     an error of the Trial Chamber.  He said in examination-in-chief:  I saw

21     Drago Nikolic drive away in a car.  He said in cross-examination:  Well,

22     I'm not so sure he was in the car.  (redacted)

23   (redacted)

24   (redacted)?  Did you see him or did you

25     not see him?  He said:  Well, yeah, of course I saw him.  That's not a


Page 342

 1     permissible question in re-examination.  On that basis --

 2             MR. SCHNEIDER:  Apologies to my colleague, but he did mention the

 3     name again in open session.

 4             MR. BOURGON:  Which one?

 5             MR. SCHNEIDER:  On line 7, sorry.

 6             MR. BOURGON:  I apologise.  I'm sorry.

 7             JUDGE ROBINSON:  Yes, we'll do another redaction.

 8             MR. BOURGON:  Thank you.  Thank you.

 9             So this witness, Mr. President, which is the object of two

10     grounds of appeal, the first one about what he would have seen,

11     Drago Nikolic driving away in his car.  But you have on the record the

12     evidence of Drago Nikolic's driver, the name is Bircakovic, and

13     Bircakovic says:  I often drove alone in the car.  Bircakovic also

14     testified that when he followed the trucks to the execution site,

15     Drago Nikolic was not in the car.  Bircakovic also said that he drove

16     Trbic around using the same car.  So that car which was assigned or not

17     to Drago Nikolic was used for many purposes.  So when you remove this and

18     you remove PW-101, we respectfully submit that you have nothing to even

19     infer that Drago Nikolic was present on the execution site the night of

20     14 July 1995.

21             I have to say also one thing that my colleague said this morning

22     concerning the 13th July.  He said that Drago Nikolic was seen at the

23     school and he basically highlighted the evidence in support of this

24     finding.  What he did not say, however, is that the witness PW-143 is the

25     only one who said that he saw Drago Nikolic that night at the school, not

Page 343

 1     only is he the only one, he even said that he wasn't so sure.  But the

 2     Trial Chamber found that Drago Nikolic was nonetheless present.

 3             My colleague also said this morning that Witness Ivanovic would

 4     have seen Drago Nikolic at the school in Orahovac that night.  Well, that

 5     witness did not see Drago Nikolic the night of 13th July.  That's an

 6     error from my colleague because Ivanovic saw Drago Nikolic in the morning

 7     of 14 July, not in the evening.  Only one witness saw Drago Nikolic there

 8     or would have seen Drago Nikolic, although he's not sure, and that is

 9     PW-143.

10             Moving on to the issue of the uniforms.  Regarding the uniforms,

11     the issue whether the men of Lazar Ristic remained in Orahovac is an

12     important issue.  And we -- my colleagues on the Prosecution did not

13     respond to our arguments that these men -- that there is no evidence that

14     they did stay there.  The only contentious issue here that would allow

15     maybe to infer that the men from the 4th Battalion stayed there is the

16     presence of Gojko Simic at the execution site.  But I went through the

17     evidence this morning that Gojko Simic, although he might have been at

18     the execution site, that Gojko Simic ended up there on his own without

19     the orders of Lazar Ristic.

20             And this regard, Mr. President, I need to make -- to highlight a

21     correction which we will try to endeavour to have modified.  We noted

22     just in the last few minutes a mistake at paragraph 479 of the judgement,

23     where it is mentioned -- and that is paragraph 479, where it says that

24     Bircakovic would have seen Gojko Simic as -- would have identified

25     Gojko Simic as one of Lazar Ristic's men.  Well, that isn't correct and I

Page 344

 1     point the Appeals Chamber to transcript 11038 to 11039.  Bircakovic did

 2     know Gojko Simic but never said that Gojko Simic would have been one of

 3     the men sent by Lazar Ristic.

 4             Regarding the presence of Drago Nikolic in all of these places,

 5     there is one thing that is very important here and that is the fact that

 6     we have a pattern of who did those killings, who were the shooters?  We

 7     have evidence about three areas or four out of five.  We have evidence

 8     that there were shooters in Pilica cultural centre and the Branjevo Farm,

 9     and we know from the record that was the 10th Sabotage Detachment.  We

10     have information about Rocevic and Kozluk, where we have military police

11     from the Bratunac Brigade who were there guarding the prisoners and the

12     evidence suggests that they were the shooters.  We also have information

13     that in Orahovac the morning of 14th July - and I refer you to the

14     testimony of Witness Ivanovic at transcript 14544, who confirmed, and I

15     read:

16             "In the morning, around 8.00, the brigade chief, Nikolic, came,

17     and shortly afterwards, some 20 to 30 soldiers arrived as well.  He told

18     Jasikovac that we were free to go, but that we should be ready and close

19     by with the minibus."

20             The shooters are not the military police from the

21     Zvornik Brigade.  They might have followed trucks and those who did

22     testified to that effect, but the shooters came from elsewhere.  Why

23     would there be any reason, if we are looking for circumstantial evidence,

24     for Drago Nikolic to be at the execution site when he was already seen at

25     the school?

Page 345

 1             I come to my last issue and that is dealing with the knowledge.

 2     This morning it was mentioned that regarding the knowledge, Drago Nikolic

 3     knew about the scale and the scope of the operation, that it was a

 4     ruthless operation, and I think the words "sheer determination" were

 5     mentioned.  But again, I must say, nothing was said by the Prosecution

 6     this morning of anything other than the murder operation, albeit as

 7     atrocious as it is - I said this already - but they don't mention

 8     anything about who is being murdered and any link is not established

 9     between the prisoners who are to be killed and the group that would make

10     it a genocide, none of it.  Even in the Prosecution's brief in response,

11     you will not find the issue of a group, and that is critical.  Genocide

12     is not an ordinary crime.  You need to identify the group and to say how

13     it is that Drago Nikolic would have had knowledge of this group.  He

14     simply didn't.

15             We try to say that he gained the -- that he was aware of the

16     knowledge of others.  Now, the knowledge of others, we're talking of

17     Popovic and Beara.  But when we look at Popovic and Beara and we look at

18     the kind of relationship they had, yes, the names come up much more often

19     than the number of meetings they had, at best or at worst - depending on

20     how you see it, Mr. President - on the 13th there was a telephone

21     conversation between Popovic and Nikolic.  On the 14th, in the morning,

22     there was a meeting.  On the 14th, in the afternoon, Nikolic would have

23     at least seen Beara near Petkovci but we have no details of what they did

24     there.  And then on 22 September, there is about a telephone conversation

25     intercepted.  Five instances where they would have interacted together,

Page 346

 1     the rest is pure speculation.  How can we then say that Drago Nikolic in

 2     a time-span of 24 hours gained that these two persons had genocidal

 3     intent?  What we are trying to do, Mr. President, is not only did the

 4     Trial Chamber infer that Popovic and Beara had genocidal knowledge, now

 5     we infer on an inference that Nikolic knows about the inference about

 6     Popovic and Beara having genocidal intent in 24 hours.  That,

 7     Mr. President, says it all.

 8             I conclude by talking about the sentence.  Not much was said on

 9     sentence this morning, other than saying that the comparison we try to

10     make with others would not be relevant.  Well, I beg to disagree,

11     Mr. President, because this morning the Prosecution, they said they go

12     against our comparison but they don't explain what would make

13     Drago Nikolic, the second lieutenant, with his involvement, as important

14     as the general who led the whole operation and who is responsible for the

15     whole thing, including the forcible transfer.  The Prosecution does not

16     explain what makes Drago Nikolic much more guilty and much more culpable

17     than Jokic, who is involved in the same events that he is with the

18     same -- to the same level of involvement.  He sent engineering equipment

19     to the execution site, he's the duty officer, he is a major, he is

20     involved in the dealings, he speaks with Obrenovic.  What is the

21     difference?  Again, I come back, Mr. President, to the issue that the

22     only difference in all of this always comes back to the same thing.  The

23     Trial Chamber held that the security branch was the most responsible for

24     the operation and Drago Nikolic paid the price big time.

25             I ask you, Mr. President, to correct this error.  We're not

Page 347

 1     saying, unlike many others, that he should be not guilty of everything.

 2     We're saying he should be punished accordingly and commensurate with what

 3     he was involved in, and in that respect a sentence of 35 years simply

 4     doesn't make it.  The sentence must be reduced significantly.

 5             Thank you very much, Mr. President.  Thank you very much,

 6     Your Honours.

 7             JUDGE ROBINSON:  Thank you too, Mr. Bourgon.

 8                           [Appeals Chamber and Legal Officer confer].

 9             JUDGE ROBINSON:  We'll take a break for five minutes for

10     technical reasons --

11             MR. SCHNEIDER:  Apologies, Mr. President, if I could just at this

12     moment, for the record, clarify three redactions we will be requesting

13     from the hearing, if we can put that -- if we could request that.

14             JUDGE ROBINSON:  Yes.

15             MR. SCHNEIDER:  The first would be from today's transcript

16     pages 53, starting at line 20, through 54, ending at line 4.  The second

17     would be page 57, lines 2 to 4.  And the third would be page 58, lines 6

18     to 7.  Thank you.

19             JUDGE ROBINSON:  Yes.  [Microphone not activated].

20             MR. SCHNEIDER:  Thank you.

21             JUDGE ROBINSON: [Microphone not activated]

22                           [Appeals Chamber and Registrar confer]

23             THE REGISTRAR:  Your Honours, we're back in session now.

24             JUDGE ROBINSON:  Yes, we will resume with submissions from

25     counsel for Mr. Pandurevic.


Page 348

 1             MR. HAYNES:  Thank you, Your Honour, and good afternoon.

 2             Can I simply confirm when we will be taking the next break so

 3     that I can find an appropriate moment to break my submissions?

 4             JUDGE ROBINSON:  Ten minutes after 3.00.

 5             MR. HAYNES:  Thank you very much.

 6             Your Honour, I know from the remarks you made to Mr. Ostojic

 7     yesterday that you appreciate advocates who get on with it, and that's

 8     precisely what I propose to do this afternoon.  Pandurevic in his grounds

 9     of appeal actively pursued four grounds.  Today I will present

10     brief - and I do mean brief - oral submissions in support of only three

11     of them.  For reasons that I will explain at the conclusion of these

12     submissions, I will not advance any oral arguments in respect of the

13     fourth, and I anticipate that the Prosecution will wish to respond with

14     correspondent economy.

15             The first ground of Pandurevic's appeal relates to his

16     convictions under Counts 4 and 5 of the indictment for aiding and

17     abetting murder, and he says, through me, that they are open to criticism

18     on a number of levels:  Procedural, legal, and evidential.  In my

19     submission, they are unsupportable in their present form, and the trial's

20     record is such that the conviction cannot be reconstituted or rectified

21     by this Appeals Chamber.

22             His convictions under Counts 4 and 5 relate to the murder of

23     ten prisoners who had been held at the infirmary of the Zvornik Brigade

24     sometime on or after the 23rd of July, 1995, and thus about a week or so

25     after the more central events in the indictment with which you are all

Page 349

 1     concerned.  Those men had been injured and originally came from Milici,

 2     and it is thus by that epithet they are generally known - the Milici

 3     prisoners or the ten Milici men.  They had been treated at the hospital

 4     in the town of Zvornik but transferred to the infirmary of the

 5     Zvornik Brigade on or about the 20th July for security reasons.  At that

 6     time, the Zvornik Brigade was taking numbers of prisoners who had been

 7     part of the 28th Division and was holding them in its detention

 8     facilities, awaiting for them to be transferred to the ICRC facility at

 9     Batkovici.

10             On the morning of the 23rd of July, there was a flurry of

11     correspondence between the Zvornik Brigade and the Drina Corps, its

12     superior organ.  At 8.00 in the morning, Vinko Pandurevic raised - not

13     for the first time - his concerns about the numbers of prisoners being

14     held by the Zvornik Brigade, including the wounded ones.  He spoke to a

15     Colonel Cerovic, a deputy commander of the Drina Corps, and asked about

16     the possibility of their exchange or their transfer to Batkovici.  At

17     about 8.30 in the morning, half an hour later, the duty officer at the

18     Zvornik Brigade received a call from Cerovic, telling him that Popovic

19     would be there by 1700 and would say what needs to be done with the work

20     we talked about.  As a matter of fact, on that day, Popovic was

21     apparently assigned a car for a journey from the headquarters of the

22     Drina Corps to go to Zvornik.

23             In his evidence, Pandurevic did not see Popovic that day and he

24     did not remember receiving the message from the duty officer.  At

25     10.00 that morning, an hour and a half after the message, both Pandurevic

Page 350

 1     and Obrenovic were at a brigade meeting.  PW-168 was to say in his

 2     evidence that the prisoners were taken away early in the morning.

 3             The Trial Chamber found by majority, Judge Kwon dissenting, that

 4     Pandurevic, firstly, had received the message at 8.30 or shortly

 5     thereafter and necessarily before Popovic arrived; and secondly, that the

 6     message would have alerted him to the likely fate of the prisoners, and

 7     therefore convicted him of aiding and abetting their murder by Popovic by

 8     omission, namely, his failure to exercise his legal duty to protect them,

 9     and that his failure to protect them substantially contributed to their

10     murder and that he had the necessary mens rea.

11             It is accepted that Pandurevic had a legal duty to protect the

12     ten prisoners; however, he complains as follows.  Firstly, he was

13     convicted of a form of liability which wasn't pleaded against him in the

14     indictment by reason of which he was prejudiced.  Secondly, the

15     Trial Chamber conducted a deficient analysis of the legal elements of the

16     offence with which he was charged.  In particular, the Trial Chamber did

17     not discuss nor consider what evidence there was of specific direction.

18     Such analysis of that question, as might now be possible from other

19     findings, must necessarily lead to a conclusion that there is

20     insufficient evidence to find it ever existed.  Thirdly, the

21     Trial Chamber's findings as to Pandurevic's knowledge and other matters

22     are based on the drawing of inappropriate and overstretched inference.

23             These matters are extensively litigated in the various appellate

24     filings by both parties and will be touched upon obliquely in due course.

25     However, one topic requires particular attention and that is the

Page 351

 1     requirement that the aider and abettor must be proved to have

 2     specifically directed his actions to assist, encourage, or lend moral

 3     support to the crime, in this case murder.

 4             The Trial Chamber defined aiding and abetting at paragraph 1014

 5     of its judgement as follows:

 6             "An aider and abettor carries out acts specifically directed to

 7     assist, encourage, or lend moral support to the perpetration of a certain

 8     specific crime which have a substantial effect on the perpetration of the

 9     crime.  The requisite mental element of aiding and abetting is knowledge

10     that the acts performed assist the performance of the specific crime by

11     the principal perpetrator."

12             It went on to say:

13             "... that 'specific direction' was not always included as an

14     element of the actus reus of aiding and abetting."

15             One can have some sympathy with the Trial Chamber expressing the

16     elements of aiding and abetting in that way.  They drew it from what they

17     believed to be an accurate statement of the law, the cases of Blagojevic

18     and Jokic.  On the 28th of February of this year, this Appeals Chamber

19     gave judgement in the case of Momcilo Perisic.  In that case, the

20     Appeals Chamber thoroughly reviewed the Tribunal's whole jurisprudence in

21     cases of aiding and abetting and made clear statements as to what, in

22     fact, the law was.

23             At paragraph 36, the Appeals Chamber, Judge Liu dissenting,

24     considered that:

25             "... specific direction remains an element of the actus reus of

Page 352

 1     aiding and abetting liability ..."

 2             It went on further to say that it reaffirmed that:

 3             "... no conviction for aiding and abetting may be entered if the

 4     element of specific direction is not established beyond reasonable doubt,

 5     either explicitly or implicitly."

 6             At paragraph 38 it allowed for -- or it went on to say when

 7     aiding and abetting involves "acts geographically or otherwise proximate

 8     to, and thus not remote from, the crimes of the principal perpetrators."

 9     Specific direction need not be explicitly discussed because it may be

10     demonstrated implicitly through discussion of other elements such as

11     substantial contribution.

12             But at paragraph 39 it said:

13             "Where an accused aider and abettor is remote from the relevant

14     crimes, evidence proving other elements of aiding and abetting may not be

15     sufficient to prove specific direction.  In such circumstances," the

16     Appeals Chamber held "that explicit consideration of specific direction

17     is required."

18             Throughout the appellate phase, the Prosecution has repeatedly

19     denied that specific direction was an element of aiding and abetting.  In

20     paragraph 76 of its reply brief -- its response brief, I'm sorry, it

21     said:

22             "In accordance with established case law, the Chamber correctly

23     held that specific direction is not an essential ingredient of the

24     actus reus of aiding and abetting ..."

25             And at paragraph 77, rather stridently:

Page 353

 1             "Pandurevic's arguments in this subground are confused, vague,

 2     and undeveloped, they should be dismissed.  Pandurevic has not shown any

 3     cogent reason for the Appeals Chamber to depart from the established case

 4     law for either the actus reus or mens rea standards for aiding and

 5     abetting."

 6             And at paragraph 80, in relation to actus reus:

 7             "If specific direction has any meaning, it is no more than an

 8     expression of a causal link between the conduct and the crime, equating

 9     to the conduct having a substantial effect on the crime."

10             On the contrary, the Defence for Pandurevic has argued throughout

11     that whether it is considered to be part of the mens rea or actus reus of

12     aiding and abetting, direction or purposefulness should be an essential

13     element of this mode of liability.

14             The Trial Chamber did not discuss specific direction in relation

15     to these offences, understandably because it didn't regard it as being a

16     requisite element of the offence.  The dismissal by the Trial Chamber of

17     specific direction as an essential element of aiding and abetting renders

18     in itself the convictions against Pandurevic unsupportable.  Moreover,

19     the particular form of aiding and abetting that Pandurevic was convicted

20     of in relation to the ten prisoners further complicates matters.  This

21     was no ordinary case of aiding and abetting; it is one that he allegedly

22     perpetrated through omission.

23             THE INTERPRETER:  Could counsel please slow down for the sake of

24     interpretation.

25             MR. HAYNES:  Conceptually, that is a very complex and difficult

Page 354

 1     notion.  One is entitled to ask:  How can you specifically direct an

 2     omission --

 3             JUDGE ROBINSON:  Mr. Haynes, have you seen the request to slow

 4     down?

 5             MR. HAYNES:  I'm very sorry.  I'll go back.

 6             Conceptually, that is a very complicated and difficult notion.

 7     How can one specifically direct an omission in support of a third party?

 8     Even if you can conceive it, there's no recognised process for its legal

 9     construction.  Firstly, there is no detailed discussion in ICTY

10     jurisprudence on how to ascertain specific direction in aiding and

11     abetting by omission, although the Appeals Chamber in Oric required

12     aiding and abetting by omission to be directed to assist, encourage, or

13     lend moral support to the perpetration of a crime and have a substantial

14     effect upon the perpetration of a crime.  In other words, any finding

15     that Pandurevic is responsible for the murder of the ten military

16     prisoners by aiding and abetting by omission should be based on

17     ascertaining that such an omission was specifically directed at

18     assisting, encouraging, or lending moral support to their murder.

19     Neither is there any analogous help to be found in domestic case law.

20             Secondly, as clarified in the Perisic case, when an accused aider

21     and abettor is remote from relevant crimes, evidence proving other

22     elements of aiding and abetting may not be sufficient to prove specific

23     direction.  In such circumstances, explicit consideration of specific

24     direction is required.  "Remote" was clarified as meaning geographically

25     remote from the scene of the crime, in this case the murder of the ten

Page 355

 1     men.  Pandurevic was not a bystander on any version of events.  The

 2     prisoners were taken away and murdered elsewhere.  There is scant

 3     evidence as to either when or where that took place.  In all senses of

 4     the word, he was remote from the commission of the offence he was said to

 5     have assisted.

 6             The logic of the Appeals Chamber's judgement in Perisic can

 7     perhaps be illustrated by a simple example, and I'm conscious of the fact

 8     that I may get into discussions of tacit approval and legal duty, but

 9     I'll give the example anyway.  If a man stands guard by a door while

10     somebody is beaten to death inside the room, then you can reasonably

11     infer, without too much discussion of the matter, that not only does he

12     know that his acts make a substantial contribution to the murder, but

13     that he intends to assist or specifically directs his acts to the murder.

14     If, however, that man were a guard and he left his post, permitting

15     somebody to enter the room, but in leaving his post went a significant

16     distance away, there would have to be some discussion as to whether there

17     was evidence that he had done so with a view to assisting the murder.

18     That is more parallel to the situation of Pandurevic, and we say that the

19     absence of a discussion and a finding about specific direction of his

20     acts to assist in murder had to be carried out and the absence of that

21     invalidates his conviction.

22             Moreover, the findings in the evidence even if reviewed now at

23     the appellate phase would not support any establishment of specific

24     direction on the part of Pandurevic, indeed quite the contrary --

25             JUDGE ROBINSON:  Mr. Haynes, you appear to be using the term

Page 356

 1     "specific direction" in two senses.  At one point you asked the question:

 2     How can one specifically direct an omission?  And I understand that to

 3     mean -- "direct" there to mean "require" or "order" an omission.  Then

 4     later on you speak of ascertaining that an omission was specifically

 5     directed at assisting, encouraging, or supporting the murder.  In that

 6     sense, the term "direct" I understand to mean "aimed at."  And in my

 7     view, that indeed is the correct understanding of the term "direct."  It

 8     shouldn't be used to mean "ordering."  And the case law doesn't support

 9     that.

10             So speaking for myself, I have a difficulty with the term

11     "specific direction" itself, because as used and certainly as it has come

12     to be understood by the public, I think it is quite, quite misleading.

13     The law, as I understand it, doesn't require you to show that a

14     particular order was given by the aider and abettor that assisted in the

15     commission of the crime.  What it requires is that there be evidence that

16     shows that the acts of the aider and abettor were specifically aimed at

17     assisting, encouraging, and supporting the principal offence.

18             So I picked up on it because I had intended to raise this with

19     both yourself and the Prosecutor, and I'd like you to pay some attention

20     to it.

21             Of course, what I have said doesn't mean that you can't have

22     evidence of an order, and if you have evidence of an order from the aider

23     and abettor that would be the best, that would be the best evidence.  But

24     it is wrong to say that the law requires that there be evidence of an

25     order.  If the order is there and you have evidence of that, that's one

Page 357

 1     item of evidence which, among others, could substantiate the aiding and

 2     abetting.

 3             But I do find that the term as it has been used, as I have said,

 4     is quite misleading.  I mean, if one wanted to have a shorthand term, an

 5     abbreviated term, it seems to me it should have been expressed in the

 6     passive voice, acts which were specifically directed at.  But the way it

 7     is formulated encourages an interpretation that you need to have evidence

 8     of an order.  And I'm quite satisfied - unless you can persuade me

 9     otherwise - that that is not a legal requirement.  And I raise it because

10     I've seen articles written by eminent persons which address the issue in

11     this way, that some order is required and that is not the law at all.  As

12     I said, the order may be one item of evidence but it shouldn't be

13     translated into a criterion for specific directions.  And so I fault the

14     abbreviated term "specific direction."

15             MR. HAYNES:  Can I say this, the word "direct" in English has

16     that natural ambiguity because it can mean "to channel" or "aim."  It can

17     also mean "to order."  It has been no part of my submission that there

18     needs to be evidence of an order by the aider and abettor.

19             It is my submission that the requirement for what has been termed

20     "specific direction" is additional to the requirement for the act to be

21     shown substantially to contribute and is additional to the base-level

22     mens rea for aiding and abetting.  I may already have indicated that

23     there is a term of art which in my view is more helpful which

24     distinguishes, for example, between the requisite contribution to being

25     part of a JCE and the requisite for being an aider and abettor, and that

Page 358

 1     is that the former requires you to intend to commit, whereas the latter

 2     requires you to intend to assist.  But that is more than just knowing

 3     that your acts do assist.  You have to intend in making your substantial

 4     contribution to assist, and that is what I believe is meant by the phrase

 5     "specific direction."

 6             But I'm entirely with Your Honour on this.  I think it's an

 7     inelegant phrase.  It's not helpful, and it has a necessary ambiguity at

 8     its heart which derives from the English word "direct."  But I did not

 9     intend to submit to this Court that there is a requirement for an order.

10     I intended to submit to that Court that there was a requirement for, as

11     it were, an intention to assist expressed as a specific direction.

12             JUDGE ROBINSON:  Thank you.  I'm grateful for that.

13             MR. HAYNES:  I was just briefly about to review the surrounding

14     factual findings made by the Trial Chamber.  They found, at

15     paragraph 1898, that Pandurevic had put in place within the

16     Zvornik Brigade a regime designed to guarantee the safety and security of

17     all prisoners taken by the brigade at that time.  They found, moreover,

18     that he had instigated a system to safe-guard the security of the very

19     injured prisoners we are concerned with in the Zvornik Brigade medical

20     centre, at paragraph 1899.  They found that he repeatedly requested the

21     transfer of all prisoners to a transfer centre overseen by the ICRC at

22     Batkovici.  And they found that Pandurevic intended that prisoners should

23     be exchanged or taken to Batkovici.

24             Judge Kwon in his dissenting judgement points to the actual

25     transfer of two wounded prisoners being held at about the same time to

Page 359

 1     Batkovici as being highly relevant to the question of Pandurevic's

 2     understanding of what he believed Popovic might do.  That would equally

 3     negate, I submit, any possible finding that Pandurevic's omission was

 4     specifically directed or intended to assist their murder.  The Chamber's

 5     findings are, therefore, incapable of supporting a finding that

 6     Pandurevic's alleged omission in relation to the prisoners was

 7     specifically directed to assist or encourage their murder, irrespective

 8     of whether it was a substantial contribution to it.  The finding that he

 9     possessed the necessary mens rea for aiding and abetting is equally

10     palpably insufficient, as that indicates a mere knowledge that his acts

11     assisted.

12             Now, that is the only substantial submission I'm going to advance

13     in relation to ground 1 of Pandurevic's appeal because the remaining

14     grounds are so copiously litigated in the written filings and there's

15     nothing I wish usefully to add to them.  I don't abandon them, but for

16     economy of time, I'll leave you to consider them in the filings.

17             I do, however, go slightly off piste at this moment, and out of

18     curiosity invite you to consider Judge Prost's remarks on persecution.

19             The Chamber considered whether it would find Pandurevic further

20     guilty of the offence of persecution.  Judge Kwon, having declined to

21     find him guilty of any offence at all, did not express an opinion on this

22     topic.  In Judge Prost's opinion, it is apparent that Judge Agius would

23     have found the discriminatory element of that offence proved.  But

24     Judge Prost issued what I submit to you is a pragmatic, eloquent, and

25     correct opinion as to the approach to be taken as to whether that

Page 360

 1     discriminatory element can be proved.  She submitted - and I adopt - that

 2     substantial contribution must be to the crime as a whole for which the

 3     accused is to be convicted.  At the heart of the crime of persecution is

 4     the discriminatory nature of the act and the specific intent with which

 5     it is committed.  It is not sufficient that Pandurevic through his

 6     omission made a substantial contribution to the crime of murder, knowing

 7     that the crime would probably be committed with discriminatory intent;

 8     rather, his contribution must be similarly discriminatory in nature.  She

 9     found that Pandurevic had no discriminatory intent, he had no involvement

10     in the circumstances which led to him having custody of the

11     ten prisoners, they were brought to the Standard barracks on the orders

12     of others, and Pandurevic neither arranged for their selection nor for

13     their presence there.  He placed them in harm's way and thereby

14     substantially contributed to their murder.  However, that omission in no

15     way contributed to the crime of persecution, and she opined that such

16     conviction would render the discriminatory component of that offence

17     utterly meaningless.

18             These may well be submissions for a future day, but I put them on

19     the record now.  In other words, what Judge Prost was saying - and I

20     submit correctly so - it is a pointless exercise to enter a conviction

21     for the aggravated form of the offence, where the accused's acts or

22     omission and mens rea would be precisely the same for both offences.

23     There must be some personal indicator of aggravation of the simple

24     offence.

25             As a matter of legal logic, I'm going to move from ground 1 to

Page 361

 1     ground 3, and then come back to ground 2, because ground 3 is again a

 2     finding that Pandurevic aided and abetted a crime, though on this

 3     occasion it is the forcible transfer and persecution of those transferred

 4     out of Srebrenica.  In the submission of the appellant, this conviction

 5     too suffers from the same fatal flaw as the convictions complained of in

 6     ground 1; namely, that the Chamber failed to apply the correct legal

 7     standard by failing to recognise that an aider and abettor's actions need

 8     to be specifically directed to the offence of the perpetrator, in this

 9     case forcible transfer and persecution.  There is, moreover, we submit,

10     no consequent analysis of the element of specific direction and no

11     findings in that regard.

12             Furthermore, any analysis of the Trial Chamber's findings

13     necessarily leads to the conclusion that the Prosecution would have

14     failed to prove to the required standard that Pandurevic had acted with

15     the appropriate specific direction had that exercise been carried out by

16     the Chamber or, indeed, even if it were appropriate were this Chamber to

17     carry it out now.

18             Lastly, the appellant submits that the conviction for persecution

19     too must fall, as it depends upon the conviction for aiding and abetting

20     forcible transfer.

21             In our appeal findings we have advanced two arguments.  Firstly,

22     that the Trial Chamber has failed to consider whether Pandurevic

23     specifically directed his actions towards assisting forcible transfer;

24     and secondly, that the Trial Chamber erred when it found that he made a

25     substantial contribution to the forcible transfer.

Page 362

 1             In relation to the first of these arguments, we point out that it

 2     is unreasonable to accept that the military purpose of Krivaja 95 was

 3     lawful, but on the basis of his actions Pandurevic furthered the unlawful

 4     purpose of assisting in the forcible transfer.  And in relation to the

 5     second, we point out that the Trial Chamber has made contradictory

 6     findings regarding Pandurevic's involvement, on the one hand saying that

 7     it was substantial and, on the other, when considering his liability for

 8     sentence, that it was limited.

 9             The Trial Chamber in its judgement found that there was no doubt

10     that the attack was directed against the civilian population; however, it

11     acknowledged the dual purpose of the attack.  The Prosecution alleged

12     that the forcible transfer was committed in three ways.  Firstly, the

13     forced bussing of the women and children from Potocari; secondly, the

14     forced flight of the column of men; and thirdly, the forced bussing of

15     the men separated at Potocari.  The Trial Chamber found that the plan to

16     evacuate the civilian population was in place before the forces had

17     entered the town, and the Chamber found that the military component of

18     the column had choices other than flight, they could have stayed and

19     fought.  That does not apply, however, to the civilian component.  The

20     Chamber did not find that the men separated out at Potocari had been

21     forcibly transferred.

22             The Trial Chamber was satisfied that the forcible transfer was

23     carried out with discriminatory intent and again restated the law

24     relating to aiding and abetting and highlighting that the aider and

25     abettor needed to know the elements of the crimes which his acts were

Page 363

 1     said to assist and know the principal has the specific intent where such

 2     a crime is alleged.  The Trial Chamber found that Pandurevic knew of the

 3     plan to forcibly remove the Bosnian Muslim population from Srebrenica,

 4     and they assessed his intention from his actions and concluded that he

 5     lacked the intent to carry out the common purpose of the joint criminal

 6     enterprise.  Indeed, it found that he carried out his orders and

 7     undertook the actions described with the intent to achieve the military

 8     objective of defeating the ABiH 28th Division forces in both enclaves;

 9     and further, that the disabling of the OPs, while illegal, could be

10     considered to have been reasonably necessary for the legitimate aim of

11     the operation.  The Trial Chamber further noted that the majority of

12     Pandurevic's military activities pursuant to the Krivaja 95 operation

13     occurred prior to Karadzic's order for the VRS town -- for the VRS forces

14     to take the town of Srebrenica.

15             They went on to find that no other acts existed from which his

16     intent could be inferred.  No evidence existed that his forces were

17     involved in targeting civilians.  They noted that he was not involved in

18     the actual transfer of civilians from Potocari, and there was no evidence

19     that his troops were involved.  Although, Your Honour, a lack of intent

20     to forcibly transfer is not synonymous with an absence of specific

21     direction in his actions to forcibly transfer, the nuance, as we have

22     already discussed, is subtle.  In simple language, the JCE member must

23     have the intent to commit; the aider and abettor the intent to assist,

24     though with the knowledge of the elements of the crime of the principal

25     perpetrator.  Again, I submit that the finding at paragraph 2010 that

Page 364

 1     Pandurevic had the requisite mens rea for aiding and abetting is not a

 2     sufficient finding to satisfy the requirement, as we now know it to be,

 3     that there be a discussion and a finding in relation to his specific

 4     direction of his actions.

 5             The Trial Chamber did not consider specific direction, but given

 6     its findings as to his intention as evidenced by his actions, had it gone

 7     on to consider specific direction, it must necessarily have found it

 8     absent.  Given that the basis for the conviction for persecution is

 9     forcible transfer, we submit that that must fall too.  Nonetheless, in

10     relation to that, I would simply remind you again of the submissions I

11     made in relation to the observations of Judge Prost.  Exactly the same

12     observations would apply here in relation to the aggravated or greater

13     offence.

14             Now, that is the conclusion of my submissions in relation to the

15     two aiding and abetting charges.  I wonder whether that's not a good

16     moment to take the break.

17             JUDGE ROBINSON: [Microphone not activated]

18                           --- Recess taken at 3.05 p.m.

19                           --- On resuming at 3.30 p.m.

20             JUDGE ROBINSON:  Yes, Mr. Haynes.

21             MR. HAYNES:  Thank you, Your Honour.

22             Under ground 2 of his Notice of Appeal, the Appellant Pandurevic

23     contests the Trial Chamber's finding that he had effective control of the

24     elements of the Zvornik Brigade who aided and abetted the murder

25     operation during the critical period of about 30 to 40 hours after he

Page 365

 1     returned to Zvornik on the 15th of July, up until the conclusion of the

 2     murders in the Zvornik municipality on the 17th of July.  His arguments

 3     under this ground fall into two sections:  Firstly, that he didn't have

 4     effective control of the Zvornik Brigade as an institution between the

 5     4th and the 15th of July; and second, that after he returned to Zvornik

 6     on the 15th of July and learned of the murders, he did not take effective

 7     control of the elements of the Zvornik Brigade which were under the

 8     orders of the security officers tasked with murdering prisoners pursuant

 9     to Mladic's order.

10             The finding that Vinko Pandurevic had effective control of the

11     Zvornik Brigade between the 4th and 15th of July was, of course, only

12     that of the majority, Judge Kwon again dissenting.  Judge Kwon's primary

13     objection was on the grounds that it offended the principle of singleness

14     or unity of command, namely, that a military unit cannot have two

15     commanders at the same time, which is, of course, precisely what the

16     Trial Chamber did find.  He also highlighted two strands of findings by

17     the Trial Chamber which he felt were inconsistent with a finding that

18     Pandurevic was in effective control of the Zvornik Brigade during that

19     period.  Firstly, that during that period Pandurevic was the commander of

20     another and separate military unit, namely, Tactical Group 1 under the

21     Krivaja 95 operation.  The wider consideration of his actions and

22     whereabouts during that period occurs at paragraphs 1842 to 1859 of the

23     trial judgement.

24             So that you can have, as it were, a graphic illustration of

25     Pandurevic's movements and gain some idea of, as it were, his geographic

Page 366

 1     remoteness from the brigade at that time, we're going to show you a short

 2     video that was shown to the Trial Chamber, it is 7D1059.

 3                           [Video-clip played]

 4             MR. HAYNES:  Your Honours will doubtless recognise Srebrenica in

 5     the middle of the map, Bratunac where the headquarters of the

 6     Bratunac Brigade were just to the north of Srebrenica.  Then if one goes

 7     to the very top of the map, Karakaj above Zvornik is the location of the

 8     headquarters of the Zvornik Brigade.  And you will remember that in the

 9     maps that the Prosecution were showing you, all the action, as it were,

10     by the 13th of July was taking place well to the north of that.  The

11     finishing position just below Podzeplje is where Pandurevic was with his

12     units on the 14th of July, having made his way after Krivaja 95 over to

13     the west and then down south towards Zepa.  So that gives you some idea

14     of what his movements are there prosaically described in the

15     Trial Chamber's judgements after paragraph 1842.

16             Unless you've got any questions about that map or that video, we

17     can take that off the screen now.

18             Judge Kwon noted that whilst Pandurevic remained the commander of

19     Tactical Group 1, he couldn't return to Zvornik to resume command of the

20     Zvornik Brigade without an express order from his commander, Krstic, and

21     indeed that is what happened on the 15th of July.  He also observes that

22     Obrenovic's assumption of command during that time and his acceptance of

23     orders from the corps command and his consequent giving of orders to

24     others was inconsistent with Pandurevic having effective control or

25     command of the brigade.  Notwithstanding that, the majority found, that's

Page 367

 1     paragraph 2027, that Pandurevic was throughout the period of the

 2     4th to the 15th of July the commander in name and substance, and they

 3     went on to consider that he had effective control of the brigade.

 4             In this appeal, Pandurevic agrees with Judge Kwon's concerns and

 5     adopts them as submissions herein - thank you most kindly - but he would,

 6     with respect, add two further concerns which undermine the

 7     Trial Chamber's findings, and they are the following:  Firstly, that

 8     Pandurevic on all the evidence was receiving no reports from the brigade

 9     about its activities; but secondly, perhaps most significantly of all

10     given the heavy reliance placed upon it by the majority, the evidence of

11     PW-168, who was clear that Pandurevic was not in command of the units

12     which were commanded by Obrenovic.  And one has to observe, if anybody

13     would know that, PW-168 would.

14             That finding is particularly poignant because it was, at least

15     according to the normal theory of command structure, individuals and

16     units from that set of people for which Pandurevic was found to bear

17     responsibility by the Trial Chamber after the 15th of July, namely, those

18     which Obrenovic commanded.  Therefore, as a matter of logic, if

19     Pandurevic did not command the units under Obrenovic's control between

20     the 4th and the 15th of July, he would have to take command back upon his

21     return.  The majority's finding, therefore, that Pandurevic had effective

22     control throughout the period is illogical, contrary to all the evidence

23     on the topic, and one which no reasonable Trial Chamber could make.

24             Having said that, there is a curiosity of language in the

25     judgement.  Having found at paragraph 2027 that Pandurevic was the

Page 368

 1     commander of the Zvornik Brigade from the period to the 4th to the

 2     15th of July in name and substance, it went on to consider what happened

 3     on the 15th of July, and this is discussed at paragraph 2031.

 4     Paragraph 2031 reads as follows, and this is a finding doubtless of the

 5     majority:

 6             "It was open to Pandurevic to re-take command at any point as he

 7     so clearly did upon his return on the 15th of July ..."

 8             One is bound to ask if the majority were of the view that

 9     Pandurevic's command was unbroken throughout the period of July,

10     including both periods of the 4th to the 15th and thereafter, what it was

11     he was able to re-take in their view on the 15th when he returned.

12             By the time of Pandurevic's return on the 15th of July - and I'm

13     moving on to consider the second period, and thus the second and third

14     grounds or subgrounds of the appeal - by the time of Pandurevic's return,

15     Obrenovic had effectively lost control of the brigade.  As you will have

16     noted in argument this morning, he had spent the whole of the

17     14th of July until about 11.00 a.m. on the 15th of July away from the

18     brigade command, during which time substantially all of the prisoners had

19     been brought into the area as well as the resources that had been brought

20     along by Beara and Popovic from Bratunac and elsewhere.

21             Obrenovic's absence through the 14th and early part of the

22     15th of July is relevant to his own knowledge, and thus what he could

23     convey to Pandurevic upon his return.  The infamous statement which you

24     will doubtless hear a lot of in due course made by Obrenovic in the

25     corridor of the Standard barracks upon Pandurevic's return is heavily

Page 369

 1     indicative of his own bewilderment and impotence, though perhaps not as

 2     graphically illustrative of the situation in the Zvornik Brigade at that

 3     time, as the exclamation of Dragan Jokic, the Zvornik Brigade duty

 4     officer, earlier that morning that Beara and Popovic were taking whomever

 5     they wanted wherever they wanted.  And you'll find that at

 6     paragraph 1861, footnote 5576.

 7             However, Obrenovic hadn't lost control of the whole brigade, just

 8     small elements of it for a day or two, a squad here, a driver there,

 9     perhaps a machinist.

10             I want to pause now and simply make a graphic observation about

11     how we submit command goes down or up through the ranks of an army.

12     People often talk about a chain of command.  In our submission, that's

13     misleading.  There are, in fact, several chains which run from the

14     brigade commander.  They run to his deputies and they run to his

15     battalions.  In the case of the Zvornik Brigade, there were eight

16     battalions, thus eight chains.  And within each battalion, there were a

17     number of platoons and separate chains ran from the battalion command to

18     them, and from them down to the men on the front to the men that drove

19     the lorries to the men who tended the farms, which we heard about, to the

20     men who dug the trenches.

21             It is our submission and it is our case and always has been our

22     case that those chains had links broken, links broken very often at the

23     lowest level, and they were broken by Beara and Popovic and they were

24     broken with the authority of Mladic, the supreme commander of the VRS.

25     And those breaks in the chain here and there for a day or two, for a

Page 370

 1     small element here, for a driver there, removed Vinko Pandurevic's -- or

 2     should I say firstly Dragan Obrenovic's and then Vinko Pandurevic's

 3     material ability effectively to control those elements of the

 4     Zvornik Brigade who were tasked with jobs by Beara and Popovic to do with

 5     the guarding or burying of prisoners.

 6             I'm going to take squarely on the chin the fact that Pandurevic

 7     did advance many of the arguments I'm about to mention to you at trial.

 8     However, if you look at the grounds and the brief on appeal, the

 9     complaint Pandurevic makes as to the Trial Chamber's judgement as to his

10     ability to exercise effective control over the brigade on the

11     15th of July is not that they got it wrong, it is that they barely

12     considered his case at all.

13             Beara and Popovic did give orders to Zvornik Brigade soldiers, as

14     the Trial Chamber found at paragraphs 1111, 1118 to 1120, 1122, 1132,

15     1134, 1278.  Although the Prosecution in its response seeks to

16     recharacterise those orders as requests or directions, that's what they

17     were.  Like Obrenovic, the units which Pandurevic lacked effective

18     control over were small and disparate.  Literally more than 99 per cent

19     of the brigade's resources were under Pandurevic's command.  They were at

20     their combat units closer to their battalion commanders.  They were

21     fighting the column for at least a few hours until they were tasked by

22     Pandurevic to assist Bosnian soldiers to pass through the corridor he had

23     opened for them.  But in relation to the whole brigade there were factors

24     which bore upon Pandurevic's ability to exercise effective control

25     adversely.

Page 371

 1             As the Trial Chamber correctly observed at paragraph 2023, the

 2     test of effective control is whether the individual had the material

 3     ability to prevent or punish the perpetrators of crimes.  It went on to

 4     find that the relevant factors to consider in determining material

 5     ability included the physical location of a superior, his

 6     responsibilities at the time, the information flow, and communication

 7     facilities with subordinates.  We submit that all of the following were

 8     directly relevant to those considerations which, despite having

 9     identified, the Trial Chamber did not go on to consider.

10             Firstly, there was a very limited period of time between

11     Pandurevic's return to Zvornik and the conclusion of the killings.

12     Secondly, the paucity of the information available to him.  As you'll

13     hear in due course, it amounted to no more than a three- or four-line

14     conversation with Obrenovic who had been absent from the brigade for most

15     of the previous day.  The size of the brigade and its geographical

16     spread.  The Zvornik Brigade was a unit of uncommon size.  It was

17     5.000 men strong and its units were spread across, quite literally,

18     hundreds of square kilometres.  Very few Zvornik Brigade soldiers were

19     actually involved in assisting the operation.  They're pretty well

20     enumerated in our written filings.  They were spread around the Zvornik

21     municipality and critically they were not at their posts, self-evidently,

22     and it is the Prosecution case, they were at schools and at fields or

23     driving vehicles.  They were not where they should have been and not

24     acting according to the orders of their regular commanders.  Accordingly,

25     in this very small time-scale, they were neither easy to locate nor to

Page 372

 1     bring under control.

 2             As you will know from the submissions you've already heard, from

 3     1.00 on the 15th of July to 1.00 on the 16th of July, Pandurevic was

 4     completely engaged in a military situation.  It was one in which his

 5     forces faced an attack from both sides and one in which he ultimately

 6     negotiated with the commander of the forces at Nezuk to let a column pass

 7     through and instructed his men to assist in that.

 8             There was no task in relation to the murder operation given to

 9     the Zvornik Brigade through the regular command chain, i.e., the

10     Drina Corps.  Such an order would have been recorded and thus capable of

11     being followed down the chain.  No, this operation was all done secretly.

12     The prisoners themselves and their presence in the area created a

13     difficulty for Pandurevic, as he was to say in a command report that day.

14     And the presence of other forces in the Zvornik municipality, namely,

15     units mixed together from Bratunac and elsewhere, mixed together by the

16     perpetrators with Mladic's authority, in fact the majority of those

17     involved in the killing operations in the Zvornik area had been brought

18     from outside to conduct it.

19             None of these arguments find voice in the Trial Chamber's

20     judgement, and all of them would have been a relevant consideration to

21     the factors which bear upon his ability effectively to exercise command.

22     But perhaps I can graphically illustrate what I suggested to of many

23     glaring omissions by way of material that we relied upon at trial.

24             And I'm going to ask, please, if we can put on the screen P00417.

25     Sorry, it's 7DP4117.

Page 373

 1             These are the Provisional Service Regulations of the Army of the

 2     Serbian Republic, and they are one of the many documents control --

 3     regulating the VRS at the time that were produced during the course of

 4     the trial.  This document was produced by the Prosecution's military

 5     expert Richard Butler.  It was interpreted through him.  It was

 6     interpreted through, I think, at least two of the Defence military

 7     experts, and it was discussed with many, many of the senior command

 8     officers who gave evidence, both as part of the Prosecution and the

 9     Defence cases.

10             I wonder now if we can go to page 10 in the English.  I hope it's

11     the same in the B/C/S.

12             And can we focus in, please, on Article 16 and 17.

13             Article 16 reads:

14             "When several units are given a joint task, a commanding officer

15     shall be appointed in good time to direct the execution of the task.  If

16     this is not regulated beforehand, the role of superior officer shall be

17     assumed by the most senior officer who shall direct the execution of the

18     task.

19             "If a unit or an institution is suddenly left without a

20     commanding officer, command shall be assumed by his deputy or the

21     highest-ranking officer in that unit until a new commanding officer is

22     appointed."

23             Article 17 reads:

24             "Members of the Army shall carry out the orders of their

25     superiors without demur, in full, accurately and punctually.  If by any

Page 374

 1     chance the order was not given in good time, the person is required to

 2     take measures and act in accordance with the specific situation.

 3             "Members of the Army shall carry out the orders of the most

 4     senior officer present when the superior officer is absent.

 5             "The execution of each order shall first be reported to the

 6     superior officer or to the officer who has given the order."

 7             You won't be surprised to hear that the provisions of this

 8     document were a linchpin to Pandurevic's case at trial.  You can see, I

 9     imagine, straight away how these provisions might relate to mixed units

10     of soldiers under a commander from an outside institution.  Let's be

11     graphic about this.  Beara or Popovic at a killing site in the Zvornik

12     municipality with some Bratunac Brigade soldiers, some MUP units, some

13     Skelani Brigade soldiers, and perhaps some people from the

14     Zvornik Brigade, you can see how relevant it might have been and it was

15     discussed extensively at trial.

16             It was obliquely relied upon by the Trial Chamber as support for

17     the proposition concerning the command of the Main Staff, and you'll find

18     that at paragraph 106 of the judgement, footnote 254.  But in relation to

19     the command of the Zvornik Brigade, about which, of course, there was

20     more controversy, it was simply disregarded.  And you will find no

21     reference to this provision in the text of the judgement or the footnotes

22     under the discussion of the interruption of the command chain by the

23     Trial Chamber.

24             It wasn't discussed and reasoned away.  It was just ignored.  So,

25     unhappily, was the evidence of a number of VRS and Zvornik Brigade

Page 375

 1     officers who spoke about the exercise of command in the VRS generally.

 2     These included witnesses such as Dragutinovic, Galic, and Trivic, all

 3     called by the Prosecution.  However, perhaps the most compelling example

 4     of all is that of Ostoja Stanisic, who was the commander of the

 5     6th Battalion, called by the Prosecution.  Given that this unit was

 6     involved in events at the Petkovci school and had direct contact with

 7     Beara, his evidence as to events on the ground and his perception as to

 8     who he was answerable are especially compelling.  Amongst other things,

 9     this is what he said about the situation.  And I'm going to invite the

10     court officer, please, to put on the screen T 11705 from the 17th of May,

11     2007.  It begins at line 6.  He says:

12             "As a battalion commander, I was responsible for my unit.  If any

13     higher officers from a higher command arrived, they could command me,

14     they could take over the battalion, they could issue orders and I can

15     only be their subordinate.

16             "Q.  Did you think what was going on at the time Petkovci school

17     was under the control of somebody from higher command?"

18             And he said:

19             "As soon as the officers from the higher command came and we

20     hadn't been informed about that, we had not received any orders from my

21     command, I suppose that they had the supreme authority and that they held

22     all the responsibility."

23             No reference is made to this passage of evidence in the

24     Trial Chamber's judgement.  It is conspicuously absent from the section

25     on command of the Zvornik Brigade during the killing operation.  Again,

Page 376

 1     it's not assessed and reasoned away, just ignored.

 2             Now, of course, army regulations as to ad hoc command structures

 3     in mixed or disrupted units are separate and distinct from legal

 4     considerations as to an accused's ability to exercise effective control.

 5     However, the interruption of a command chain, we submit, is

 6     quintessentially relevant.  The killing operation was conducted by a wide

 7     variety of personnel from a number of military police and paramilitary

 8     units.  The question of who was in command of the killing operation at

 9     each of the sites is one to which no answer has ever been given.  Who

10     told the drivers to drive?  Who told the guards to guard?  And who told

11     the shooters to shoot?  And who was in overall command at each site?  The

12     only possible answer to that on the Trial Chamber's findings is Beara and

13     Popovic.  There is almost no consideration of this central reality by the

14     Trial Chamber and its impact upon the command of the Zvornik Brigade and

15     the ability of Pandurevic and Obrenovic before him to exercise effective

16     control of the elements taken by Beara and Popovic to aid and abet the

17     killings.  That failure to assess the reality of the situation and that

18     ignorance of the crucial and central evidence is something that no

19     reasonable Trial Chamber could or should have done.

20             The Defence case was and remains that during the period from the

21     13th to the 17th of July, Beara and Popovic, with Mladic's authority,

22     took and gave orders to disparate elements of the Zvornik Brigade in

23     pursuit of their order to kill the prisoners.  No reasonable

24     Trial Chamber could have been satisfied so that it was sure that those

25     few elements who were at the time under their orders were under the

Page 377

 1     effective control of Vinko Pandurevic for the few hours between the

 2     15th and the 17th of July.

 3             That concludes my submissions on ground 2 of Vinko Pandurevic's

 4     appeal.

 5             Ground 6, his appeal against sentence, will not be argued.  It

 6     will not be argued because I abandoned the merits of his appeal, but it's

 7     simply pointless because no reduction in his sentence by this Chamber

 8     will have any practical impact.  On the 23rd of November just passed, he

 9     had spent eight years and eight months in custody, and if you do the

10     mathematics, you will realise that that is two-thirds of 13 years and he

11     would, under the Tribunal's policy, be eligible for early release but for

12     the fact of this appeal.

13             We will in short order be submitting an application to the

14     Appeals Chamber for provisional release, as we anticipate, given that

15     this appeal has already taken three years to come to this stage, and the

16     complexity and enormity of the appeals and cross-appeals you have to deal

17     with, that its ultimate resolution is not about to happen in the near

18     future.

19             We would invite the Prosecution, rather than responding at length

20     to an appeal against sentence that is not to be argued here today, rather

21     to indicate what their attitude might be to an application for

22     provisional release.  I should make one submission, it is this:  The

23     appropriate starting point is that he has a sentence of 13 years'

24     imprisonment.  It is not open to either side, in my submission, to argue

25     that it might go up or down in the future.


Page 378

 1             Those are my submissions.  Unless you have any questions, I will

 2     sit down.

 3             JUDGE ROBINSON:  Thank you, Mr. Haynes.

 4             Yes, counsel for the Prosecution.

 5             MR. MILANINIA:  Good afternoon, Your Honours, Mr. President.  May

 6     it please the Court.

 7             Your Honours, my name is Nema Milaninia, and on behalf of the

 8     Prosecution I will be addressing grounds 1 and 3 of the Defence's appeal.

 9     My colleague, Mr. Kyle Wood, will be addressing ground 2.

10             Your Honours, like the Defence, we do not intend to make

11     submissions on any other of the arguments that have not been addressed by

12     oral submissions, and therefore rely upon our written submissions for

13     those issues absent any questions from the Chamber.

14             Your Honours, before I begin, I wish to make three observations.

15     My first observation is that throughout their submissions the Defence has

16     reflected a misunderstanding of the judgement.  I note at appeal

17     transcript 65 the Defence argued that on July 23rd Colonel Cerovic

18     returned Pandurevic's phone call requesting a resolution to the issue

19     concerning the prisoners at 8.30.  That, Your Honours, is not true.  As

20     reflected at the judgement at paragraph 1904, as reflected in

21     Exhibit P1310A, which is an intercept of that conversation between

22     Colonel Cerovic and the duty officer, Colonel Cerovic returned

23     Pandurevic's call only five minutes after and not 30.  I raise this,

24     Your Honours, as a matter because the Trial Chamber found that it was in

25     light of the frequency of the events, that is, that Colonel Cerovic

Page 379

 1     returned Pandurevic's calls only five minutes after, that it was left in

 2     part with no doubt that in light of its urgency, that Pandurevic was

 3     informed by the duty officer that Popovic would be coming later that day.

 4             I would also note, Your Honours, that the Defence misunderstands

 5     the Perisic appeals judgement.  At appeals transcript 80, the Defence

 6     notes, and I state, that Pandurevic had the requisite mens rea for aiding

 7     and abetting is not a sufficient finding to satisfy the requirement as we

 8     know it to be.

 9             Your Honours, this conflation of purpose and specific direction

10     is completely in opposite with the findings of the Perisic appeal

11     judgement itself.  And I quote paragraph 48 of the Perisic appeal

12     judgement where the Chamber noted:

13             "... the Appeals Chamber recalls again that the mens rea required

14     to support a conviction for aiding and abetting is knowledge that

15     assistance aids the commission of criminal acts, along with awareness of

16     the essential elements of these crimes."

17             Your Honours, I will go back to this issue again.

18             And then finally, Your Honours, as a general observation, I note

19     that the Defence alters its position today on appeal.  The Defence

20     argues, at appeals transcript page 69, that it has always been its

21     position that specific direction is an actus reus requirement as well as

22     a mens rea requirement.  We note that this is in direct confliction with

23     its own appeal brief, and I refer you to page 61 of their appeal brief

24     where they argue that customary international law does not justify a

25     mens rea standard without the assistance being purposely directed to the

Page 380

 1     crimes.

 2             Your Honours, I highlight these matters for your attention only

 3     to explain why the -- why, through my submissions, I intend to reiterate

 4     the facts that are relevant at issue, but also to provide what we believe

 5     is an accurate reading of both the Perisic appeal judgement and its

 6     specific direction requirement.  In that sense, Your Honours, I first

 7     turn to ground 3 to immediately dispose of the specific direction issue.

 8             As the Chamber will hear more tomorrow, between July 6th and

 9     July 11th, the VRS launched a co-ordinated and violent attack on the

10     Srebrenica enclave, with the objective of forcibly removing the Bosnian

11     Muslim population.  This campaign comprised of ostensibly two phases.

12     Between July 6 and July 9, the VRS subjected the enclave to daily mortar

13     and artillery attacks and disabled UNPROFOR forces tasked with protecting

14     the civilian population by removing them from their observation posts.

15     After reducing the enclaves to their urban areas, the VRS began a

16     take-over of Srebrenica town itself.  On July 10th, the VRS launched

17     rockets and artillery attacks into Srebrenica town, resulting in between

18     160 and 200 detonations.  On July 11th, Srebrenica town, including the

19     DutchBat compound, were subject to further shelling while the surrounding

20     hills within which the town is located was secured.  By the time,

21     Your Honours, the Bosnian Serb forces descended from the hills into

22     Srebrenica the afternoon of July 11th, the tens of thousands of Bosnian

23     Muslims who had been in Srebrenica had been removed.

24             As Your Honours know, Pandurevic, the appellant, is not remote to

25     these events.  He was an intimate participant in this campaign.  He

Page 381

 1     commanded a group of soldiers in these attacks and he was responsible for

 2     cleansing Srebrenica of Bosnian Muslims.  The Chamber found that

 3     Pandurevic was responsible for removing DutchBat soldiers from their

 4     observation posts in the southern part of the enclave during the first

 5     phase of the attacks; that's judgement paragraph 1848.  And after

 6     successfully removing UNPROFOR's presence, the Chamber found that

 7     Pandurevic participated in the take-over of Srebrenica itself by securing

 8     the surrounding hills before entering Srebrenica at 4.00 p.m. on

 9     July 11th; and that's the judgement paragraphs 1850 to 1851.

10             Your Honours, the Chamber found that Pandurevic participated in

11     these attacks, despite knowing that its very objective -- or that one of

12     its objectives, excuse me, was to expel Bosnian Muslims out of the

13     enclave and that his actions would facilitate that aim.  That's judgement

14     paragraphs 1994 and 2010.

15             Notably, Your Honours, none of these findings are challenged by

16     the Defence.  Instead, the Defence raises two legal challenges -- I say

17     "two" because its legal challenge in its brief was whether or not a

18     purpose requirement should be established, and then it raises for the

19     first time today its second legal challenge which is arguments on the

20     basis of specific direction.

21             Your Honours, I do not tend -- I will not explain why purpose is

22     not a mens rea requirement for aiding and abetting.  We have disposed of

23     that issue in our appeal brief.  And we would further note, in fact, that

24     as I just referenced, the Perisic appeal judgement also disposed of that

25     issue at paragraph 48 of its judgement.

Page 382

 1             Therefore, I will go directly to their challenges concerning

 2     Perisic.

 3             Your Honours, whether or not this Chamber finds that Perisic

 4     should be overturned or whether or not this Chamber finds that the

 5     Trial Chamber rejected specific direction as a requirement in this case,

 6     the facts and the Chamber's findings show, without doubt, that there

 7     is -- that the specific direction test has been met on the findings that

 8     were made by the Trial Chamber.  This is not a case like Perisic nor a

 9     case like the hypothetical posed by the Defence in their appeal and their

10     reply brief, where there is a foreign military providing general

11     assistance that could be used for either unlawful or lawful purposes.  As

12     I noted before, Pandurevic was not remote to the crimes.  This is a case

13     about a commander who was on the ground, participating in a campaign he

14     knew to be unlawful, and committing acts he knew would facilitate that

15     unlawful objective.

16             In Perisic, Your Honours, the Appeals Chamber defined "specific

17     direction" as:

18             "... a culpable link between assistance provided by an

19     accused ... and the crimes ..."

20             That's Perisic appeals judgement 37.

21             Importantly, Your Honours, I would note that the Defence

22     completely failed to provide the Chamber the definition of "specific

23     direction" in its articulation of what the test meant in the Perisic

24     appeals judgement, but we would re-emphasise that in Perisic, the

25     Appeals Chamber only defined "specific direction" as, I again quote, "a

Page 383

 1     culpable link between the accused's acts of assistance and the crimes

 2     that were perpetrated."

 3             While the Prosecution believes that the contours of what that

 4     test and, specifically, what a culpable link consists of is vague and

 5     highly ambiguous, Perisic makes clear that at minimum specific direction

 6     can be demonstrated implicitly through the other elements of aiding and

 7     abetting, namely, substantial contribution and knowledge, where the aider

 8     and abettor's acts are geographically or otherwise proximate to the

 9     crimes of the principal perpetrators.  That's Perisic paragraph 38.

10             Your Honours, I emphasised "otherwise" because in the Defence's

11     submissions they contended that Perisic only required that proximity

12     exist geographically, as in an individual stood next to another

13     individual committing the crimes.

14             For instance, Your Honours, in Perisic, the Appeals Chamber found

15     that Momcilo Perisic, the chief of the VJ, was remote from the crimes

16     committed in the VRS because, one, the VRS was independent from the VJ;

17     two, the VRS and the VJ were based in separate geographic regions; and

18     three, that there was no evidence that Perisic himself was physically

19     present when the relevant criminal acts were either planned or committed.

20     And, Your Honours, that's Perisic paragraph 42.

21             In this case, the evidence and the Chamber's findings demonstrate

22     precisely the opposite.  The culpable link between Pandurevic and the

23     crimes is first evident by Pandurevic's proximity to the crimes.  From

24     July 5th until July 12th, Pandurevic was in or immediately around

25     Srebrenica while commanding the 1st Tactical Group in the attack on the

Page 384

 1     enclave and subsequently in the take-over of Srebrenica town itself.

 2     That's judgement paragraphs 1845 to 1855.

 3             Indeed, immediately after the Bosnian Muslims were expelled,

 4     Pandurevic's forces set up headquarters in Srebrenica town and Pandurevic

 5     himself was seen walking through the empty streets of Srebrenica with

 6     Mladic, Krstic, and Popovic.  That's judgement paragraph 1851.

 7             Further, Your Honours, unlike in Perisic where the VJ and the VRS

 8     were in separate entities -- excuse me, were separate entities, the

 9     findings are abundantly clear that Pandurevic's 1st Tactical Group was a

10     part and parcel of the very VRS forces that were engaged in the attacks

11     on the enclaves.  That's judgement paragraph 247.

12             And finally, unlike in Perisic, Pandurevic was present during the

13     briefing of Krivaja 95, when the unlawful objectives of the attacks were

14     discussed at a command meeting on July 1st, at Pribicevac forward command

15     post.  He was also present in and around Srebrenica during virtually the

16     entire time the town and the enclave were subject to the VRS's unlawful

17     attack.  That's judgement paragraphs 1842, 1846 to 1850.

18             All together, Your Honours, we submit that these findings show,

19     without a doubt, that Pandurevic -- that his -- Pandurevic's acts and

20     assistance was proximate to the crimes of forcible transfer that were

21     going on at the time.  Indeed, Your Honours, he was certainly more

22     proximate to the crimes than Krstic, who the Perisic Appeals Chamber

23     found was a proximate aider and abettor at footnote 100 of its appeals

24     judgement.  During the relevant time, Krstic was located in Vlasenica or

25     the forward command post in Zepa while his assets and his men were being

Page 385

 1     used to commit or carry out the murder operation in Zvornik.  That's

 2     Krstic Trial Chamber -- trial judgement, excuse me, paragraphs 378 and

 3     413.

 4             In this case, Pandurevic was on the ground with his troops,

 5     engaged in the acts, assisting the forcible transfer campaign, and then

 6     subsequently, as you will hear on Monday or tomorrow, in Zvornik during

 7     the times in which his brigade members were carrying out or assisting the

 8     murder operation.

 9             Your Honours, the culpable link is also evident by Pandurevic's

10     contributions to the forcible transfer campaign, a matter which the

11     Defence touched upon today.  The Chamber found that while Pandurevic's

12     actions were part of the Krivaja 95 operation that included a legitimate

13     military aim, his actions at the same time, simultaneously, supported the

14     plan to forcibly remove the Bosnian Muslim population from Srebrenica.

15     And that's judgement paragraph 1996.

16             The Chamber found that in the Krivaja 95 order itself, that the

17     1st Tactical Group, which Pandurevic was responsible for commanding, had

18     been specifically tasked with the purpose of reducing the enclave in

19     addition to combatting the ABiH.  That's judgement paragraph 247.

20             In accordance with those objectives, the Chamber found that on

21     July 8th, the 1st Tactical Group under Pandurevic's command unlawfully

22     removed UNPROFOR soldiers from their observation posts located in the

23     southern part of the enclave.  And that's judgement paragraphs 770, 1997,

24     and 2011.  And as I noted before, Pandurevic's contributions also

25     consisted of assisting the VRS in taking over Srebrenica town itself by

Page 386

 1     securing the surrounding mountain range.

 2             And finally, Your Honours, the culpable link is evidenced in this

 3     case by the fact that Pandurevic himself knew that at the time in which

 4     he was participating in the attack, that his participation would assist

 5     the commission of the forcible transfer of the Bosnian Muslim population

 6     from the Srebrenica enclave.  And that's judgement paragraph 2010.

 7     Pandurevic himself testified that in spring of 1995 he was aware of

 8     Zivanovic's 20 March 1995 order to the Drina Corps brigade commanders,

 9     which specifically reiterated the criminal objective of Directive 7, that

10     through combat operations of the Bosnian Serb forces that they would, and

11     I quote, "create an unbearable situation of total insecurity, with no

12     hope of further survival or life for the inhabitants of Srebrenica and

13     Zepa."  And that's judgement paragraph 1993 and transcript page 30822.

14             Pandurevic in fact testified, Your Honours, that he believed

15     Zivanovic's order to effectively take Directive 7 and adapt it to the

16     Drina Corps's operations.  That's transcript pages 31430 to 31431, which

17     are cited also at footnote 555 of paragraph 201 of the judgement.

18             In addition, Your Honours, Pandurevic also knew and implemented

19     the two Krivaja 95 orders, which expressly refer to Directive 7 and 7/1

20     in outlining the tasks of the combat groups, including Pandurevic's

21     combat unit.  The second order of Krivaja 95, which was the combat order,

22     specifically noted that one of the objectives of the attack was, and I

23     quote, "to create conditions for the elimination of the enclaves."

24     Judgement paragraph 1994.

25             And then finally, Your Honours, I also note the interim combat

Page 387

 1     report issued by Pandurevic on July 16th which is described at

 2     paragraph 1876 of the judgement and marked as Exhibit 7DP330.  And,

 3     Your Honours, you can see an excerpt of that exhibit on your screens.  As

 4     you can see, the last sentence of the report has been brought out in

 5     order to emphasise it, but it states very specifically in Pandurevic's

 6     own words, and I quote:

 7             "I consider the Krivaja 95 operation is not complete as long as a

 8     single enemy soldier or civilian remains behind the front line."

 9             Therefore, Your Honours, Pandurevic's own words left no doubt

10     that he was aware that his orders involved expelling civilians from the

11     enclaves.

12             Together these facts and findings show that Pandurevic was

13     proximate to the crimes, substantially contributed to them, and that he

14     knew throughout the campaign that his acts would assist the commission of

15     those crimes.  The culpable link, therefore, between Pandurevic and the

16     forcible transfer -- excuse me, forcible removal of the Bosnian Muslims

17     is, therefore, met in this case.

18             Your Honours, I therefore now turn to the events on July 23rd and

19     also address the issue concerning specific direction, again emphasising

20     why the culpable link between Pandurevic's acts of assistance and the

21     crime of the murder were met on the facts of this case, regardless of

22     whether or not this Chamber adopts Perisic as a valid articulation of the

23     elements of aiding and abetting.

24             Your Honours, I will not repeat our arguments on why the Chamber

25     properly held that the mens rea required for aiding and abetting is

Page 388

 1     knowledge.  Instead, I will first explain -- excuse me, I will focus on

 2     explaining why that culpable link was met.  First, the Chamber's findings

 3     make clear that Pandurevic was geographically or otherwise proximate to

 4     the crimes.  The wounded prisoners were held in the custody of the

 5     Zvornik Brigade and guarded by the Zvornik Brigade military police, units

 6     commanded by Pandurevic himself, just like in the context of Krstic where

 7     his units and his assets were utilised in the -- in the commission of

 8     crimes in Zvornik.

 9             Further, the prisoners were detained at the medical unit in the

10     Standard barracks in Karakaj, where Pandurevic himself was based

11     throughout the relevant time.  And Your Honours can find that at

12     judgement paragraphs 1900, 1908, 1986, and transcript page 31159.

13             Second, Pandurevic knew that it was probable that the wounded

14     prisoners would be murdered once they were transferred into Popovic's

15     custody.  That's a finding that the judgement -- that the Trial Chamber

16     made at paragraph 1898.  During the trial, Your Honours, Pandurevic

17     himself testified that by July 23rd he was fully aware that Popovic was

18     in the Zvornik area and that Popovic had been involved in the execution

19     of prisoners.  That's judgement footnote 5730 and transcript pages 32261

20     to 32262.  The evidence also showed that in his own conversations with

21     Obrenovic on July 15th and July 17th, that Pandurevic learned of

22     Popovic's key role in carrying out the murder of the Bosnian Muslim

23     prisoners and that he had a full detail of not only the murder operation

24     but of the details which you heard today on Monday concerning Popovic's

25     significant role.  And that, Your Honours, can be found at judgement

Page 389

 1     paragraphs 1861 and 1883.

 2             And indeed, the evidence showed that sometime after the prisoners

 3     were taken away from Popovic and when asked about Obrenovic -- excuse me,

 4     when asked by Obrenovic about the wounded prisoners, Pandurevic himself

 5     replied that Popovic had arrived with an order from Mladic that the

 6     prisoners be "liquidated."  That's judgement paragraph 1905.

 7             Finally, Your Honours, the culpable link is evidenced here in

 8     light of the direct link between Pandurevic's failure to act and the

 9     murder of the wounded prisoners.  The Chamber found that Pandurevic had

10     custody and control over the ten wounded prisoners who were detained at

11     the Zvornik Brigade.  That's judgement paragraph 1986.  The Chamber also

12     found that despite having the duty to take actions to protect the

13     prisoners from being harmed when they were transferred to Popovic's

14     custody that Pandurevic took no action whatsoever to prevent the custody

15     of the prisoners from being transferred to Popovic.  That's judgement

16     paragraph 1988.

17             In light of these facts and findings, Your Honours, there can be

18     no doubt that there existed a culpable link between Pandurevic's acts --

19     excuse me, his omissions and the murder of the ten wounded patients in

20     light of his proximity to the crimes, knowledge of Popovic's murderous

21     propensity, and substantial contribution to the murders for his failure

22     to exercise his legal duty to protect the prisoners.

23             Your Honours, this concludes my submissions, but I would make one

24     brief note.  While we have argued that under the facts of this case, and

25     especially in light of the Chamber's findings, that regardless of whether

Page 390

 1     this Chamber adopts specific direction as a test as part of the

 2     jurisprudence of this Chamber, that we would note briefly the

 3     Prosecution's position -- excuse me, that -- if the Chamber were to

 4     accept specific direction that it would not alter the findings of this

 5     case.  But putting that aside, we would note just briefly the

 6     Prosecution's position that specific direction is not an element of the

 7     actus reus of aiding and abetting, and that if the Court would like to

 8     hear detailed arguments to that effect, that we would be happy to provide

 9     supplemental submissions on that matter.

10             Therefore, Your Honours, unless you have any questions, I would

11     now pass the podium to my colleague Mr. Wood to address ground 2 of the

12     Defence's appeal.

13             JUDGE ROBINSON:  We'll hear Mr. Wood.

14             MR. WOOD:  Good afternoon, Your Honours.

15             As my colleague said, my name is Kyle Wood and I'll be handling

16     the Prosecution's response to ground 2 to General Pandurevic's appeal.

17             Let me start, Your Honours, by saying the only relevant issue in

18     ground 2 is whether General Pandurevic, the Zvornik Brigade commander,

19     had the material ability to take the necessary and reasonable measures to

20     prevent his Zvornik Brigade subordinates from committing and aiding and

21     abetting murders.  The Chamber found that he did, and Pandurevic in his

22     submissions and in his submissions here today fails to show that this

23     finding was one that no reasonable finder of fact could reach.  As you've

24     heard, his attack takes two prongs.  First, he challenges a finding that

25     actually, Your Honours, has no bearing whatever on his conviction, that

Page 391

 1     he had the material ability to prevent and punish his subordinates

 2     between the 4th of July and noon on the 15th of July.  And this was when,

 3     as you've heard, General Pandurevic was busy attacking the Srebrenica and

 4     Zepa enclaves.

 5             Though the General himself admits that he could both communicate

 6     with and issue orders to his subordinates during this period, he

 7     nevertheless claims he was simply too busy to be able -- to have had the

 8     material ability to take the necessary and reasonable measures to prevent

 9     his subordinates or to punish their criminal acts.

10             Second, as you've heard, General Pandurevic argues that he lacked

11     the ability to prevent his front line soldiers, his military policemen,

12     his engineers from perpetrating crimes between the 15th and the

13     17th of July, 1995, because they had been taken over by Mladic, Beara,

14     and Popovic.  Both of these arguments, Your Honours, are wrong in law and

15     wrong in fact, and if accepted on these facts, they would stand for the

16     proposition that a commander can avoid command responsibility by failing

17     to exercise responsible command.

18             So I'll turn then to Pandurevic's first argument which is also

19     subject to Your Honours' first question.

20             First -- again I note that the period between the 4th and the

21     15th of July has no bearing on the convictions that General Pandurevic

22     actually appeals.  But that said, I'll also note that General Pandurevic

23     fails to show the Chamber's finding is one -- is unreasonable and that's

24     because, first, it's consistent with Pandurevic's own admissions on this

25   (redacted)

Page 392

 1   (redacted)

 2     three, as the Chamber pointed out, there was no order that replaced

 3     General Pandurevic as commander of the Zvornik Brigade in contrast to

 4     what happened when General Pandurevic was sent to the Krajina in

 5     August 1995 and Obrenovic was formally made acting commander of the

 6     Zvornik Brigade.

 7             Now, I start first with Pandurevic's admissions.  The

 8     Trial Chamber found that Pandurevic admitted at trial that he retained

 9     formal command of the Zvornik Brigade and that he had the ability to both

10     contact his brigade and to issue orders to his subordinates during the

11     time that he was away attacking Srebrenica and Zepa.  Rather, what they

12     found is that he merely chose not to.  This is at paragraph 2031 of the

13     trial judgement.  And in fact, Your Honours, an intercept shows that on

14     the morning of the 15th of July, Pandurevic -- before Pandurevic had in

15     fact returned to the Zvornik Brigade headquarters, he did order a

16     subordinate to do a task and that that task was followed.  He ordered his

17     subordinate Miladin Mijatovic to "call the 4th, 6th, and 7th for me,

18     check the conditions, and report back."  This is all in footnote 5572 of

19     the trial judgement, Your Honours.

20             15 minutes later, Mijatovic delivered the report his commander

21     had ordered.

22             Pandurevic essentially repeats this concession at paragraph 37 of

23     his reply brief, when he admits that "he was not incapable of issuing one

24     or more orders."  The evidence shows that then, Your Honours, during his

25     absence from the brigade from the 4th to noon on the 15th, he had the

Page 393

 1     material ability to issue orders to his subordinates and that those

 2     orders were followed.  Certainly, Your Honours, a commander who has the

 3     material ability to issue orders to his subordinates also has the

 4     material ability to prevent and punish them.

 5             Moving on then to Obrenovic, the Chamber also found that

 6     Obrenovic understood that Pandurevic remained the de facto commander of

 7     the Zvornik Brigade throughout 1995.  Now, there are two instances in

 8     particular that illustrate this.  First, the Chamber noted that PW-168

 9     testified that Obrenovic had made a mistake when he neglected to notify

10     Pandurevic that Obrenovic had granted the request of Drago Nikolic to

11     participate in the murder operation and had ordered the military police

12     to assist Nikolic.  This is at trial judgement 2030.

13             Now, why is this, Your Honours?  It's because, according to this

14     testimony, Obrenovic knew Nikolic was the direct subordinate of

15     Pandurevic.  That's at trial judgement 148.  As such, he was required to

16     keep his command informed of any requests for assistance from the

17     security line.  That's trial judgement 155.  Obrenovic, as Chief of

18     Staff, could only issue orders in the spirit of the commander's orders,

19     and the commander had to be consulted on all taskings of the military

20     police, the military police, Your Honours, which I will point out are

21     also under (redacted)

22   (redacted)

23   (redacted)

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Page 394

 1   (redacted)

 2   (redacted)

 3             And if we could briefly go into private session for this next

 4     portion.

 5             JUDGE ROBINSON:  Yes.

 6                           [Private session]

 7   (redacted)

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22                           [Open session]

23             THE REGISTRAR:  Your Honours, we're back in open session.

24             MR. WOOD:  Second, Your Honours, on the 15th of July, PW-168

25     testified that when Obrenovic concluded that the course of combat had

Page 395

 1     reached a point at which he believed the military objective ought to

 2     change, that the column should be allowed to pass rather than militarily

 3     defeated, he required Pandurevic's approval.  PW-168 testified that

 4     Obrenovic's first call was to the Drina Corps command to be connected

 5     with Pandurevic.

 6             And I know it's cumbersome, but if I could ask you to go back

 7     into private session just once more, Your Honours.

 8             JUDGE ROBINSON:  Yes.

 9                           [Private session]

10   (redacted)

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Page 396

 1                           [Open session]

 2             THE REGISTRAR:  Your Honours, we're back in open session.

 3             MR. WOOD:  The evidence cited in paragraph 553 shows,

 4     Your Honours, that Obrenovic also understood that he -- Pandurevic

 5     remained in command and control of the Zvornik Brigade, otherwise

 6     Obrenovic himself would have just allowed the column to pass through the

 7     lines.

 8             And finally, Your Honours, as the Chamber noted, when

 9     General Pandurevic went to Srebrenica on the 4th of July, 1995, there was

10     no order that replaced him as Zvornik Brigade commander on either a

11     temporary or permanent basis.  And the Chamber found this significant

12     because it was in notable contrast to the situation a few weeks later in

13     early August, when General Pandurevic was sent to the Krajina.  In that

14     situation, a formal order was issued, making Obrenovic the acting brigade

15     commander.

16             In his submissions, Your Honours, Pandurevic generally accepts

17     many of these findings, but he argues in essence that he was merely too

18     busy attacking Srebrenica and Zepa, on Krstic's orders, to be able to

19     have the material ability to take the necessary and reasonable measures

20     to prevent his subordinates' criminal acts and to punish them for those

21     acts.  Yet, he points to no evidence, either in his written submissions

22     or here today, to show that the order sending him to participate in the

23     attack on Srebrenica deprived him of the material ability to prevent and

24     punish.  Rather, what the evidence shows is that Pandurevic did not

25     hesitate to continue to assert his authority with respect to the brigade


Page 397

 1     when he chose to do so.  That's at paragraph 2029.

 2             General Pandurevic argues here today, as he did in his brief,

 3     that somehow this finding about the irrelevant period infected the

 4     Chamber's findings about the only relevant period to his conviction,

 5     which is the period starting from noon on the 15th.  Rather,

 6     Your Honours, the Chamber made distinct findings at paragraphs 2027 to

 7     2031 about General Pandurevic's command and effective control throughout

 8     July.  It then took up his argument about this period between the 4th and

 9     the 15th, it considered his argument, and it found that there was no

10     evidence to support a finding that General Pandurevic had lost de facto

11     control that he had maintained since he had assumed command of the

12     Zvornik Brigade in December 1992.  Rather, the Chamber relied on the

13     evidence the Prosecution adduced, including Nikolic's request on the

14     13th of July that the regular command line was functioning in

15     Pandurevic's absence.

16             This brings us, Your Honour, to the second main challenge to the

17     Chamber's finding.

18                           [Appeals Chamber and Legal Officer confer]

19             JUDGE ROBINSON:  Yes, can we have private session, please.

20                           [Private session]

21   (redacted)

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Page 398











11 Page 398 redacted. Private session.
















Page 399

 1                           [Open session]

 2             THE REGISTRAR:  Your Honours, we're back in open session.

 3             MR. WOOD:  So again, Your Honours, I was about to explain why

 4     General Pandurevic's second main line of attack on this finding is also

 5     incorrect.  It may be an appropriate time in that instance to take a

 6     break.  It's likely to take more than two minutes.

 7             JUDGE ROBINSON:  Yes, we'll take the adjournment.  But I

 8     understand that counsel have one or two points to raise very quickly.

 9             MR. BOURGON:  Thank you, Mr. President.  I think this is

10     something that can wait.  This is absolutely no -- no -- not urgent and

11     can be raised at a later time, not in between of an appeal.

12             JUDGE ROBINSON: [Microphone not activated]

13             MR. BOURGON:  I would prefer to address the Trial Chamber -- the

14     Appeals Chamber later, Mr. President.

15             JUDGE ROBINSON: [Microphone not activated].

16             Very well, very well.

17             Any other counsel?  No.

18             We adjourn until tomorrow.

19                           --- Whereupon the hearing adjourned at 4.58 p.m.,

20                           to be reconvened on Thursday, the 5th day of

21                           December, 2013, at 10.00 a.m.