1 Friday, 6 December 2013
2 [Appeals Hearing]
3 [Open session]
4 [The appellants entered court]
5 [The Appellant Miletic not present]
6 --- Upon commencing at 9.35 a.m.
7 JUDGE ROBINSON: Thank you. It is our expectation that with the
8 earlier start and focused presentations, we may - without prejudicing the
9 rights of any party - conclude the proceedings today. We may take an
10 abbreviated lunch break.
11 Mr. Kremer.
12 MR. KREMER: Thank you, Mr. President. For the record, my name
13 is Peter Kremer, I appear on behalf of the Prosecution. With me this
14 morning is Mr. Paul Rogers and Mr. Kyle Wood, who you are familiar with
15 from earlier submissions.
16 Let me begin by briefly outlining how the Prosecution will
17 present its oral arguments on its appeal. We will use the order of the
18 response submissions and the length of our submissions as a guide. As
19 such, I will make very brief submissions concerning Beara and Popovic's
20 acquittal for conspiracy to commit genocide and Miletic's acquittal for
21 murder as a violation of the laws or customs of war. These are grounds 6
22 and 9 of our appeal respectively.
23 Mr. Rogers will then make submissions concerning Drago Nikolic's
24 erroneous acquittal for conspiracy to commit genocide, ground 7 of our
25 appeal, as well as answer your question relating to those issues. We
1 rely on our submissions as to why Nikolic's sentence was manifestly
2 inadequate, and that is ground 8 of our appeal. But as I say, we rely on
3 our written submissions for the adequacy for that appeal.
4 Mr. Wood and I will then conclude by making submissions
5 concerning Vinko Pandurevic. Mr. Wood will answer questions ii, iii, iv,
6 and v, and in doing so will present our submissions on ground 2, his
7 superior responsibility under Article 7(3). I will speak to ground 1,
8 which challenges the Trial Chamber's findings regarding his criminal
9 responsibility under Article 7(1), and I will only address grounds 1(A)
10 and 1(B). For subground 1(C), we rely on our brief. Time permitting,
11 Mr. Wood will make a few short remarks about ground 3, Pandurevic's
12 manifestly inadequate sentence.
13 As Your Honours are well aware, grounds 4 and 5 are moot given
14 Mr. Gvero's passing. And as for remedy, the Prosecution refers
15 Your Honours to the prayers for relief found in both our notice of appeal
16 and appeal brief.
17 Starting with ground 6, our appeal against Beara and Popovic's
18 acquittal for conspiracy to commit genocide. We observe that on
19 9 October 2012, the ICTR Appeals Chamber in Gatete decided the issue of
20 cumulative convictions for conspiracy to commit genocide and genocide.
21 And I refer to those findings in the appeals judgement at paragraphs 259
22 to 264.
23 Like the Trial Chamber in Gatete, the Trial Chamber in this case
24 found Popovic and Beara criminally responsible for genocide and for
25 conspiracy to commit genocide but only convicted them of genocide. The
1 Gatete appeal judgement, Judge Agius dissenting, found that the
2 Trial Chamber erred in law by failing to hold Gatete responsible for the
3 totality of his criminal conduct, which included entering into the
4 unlawful agreement to commit genocide, just as the Prosecution has argued
5 in ground 6. The Gatete Appeals Chamber expressly disagreed with the
6 Trial Chamber's reliance on the Popovic Trial Chamber's reasoning for
7 declining to enter a cumulative conviction. In particular, the
8 Appeals Chamber concluded that, one, the danger represented by the
9 agreement to commit genocide itself justifies punishing the acts of
10 conspiracy, even where the substantive crime has been committed; and two,
11 it is the legal elements of two crimes that must be compared to determine
12 whether they are permissibly cumulative, not the underlying evidence.
13 The Gatete appeals judgement fully supports the Prosecution's arguments
14 in ground 6 and confirms that the Popovic Trial Chamber took an erroneous
15 approach. The Gatete Appeals Chamber provided a thorough analysis of the
16 issue which is highly persuasive and should be followed by this Chamber.
17 Unless there are questions from the Bench on this ground, we have
18 no further submissions.
19 Turning to ground 9, Miletic's acquittal for murder as a
20 violation of the laws or customs of war, all of the elements required to
21 convict Miletic of this crime were established.
22 The Chamber convicted Miletic of these killings under JCE 3, but
23 only for murder as a crime against humanity and as an underlying act of
24 persecution, but not as a war crime. The Chamber reasoned in
25 paragraph 1727, and I quote:
1 "... that in the circumstances of 'opportunistic' killings
2 arising from a JCE to forcibly remove - encompassing forcible transfer as
3 other inhumane acts constituting a crime against humanity - his criminal
4 responsibility is for murder as a crime against humanity and not as a war
6 This finding is erroneous, regardless of whether the Chamber
7 reached it as a factual or legal conclusion.
8 If the Chamber meant that it is a legal requirement that the
9 JCE 3 crime is to be of the same category, that is, a crime against
10 humanity, as the JCE 1 crime, then it is wrong in law. As we have set
11 out in our appeal brief, the Appeals Chamber in Stakic and Martic
12 affirmed convictions for murder as a war crime under JCE 3, although the
13 JCE 1 crime was a crime against humanity. And I refer you to our appeal
14 brief at paragraph 325.
15 If the Chamber meant that it could not conclude factually that
16 murder as a war crime was a natural and foreseeable consequence of the
17 joint criminal enterprise to forcibly displace and that Miletic could
18 foresee this and willingly took the risk, then this is an unreasonable
19 conclusion. What distinguishes murder as a war crime under
20 Common Article 3 from murder as a crime against humanity, is that the
21 crime needs to be closely related to the armed conflict and that the
22 victims are persons not taking part in the -- active part in the
24 On the facts of this case, no reasonable Trial Chamber could have
25 concluded that it was not a natural and foreseeable consequence that
1 murder closely related to the armed conflict would occur, given that part
2 of the coercion used was a full-scale military attack on Srebrenica.
3 Similarly, in light of the aim to remove the civilian population from
4 Srebrenica, it was a natural and foreseeable consequence that persons not
5 taking active part in the hostilities might be killed.
6 In light of Miletic's role and involvement in the joint criminal
7 enterprise and his intimate knowledge of the events, the only reasonable
8 conclusion is that it was foreseeable to him personally that killings
9 closely related to the armed conflict might occur in relation to victims
10 not taking active part in the hostilities.
11 Unless there are questions on this ground, I will now pass the
12 podium to Mr. Rogers.
13 MR. ROGERS: Good morning, Mr. President, Your Honours, and my
14 colleagues for the Defence and everyone else in and around the courtroom.
15 Your Honours, I will be dealing with the appeal relating to
16 Drago Nikolic, as Mr. Kremer has indicated. In relation to our remarks
17 concerning conspiracy, we rely upon our brief and the arguments insofar
18 as they are necessary relating to Gatete which Mr. Kremer has outlined.
19 My submissions will be confined to answering Your Honours' two questions
20 that you have posed to the parties, and of course in relation to
21 question 2, and the submissions I would have made will be in relation to
22 the appeal as a whole will be somewhat encompassed within. So I ask
23 Your Honours to have regard to that, and for the rest we rely upon our
25 Your Honours, in relation to the question -- the first question
1 that Your Honours ask: Discuss whether the Prosecution's allegation that
2 the Trial Chamber failed to apply the accepted factors for inferring
3 genocidal intent to the evidence when assessing Nikolic's mens rea for
4 genocide exceeds the Prosecution's notice of appeal, and if it does,
5 whether the Prosecution wishes to add any further arguments to its motion
6 to vary its notice of appeal concerning good cause for variation.
7 Your Honours, simply put, our submission is that the paragraphs
8 that you've identified, 237 to 243, are not new arguments but are an
9 aspect of the factual ground and, as such, are wrapped up in the error
10 alleged in paragraph 39 of our notice of appeal. This is because the
11 argument falls within the general factual error articulated in ground 7
12 of the notice and arguments detailing that error belong in the brief and
13 not in the notice. Using factors that have been identified as evidential
14 considerations from which genocidal intent can be inferred is one way to
15 show that the Trial Chamber's assessment in this case was one that no
16 reasonable Trial Chamber could make. Thus, it is an aspect of the
17 factual error. Indeed, the whole of the Prosecution's appeal brief
18 primarily is an explanation of the factual error. The only legal error
19 identified in the notice of appeal concerns the assessment of legally
20 irrelevant considerations, and the arguments relating to those are set
21 out in paragraphs 274 and 285 to 288 of the brief. Everything else that
22 is argued relates to the factual appeal because it relates to the
23 assessment of the available evidence and the unreasonable conclusion of
24 the Trial Chamber giving rise to a miscarriage of justice.
25 The relevant factors referred to in 237 to 243 describe a number
1 of facts and circumstances from which genocidal intent may be inferred.
2 Those factors are also referenced in the judgement itself at
3 paragraph 823 and 824. These arguments form part of the factual
4 assessment error and properly appear in the brief, not the notice of
5 appeal. And, Your Honours, we would refer you also to the decision in
6 the Mrksic appeal dated the 26th of August, 2008, paragraph 8, cited in
7 our reply brief.
8 Your Honours, in our submission a broad pleading of a factual
9 error will encompass all of the elements and all of the arguments that go
10 to support how that error is made out. The Prosecution's argument here
11 falls within the factual error pleaded in the notice of appeal, similarly
12 to that in the Mrksic decision at paragraph 26, because it clearly
13 addresses the single question, which is the mens rea aspect of Nikolic's
14 responsibility which is the core of the Prosecution's submission under
15 its seventh ground of appeal. Thus, our primary argument remains that we
16 do not exceed the notice of appeal. However, should Your Honours reject
17 that argument and consider the argument should have been separately
18 articulated as a legal error, good cause exists for not including or
19 articulating it as a legal error in the notice. Firstly, the line
20 between legal and factual errors is not always clear in the
21 jurisprudence. In some previous cases where the Prosecution has alleged
22 errors regarding the assessment or relevant factual circumstances or
23 factors as legal errors, the Appeals Chamber has recharacterised them as
24 factual. For example, in the Naletilic appeals judgement, paragraph 128
25 and 139 to 140; also in Krnojelac appeals judgement, paragraph 187 to
1 202. Having regard to the Mrksic decision, in our submission it was
2 reasonable to consider that the argument detailing the error should be
3 made in the brief rather than in the notice.
4 In addition to the reasons provided for good cause for variation
5 in our reply brief, the Prosecution notes and submits that no unfair
6 prejudice would result because Nikolic has fully responded to the
7 arguments developed in the Prosecution's brief in his response brief.
8 And in similar circumstances, we refer you again to the Mrksic decision,
9 paragraph 37; the Nchamihigo appeals judgement paragraph 331; and the
10 Blagojevic and Jokic appeals decision of the 20th of July, 2005.
11 Your Honours, that said, I will pass, if I may, to the second
12 question that Your Honours ask. Your Honours asked: Discuss whether in
13 taking into account the alleged errors committed by the Trial Chamber in
14 determining Nikolic's mens rea for genocide Nikolic's specific intent for
15 genocide would be unequivocally established, and particularly whether
16 genocidal intent is the only reasonable inference available on the
18 The answer is yes because the general context and all the other
19 factors of scale and systematic targeting show that a genocide was being
20 implemented. Indeed, the judgement found that the murder operation was
21 genocidal because Nikolic was a party to the plan to murder with Popovic
22 and Beara and shared their intent to kill and to exterminate; because
23 Popovic and Beara were implementing the murder plan in order to commit
24 genocide; because Nikolic knew that Popovic and Beara were murdering in
25 order to further genocide, in the judgement at 1407; because the Chamber
1 found Nikolic's main contributions to the murder plan were made
2 concurrent with and after the acquisition of this knowledge,
3 judgement 1407; because having joined the murder operation, knowing it
4 was genocidal, Nikolic was "persistent and determined," judgement 1408;
5 because he demonstrated resolve, 1409; because he pursued personnel for
6 the executions at Rocevic, 1409; because he was actively involved in many
7 of the facets of the operation at Orahovac, 1409; because he arranged the
8 guarding of prisoners at the Kula school, 1409; because he was with Beara
9 near the Petkovci school, judgement 498; and because he was disciplined,
10 judgement 1413.
11 The answer is yes because motive is irrelevant to the issue of
12 specific intent. It is clear that the Trial Chamber were affected by
13 considerations of motive when they determined mens rea was not proved at
14 1414, when they stated:
15 "... another reasonable inference is that Nikolic's blind
16 dedication to the security service led him to doggedly pursue the
17 efficient execution of his assigned tasks in this operation, despite its
18 murderous nature and the genocidal aim of his superiors ..."
19 In other words, he was motivated by a sense of service or a
20 desire to please, and thus he had no intent. This is simply irrelevant,
21 as the Jelisic Appeals Chamber at paragraph 49, citing to the Tadic
22 appeals judgement at 269 said:
23 "The existence of a personal motive does not preclude the
24 perpetrator from also having the specific intent to commit genocide."
25 In the Tadic appeals judgement the Appeals Chamber stressed the
1 irrelevance and inscrutability of motives in criminal law."
2 And there follows in that paragraph in Tadic at 269 an
3 interesting analysis of a reductio ad absurdum on this specific point
4 relating to mass killing, and it's instructive to look at it but I won't
5 read it out here in court.
6 Your Honours, we also refer to the Kayishema appeals judgement at
7 161, the Niyitegeka appeals judgement at 53, Kvocka appeals judgement at
8 367 and 416. Your Honours, in the Duch appeals judgement -- we're just
9 -- I'm aware of Your Honours and I want to make sure that Your Honours
10 are able to follow. In the Duch appeals judgement on the 3rd of
11 February, 2012, at paragraph 240, the ECCC Appeals Chamber spoke of
12 motive in the context of persecution in this way, they said:
13 "The specific motive out of which he engaged in the persecution,
14 that is, whether he internalised the goals of the CPK behind the
15 persecutory policy or only wanted to prove himself as a loyal and
16 efficient member of the party is immaterial for finding he possessed the
17 requisite specific intent."
18 And in the Charles Taylor appeals judgement in the footnote at
19 1382, they explained that motive:
20 "... concerns the extraneous reasons and motivations that
21 triggered an accused to engage in criminal conduct."
22 In the case of Drago Nikolic, the Trial Chamber relied upon these
23 extraneous reasons and motivations in acquitting him.
24 Your Honours, the Trial Chamber looked at Nikolic's personal
25 circumstances at 1412, such as his rank, that he had not attended
1 military academy, that he was chief of security, a post usually reserved
2 for a higher rank, that he had little authority on his own, that he was
3 brought in by others, that the order came from Mladic.
4 But, Your Honours, to possess genocidal intent, he did not need
5 to be a general or a colonel, or to be powerful or independent. He did
6 not need to access the greatest of resources or to be competent or
7 efficient or to take part in all of the aspects of the operation or even
8 to do all that he can. Your Honours, Nikolic did not need to be an
9 architect to be a genocidaire, as the Trial Chamber seemed to consider at
11 Your Honours, the formation of genocidal intent is not precluded
12 by being out of your depth, as the Trial Chamber seemed to consider at
13 1413, when it recorded Pandurevic's view that the cloak of the security
14 service was much too big for him.
15 None of these factors identified by the Chamber in 1412 or 1413
16 are ones which preclude the formation of a specific intent.
17 Nikolic's position in the hierarchy simply goes to his ability to
18 act. The fact his role was not as encompassing as that of Popovic or
19 Beara does not stop him from having genocidal intent. To do so would be
20 to confine genocide to those with the power to act or ability to act on a
21 great or grand scale. As the Appeals Chamber in Kayishema held at
22 judgement 170:
23 "Genocide is not a crime that can only be committed by certain
24 categories of person. As evidenced by history, it is a crime which has
25 been committed by low-level executioner and high-level planner and
1 instigator alike."
2 To be a genocidaire, all that is required are actions, in this
3 case killings, directed at members of the protected group, carried out
4 with intent to destroy that group in whole or in part. Here those
5 actions were carried out by Drago Nikolic with grim determination and
6 steadfast resolve. He did not have to be passionate or enthusiastic. He
7 may have been somber or angry or weak or eager to please. But once he
8 chose to act and participate, in this case with resolve and
9 determination, his genocidal intent is manifest by his actions. He knew
10 the evil purpose, he possessed the same persecutory intent as Popovic and
11 Beara. He knew what the killing was for, what it was aimed at, and he
12 joined in. Whatever his motivation may have been, and is not relevant,
13 the only reasonable conclusion is that Drago Nikolic possessed genocidal
14 intent. And thus we answer Your Honours' question: Yes.
15 Your Honours, that concludes the answer to those questions, and I
16 will pass - unless Your Honours have questions - to Mr. Wood to
17 conclude -- to continue with the Prosecution's submissions.
18 MR. WOOD: Good morning, Your Honours. In relation to ground 2
19 of the Prosecution appeal, I'll limit my remarks to addressing, as
20 Mr. Kremer said, the second, third, fourth, and fifth questions on page 3
21 of the 6 November 2013 order for the preparation of the appeal hearing.
22 With the possible exception of sentencing, time permitting, after
23 Mr. Kremer's remarks. For those grounds of appeal that I don't address
24 today, as ever, we continue to rely on our written submissions.
25 So going straight away then to Your Honours' question 2 or
1 discussion point 2, which is: Discuss the Trial Chamber's finding that
2 Pandurevic did not have sufficient notice of the Zvornik Brigade's
3 involvement in possible exterminations as of 12.00 p.m. on 15 July 1995.
4 As we argue, Your Honours, in ground 2 of our appeal, the Chamber
5 erred in law by finding that Pandurevic's duty to prevent was not
6 triggered until he had found out concretely [Realtime transcript read in
7 error "completely"] that his subordinates had already participated in
8 3.000 murders. Further, no reasonable Chamber could have concluded that
9 Pandurevic did not [sic] know or have reason to know, at noon on 15 July,
10 that his subordinates might participate in extermination under Article
12 So turning to the legal error first. I'll note that the
13 Trial Chamber articulated, Your Honours, at paragraph 1038 the proper
14 legal standard for determining when precisely a subordinate -- a
15 commander's requirement or duty to prevent is triggered under
16 Article 7(3). And the Chamber said:
17 "The information required to put a superior on notice need not be
18 specific. Rather, it must 'put him on notice of possible unlawful acts
19 by his subordinates.'"
20 Applying this standard, Your Honours, to the question of when
21 Pandurevic's duty to prevent murder was triggered, the Chamber found that
22 Pandurevic had reason to know that his subordinates might commit murder
23 based on what he knew at around noon on 15 July 1995. And what is that
24 knowledge? According to the Chamber, General Pandurevic knew that a
25 large number of prisoners had been brought from Bratunac to the Zvornik
1 sector. General Pandurevic knew that these prisoners were being
2 executed. And General Pandurevic knew according to his subordinates that
3 there were "enormous problems with the guarding, execution and burial of
4 the prisoners." That's at trial judgement paragraphs 1861 and 2037.
5 The Chamber also found that General Pandurevic knew that these
6 prisoners were being killed as part of a plan to murder the able-bodied
7 Bosnian Muslim males from Srebrenica. And that's the Chamber's finding
8 at paragraph 1960. General Pandurevic also knew that this was causing
9 "an additional burden" on his brigade, and that's at paragraphs 1870 and
10 1949 of the judgement.
11 When it comes to extermination, however, the Chamber found that
12 Pandurevic's duty to prevent wasn't triggered until he had acquired
13 details of the actual numbers of prisoners killed, rather than reason to
14 know his subordinates might commit murder on a mass scale. This is
15 clear, Your Honours, from reading two specific paragraphs of the
16 judgement. At paragraph 2070 [sic] of the judgement, the Chamber found
17 that on the 18th of July, Pandurevic had "knowledge of the large-scale
18 murders of the men and boys from Srebrenica ..." That is by the 18th of
19 July. It cites to General Pandurevic's interim combat report of the 18th
20 of July in which he refers to 3.000 Bosnian Muslim males having been
21 brought to the area of Zvornik.
22 Three paragraphs later, however, the Chamber implicitly
23 contrasted this level of knowledge on the 18th of July with the "obvious
24 limitations" of Pandurevic's knowledge on the 15th. And it found that
25 his Article 7(3) responsibility was only triggered "at a late stage."
1 Now, Your Honours, the only possible limitation the Chamber can
2 be referring to is that on the 15th of July, unlike on the 18th of July,
3 which was assuredly a late stage in the murder operation, Pandurevic
4 didn't know that specifically 3.000 had been killed. Now, this is
5 contrary, Your Honours, to the correct reason to know standard, as the
6 Chamber properly articulated it and applied it to murder.
7 In any event, Your Honours, as to the factual error, the
8 characteristic of extermination is that in what distinguishes it from
9 murder is scale. It is the killing of a large number of individuals, and
10 this is at paragraph 800 of the trial judgement. No reasonable finder of
11 fact could have concluded that Pandurevic did not know or have reason to
12 know at noon on the 15th that his subordinates might participate in mass
13 killings. Considering, as I've outlined, that he knew they were
14 participating in a systematic murder operation of a number of -- a group
15 of individuals that was so large that it was creating enormous problems
16 with the guarding, execution, and burial, and it was so large that it was
17 creating an additional burden for his brigade.
18 Further, Your Honours, in this respect, remembering that this is
19 a 7(3) case as to this part, Pandurevic need only have asked if he needed
20 more information at noon on the 15th of July. Recall that he received
21 this information from his Chief of Staff, Obrenovic. At that moment, he
22 could have inquired further. He could have inquired of Nikolic. He
23 could have inquired of Jokic, who is the man he knew the information came
24 from. General Pandurevic should not be acquitted, Your Honours, for this
25 failure to exercise responsible command. And that concludes my
1 submissions on question 2.
2 JUDGE ROBINSON: Yes, Mr. Haynes.
3 MR. HAYNES: I waited until the end. Can I just check a
4 judgement reference that Mr. Wood gave at page 14, line 14. It reads as
5 paragraph 2070.
6 JUDGE ROBINSON: What is correct?
7 MR. WOOD: Your Honours, we'll check that and get back.
8 Turning then to the next question --
9 JUDGE ROBINSON: Just a minute. Judge Pocar would like to ask a
11 JUDGE POCAR: Mr. Wood, I would like to be clear about the
12 standard used for superior responsibility. If I'm correct, you referred
13 to reason to know that the soldiers might participate in the killings and
14 then you used the expression "was possible" that they participate in
15 killings. Now, is that the appropriate standard for superior
16 responsibility? In my recollection the Celebici case, which is the
17 leading case on this matter, when it defined superior responsibility
18 referred - as the Trial Chamber correctly says - that the superior knew
19 or had reason to know that a subordinate's criminal act was about to be,
20 was being, or had been realised. There is a slight difference in using
21 the words that an act was about to be committed, it was possible to be
22 committed, because the possibility standard is clearly a threshold which
23 is much, much lower actually. But can you clarify whether your plea
24 remains the same, referring to the appropriate standard?
25 MR. WOOD: Your Honour, the Trial Chamber was essentially
1 referring -- I think cited specifically to the Strugar appeal judgement
2 in this point, which the Prosecution submits is the proper standard that
3 Your Honours have held is the standard under 7(3). And that is at
4 paragraph 301, and I'll just read that:
5 "Consequently, the Appeals Chamber cannot conclude with certainty
6 that the Trial Chamber properly interpreted the standard of 'had reason
7 to know' as requiring an assessment in the circumstances of the case of
8 whether a superior possessed information that was sufficiently alarming
9 to put him on notice of the risk that crimes might subsequently be
10 carried out by subordinates and justify further inquiry."
11 So this, Your Honours, the Prosecution submits is the proper
12 standard under Article 7(3), as has been articulated by the
13 Appeals Chamber, and as is largely repeated in the
14 Trial Chamber's [Realtime transcript read in error "Prosecution's"] own
15 standard which is put him on notice of possible unlawful acts by his
16 subordinates. Now, the Trial Chamber may have, instead, quoted the
17 language of Strugar specifically, but in the Prosecution's submission it
18 essentially means the same thing and is the correct articulation of the
20 JUDGE POCAR: Thank you for your clarification, although I
21 reserve my position on the standard actually.
22 JUDGE ROBINSON: Please continue. Please continue.
23 MR. WOOD: [Microphone not activated]
24 THE INTERPRETER: Microphone, please.
25 MR. WOOD: Apologies, Your Honour. Instead of "2070," it should
1 be "2076," that reference that my colleague pointed out, at page 14,
2 line 14. And I thank him for correcting that.
3 Moving on then, Your Honours, to the third discussion point or
4 question, which is:
5 "Discuss the legal standard applied by the Trial Chamber in
6 finding that Pandurevic did not have reason to know that his -- that
7 crimes 'would be committed with discriminatory intent' as well as the
8 Trial Chamber's factual finding that Pandurevic did not have reason to
9 know that crimes would be committed by Zvornik Brigade members with
10 discriminatory intent."
11 Your Honours, the Trial Chamber erred here in requiring proof
12 that Pandurevic knew the crimes would be committed with discriminatory
13 intent. Under the correct legal standard, the Prosecution must prove
14 that Pandurevic knew or had reason to know that his subordinates might
15 participate in persecutory murder. Though, the Prosecution did not
16 challenge this erroneous legal standard on appeal, we did articulate the
17 correct legal standard in grounds 2(C) and 2(D) of our appeal, at
18 paragraphs 133, 137, and 141.
19 And I'll note also that General Pandurevic articulates a similar
20 legal test at paragraph 236 of his response.
21 This also accords, Your Honours, with the relevant
22 Appeals Chamber jurisprudence in the Strugar appeal judgement at
23 paragraph 302; the Blagojevic and Jokic appeal judgement at
24 paragraph 228 [sic]; and the Krnojelac appeal judgement at paragraphs 52
25 and 155. In Krnojelac the Appeals Chamber held that aiders and abettors
1 need not share the intent of the perpetrator, but must be aware of the
2 "discriminatory context in which the crime is to be committed." And that
3 is at paragraph 52 of the Krnojelac appeal judgement.
4 So in this case then, Your Honours, the Chamber should have asked
5 itself whether Pandurevic possessed sufficiently alarming information to
6 be put on notice that his subordinates might commit or aid and abet
7 murder and cruel and inhumane treatment with discriminatory intent or
8 with the knowledge of the discriminatory context surrounding these
9 crimes. The only reasonable conclusion on that evidence, Your Honours,
10 is that Pandurevic by noon on the 15th of July, 1995, had, at the very
11 least, reason to know his subordinates might participate in persecutory
13 I've already spelled out in response to the second question the
14 knowledge that Pandurevic had, specifically that he knew a large number
15 would be executed. He -- further, he knew, or it was easy for him to
16 infer, the discriminatory intent of the men he had been told had brought
17 the prisoners to Zvornik -- the Zvornik Brigade area, and that is Beara
18 and Popovic. And that's a finding of the Chamber at 2088. And he also
19 knew of the possibility that his subordinates were participating in this
21 Further, the Chamber found that Pandurevic presided over a
22 brigade in which there existed a "culture of ethnic bias against
23 Muslims," and that's at 2086. This included the commonplace use of
24 ethnic slurs, including documents bearing Pandurevic's own signature.
25 This is a finding at 1398 to 1399 and 2002 of the judgement. And in this
1 respect, I would draw Your Honours' attention in particular to
2 Exhibit P2920.
3 Though the Chamber found that this commonplace use of such
4 language in documents might have been insufficient in itself to prove
5 Pandurevic's genocidal or persecutory intent, it is certainly a
6 reflection of the culture of ethnic bias that reigned in the
7 Zvornik Brigade at the moment that he knew his subordinates might
8 participate in this persecutory murder.
9 The only reasonable conclusion on this evidence, Your Honours, is
10 that Pandurevic at the very least had reason to know that his
11 subordinates might commit or aid and abet murder with persecutory intent
12 or with the knowledge of the discriminatory context surrounding these
14 Now, this concludes my answer to Your Honours' third question.
15 Unless there are further questions from the Bench, I'm happy to move on
16 to the next question.
17 And that is, for the record:
18 "Discuss the Trial Chamber's finding that it was not possible for
19 Pandurevic to report to the military prosecutor because of the likely
20 interference by the VRS Main Staff in any possible proceedings as well as
21 the Trial Chamber's finding that Pandurevic did take some measures to
22 address the crimes of his subordinates."
23 And this relates primarily to the Prosecution's ground 2(E),
24 Your Honours.
25 And these findings and this holding, the Chamber essentially
1 added an additional element to Article 7(3), by requiring that the
2 Prosecution prove that an accused failed to take all necessary,
3 reasonable, and certain-to-be-effective means to punish his criminal
4 subordinates. Rather than judging General Pandurevic by his own failure
5 to take the necessary and reasonable measures within his means, the
6 Chamber judged Pandurevic by speculating about the possible failures of
7 others in carrying out his criminal referrals, had he made any. And
8 thus, they absolved him of having to take any measures.
9 The law says, Your Honour, that Pandurevic, as commander of
10 criminal subordinates, was required to take the necessary and reasonable
11 steps within his own material ability to initiate and pursue the
12 disciplinary punishment process. And that's from the Kvocka appeal
13 judgement at paragraph 316. It must be shown that he genuinely tried to
14 prevent or punish, and that's from the Halilovic appeal judgement at
15 paragraph 63. He must press the matter, if necessary, to the point of
16 resigning, and that's from the IMTFE judgement at paragraph 448.
17 Further, Your Honours, if a superior's attempts are hampered by somebody
18 else, he is expected to continue his efforts and/or protest against this
19 conduct. And this is from the Strugar trial judgement at paragraph 445.
20 Now, in this case, Your Honours, rather than considering, as it
21 should have, whether Pandurevic could initiate important steps in the
22 disciplinary punishment process by referring his subordinates to the
23 military prosecutor's office, the Chamber instead focused on the
24 potential effectiveness of the military prosecutor's office itself. And
25 in doing so, it erred in law. Now, even, Your Honours, if this were the
1 proper approach, the Chamber's conclusions about the alleged futility of
2 reporting criminal matters to the military prosecutor's office are not
3 supported by the evidence.
4 This evidence showed that a system of military justice, including
5 a Prosecutor's office, had been put in place in 1992 and that it had been
6 taken over in 1993 by the Ministry of Defence. This is at trial
7 judgement footnote 6042, citing the witness Butler at transcript 19607 to
9 Now, the evidence cited by the Chamber to apparently show that
10 the military prosecutor lacked independence only shows that Gvero helped
11 in setting up the military Prosecutor's office three years earlier, in
12 1992. This is again at footnote 6042 of the judgement. The only other
13 evidence cited by the Chamber in 6042 refers to military courts, not the
14 prosecutor's office. And even that evidence only shows that Gvero
15 monitored the work of the courts to see how many disciplinary cases were
16 being referred to it. This is data he used to monitor the morale of the
17 units. As Your Honours are aware, morale was part of his competency as
18 the commander. And this is from Milovanovic transcript 12246 to 12247,
19 again cited at paragraph -- or at footnote 6042 of the judgement.
20 So as you can see then, Your Honours, none of this evidence
21 suggests that Gvero in any way interfered with the work of the
22 prosecutor's office. No reasonable finder of fact could have concluded
23 on this evidence that the military prosecutor "was not in fact
24 independent from the Main Staff," as the Chamber did at paragraph 2057.
25 Further, the incident cited -- described in
1 footnote 6043 [Realtime transcript read in error "6042"] of the judgement
2 might show that the MUP failed in its obligations to effectively
3 investigate Srebrenica, but it does not show that the military
4 prosecutor's office failed in any of its obligations, and it says nothing
5 about any interference by the VRS Main Staff.
6 Finally, Your Honours - and this is critically important - there
7 is nothing to suggest that General Pandurevic knew of this alleged lack
8 of independence of the military prosecutor's office. As such, the
9 Chamber should not give him credit for failing to refer criminal matters
10 to an institution for all he knew was competent, professional, and
12 Turning then, Your Honours, to the measures that the Chamber
13 found General Pandurevic actually did take. As the Prosecution points
14 out in ground 2(E), no reasonable finder of fact could have concluded
15 that General Pandurevic had discharged his obligation to punish his
16 criminal subordinates by issuing his self-serving interim combat reports
17 of the 15th of July and of the 18th of July and by having a brief
18 conversation with Krstic on the 27th of July. Rather than being any
19 genuine attempts to punish anybody, these communications were plainly
20 attempts by General Pandurevic to limit his own responsibility for
21 letting the column pass.
22 Now, if you read these carefully, Your Honours, you will see
23 these interim combat reports, they don't mention crimes, they don't
24 mention subordinates, and they weren't addressed to anybody with any
25 official capacity to investigate any crimes. Pandurevic admitted he did
1 not even know whether the allusions he made to crimes could even have
2 been understood by Krstic, the man to whom they were addressed, and
3 that's at trial judgement para 2060. These cannot be said to be a
4 meaningful attempt on the part of Pandurevic to discharge his duty to
5 punish by reporting his subordinates' crimes to an investigative
7 Finally, as to the conversation of the 27th of July, Krstic's
8 response that he would deal with the "problem" did not discharge
9 Pandurevic's own duty to punish, especially where no disciplinary action
10 followed Pandurevic's criminal subordinates.
11 And that concludes my remarks as to this question, Your Honours.
12 I'll continue then to the final question or discussion point
13 number 5, which is:
14 "Discuss whether, in the event that the Appeals Chamber were to
15 grant Pandurevic's argument that he lacked effective control over the
16 Zvornik Brigade in the 4 to 15 July 1995 period, Pandurevic could
17 nonetheless be criminally liable for failing to punish members of the
18 Zvornik Brigade with respect to crimes committed in that time-frame."
19 Let me start first, Your Honours, by reiterating that the Chamber
20 reasonably found that between December 1992 and 3 August 1995, Pandurevic
21 had both de jure command and effective control over the Zvornik Brigade.
22 He's failed to show no reasonable finder of fact could reach this
24 Based -- because of this, General Pandurevic's case is in stark
25 contradiction to the leading case on this issue, which is of course the
1 16 July 2003 decision on interlocutory appeal challenging jurisdiction in
2 relation to command responsibility in the Hadzihasanovic case.
3 That decision, Your Honours, concerned the case of
4 General Hadzihasanovic's co-accused, Colonel Amir Kubura, who had been
5 charged with crimes committed by members of the
6 7th Muslim Mountain Brigade in January 1993, months before he assumed
7 either de jure or de facto command over that unit on the
8 1st of April of 1993. On these facts, Your Honours, the Chamber [sic]
9 held that:
10 "An accused cannot be charged under Article 7(3) of the Statute
11 for crimes committed by a subordinate before the said accused assumed
12 command over that subordinate."
13 And that's at paragraph 51 of that judgement or that decision.
14 So unlike Kubura, General Pandurevic had assumed the de jure
15 command of the relevant subordinates well before those subordinates
16 committed and aided and abetted murder. As I said, the Chamber found he
17 assumed command in December 1992 and he remained in his post until the
18 3rd of August, 1995, when he was appointed commander of a brigade tasked
19 with going to the Krajina and his Chief of Staff Obrenovic was officially
20 appointed acting brigade commander. Now, General Pandurevic returned to
21 his post later, but for the purposes of our discussion today, what's
22 important is that no time in between these two critical events his
23 assumption of command in December 1992 and the time he left and Obrenovic
24 took over for him on the 3rd of August, 1995, had Pandurevic ever been
25 relieved of his command. As such, the Hadzihasanovic command
1 responsibility decision is inapposite. Kubura had neither de jure
2 authority nor effective control and Pandurevic he had both.
3 But, Your Honours, if we must assume the premise of your
4 question, the Prosecution submits that, on the law as it stands, the
5 answer must be no. A superior who has not "assumed command," in the
6 language of Hadzihasanovic, may not be held responsible for the criminal
7 acts that his subordinates committed. However, Your Honours, there are
8 cogent reasons in the interests of justice to depart from the
9 Hadzihasanovic command responsibility decision. It is contrary to
10 customary international law in that it does violence to the object and
11 purpose of command responsibility, which is, in the words of
12 Judge Shahabuddeen:
13 "... to ensure that there is always someone who will have
14 responsibility for ensuring that the commission of war crimes by a
15 subordinate will not go unpunished ..."
16 This is in the partial dissenting opinion of Judge Shahabuddeen
17 at paragraph 24 of the Hadzihasanovic command responsibility decision.
18 The Hadzihasanovic command responsibility decision is hostile to
19 this end because the it tolerates impunity, Your Honours. Consider the
20 situation in which the subordinates of commander A commit a massacre of
21 10.000 prisoners at 12.00. At 12.10, before commander A had received
22 sufficiently alarming information about this massacre to even put him on
23 inquiry notice, he is replaced by commander B. Commander B learns of the
24 massacre at 12.20. The soldiers under his command who had executed
25 10.000 people 20 minutes prior to his assumption of command can now no
1 longer be punished. Under the Hadzihasanovic command responsibility
2 decision, neither commander has responsibility to punish those
4 As Judge Hunt, a Hadzihasanovic dissenter put it, the decision
5 leaves a "gaping hole in the protection which international humanitarian
6 law seeks to provide for the victims of crimes committed contrary to that
7 law." And that's at Judge Hunt's separate and partially dissenting
8 opinion at paragraph 22.
9 This is why, Your Honours, the Prosecution agrees with the
10 18 ICTY and ICTR Judges, including a majority of Judges on the
11 Oric Appeals Chamber, who have expressed views contrary to the
12 Hadzihasanovic command responsibility decision. It should be overturned,
13 for the reasons stated with far greater eloquence than I can muster by
14 Judges Shahabuddeen, Hunt, Liu, and Schomburg in their declarations and
15 dissenting opinions in Hadzihasanovic and in Oric.
16 In addition to being wrong in law and unpopular among Judges, the
17 Hadzihasanovic command responsibility decision is also contrary to common
18 sense, as its application to these facts would illustrate.
19 General Pandurevic is a commander who was unquestionably in
20 formal command of his brigade during his brief 11-day absence from his
21 desk at the Standard Barracks. He is a commander who is leading members
22 of that same brigade in combat a mere 40 kilometres from his barracks,
23 but still within the same corps, still within the same army. He's a
24 commander who learned immediately upon his return to his barracks that
25 his subordinates were committing criminal acts, and he's a commander who
1 then learned that his subordinates had been participating in the murder
2 operation since just two days before his return. It defies logic and
3 common sense, Your Honours, in these circumstances to find that this
4 commander has no obligation whatever to punish those troops.
5 And that concludes my remarks about this final discussion point,
6 Your Honours. Unless there are further questions, I'll -- Your Honour,
7 in response to General -- or to Your Honour, Judge Pocar's question, I
8 have a further cite. The Nahimana appeal judgement at paragraph 791:
9 "The reason to know standard is met when the superior had some
10 general information in his possession which would put him on notice of
11 possible unlawful acts by his subordinates."
12 And this is further support for the Prosecution's argument that
13 this is the correct legal standard. And again, unless there's any
14 questions at this moment I can turn the podium over to my colleague,
15 Mr. Kremer, unless Your Honours would prefer to take a break at this
16 time. I'm in your hands.
17 JUDGE ROBINSON: How long will Mr. Kremer be?
18 MR. KREMER: I expect I will take around an hour, so this might
19 be an appropriate time to take the break, and then I can not interrupt
20 the submissions.
21 JUDGE ROBINSON: Yes, we'll take the break and return at five
23 --- Recess taken at 10.44 a.m.
24 --- On resuming at 11.08 a.m.
25 JUDGE ROBINSON: Yes, I'm to say we have a waiver from
1 Mr. Miletic in respect of his absence from the proceedings for today.
2 MR. KREMER: Your Honours, before I start my submissions, I would
3 like to deal with a few housekeeping matters relating to the transcript
4 following Mr. Wood's submissions. Line 5, page 13, the transcript says
5 "triggered until he found out completely that his subordinates had" and
6 Mr. Wood said "triggered until he had found out concretely that the
7 subordinates had."
8 The next one is page 17, line 12, Mr. Wood said, "Trial Chamber's
9 own standard," but it was reported in the transcript as "Prosecution's
10 own standard." Obviously that's not correct.
11 And the final correction is at line 18 on page 22. Mr. Wood said
12 "6043," whereas the transcript says "6042." If those corrections could
13 be made, we would appreciate it.
14 JUDGE ROBINSON: Thanks.
15 MR. KREMER: Now, moving to the Prosecution's submission on
16 ground 1, subgrounds 1(A) and 1(B), I'll start by saying that the essence
17 of the Prosecution appeal is that the Chamber erred by acquitting
18 Vinko Pandurevic for the mass killings committed in the Zvornik area from
19 noon on 15 July onwards. He was convicted in part for these killings,
20 but the Chamber's findings as to the level of his responsibility do not
21 reflect the reality of the situation.
22 Prosecution submits that the Trial Chamber erred in law and/or in
23 fact when it failed to find that Pandurevic became a member of the joint
24 criminal enterprise to murder or, alternatively, became an -- or was an
25 aider and abettor in the extermination, murder, and persecutions
1 committed in the Zvornik area with the participation of his subordinates
2 after he returned to the Zvornik Brigade on 15 July.
3 There is a basic flaw in the judgement. The Trial Chamber
4 offered only cursory and erroneous reasons for its conclusions on the
5 elements of contribution and shared intent for Pandurevic's joint
6 criminal enterprise liability. For aiding and abetting of murder,
7 extermination, and persecutions within the murder operation, the Chamber
8 failed to discuss or adjudicate Pandurevic's criminal responsibility at
9 all. But apart from these legal errors, the Chamber erred as a matter of
10 fact. As we explain in our brief, there was overwhelming evidence of
11 Pandurevic's involvement and support of the murder operation both through
12 the exercise of command and control of his troops taking part in the
13 murder operation and his failures to meet his legal duties to protect the
14 Bosnian Muslim prisoners who were murdered in his zone of responsibility.
15 The Trial Chamber's detailed factual findings of Pandurevic's knowledge
16 and his acts and omissions, his contributions, should have led the
17 Trial Chamber to conclude that Pandurevic shared the intent and was a
18 member of the joint criminal enterprise to murder or, at the very least,
19 an aider and abettor of the crimes of the murder operation.
20 Now, how did the Trial Chamber err? Simply, it disregarded
21 relevant evidence and in fact its own factual findings. As a result, the
22 Chamber made inconsistent and contradictory findings on Pandurevic's
23 knowledge, leading to the challenged findings on contributions and shared
25 The Trial Chamber found that on 15 July Pandurevic knew of the
1 plan to murder the able-bodied Bosnian Muslim males from Srebrenica and
2 his subordinates' participation in this murder operation. Specifically,
3 it found that on 15 July at noon Pandurevic learned of the key features
4 of the murder plan and the Zvornik Brigade's involvement in its
6 I'll now turn to my first slide. Your Honours can see the
7 Chamber's relevant language at paragraph 1861 of the judgement. In the
8 highlighted portion it says clearly that -- is it up?
9 "Obrenovic informed Pandurevic that pursuant to Mladic's order,
10 Beara and Popovic had brought a large number of prisoners from Bratunac
11 to the Zvornik sector, where they were executing them and that, according
12 to Jokic, there were enormous problems with the guarding, execution, and
13 burial of prisoners. Pandurevic then asked why the civilian protection
14 was not performing the burials."
15 And although that last sentence may not seem connected, I'll
16 explain why it's very important in a moment.
17 Some hundred paragraphs later, the Chamber confirmed the finding
18 of Pandurevic's knowledge at paragraphs 1959 and 1960 and referred back
19 in its footnote to paragraph 1861. You can see this in the next slide.
20 I refer you to, first of all, paragraph 1959, where the Chamber concluded
21 that it:
22 "... is ultimately satisfied beyond all reasonable doubt that on
23 15 July Pandurevic was told by Obrenovic about the detention, execution,
24 and burial of the prisoners in the Zvornik area as described by PW-168."
25 It goes on at paragraph 1960, and I've highlighted the relevant
1 passage, that the Chamber concluded that:
2 "... Pandurevic thus knew that pursuant to Mladic's order, Beara
3 and Popovic had brought a large number of prisoners from Bratunac to
4 Zvornik where they were being executed, and that according to Jokic,
5 there were enormous problems with the guarding, execution, and burial of
6 these prisoners. In light of this knowledge on the part of Pandurevic,
7 the Trial Chamber therefore finds that at this point on 15 July" and I
8 emphasise this "he knew of the plan to murder the able-bodied
9 Bosnian Muslim males from Srebrenica."
10 Importantly, these passages show that the Trial Chamber rejected
11 Pandurevic's denial that he and Obrenovic had had this conversation, just
12 as it rejected most of Pandurevic's denials or innocent explanations of
13 incriminating evidence against him. It found that Pandurevic knew that
14 the murder operation was in full swing on July 15, noon.
15 The Chamber also found that Pandurevic knew that the murder
16 operation was impacting his decision-making through his own words
17 dictated a few hours later in his 15 July interim combat report. At
18 paragraph 4 of this report, which is replicated in paragraph 1870 of the
19 judgement, Pandurevic reported:
20 "An additional burden for us is the large number of prisoners
21 distributed throughout the schools in the brigade area, as well as
22 obligations of security and restoration of this terrain."
23 I'll now turn to our third slide. As highlighted in the slide
24 before you, in paragraph 1948 the Chamber found that:
25 "... the first part of the sentence of paragraph 4 of" his 15
1 July report which I just read to you, "Pandurevic is cryptically
2 referring to the additional burden for the brigade of guarding prisoners
3 as well as the security concerns caused by the presence of the prisoners
4 in Zvornik."
5 The Trial Chamber further found that:
6 "... the second part," and I'm quoting here, "of the sentence of
7 that paragraph, Pandurevic is referring to the burden to the brigade of
8 assisting with the burial of the prisoners who had been brought by others
9 to the Zvornik area for execution."
10 And finally, the Trial Chamber concluded that the report itself
12 "... strong evidence that on 15 July, Pandurevic was aware not
13 only of prisoners but also of executions in the Zvornik area."
14 Your Honours, these findings are significant, as together they
15 clearly show the Chamber was satisfied that by the 15th of July
16 Pandurevic knew of the murder operation and that his Zvornik Brigade
17 resources were tied up in it. However, when the time came to assess his
18 contributions and shared intent, the Trial Chamber then inexplicably
19 ignored these findings.
20 I'll now take you to the fourth slide, which shows the relevant
21 portion of paragraph 1972, where it does, as I've just stated. As
22 reflected in the highlighted passage, the Chamber found that:
23 "... having considered the precise information provided by
24 Obrenovic on 15 July, the Trial Chamber is not convinced that it is
25 sufficient in itself or in combination with the information provided by
1 Grujic, to find that at this point Pandurevic knew that members of the
2 Zvornik Brigade were committing or aiding and abetting crimes. Notably,
3 he was neither told nor did he seek any specifics as to the involvement
4 of the Zvornik Brigade in the murder operation, brigade members'
5 knowledge of the executions, or the particular responsibilities of his
6 chief of security in the operation. While undoubtedly the information
7 triggered his obligations under superior responsibility as will be
8 discussed later, for the purposes of assessing his participation in the
9 crimes and contributions to the JCE, the Trial Chamber is not satisfied
10 that the knowledge requirement for commission by omission has been met."
11 And we have a ground of appeal that deals with the error of
12 applying commission by omission standard for assessing acts and
13 contributions or acts and omissions as contributions to the JCE.
14 The Chamber contradicts itself by finding that Pandurevic did not
15 know that members of the Zvornik Brigade were involved in the crimes at
16 this stage.
17 The missing link of knowledge on the 15th at noon is precisely
18 what the Trial Chamber found at paragraph 1948 that Pandurevic's 15 July
19 report established. And if I can just repeat the relevant portion of
20 paragraph 1948:
21 "The Trial Chamber finds that in the first part of the sentence
22 of paragraph 4 of the 15 July interim combat report, Pandurevic is
23 cryptically referring to the additional burden for the brigade of
24 guarding prisoners as well as security concerns caused by the presence of
25 those prisoners in Zvornik. The Trial Chamber further finds that in the
1 second part of sentence of that paragraph, Pandurevic is referring to the
2 burden of the brigade of assisting with the burial of the prisoners who
3 had been brought by others to the Zvornik Brigade for execution.
4 Paragraph 1948 makes clear that by the 15 of July, Pandurevic did
5 know that the Zvornik Brigade, his men and his assets, were involved in
6 the murder operation.
7 A closer examination of paragraph 1972 reveals the error and how
8 it came to be. That error is that the Trial Chamber limited its
9 assessment of Pandurevic's knowledge of the Zvornik Brigade's involvement
10 in the murder operation to what he learned in the conversations with
11 Obrenovic and Grujic on 15 July. Paragraph 1972 tellingly ignores: One,
12 the information Pandurevic himself revealed about the state of his
13 knowledge of the murder operation in the 15 July report; and two, the
14 contextual facts as to the involvement of the Zvornik Brigade resources
15 in the murder operation, which would have informed Pandurevic as
16 Zvornik Brigade commander on his return.
17 With this additional information, a very different picture
18 emerges than the one the Trial Chamber described in making its findings
19 at paragraphs 1972 and 1973.
20 At noon on 15 July, Pandurevic knew that Jokic had informed
21 Obrenovic that he, Jokic, "had enormous problems with the security and
22 burial of prisoners." Because Jokic had enormous problems with security
23 and burial, Pandurevic knew that Jokic and other Zvornik Brigade members
24 were participating in security, guarding, and burial activities for the
25 murder operation. The context of information he received shows that
1 Jokic did not have enormous problems alone. The evidence shows that the
2 security of prisoners was a responsibility customarily falling to the
3 brigade military police. Burials required the involvement of members of
4 and equipment from the engineering company. And I refer Your Honours to
5 judgement paragraphs 1935, 2038, and transcript pages 15886, 16228 to
7 Pandurevic's response to Obrenovic's -- I'm sorry, to Obrenovic
8 on Jokic's report - "Why the civilian protection were not performing the
9 burials" from 1861 reflected also in trial judgement
10 paragraph 1939 [sic] - demonstrated that he understood at the very least
11 that Jokic and the Zvornik Brigade engineering company were involved in
12 burying the prisoners. Your Honours will recall that Beara had
13 approached the civilian authorities in both Bratunac and Zvornik to
14 assist in the burial of executed prisoners. You will find that at trial
15 judgement paragraphs 1263 to 1271 for Bratunac and
16 paragraph 1278 [Realtime transcript read in error "1287"] for Zvornik.
17 Obrenovic's account of the problems facing the Zvornik Brigade in the
18 murder operation included the guarding and the executions. And that's
19 paragraph 1861, 1935 and 1948. You're familiar with two of those three
20 references. From this conversation, Pandurevic knew that members of the
21 Zvornik Brigade were actively involved in the murder operation and its
22 crimes. This alone contradicts the Chamber's findings at paragraph 1972
23 that Pandurevic did not have sufficient information concerning the
24 involvement of the Zvornik Brigade in the murder operation.
25 But the Trial Chamber doesn't stop there. The Trial Chamber
1 makes an additional finding at 1973 that Pandurevic's knowledge of the
2 members of the Zvornik Brigade had participated in guarding prisoners who
3 had been detained in the Zvornik area and had participated in the burials
4 of the executed prisoners was not acquired until the evening of 16 July
5 after the murder operation was nearly complete is equally wrong, for the
6 same reason and the same factual basis and the same factual findings that
7 the Trial Chamber had made earlier in its judgement which I've referred
9 While Pandurevic may have learned more details over the following
10 days about the Zvornik Brigade members involved, the exact numbers and
11 locations of detention, murder, and burial sites, these specifics were
12 not necessary given his information and his knowledge on 15 July that
13 systematic murders and exterminations were underway at various sites
14 across his sector. No reasonable Trial Chamber could have found
16 The Trial Chamber's erroneous conclusion is further reflected in
17 light of the Zvornik Brigade and Zvornik Brigade command's extensive
18 involvement in the implementation of the murder operation on 15 and
19 16 July, when Pandurevic was back in Zvornik and during which up to
20 3.000 Bosnian Muslim prisoners were executed and buried in his zone of
22 Now I'll move to the next slide. Your Honours will see on your
23 screen Exhibit P1876 depicting the Zvornik Brigade zone of responsibility
24 which we've titled July 14, the day before Pandurevic returned to
25 Standard Barracks. We have added information to this map to show how the
1 various Zvornik Brigade assets and personnel were used in the murder
2 operation on that day.
3 At the left of the map, you will see the seven battalion zones of
4 the Zvornik Brigade, left-middle of the map, indicated by numbers and
5 divided by the pink lines. At the bottom right of the map, you can see
6 Karakaj, which is where the Zvornik Brigade was based at the
7 Standard Barracks. The small red arrows that you can see at the bottom
8 of the map represent the approaching column of Bosnian Muslims. And the
9 arrows are heading in the direction of the 7.pb and 4.pb on the bottom
10 left-hand side.
11 The red rectangles that you see represent schools that served as
12 places of detention for prisoners before their executions. The red
13 circles represent execution sites.
14 As you can see at the top left, the different-coloured arrows
15 represent the movements of different types of Zvornik Brigade resources:
16 Green for military, blue for military security or military police, orange
17 for engineering assets, and purple for logistics assets. The arrows are
18 accompanied by reference to the source of information that -- about that
19 moment -- or about that movement, I'm sorry. I will note that the arrows
20 do not represent the exact path which the Zvornik Brigade resources or
21 personnel were sent, but do reflect from which brigades or areas the
22 Zvornik Brigade resources and personnel were sent to the relevant site.
23 Looking at this map, and you will see two more maps for each of
24 the days, the 15th and the 16th of July, first starting with the
25 14th of July map. This map illustrates three important points:
1 First, as you can see on 14 July, the Zvornik Brigade was
2 actively rendering aid to the ongoing murder operation with many
3 resources converging on the Grbavci school and Orahovac, where the first
4 mass execution of the murder operation was occurring in the Zvornik area.
5 And the trial references are there, trial judgement 471 to 489.
6 Second, the deployment of Zvornik Brigade resources to these
7 sites was not spontaneous or arbitrary. Orders were issued by senior
8 staff members of the Zvornik Brigade, including Obrenovic, Pandurevic's
9 Chief of Staff; and Jasikovac, Pandurevic's commander of the
10 Zvornik Brigade military police; and Ristic, the acting commander of the
11 4th Battalion. Trial judgement paragraphs 471, 478 to 486, and 1879.
12 And the third point is that assets from the 4th Battalion were
13 engaged in the murder operation as the column was nearing the
14 4th Battalion's area of responsibility. This fact will become more
15 relevant in a moment. And I refer you to trial judgement 479 to 486.
16 And so let's just move on to the slide depicting the activities
17 of the 15th of July. Again, this map displays the distribution of
18 Zvornik Brigade assets and personnel to the various sites relevant to the
19 murder operation. As Your Honours know and have heard all week, it is on
20 this day that Pandurevic is sent back to Zvornik with orders from Krstic
21 to crush the column. The column is depicted on this map at the rear
22 areas of the 4th, 6th, and 7th Battalions. Upon receiving Krstic's
23 orders, Pandurevic made two phone calls to the Zvornik Brigade at 8.55
24 and at 9.10 in the morning. And I refer you to transcript -- or to
25 judgement paragraph 1860 and Exhibits P1172c and P1174c. I point out
1 that during those calls, Pandurevic demanded reports on the combat
2 situation and focused in particular on the areas of the 4th, 6th, and
3 7th Battalions.
4 As you can see on the map, on the 15th of July, the
5 6th Battalion, including the 6th Battalion commander Stanisic, was
6 immersed in the murder operation. In particular, Stanisic ordered trucks
7 and drivers to the Petkovci school to move prisoners to the nearby
8 execution site at the dam and then, after the shootings, to move more
9 than 800 bodies to the mass grave. That's found at trial judgement
10 paragraphs 499 to 501.
11 I point out at this point that apart from the resources of the
12 4th and 6th Battalions, other battalions of the Zvornik Brigade were
13 engaged in the murder operation. On 15 July, as reflected in this map,
14 in the north of the Zvornik Brigade -- of responsibility, Zvornik Brigade
15 assets and personnel were used at the Rocevic school and the
16 Kozluk gravel pit, including soldiers in the execution of prisoners and
17 MP in the guarding of prisoners. 1st [Realtime transcript read
18 in error "11"] Battalion soldiers were dispatched to the Kula school to
19 relieve those who had been guarding prisoners there since the 14th.
20 Further, engineering resources were still engaged at Orahovac. And I
21 refer you to trial judgement paragraphs 490, 501, 507 to 511, 515, 518 to
22 520, 530 to 531.
23 Senior members of the Zvornik Brigade were also involved in these
24 crimes, including 2nd Battalion Commander Acimovic, Zvornik Brigade MP
25 commander Jasikovac, and Zvornik Brigade duty officer and chief of
1 engineering Jokic, all issued orders tasking their men with guarding,
2 executing, and burial duties at Orahovac, Rocevic school, and Kozluk.
3 And I refer you to paragraphs 489 to 490, 507 to 511, 515, 517 to 522.
4 This slide and my remarks demonstrate two things: First, the
5 extent of the Zvornik Brigade's involvement in all aspects of the killing
6 operation, both in terms of members and resources and senior commanders
7 from the Zvornik Brigade. The detentions, killings, and burials of
8 several thousand Bosnian Muslim prisoners could not have occurred without
9 the extensive participation of the Zvornik Brigade; second, it shows that
10 the mass killings were ongoing after Pandurevic returned at noon on
11 15 July. The killings at Petkovci dam and Kozluk gravel pit were among
12 the biggest killings in the murder operation. The first piece of
13 information Pandurevic received from his Chief of Staff, Obrenovic, was
14 that his troops were involved in the mass killings on Mladic's orders and
15 yet he decided to let them continue.
16 It is against this backdrop of his subordinates' involvement in
17 the murder operation - with the Zvornik Brigade's resources stretched
18 thin due to the demands of the ongoing murder operation - that Pandurevic
19 drafted his 7.25 interim combat report. And I refer you to
20 paragraph 1868. This report is critical to the entire factual analysis
21 that I am doing now to show how wrong the Chamber -- Trial Chamber was in
22 paragraphs 1972 and 1973 in assessing his knowledge for the purpose of
23 looking at his contributions and the assessment of shared intent.
24 Pandurevic's 15 July report, which is found in full in
25 Exhibit P329, confirms his command decision to endorse the murder
1 operation by having permitted his brigade's continued participation in
2 it. After Pandurevic reports "all brigade forces are fully engaged and
3 we have no reserves," he reports on the murder operation. By reporting
4 "all forces are engaged," Pandurevic is telling his superiors that he
5 knows that his subordinates from the 4th and 6th Battalions together with
6 his military police and engineering company are participating in the
7 murder operation in Orahovac, Kozluk, and Petkovci.
8 Pandurevic reports that material and other resource limitations
9 impact on his ability to continue to "take care of these problems," which
10 the Chamber found included the Zvornik Brigade's involvement in the
11 murder operation. Pandurevic's command authority to deal with these
12 problems was made very clear by his threat to let the column go. And
13 that's found at paragraphs 1962 to 1963.
14 But Pandurevic made no threat to let the prisoners go. As events
15 unfolded during the 15th and all day on the 16th, his subordinates
16 continued to guards and transport Bosnian Muslim prisoners, supply fuel
17 and ammunition to detention and execution sites, transport and/or bury
18 executed prisoners in unmarked mass graves, and, at least in one case,
19 execute prisoners.
20 And that leads me to the final slide of July 16th, again showing
21 the distribution of Zvornik Brigade assets and personnel to the relevant
23 By 16 July, the column was fighting the Zvornik Brigade in the
24 area near Baljkovica, near the 4th and 6th Battalions' zones.
25 Pandurevic's 15 July report showed that the Zvornik Brigade was desperate
1 for resources and was calling for reinforcements. But at the same time,
2 orders from the Zvornik Brigade commanders dispatched resources away from
3 the front lines, continuing to dedicate them to the murder operation.
4 Zvornik Brigade 6th Battalion soldiers travelled away from the
5 front lines to Petkovci school to assist in moving bodies to the
6 Petkovci dam, paragraph 1881.
7 The commander of the 1st Battalion work platoon, Lakic, ordered
8 men to the Kula school to stand guard while prisoners were put on buses
9 that brought them to the Zvornik Brigade's military farm near Branjevo
10 for execution by the 10th Sabotage Detachment, and that's at paragraphs
11 533 to 535, 537 to 542.
12 Lakic then ordered his men to the Pilica cultural centre, where
13 soldiers from Bratunac had executed another 500 prisoners. Lakic's men
14 loaded the bodies into trucks and transported them to the
15 Branjevo Military Farm for burial. Burials at Branjevo had to continue
16 into the next day, trial judgement paragraphs 542 to 546.
17 Zvornik Brigade engineering chief Jokic ordered his 2nd Platoon
18 to Kozluk to continue burying those who had been executed the day before.
19 An excavator was also dispatched. That's at paragraph 521 to 522 and
20 Exhibit P301.
21 Zvornik Brigade engineering personnel were also at Orahovac that
22 day. A truck repeatedly travelled between two mass grave-sites, and
23 that's found at Exhibits P297 and P298.
24 And finally, the map reflects the Zvornik Brigade military police
25 spent all day 16 July at three key murder operation sites in Pilica,
1 Rocevic, and Kula, and that's Exhibit P296.
2 It is in this setting that Pandurevic realised that he could not
3 fight the column and the 2nd ABiH Corps -- the 2nd Corps of the ABiH and
4 that his men and the town of Zvornik were at risk. So he decided to
5 negotiate a resolution to allow the column to pass through
6 Zvornik Brigade territory into ABiH territory. His offer to allow the
7 civilians to pass and the military component to surrender was rejected.
8 The fighting continued. Finally, an agreement to let the entire column
9 through Zvornik Brigade lines was implemented between 1.00 and 2.00 p.m.
10 The agreement included a cease-fire.
11 Why, you say or you ask yourself, is a cease-fire relevant?
12 Because it would have allowed Pandurevic time to focus on his other
13 immediate problem, specifically the murder operation, the only other
14 burden on his men and materials at the time.
15 And what happened? When the corridor was opened on the afternoon
16 of 16 July and the column was allowed to pass, hundreds of Muslim
17 prisoners were being murdered at the Branjevo Farm and 500 Muslims waited
18 for execution at the Pilica cultural centre later that day. Significant
19 amounts of men and materials of the Zvornik Brigade were involved in
20 conducting these executions, as well as the continuing burial operations
21 at Orahovac, Petkovci, and Kozluk. I refer you to paragraphs 521 to 522,
22 532 to 547, 1881, Exhibits P297, P298, and P301.
23 Like his 15 July interim combat report, Pandurevic's 16 July
24 interim combat report, found at Exhibit 7DP330, confirmed his command
25 decisions. He reported on the attacks by the 2nd Corps and the attacks
1 from the column. He also reported on his decision to let the column
2 through. While he does not report on his third problem, his brigade's
3 burden caused by the murder operation which continued without incident
4 with the support of the Zvornik Brigade resources, Pandurevic's command
5 decisions ensured the successful completion of the murder operation. The
6 cease-fire to let the column pass eliminated the risk that
7 Zvornik Brigade resources [sic] engaged in the murder operation might be
8 needed to fight the column at the front line.
9 As I have already mentioned, Pandurevic was not afraid to disobey
10 superior orders. By letting the column pass through Zvornik Brigade
11 lines to Bosnian Muslim territory, Pandurevic chose the safety of his men
12 and the protection of the VRS positions along the combat lines over his
13 clear superior orders to crush and destroy the column. Similarly, the
14 option to protect the prisoners being murdered in the Zvornik zone of
15 responsibility was within Pandurevic's material ability. And I refer you
16 to a more fulsome discussion in our appeal brief at paragraph 77 to 82.
17 In this full context, Pandurevic's knowledge and contributions
18 are clear and demonstrate beyond any reasonable doubt that he shared the
19 intent of the JCE to murder. Once he learned of Mladic's manifestly
20 illegal order to carry out the murder operation in his zone of
21 responsibility, Pandurevic, as a commander, had a choice. He could
22 choose to accept the order and command the fulfilment of the murder
23 operation tasks assigned to his brigade, which he did, or he could refuse
24 the order, rescind Obrenovic's initial command, and cease his brigade's
25 involvement in the murder operation. Because Pandurevic chose to adopt
1 Mladic's manifestly illegal order, he must accept responsibility for that
3 And as I have said in my submissions and I hope convinced you
4 from the discussion of the facts, if the Chamber had looked at the
5 interim combat reports and the facts on the ground and the participation
6 of his brigades in the murder operation in light of those reports, the
7 only conclusion you can come to on his knowledge and his contributions is
8 together they equalled his shared -- or proved and established his shared
10 Although the plan to murder the Bosnian Muslim prisoners did not
11 originate from Pandurevic, his endorsement and participation ensured the
12 operation's success.
13 In conclusion, the only reasonable conclusion is that Pandurevic
14 decided that the murder operation tasks should be carried out.
15 Pandurevic's intent meets the JCE threshold.
16 In respect of the Prosecution's alternative ground of aiding and
17 abetting, our position is that the only reasonable conclusion open to the
18 Trial Chamber, had it done the proper analysis and made the required
19 findings, was that Pandurevic knew that the Bosnian Muslim prisoners were
20 brought to the Zvornik zone of responsibility to be executed and that by
21 allowing his brigade to continue to participate in the murder operation
22 by guarding, burying, and providing logistical support to the executors
23 or to the people committing the killings, he would assist in murder,
24 extermination, and persecutions.
25 I refer to the Krstic appeal judgement which succinctly describes
1 the situation that we find ourselves in here at paragraph 137:
2 "Radislav Krstic was aware that the Main Staff had insufficient
3 resources of its own to carry out the executions and that, without the
4 use of Drina ... resources, the Main Staff would not be able to implement
5 its genocidal plan. Krstic knew that by allowing Drina Corps resources
6 to be used he was making a substantial contribution to the execution of
7 the Bosnian Muslim prisoners. Although the evidence suggests that
8 Radislav Krstic was not a supporter of the plan, as Commander of the
9 Drina Corps he permitted the Main Staff to call upon Drina Corps
10 resources and to employ those resources. The criminal liability of
11 Krstic is therefore more properly expressed as that of an aider and
12 abettor ..."
13 But we're talking here about Krstic in the context of aiding and
14 abetting genocide or committing genocide, a discussion that is different
15 slightly for Pandurevic because Pandurevic was found not to have
16 genocidal intent and that has not been appealed.
17 But the same analysis and conclusion can apply in the alternative
18 to Pandurevic, but our primary position is, and based on my submissions
19 or our submissions, is that Pandurevic's intent was shared with the other
20 JCE members, and that is to fully support and assist through his orders
21 the murder operation in full knowledge of it and all of his contributions
22 substantially contributed to -- or significantly contributed to it in the
23 JCE context and substantially contributed to it in the aiding and
24 abetting context.
25 I'm not sure if I need get into this, it's been covered in
1 earlier submissions by my colleague, Mr. Milaninia, and that is the
2 specific direction issue. If Your Honours choose to go there and the
3 Perisic point, simply the Prosecution submits that the culpable link
4 connecting General Pandurevic to the crimes is evident from his
5 subordinates' participation in the murder operation, his knowledge of it,
6 and the fact that their contribution - as is evidenced by the paragraphs
7 referred to connected with the charts that I've shown - demonstrate that
8 the contribution was substantial. Pandurevic was present in the zone of
9 responsibility when the crimes were being committed, he had knowledge of
10 them and his subordinates' involvement. His command and control over the
11 troops, as demonstrated by his actions, orders, and reporting show and
12 make the culpable link. And ultimately the fact that his -- and as we
13 can see the proximity to the crimes and the locations of -- to all of the
14 crimes, whether it be execution sites, detention centre, also confirms
15 the links.
16 Those are my submissions on why the Trial Chamber erred, both in
17 law and in fact, in acquitting General Pandurevic of being a member of
18 the joint criminal enterprise to murder or, in the alternative -- and
19 also acquitting him in the alternative of aiding and abetting murder,
20 extermination, and persecutions.
21 Subject to any questions which you may have, those are my
22 submissions. And depending on if there's any time remaining, I would
23 pass on to Mr. Wood for short comments on sentencing. But before I do --
24 before I -- perhaps before Your Honour answers that question, a couple of
25 housekeeping issues. At line 14, page 36, "1287" should be "1278." And
1 at line 3 on page 40, it says "11 Battalion" and that should read
2 "1st Battalion," so obviously a typographical mistake. But as to time,
3 I'm in Your Honours' hands.
4 [Appeals Chamber confers]
5 JUDGE ROBINSON: We have no questions.
6 MR. KREMER: Okay. Thank you.
7 MR. WOOD: Finally then, Your Honours, a few words about
8 sentencing. General Pandurevic bears responsibility for the forcible
9 transfer of tens of thousands of Bosnian Muslims, men, women, and
10 children, and the murders of up to 2500 Bosnian Muslim men and boys.
11 Those killed included boys as young as 14 and men as old as 84.
12 General Pandurevic also allowed ten wounded soldiers to be handed over to
13 a man he knew would execute them. His crimes continued to resonate in
14 the Bosnian Muslim community 18 years on, even as he looks forward to the
15 application for early release that his counsel has told you will follow
16 these proceedings. He failed at every decisive moment to do what the
17 international community demanded of him, to protect prisoners even though
18 all that was required of him was to issue a simple order.
19 By any measure, Your Honours, in any courtroom, in any country
20 anywhere in the world, these crimes would be considered to be so grave as
21 to merit a sentence far greater than 13 years. It's a sentence that's so
22 manifestly inadequate that it shows the Chamber failed to exercise its
23 discretion properly.
24 First, the sentence fails to take into account the inherent
25 gravity of General Pandurevic's failure as a commander to prevent
1 breaches of international humanitarian law. Rather than act to protect
2 the prisoners, Your Honours, he presided over a brigade with a culture of
3 ethnic bias against Bosnian Muslims, a brigade that took part in
4 unspeakable episodes of murder and cruel treatment.
5 Second, as we've argued, his sentence bears no relation
6 whatsoever to the likely sentences of his subordinates for the roles they
7 played in the murders and forcible transfers. In Bosnia and Herzegovina,
8 the maximum sentence for the gravest crimes is 45 years. In comparison,
9 his 13-year sentence is a trifle.
10 Finally, Your Honours, the Chamber erred in granting any
11 mitigation for his role in letting the column pass through his lines.
12 Remember, Your Honours, the people in this column were people that he
13 himself had forcibly expelled from Srebrenica in the previous days and
14 they were people that he did his level best to murder in the 24 hours
15 following his return to the Zvornik Brigade. He put these people in
16 grave danger, he worked hard to kill them, but he simply couldn't. A
17 hostage taker shouldn't get credit for freeing hostages who had already
18 escaped his clutches despite his best efforts to kill them. His act of
19 letting the column pass cannot be understood as any kind of humanitarian
20 gesture. Rather, it was an expression of his failure as a commander to
21 do as he was told, which is to crush and to kill the column.
22 For these reasons, Pandurevic's crimes demand a sentence at the
23 highest end of the sentencing spectrum. His 13-year sentence is an
24 affront to the victims in this case and it fails to adequately express
25 the outrage of the international community. The Prosecution asks you to
1 revise this sentence and impose a penalty commensurate with the gravity
2 of Pandurevic's crimes and his conduct. And that concludes our brief
3 remarks on sentencing.
4 [Appeals Chamber and Legal Officer confer]
5 JUDGE ROBINSON: Counsel for Mr. Popovic. Yes.
6 MR. ZIVANOVIC: Thank you, Mr. President.
7 Your Honours, the Defence of Popovic maintains that Mr. Popovic
8 is neither guilty of genocide nor of conspiracy to commit genocide.
9 These arguments are set out in our response to the Prosecution's appeal
10 brief paragraphs 2 to 8 and in our appeal in paragraphs 17 through 27, 30
11 through 35, 41, 49, 54, 65, 67, 863 [sic], 171 through 178, 191, 195, 238
12 through 239, 255, 330 -- 303, excuse me, 349, and 402 and in the six
13 grounds of our notice of appeal, paragraphs 394 through 397.
14 Then it not be repeated at length here. I will repeat, however,
15 that the Trial Chamber construed every piece of evidence in the way the
16 most harmful for Popovic, including finding him guilty for conspiracy to
17 commit genocide. Indeed, reference to fairness in this context is almost
19 I will not repeat our arguments from the response brief -- from
20 our response brief, but I'd just like to comment yesterday's reference by
21 the Prosecution to Gatete appeal judgement as to cumulative convictions
22 but for genocide and conspiracy to commit genocide. We submit that such
23 conviction from the Appeals Chamber would violate the right on the appeal
24 provided in the Article 24(2) of the Statute. Precisely, Mr. Popovic, in
25 case of conviction, would be deprived of his right to appeal, and on this
1 point we refer to the dissenting opinion of Judge Pocar in
2 Gatete appeal judgement. It is in chapter 7-2.
3 I will just quote this part, where it's stated:
4 "The absence of any right whatever to appeal such a conviction
5 say in the case where the matter is remitted to the Trial Chamber is
6 likely to infringe upon the fundamental principle of fairness recognised
7 both in international law and many national legal systems."
8 In this context we believe that such a conviction would violate
9 the principle -- the elementary principle of fairness too.
10 It concludes my submission, Your Honour. Thank you.
11 JUDGE ROBINSON: Thank you.
12 [Appeals Chamber and Legal Officer confer]
13 JUDGE ROBINSON: Counsel for Mr. Beara.
14 MR. SEPENUK: Thank you, Mr. President, and may it please the
15 Judges of this Chamber.
16 The actus reus of conspiracy to commit genocide is the act of
17 entering into an agreement to commit genocide. There was no evidence
18 adduced at trial that Mr. Beara entered into any such agreement. The
19 Prosecution did not prove beyond a reasonable doubt that Mr. Beara was
20 present at any meetings at which the Trial Chamber determined the plan
21 was formulated. The Trial Chamber found that Mr. Beara's conduct - and
22 that's in paragraph 1318 of the Trial Chamber's judgement - demonstrated
23 that he had genocidal intent. We have already argued that Mr. Beara did
24 not possess genocidal intent, given his acquittal of the joint criminal
25 enterprise to forcibly deport the women and children from Srebrenica.
1 This showed, again, as we previously argued, that Mr. Beara did not have
2 the genocidal intent to destroy that part of the group consisting of the
3 Bosnian Muslims of Eastern Bosnia. While the Trial Chamber did acquit
4 Mr. Beara of the forcible transfer charge, we note further the
5 Trial Chamber's finding that Mr. Beara knew of the forcible transfer but
6 did not make any significant contribution toward the forcible transfer
7 operation. We note for the sake of accuracy and for the relevancy, if
8 any, when considered with the conspiracy charge, that even the
9 Trial Chamber's conclusion that Mr. Beara knew of the forcible - and I'm
10 underlining the word "forcible" - even the Trial Chamber's conclusion
11 that Mr. Beara knew of the forcible transfer is open to serious doubt.
12 There was only one piece of evidence in the case that showed any
13 knowledge of Mr. Beara of the transfer of the women and children, and
14 that consisted of the testimony of the witness Celanovic, the
15 desk officer of the Bratunac Brigade. Celanovic testified that on the
16 evening of July 13th he was meeting with Mr. Beara and he told Mr. Beara
17 that he, Celanovic, had security concerns about the number of prisoners
18 in the area. And he was asking Beara when they could be transported out
19 of the Bratunac area. According to Celanovic's testimony - and that's on
20 pages 6640-6641 of the trial transcript - Mr. Beara stated that they
21 would have to wait until the other vehicles that had transported the
22 women and children had returned. And that's in the Trial Chamber's
23 judgement at paragraph 1307.
24 Celanovic's testimony does show that Mr. Beara had some knowledge
25 of the fact that women and children were being bussed from Srebrenica,
1 but where is the evidence that Mr. Beara knew that this was a forcible
2 transfer operation? We say there was no such evidence. It is
3 Directive 7 and following directives to that that are usually cited by
4 the Prosecution to show the knowledge of the Main Staff, of which
5 Mr. Beara was a member of course, that the expulsion of Bosnian Muslims
6 from the Srebrenica enclave was the ultimate goal. But as stated by the
7 Appeals Chamber in the Krstic case at paragraph 90, and I quote:
8 "Directives 7 and 7.1 are insufficiently clear to establish that
9 there was a genocidal intent on the part of the members of the Main Staff
10 who issued them. Indeed, the Trial Chamber did not even find that those
11 who issued Directives 7 and 7.1 had genocidal intent. Concluding,
12 instead, that the genocidal plan crystallised at a later stage."
13 As in the Krstic case, the directives and the meetings leading up
14 to the July 13/14 time-period, at which Mr. Beara was not present, are
15 the only evidence that the Prosecution offered of an alleged conspiracy
16 to commit genocide in Mr. Beara's case. However, the Trial Chamber did
17 not even refer to any such evidence, concluding that Mr. Beara was guilty
18 of conspiracy, and that's paragraph 1322 of the judgement. Instead, the
19 Trial Chamber stated very generally, and I quote:
20 "Conspiracy to commit genocide can be inferred from co-ordinated
21 actions by individuals who have a common purpose and are acting within a
22 unified framework. Evidence has already been examined of the
23 co-ordinated actions and unifying framework of those who participated in
24 the operation to murder the able-bodied Bosnian Muslim males from
25 Srebrenica in July 1995, including Beara."
1 And at this point the Trial Chamber refers to footnote 4316,
2 which cite passages relating only to the joint criminal enterprise to
3 murder. Continuing with my quotation from the Trial Chamber:
4 "Based upon this evidence, the Trial Chamber concludes that Beara
5 entered into an agreement to commit genocide and he himself possessed
6 specific intent to commit genocide."
7 As with its conviction of Mr. Beara of genocide, the
8 Trial Chamber based its finding of conspiracy to commit genocide solely
9 on Mr. Beara's participation in the joint criminal enterprise to murder.
10 Our argument is similar regarding genocidal intent here on the conspiracy
11 conviction to our argument on the genocide conviction. The evidence that
12 Mr. Beara participated in the murder operation is not enough to show that
13 he's guilty of the act of entering into an agreement to commit genocide,
14 especially in light of his lack of genocidal intent via his acquittal on
15 the forcible transfer charge. If Mr. Beara did not have genocidal
16 intent, he did not commit genocide. If he did not commit genocide, the
17 Trial Chamber cannot reasonably conclude that the alleged genocidal act,
18 which is murder only in Mr. Beara's case, demonstrated conspiracy to
19 commit genocide. Inferring conspiracy from acts of murder - awful as
20 that is - but inferring conspiracy from acts of murder is not the only
21 reasonable inference to be drawn, especially given the absence of any
22 direct evidence of any act by Mr. Beara constituting entering into an
23 agreement to commit genocide.
24 And that, Your Honours, is our presentation. I'd be happy to
25 answer any questions if you have them.
1 JUDGE ROBINSON: Thank you very much. We have no questions.
2 I understand counsel for Mr. Miletic.
3 MS. FAVEAU: [Interpretation] Your Honours, I'll be extremely
4 brief. If we consider the submissions of the Prosecution from a purely
5 legal standpoint without referring to the facts, the Prosecution is
6 absolutely right; however, the logic of the Prosecution is reversed
7 because the Trial Chamber did not commit an error by acquitting Miletic
8 for Count 5 but by convicting him for -- on Count 4, that's the basis of
9 our arguments on the factual basis that our arguments rest for acquittal
10 on charge 4. I refer to the submissions I set out yesterday. Thank you.
11 JUDGE ROBINSON: Thank you very much. We will take the break now
12 and, evidently, we can't break for an hour as I suggested, we must break
13 for one and a half hours. So we should be back at five minutes to 2.00.
14 --- Luncheon recess taken at 12.24 p.m.
15 --- On resuming at 1.57 p.m.
16 JUDGE ROBINSON: Yes, counsel for Mr. Nikolic.
17 MR. BOURGON: Good afternoon, Mr. President. Good afternoon,
18 honourable Judges. Good afternoon to everyone in and around the
19 courtroom. I'd like to apologise in advance, I do not see one of the
20 members of the Bench and I apologise for this.
21 Mr. President, I will have the pleasure this afternoon of
22 responding to the Prosecution appeal on behalf of Mr. Nikolic. In doing
23 so, I will respond to both questions put to the parties in the
24 Appeals Chamber's order dated 6 November 2013. The Prosecution advances
25 two grounds of appeal, namely, ground 7, that the Trial Chamber erred in
1 finding that Drago Nikolic did not have genocidal intent; and also
2 ground 8, that the 35-years' imprisonment sentence imposed on
3 Drago Nikolic is inadequate and too low.
4 With respect to this second ground, ground number 8 on sentence,
5 I believe, Mr. President, that we have made our position very clear
6 throughout this appeal, that we believe the sentence to be excessive.
7 That was in our appeal brief from paragraphs 5 to 45 in -- concerning the
8 Prosecution appeal, we rely on our argument which can be found in our
9 response at paragraphs 191 to 259.
10 Of course, Mr. President, you will not be surprised to hear that
11 it is our position that both Prosecution grounds should be dismissed in
12 their entirety. Before I begin, however, I wish to bring two preliminary
13 matters, and the first one has to do with something found in the
14 Prosecution response at paragraphs 254, which I would like to draw the
15 Appeals Chamber's attention to. In its brief and reply and again this
16 morning, Mr. President, arguing ground 7, the Prosecution returns to the
17 issue of the actions which would have been taken by Drago Nikolic which
18 he would have pursued in the persistent and determined manner. I refer
19 here to paragraphs 247 to 262.
20 Now, in this regard paragraphs 254 reads as follows:
21 "During the morning of 14 July, Nikolic called Slavko Peric,
22 assistant commander for intelligence and security, of the 1st Battalion
23 of the Zvornik Brigade. Nikolic repeated the contents of a coded
24 telegram sent earlier by the Zvornik Brigade command."
25 The words I wish to draw the attention of the Appeals Chamber on
1 are simply those words "coded telegram." The reason being is that in
2 this paragraph the Prosecution refers to paragraphs 1359 and 1360 of the
3 judgement, where there is absolutely no mention of a coded telegram. Is
4 this an oversight? We don't believe so, Mr. President. What is
5 important, however, is that the only person who has mentioned a coded
6 telegram in this case or the use of a coded telegram is the commander of
7 the 2nd Battalion, Acimovic. And of course you've heard our argument
8 previously that we say that he advanced the argument of coded telegrams
9 to shield his responsibility and that the Trial Chamber erred in holding
10 that this was a peripheral matter. It is not, Mr. President.
11 Now, accordingly, now that we have this issue of coded telegrams
12 associated with Drago Nikolic's intent, I think it is important that I
13 come back quickly on the pattern of telephone calls which were made in
14 this case because Drago Nikolic has been associated with these telephone
15 calls. As a matter of fact, the Trial Chamber at paragraph 509 stated
16 that there was such a pattern of telephone calls. That was in dealing
17 with the issue of the 2nd Battalion and Acimovic.
18 I'd just like to mention briefly, Mr. President, that three
19 battalions receive such telephone calls related to the arrival of
20 prisoners, at least three that we know of. The 4th Battalion, located in
21 Orahovac, I refer to transcript 10062, would have received a telegram on
22 14 July, and that is Lazar Ristic -- not a telegram, I apologise, a phone
23 conversation. And the phone conversation came from Trbic, who asked
24 Lazar Ristic to send some men over to provide security at the school
25 because there was problems with prisoners who wanted to escape.
1 The second telephone conversation we are aware of happened with
2 the 6th Battalion, and that was also on 14 July, and is related in the
3 testimony of Marko Milosevic and Ostoja Stanisic. And that is at
4 transcript 13300-13301. And they say that Jokic, the duty officer, and
5 not Nikolic called them to inform them to inform them of the arrival of
6 the prisoners at Petkovci school.
7 The third battalion which reserved [sic] a call and a telegram,
8 which, as I mentioned a few minutes ago, was not coded is the 1st
9 Battalion and that is found of course in the testimony of Slavko Peric,
10 which can be found at 11375, transcript, 11376. And this -- what you
11 will find in this transcript is that Mr. Pelemis, the deputy commander of
12 the battalion, met with his command staff at the battalion and he
13 basically said that there was someone from the brigade who had called and
14 that they had to go to the school. My colleague mentioned that earlier
15 this week. I will not come back to what was mentioned concerning this
16 telephone conversation.
17 The issue I want to raise, however, Mr. President, is that when
18 we look at the alleged pattern of phone calls, the pattern is such that,
19 one, there is no coded telegram, which helps in determining the issue of
20 Acimovic and the 2nd Battalion; and two, the pattern of telephone calls
21 really, when associated with Drago Nikolic, is not an element that will
22 be of any assistance to you, we submit respectfully, in determining his
24 The Prosecution - and I'm always on my preliminary matter - also
25 mentions in its brief reply and again today what happened at Orahovac.
1 And at paragraph 252 of its appeal brief, the Prosecution raises the
2 issue of the execution site, saying, and I quote:
3 "Nikolic and Popovic told the soldiers what to do."
4 Now, that's at the execution site. Now, with respect to this
5 finding of the Chamber at paragraph 252, I wish to place on the record
6 two decisions.
7 Mr. President, can we move into closed session, please.
8 JUDGE ROBINSON: Yes.
9 [Private session]
22 [Open session]
23 THE REGISTRAR: Your Honours, we're back in open session.
24 MR. BOURGON: Thank you, Mr. President.
25 I now move to the first question posed by the Appeals Chamber,
1 and this question deals of course with our submission that the
2 Prosecution exceeded its notice of appeal in the arguments presented in
3 its appeals brief. I'll be very short on this one, Mr. President.
4 Although we do believe that technically we are right and that the
5 Prosecution should not have exceeded its notice of appeal, and although
6 we believe it was inappropriate for the Prosecution to, in a reply to
7 which Mr. Nikolic has no standing to raise any submission in a reply, to
8 ask for its notice of appeal to be amended pursuant to Rule 108.
9 Nonetheless, Mr. President, considering that the Appeals Chamber
10 will necessarily have to consider the generally accepted factors which
11 the Prosecution -- in order to consider whether the Prosecution has met
12 its burden to show that no other reasonable Trial Chamber could have
13 concluded that -- the conclusion that Drago Nikolic possessed the
14 necessary mens rea for genocide is not the only reasonable inference
15 available. We do not intend to pursue this issue any further.
16 I now move to ground 7 of the Prosecution or seventh ground of
17 appeal. At paragraph 1407, the Trial Chamber found the following that:
18 "Soon after the inception of his involvement in the killing
19 operation and certainly by the time of executions at Orahovac, Nikolic
20 knew that this was a massive killing operation being carried out with a
21 genocidal intent."
22 Of course, Mr. President, the Appeals Chamber knows very well
23 that we are challenging this finding, but let me just go on for the time
24 being. Considering that the -- sorry, the Trial Chamber then held as
25 follows immediately following this paragraph:
1 "Having considered and weighed all of the above factors,
2 individually and cumulatively, the Trial Chamber is not satisfied that
3 the only reasonable inference to be drawn from Nikolic's act is that he
4 shared the genocidal intent."
5 The Trial Chamber went on to say in the same paragraph a little
6 later that:
7 "In these circumstances, the stringent test for specific intent
8 is not met and the Trial Chamber therefore finds that Nikolic did not
9 participate in the JCE to murder with genocidal intent."
10 Now, of course, the key words here, Mr. President, are "intent is
11 not the only reasonable inference." And before I go on, I draw the
12 attention of the Appeals Chamber to the fact that of course the
13 Prosecution has the burden to show that this was not the only reasonable
14 inference, and that we say, based on what they argued this morning,
15 amongst other things, the fact that when Drago Nikolic chose to act with
16 resolve and purpose, that would have been sufficient according to the
17 Prosecution, we say it is absolutely not sufficient.
18 Now, we all know, Mr. President, that an inference drawn from
19 circumstantial evidence to establish a fact, especially on which a
20 conviction relies, that inference must be the only reasonable one that
21 could be drawn from the evidence presented. That of course
22 Stakic appeal, paragraph 219. This is significant, in our view, because,
23 as held by the Trial Chamber, direct evidence of genocide, intent, is
24 rare; instead, it must be inferred from the acts, the conduct, knowledge
25 of the accused, as well as from other relevant circumstances,
1 judgement 1398.
2 In this case, Mr. President, in addition to finding that
3 Drago Nikolic did not harbour genocidal intent because this is not the
4 only reasonable inference which could be drawn, the Trial Chamber
5 actually went further and identified another reasonable inference
6 available on the basis of the evidence. The Trial Chamber held the
8 "Another reasonable inference is that Nikolic's blind dedication
9 to the security service led him to doggedly pursue the efficient
10 execution of his assigned task in this operation."
11 Now, in fact, Mr. President, not only is this inference not the
12 only reasonable one available on the basis of the evidence, there are
13 even other reasonable inferences that can be drawn and I'll get back to
14 this later in my argument. We submit, Mr. President, that the
15 Prosecution failed to demonstrate - and that is the answer of course to
16 the second question posed by the Appeals Chamber - that it failed to show
17 that considering the Trial Chamber's error whether there would be a
18 change to the Trial Chamber's conclusion, that it is not the only
19 reasonable inference that can be drawn that Drago Nikolic harboured
20 genocidal intent.
21 My argument will be presented in four sections. I will first
22 begin with the fact that the Trial Chamber did consider all generally
23 accepted factors related to genocidal intent; secondly, the Trial Chamber
24 correctly considered all appropriate factors and the Prosecution failed
25 to show an error on behalf of the Trial Chamber. I will move on to
1 explore with the Appeals Chamber the lack of contextual knowledge of
2 Drago Nikolic, and I will conclude by what we figure or what we
3 respectfully submit is the determining criteria in this regard.
4 Moving on to the generally accepted factors related to genocidal
5 intent, contrary to the Prosecution's submission the Chamber did consider
6 all generally accepted factors. On this basis, the Trial Chamber rightly
7 found that Drago Nikolic did not entertain the required mens rea for
8 genocide. Our detailed argument can be found in our response brief at
9 paragraphs 28 to 34.
10 The Prosecution simply did not succeed in showing that the
11 Trial Chamber erred.
12 At paragraphs 823, the Trial Chamber specifically stated that the
13 generally accepted factors from which an intent to destroy may be
14 inferred, of course in the absence of direct evidence. These factors,
15 Mr. President, were used with Beara, they were used with Popovic, and
16 they were used with Nikolic, albeit commensurate with their acts based on
17 the findings of the Chamber. Secondly, and more importantly,
18 Mr. President, contrary to the Prosecution's argument, it stems from the
19 Trial Chamber's finding that not a single general accepted factor was
20 left out. And let's explore together, if you want, Mr. President, some
21 of these findings. The Trial Chamber did consider the scale and scope of
22 the killing operation, that is, at judgement 1405. In fact, the
23 Trial Chamber went further. It considered the lack of Drago Nikolic's
24 involvement in many aspects of the operation leading to the conclusion
25 that he was unaware of the full scale and scope. That is judgement
1 1402-1403, 1410, 1412.
2 The Trial Chamber considered Drago Nikolic's contribution to the
3 JCE after learning of the others' genocidal intent, judgement 1407. Once
4 again, the Trial Chamber went further. It considered the limited scope
5 of his involvement, judgement 1402-1403 and 1410 to 1412. The
6 Trial Chamber also considered that Drago Nikolic witnessed the targeting
7 of Bosnian Muslims, judgement 1404. However, the Trial Chamber also
8 considered Drago Nikolic's belief that prisoners, as opposed to any other
9 description of victims, were being brought in to the Zvornik area,
10 judgement 1402-1403, and that not every prisoner would be executed. Now,
11 of course this applies to the prisoners from the Milici hospital, and
12 that is judgement at paragraph 1411.
13 The Trial Chamber considered the repetitive nature of
14 Drago Nikolic's action, holding that Nikolic's act and participation did
15 provide some evidence of a genocidal intent on his part or from which
16 such an intent could be inferred, judgement paragraph 1409. However, the
17 Trial Chamber also considered the limited temporal scope of his acts and
18 his withdrawal from the criminal acts prior to their completion. Of
19 course I'm referring here, at the minimum, to what happened in
20 Branjevo Farm and the Pilica cultural centre, judgement 1410.
21 The Trial Chamber also considered Drago Nikolic's perpetration of
22 cruel and inhumane treatment, judgement 1408, 1425. But the
23 Trial Chamber also considered his lack of responsibility for very
24 important aspects of the genocidal operation, such as the killings at
25 Kravica warehouse, the killings of the Milici hospital patients, the
1 reburial operation, and others, judgement 1402-1403 and 1411.
2 The Trial Chamber considered Drago Nikolic's intent for the
3 underlying crimes in light of his membership in the alleged JCE to kill,
4 judgement 1403. But, again, at the same time, the Trial Chamber also
5 considered that Drago Nikolic was not involved in the forcible transfer
6 and his corresponding lack of intent for an important component of the
7 genocide. Just in this specific regard, Mr. President, I'd like to bring
8 the attention of the Trial [sic] Chamber to the indictment because the
9 indictment defined the genocide as including four components, and we
10 believe that this is important when you consider those four components in
11 drawing whether the inference of genocidal intent can be drawn when you
12 look at his participation in the overall genocidal acts as charged in the
14 The forcible transfer, by the way, was at judgement 1395 and
16 Regarding the use of derogatory language, the Trial Chamber,
17 contrary to what the Prosecution advances, specifically addressed this
18 issue, holding that while the use of derogatory language may be of
19 relevance in relation to genocidal intent, it does not in and of itself
20 evidence such intent. And the Trial Chamber goes on in saying this is
21 particularly the case, given the culture in the VRS and the
22 Zvornik Brigade, in which such language was commonplace.
23 Now, the Trial Chamber also considered -- sorry, this was 1399,
25 The Trial Chamber considered the general context in which
1 Drago Nikolic's acts occurred, 1402, judgement. The Trial Chamber goes
2 further and also considers his belated entry into the JCE and his limited
3 contextual knowledge, and that's one of the issues I'll come back to.
4 The judgement -- that was at 1402 to 1403.
5 Concerning the existence of a plan, this was also considered by
6 the Trial Chamber at 1403-1404. Strikingly, the Trial Chamber also
7 considered that Drago Nikolic was not involved in the inception of the
8 plan and was never fully informed in this respect, judgement 1402 to
9 1404. It necessarily follows in our submission, Mr. President, that all
10 nine factors invoked by the Prosecution were indeed considered by the
11 Trial Chamber and that the Prosecution failed to establish any error on
12 the part of the Trial Chamber.
13 Second part of my argument, contrary to the Prosecution's
14 assertion, the Trial Chamber applied correct law and accurately weighed
15 all appropriate factors related to Drago Nikolic's intent. Firstly, it
16 is incorrect to say that the Trial Chamber assessed Drago Nikolic's
17 genocidal intent based on what he could have done instead of what he did.
18 That's incorrect. To begin with, it is very well accepted that in
19 assessing genocidal intent, a Trial Chamber must consider the totality of
20 the evidence, including the non-involvement or the absence of involvement
21 of an accused, that can be found in Stakic appeal judgement 5245 --
22 sorry, this is -- I might have a problem here with the -- I have a
23 four-digit paragraph which cannot be. I'll come back to that,
24 Mr. President.
25 Now, the key here is the Trial Chamber's finding that Popovic and
1 Beara were the architects of the plan, while Drago Nikolic, and here I
2 quote, "... was brought in to carry out specific tasks assigned to him
3 in implementation of a monstrous plan designed by others." Judgement
5 The Trial Chamber correctly found that the acts were confined,
6 the acts -- of course Drago Nikolic's act were confined to his area of
7 responsibility, and thus that his participation and role in the operation
8 was not overarching, as demonstrated by his non-involvement in important
9 aspects. It follows, Mr. President, that the Trial Chamber considered
10 both what Drago Nikolic did as well as what Drago Nikolic could have
11 done, all of which in our submission is relevant.
12 Secondly, it isn't correct to say that the Trial Chamber
13 unreasonably demanded that Nikolic's participation in criminal acts that
14 were completed before his joining the genocide. For starters, this fails
15 to take into account the Prosecution's own allegations in the indictment
16 charging Drago Nikolic with many acts committed outside of Zvornik,
17 including of course the forcible transfer. In our view, the Chamber was
18 right in considering the fact that Drago Nikolic was involved in these
19 acts -- the fact that he was not involved in these acts a relevant
20 factor. More importantly, the Prosecution's argument ignores that
21 Drago Nikolic's non-participation in the events which took place before
22 the JCE are directly related to his lack of contextual knowledge. Again,
23 I'll come back to this later.
24 Now, the Prosecution did not reply here to this -- when we
25 responded on this specific issue. There's no reply from the Prosecution.
1 Thirdly, it isn't correct to say that the Trial Chamber contradicted its
2 own findings. This is a quick one. Clearly, not much needs to be said,
3 as there are no contradictions. You can verify, Mr. President, the
4 paragraphs advanced by the Prosecution. The Trial Chamber correctly
5 found that Drago Nikolic did not take part in the transfer of prisoners,
6 as he was not involved in the JCE to forcibly transfer the prisoners.
7 Fourthly, it isn't correct to say that the Trial Chamber erred,
8 finding that Nikolic's involvement in the unarmed detention of the Milici
9 hospital patients further negate Nikolic's intent. Now, even before I go
10 into the substance of this statement which we say isn't correct, it is
11 important, Mr. President, to bear in mind one thing: It is not for
12 the -- for Mr. Nikolic to show that he does not have genocidal intent.
13 So we're not talking about a factor that will negate his intent. What
14 the Prosecution must bring forward is the factors that do establish his
15 intent. They have the burden of reversing the inference drawn by the
16 Trial Chamber. Now, in this specific instance about the Milici hospital
17 patients, at paragraph 1380, the Trial Chamber found that:
18 "There is scant evidence as to the precise circumstances of their
19 murder and even less evidence as to what, if any, the role of Nikolic had
20 in the matter."
21 The Prosecution claimed that Drago Nikolic would have allowed the
22 prisoners to be taken away and murdered. This must be firmly rejected.
23 The Trial Chamber found that Drago Nikolic had a role in the custody, and
24 thus that he had an opportunity to further the genocidal plan by
25 arranging himself for their execution. Yet, they remained safe within
1 the custody of Nikolic and the Zvornik Brigade and they were killed only
2 after Popovic took control of them, judgement 1411.
3 The Prosecution's contention that Drago Nikolic's involvement in
4 the murder was a result of the timing of the superior order for their
5 execution must also be dismissed. The fact of the matter remains that
6 the prisoners remained safe within the custody of Nikolic.
7 The Trial Chamber, in our view, Mr. President, correctly
8 considered Nikolic's subordinate role, contrary of course to the
9 Prosecution's argument. As previously mentioned, Drago Nikolic acted or
10 acts must be considered in the context of the evidence in totality. And,
11 to that end, Nikolic's personal circumstances are very relevant: The
12 fact that he is a second lieutenant; the fact that this is the lowest
13 rank in the army; the fact that he didn't attend any military academy;
14 the fact that the position he was holding was a position for someone of a
15 rank at least three ranks higher than his. In the context of an
16 operation, of course, directed, according to the Trial Chamber, by
17 Popovic and Beara, he had little authority of his own. As mentioned --
18 referred to specifically by the Trial Chamber, the evidence provided by
19 Pandurevic that Nikolic was wearing a coat much too big for him. How is
20 this relevant, Mr. President? Well, simply because the determination
21 that Nikolic did not have genocidal intent because the fact that he had
22 little authority of his own could very well provide other reasons
23 justifying his actions, other than the fact that he harboured genocidal
25 The Trial Chamber also did not err in law or in fact in
1 considering Drago Nikolic's dedication to the security service. Now,
2 here again, Mr. President, I pause because this is actually not a
3 finding. This is actually another reasonable inference, and this, in our
4 view, is different from a finding. The Trial Chamber did not confuse
5 intent and motive, rather it correctly applied the burden of proof in
6 relation to inferences regarding the mens rea of an accused.
7 In conclusion on this second topic, Mr. President, it follows
8 from the above, even if the Appeals Chamber was to take into
9 consideration the alleged errors committed by the Trial Chamber in
10 determining Nikolic's mens rea for genocide, Nikolic's specific intent
11 would not be unequivocally established. Why? Because genocidal intent
12 on the part of Drago Nikolic is not the only reasonable inference
13 available on the evidence.
14 And I move to my third part, which is the lack of contextual
15 knowledge, but before I do so I'd like to come back quickly to something
16 which was stated by the Trial Chamber, citing the Krstic appeal
17 judgement, where the Trial Chamber quoted the following paragraph 37,
18 appeals judgement Krstic:
19 "The gravity of genocide is reflected in the stringent
20 requirements which must be satisfied before this conviction is imposed.
21 In this context, the demanding proof of specific intent is one of the
22 safe-guards to ensure that convictions for this crime will not be imposed
24 These requirements, Mr. President, guard against a danger that
25 convictions for this crime will be entered or imposed lightly. This is
1 Krstic appeal judgement, paragraph 37, and cited by the Trial Chamber at
2 paragraph 1408.
3 The Trial Chamber properly identified this danger in
4 paragraph 1408, and therefore acted with caution when determining whether
5 the genocidal intent on the part of Drago Nikolic was indeed the only
6 reasonable inference. The Trial Chamber concluded that it was not, and
7 we say that the Appeals Chamber should follow in the footsteps of the
8 Trial Chamber in applying the same degree of care.
9 I move to my third argument which has to do with the lack of
10 contextual knowledge. I said at the beginning that it is our submission
11 that Drago Nikolic was not aware of a genocidal intent; however, even if
12 he was aware of genocidal intent, the contextual knowledge is also
13 something that must be considered. At paragraph 237 of its appellant's
14 brief, the Prosecution submits that Nikolic's actions and participation
15 in the genocide, with full knowledge of the genocidal aims of the
16 operation and that of his fellow JCE members, Popovic and Beara, evidence
17 his genocidal intent. Well, we say, Mr. President, that this must be
18 considered in the light of the Trial Chamber's holding that genocidal
19 intent, in the absence of direct evidence, must be inferred from the
20 acts, the conduct, the knowledge, as well as other relevant
21 circumstances. Judgement 1398, quoted earlier.
22 Consequently, Mr. President, while knowledge of the genocidal aim
23 of the operation or that of others is a relevant consideration to assess
24 intent, so is the contextual knowledge of the accused. And the
25 contextual knowledge refers to the full spectrum of the knowledge of the
1 accused which necessarily has a bearing on his understanding of the
2 situation and, accordingly, on his actions. In this case,
3 Drago Nikolic's lack of contextual knowledge is a determining factor.
4 Let us recall a few of the Trial Chamber's findings. Drago Nikolic was
5 first informed of the murder plan on the evening of 13 July. Now, I say
6 these findings, of course, without prejudice to our arguments that many
7 of these findings are challenged in our appeal.
8 In the evening of 13 July -- and that the information he was
9 given was sparse, a large number of prisoners were being brought from
10 Bratunac to Zvornik to be executed. By that time, the murder operation
11 was well underway, judgement 1402. The vast majority of the victims had
12 already been detained. Over 1.000 victims had already been or were about
13 to be executed at Kravica warehouse and Sandici meadow. This was at
14 judgement 1402. We could add what happened the executions at Cerska. On
15 the evidence before the Trial Chamber, Nikolic had no knowledge of those
16 events, other than his general understanding that these were prisoners
17 taken as a result of the attack on and fall of the Srebrenica enclave.
18 He had no information as to the circumstances by which these men had
19 ended up in VRS custody. He did not know about the indiscriminate
20 separations in Potocari and he did not know about the vigorous pursuit of
21 victims on the Konjevic Polje road.
22 It follows, Mr. President, that even through Drago Nikolic was
23 likely aware of the fall of Srebrenica on 11 July, he was not aware of
24 the adoption of any plan by anyone to murder the able-bodied men from
25 Srebrenica who had been separated from their families, judgement 1051.
1 Moreover, Drago Nikolic might have had some information concerning the
2 column of people from Srebrenica, which was no way -- it's -- which was
3 on its way, of course, to Konjevic Polje and then headed towards Tuzla -
4 and we know the information in the evidence in relation to this column -
5 but he had no information concerning the composition of the column. More
6 importantly, he had no information concerning the presence of civilians
7 in this column, nor did he have information concerning the ongoing
8 operation to capture members of the column. What he did know, however,
9 is the fact that a significant component of the column was on its way to
10 the area of Zvornik and that this column was armed.
11 In addition to this, there is little, if any, evidence,
12 Mr. President, of any working or close working relationship between
13 Nikolic and Popovic or Beara before 13 July 1995. And of course
14 Drago Nikolic had no direct involvement with the prisoners prior to that
15 time, judgement 1402. The fact that Drago Nikolic had no knowledge of
16 these events is, in our view, highly significant. Even if the
17 Trial Chamber's finding that Drago Nikolic knew the genocidal intent --
18 genocidal aim of the operation or that of others, even though if that was
19 to be affirmed by the Appeals Chamber, when you look at Drago Nikolic's
20 lack of contextual knowledge, it makes it possible to draw another
21 reasonable inference, other than the one identified by the Trial Chamber.
22 For example, Mr. President, another reasonable inference that can
23 be drawn on the basis of the totality of the evidence is that
24 Drago Nikolic due, amongst other things, to his low rank, lack of
25 training, lack of power of influence and little authority of his own, was
1 drawn into an operation much bigger than him in which he had no other
2 option but to contribute, but that he was nonetheless able to extract
3 himself from at the earliest opportunity.
4 The most important factor supporting the Trial Chamber's
5 inference concerning Drago Nikolic, last part of my argument today. Most
6 important factor, Mr. President, is the fact that Drago Nikolic did not
7 harbour genocidal intent is that his contribution to the killing
8 operation ended abruptly after 36 hours. Genocidal intent is not a
9 switch that you can flick on or off at pleasure, nor is it an intent that
10 you can have for one day and not have it the next. The fact that as of
11 15 July in the morning Drago Nikolic no longer contributed to the killing
12 operation is the most powerful indicator that he never had genocidal
13 intent. Genocidal intent, Mr. President, cannot be established through a
14 series of inferences. We are talking about a person that will be tagged
15 with having genocidal intent. The burden or the threshold of the burden
16 of proof must be very high. That is why, as mentioned earlier, the
17 gravity of genocide is reflected in the stringent requirement that before
18 this conviction can be imposed, specific intent must be proved beyond a
19 reasonable doubt.
20 Mr. President, I will stop here and simply end my argument by
21 saying that based on the totality of the evidence in this case when the
22 Appeals Chamber analyses all of the evidence, and of course with all the
23 findings that we are challenging concerning Orahovac and the presence at
24 the execution site, concerning Rocevic and the fact that this
25 conversation never took place, concerning the fact that he never offered
1 uniforms, all of this put together, there will be no doubt in your mind,
2 Mr. President, that this inference -- it's certainly the inference that
3 the Prosecution would like to say, that he had -- that Drago Nikolic had
4 the specific intent is certainly not the only one.
5 Thank you, Mr. President.
6 JUDGE ROBINSON: Thank you very much.
7 Counsel for Mr. Pandurevic.
8 MR. HAYNES: Would you just give me a few minutes to set myself
10 Thank you. Good afternoon.
11 The Prosecution appeals in the case of Vinko Pandurevic, in our
12 submission, raise no true issues of law. They are, in reality, a request
13 for a review of the evidence by the Appeals Chamber, and the irony of the
14 Prosecution's approach to these appeals and cross-appeals will not escape
15 the Chamber's attention, whereas in the case of those substantially
16 convicted it seeks to uphold as reasonable the findings of the
17 Trial Chamber. In the case of Pandurevic, it seeks a complete revision
18 of the central factual findings, sufficient not just to correct a minor
19 legal error, but rather completely to relitigate almost every charge of
20 which he has been acquitted.
21 On behalf of Vinko Pandurevic, I respectfully remind the Chamber
22 of the strict standard of review of Trial Chamber findings of fact on
23 appeal, namely, that no Trial Chamber could have found such facts. I was
24 giving that concept some thought the other day when it occurred to me
25 what a steep gradient it truly is, because what it really means is that
1 you can't think of any two Judges who would agree with the finding of the
2 Trial Chamber. And why do I say that? Well, a Trial Chamber, as we know
3 in the case of Vinko Pandurevic, can make a decision by majority of two
4 to one. And so, if you find yourself thinking: Well, I do actually know
5 a couple of Judges who might agree with that, then that standard will not
6 have been met. It makes it rather interesting if there are two among you
7 who would support a finding of fact but three disagree. I would submit
8 it would be extraordinary for the majority to overrule the minority in
9 those circumstances because you have necessarily identified the component
10 of a Trial Chamber which would have found that fact.
11 As I say, it's a steep gradient to invite a Chamber on appeal to
12 re-write the factual findings of a Trial Chamber below, and more so, I
13 submit, for the Prosecution because not only does it have to satisfy you
14 that no Trial Chamber could have found a fact, it has to satisfy you now
15 that you could be sure that that fact should be found.
16 Mr. Rogers the other day made some statistical observations to
17 you. I'm not going to repeat them. This was a case which lasted the
18 best part of three years. It generated an enormous amount of transcript.
19 There were many, many witnesses, thousands of exhibits, and if I may
20 pause just to say this because I know an English court of appeal would
21 observe to me that, Mr. Haynes, this was a very experienced Judge.
22 Your Honours, this was a very experienced Chamber. It composed -- it
23 comprised the current Vice-President and immediate Vice-President of this
24 Tribunal and in Judge Prost, one of its most respected jurists. They
25 managed the proceedings admirably, they managed the case throughout very
1 well. They were attentive, they watched the evidence, they wrote a
2 concise, considered, and eloquent judgement.
3 I just want to make a few observations whilst I'm talking about
4 this on some of the things you've heard today. The Trial Chamber, for
5 example, heard far more detailed evidence as to who was doing what and
6 how they came to be at the crime sites. I didn't object today to the use
7 by the Prosecution of maps with arrows on them. Doubtless, that was a
8 useful visual aid for you, but please bear in mind what underlines those
9 graphic -- underlies those graphic images. Simply to characterise them
10 as Zvornik Brigade assets or resources is oversimplistic. You need to
11 know what they were, how they were -- got there, and what they did there.
12 Just by way of example, paragraph 1881 of the judgement was cited by the
13 Prosecution as justification for one of the arrows on the maps this
14 morning. But an examination of the judgement reveals only that some
15 soldiers cleared some bodies from outside a school building because the
16 local villagers asked them to do it. It's no indication at all that
17 those men were acting regularly within their capacity as members of a
18 battalion of the Zvornik Brigade.
19 Secondly, that the Chamber heard a wealth of evidence about
20 Pandurevic's military capabilities within the brigade, what units and
21 artillery he had at his disposal, and in -- particularly, the heavy
22 artillery with which he could have crushed the column or even murdered it
23 as it passed by, in particular it heard from PW-168 whose evidence it so
24 readily championed on this topic. Such evidence was central to the
25 Chamber's findings about the passage of the column at Baljkovica and how
1 it stood to Pandurevic's credit and how it helped them determine his
2 intent to participate in any joint criminal enterprise or criminal
4 More importantly, perhaps most importantly of all, in a case in
5 which a man's culpability turns on a single conversation, the
6 Trial Chamber heard from PW-168 for 18 whole days and Pandurevic for 22.
7 However they may have articulated Pandurevic's knowledge on the 15th of
8 July in the judgement and whether or whether not the expressions they
9 used were consistent or slightly different, they articulated that -- I'm
10 sorry, the knowledge he derived from a conversation that could have
11 lasted no more than a few seconds, they were ideally and uniquely placed
12 to gauge in a way which, with respect, Your Honours are not.
13 I just want to say a few words about Vinko Pandurevic. In
14 July of 1995 he was 35 years of age and married with one daughter. He
15 became the commander of the Zvornik Brigade in 1993, aged 33. He was
16 well beneath the expected age to be a brigade commander and well below
17 the rank that one would expect a brigade commander to be. He was
18 nonetheless regarded as a fine soldier. The Zvornik Brigade was a unit
19 of 5 and a half thousand men, two or three times the size of an ordinary
20 brigade, and as you've seen from the schematics this morning it comprised
21 eight battalions which were spread along a front line about 40 kilometres
22 in length. The soldiers were substantially non-professional. This was,
23 after all, a time of civil war when ethnic groups were fighting each
24 other. The 1st Battalion, quite literally, were a farming unit. You're
25 not going to get the opportunity which the Trial Chamber had of hearing
1 from Vinko Pandurevic, as they did for the best part of a month, during
2 which time every conceivable question was put to him by me and five other
3 parties, including the Prosecution. It's axiomatic to say that the
4 determination of his case was substantially shaped by the evidence he
5 gave, so I'm therefore going to try my best to do justice to the case he
6 advanced and which was substantially accepted. I promise it won't take
7 me 22 days.
8 We all agree that prior to the 15th of July, 1995,
9 Vinko Pandurevic had no knowledge whatsoever of the murder plan. That
10 has seemed therefore the natural starting point for any narrative;
11 however, it's perhaps worth just backing up a little. The movement of
12 the prisoners from Bratunac to Zvornik began on the 13th of July. It is
13 universally acknowledged that the original plan had been to murder them
14 in Bratunac, but Deronjic objected. The prisoners were moved to Zvornik
15 during the night of the 13th of July and during the day of the 14th.
16 They were transported and guarded by substantial resources drawn from the
17 Bratunac Brigade and other units. At noon on the 15th of July,
18 Vinko Pandurevic returned to the brigade headquarters in Karakaj after an
19 absence of two weeks. He knew that there was a serious military
20 situation developing with a large enemy force behind his front lines
21 commonly called the column, and there were also enemy attacks from the
22 front. What we're all agreed about now is that he had not a clue as he
23 pushed the door open of the Standard Barracks that somebody had brought a
24 number of prisoners to the Zvornik municipality, detained them in schools
25 and some other buildings, and was killing them.
1 The first person he met was his deputy or Chief of Staff,
2 Dragan Obrenovic, who held a brief conversation with him in the corridor.
3 He is characterised throughout the Prosecution's submissions as the
4 Chief of Staff, as though that is some key to his knowledge. Formally he
5 was the Chief of Staff; however, Obrenovic had been absent from the
6 brigade throughout the 14th of July until about an hour previously.
7 Accordingly, the information he had was very limited and it derived
8 almost exclusively from a brief exchange with the duty officer,
9 Dragan Jokic. What he, in fact, said, the Trial Chamber found, was:
10 Pursuant to Mladic's order, Beara and Popovic had brought a large number
11 of prisoners from Bratunac to the Zvornik sector, where they were
12 executing them. And Jokic had informed him that there were enormous
13 problems with the guarding, execution, and burial of prisoners.
14 Significantly, what Obrenovic knew and didn't say was that
15 Nikolic was involved or that Beara and Popovic were taking whomever they
16 want wherever they want, which Jokic had just told him. There it is. We
17 can't go behind what PW-168 told us about that conversation. That is the
18 only evidence and the Trial Chamber accepted it. It must have shocked
19 Vinko Pandurevic. He didn't even know prisoners had been taken, let
20 alone brought to the area, and the Trial Chamber significantly found no
21 significance in his response about civil protection. Know well also his
22 immediate concern with his formal orders to block the column and
23 Obrenovic's alarming report in that regard, conveying to him that the
24 situation was serious. The other thing Obrenovic's report cannot have
25 failed to indicate to him was that the operation he was referring to was
1 one being conducted by the Main Staff. The name of Beara would
2 necessarily have alerted him to that.
3 Shortly afterwards, they entered a room, where together with
4 police and other military commanders, they discussed how to fulfil their
5 orders to block and destroy the column of combatants behind their lines.
6 Is the Trial Chamber's finding at paragraph 1972 about what
7 Vinko Pandurevic would have known from that conversation thus not
8 reasonable? That that's all he was told, that's all his knowledge can be
9 based upon. Jokic was the duty officer. Pandurevic would know that from
10 his contact with the brigade that morning and his entry into the
11 building. Indeed, he even gave evidence about that. The suggestion now
12 that the mention of Jokic's name would necessarily trigger some
13 understanding that the brigade was involved in burials is not the only
14 possible inference, though I accept the contents of the report he wrote
16 Pandurevic is criticised for his inaction in the light of this
17 skeletal information from somebody whom himself did not know very much,
18 namely, Obrenovic. Indeed, it is said that his inaction from that point
19 as a commander makes him guilty of a joint criminal enterprise.
20 Certainly, the Prosecution, nor anybody, can point to any positive act by
21 Pandurevic at any time, let alone after noon on July the 15th. And if he
22 were, as it were, to have responded in any other way, then we would know
23 about it. If he had been told prior to that, we would know about it.
24 One compelling piece of evidence which the Trial Chamber heard and which
25 I'll invite you quickly to look at is an intercept, it's P1179, it's
1 conveniently set out at paragraph 1282 of the trial judgement. It's a
2 lengthy intercept and it takes place earlier that morning and the
3 participants in the conversation are Beara, who is somewhere in the
4 Zvornik area, and Krstic, who is at the front line command post near
5 Zepa. You will recall that at 9.00 that morning, Krstic had ordered
6 Pandurevic to return to Zvornik to crush the column. It is shortly after
7 that that Beara contacted Krstic at the command post.
8 Beara is, throughout the course of the conversation, making it
9 plain that he is having difficulty dealing with the murder plan in the
10 Zvornik area, and he discusses with Krstic the various possibilities for
11 the provision of men and other resources to complete the task. A number
12 of possibilities are discussed between them, including men from a unit
13 commanded by Bobo Indic and men from the Bratunac Brigade. What of
14 course is conspicuously absent from this conversation is any suggestion
15 that Beara in Zvornik should turn to the Zvornik Brigade to ask them for
16 any resource. That simply is not on the table and it's an indication, we
17 say, of the extent to which Pandurevic was kept always in the dark about
18 this Main Staff and Drina Corps operation.
19 During the course of that afternoon, Pandurevic was visited at
20 the forward command post by a local politician called Branko Grujic, and
21 Grujic was who told him about the presence of prisoners in a couple of
22 schools. And, hence, in his later interim combat report is featured the
23 mention of schools. There were in that conversation indications that the
24 local population were insecure about the presence of the prisoners there,
25 and so Pandurevic decided to consult further with a man called
1 Ljubo Bojanovic who was present at the forward command post to find out
2 what he knew about the prisoners.
3 Bojanovic told him that a day previously buses had passed by the
4 command in Karakaj containing prisoners. He said he thought they were on
5 their way to Bijeljina, that is the place where the exchange centre of
6 Batkovici is, and that the brigade had no task in relation to the
8 What Pandurevic did next is, we say, very significant. He knew
9 from earlier that morning that the commander of the Muslim forces in
10 Nezuk, Semso Muminovic, had been trying to make contact with him, and it
11 was at that point that Pandurevic contacted Muminovic. He contacted him
12 several times that afternoon, and the Trial Chamber accepted his evidence
13 at paragraph 1867. The contact began at about 2.00 in the afternoon,
14 very shortly after Pandurevic had arrived at the forward command post.
15 There is in the evidence in fact a record of one of their conversations,
16 and I think we'll just have a look at this on the screen, it's 7D00656.
17 No, I only want the transcript. There's no point in playing the audio.
18 Thank you.
19 The English is at the lower half. This is Pandurevic on the
20 early afternoon of the 15th of July, contacting Muminovic, whom he refers
21 to as Zukov, his nickname. In his evidence he described this as the
22 second conversation and you'll see that Pandurevic says:
23 "From that ... there's no."
24 Zukov says: "Good, good."
25 Pandurevic says: "Zukov, Zukov, Zukov, answer me."
1 And Zukov says: "Speak, I hear you. I hear you. Speak. He's
2 not answering me.
3 "Zukov, send the civilians to one place, choose it yourself. We
4 will transport them all to Tuzla. This way they will be protected
5 certainly, copy.
6 Zukov: "Well, let the whole column pass and it's all right."
7 Pandurevic: "Not with weaponry, it has to be surrendered, not
8 with weaponry, I won't repeat twice, so that they also have the chance to
9 gather at the same place. Copy!"
10 The military necessity on which the Prosecution have always
11 relied did not exist at the time of this contact with the enemy
12 commander, didn't arise until the morning of the 16th of July. And
13 literally within an hour or so of arriving back in Zvornik, having got to
14 the forward command post, Pandurevic is making contact with the ABiH
15 commander in Nezuk, starting negotiations for the passage of the column
16 of men to safe territory. It is unsurprising, we submit, that the
17 Trial Chamber formed the view that this was compelling evidence to negate
18 any suggestion that Pandurevic had merely by being given information by
19 Obrenovic --
20 JUDGE ROBINSON: Mr. Haynes, we --
21 MR. HAYNES: -- become a member of any joint criminal enterprise
22 to murder --
23 JUDGE ROBINSON: Mr. Haynes, sorry, we will break in five
25 MR. HAYNES: Thank you.
1 The negotiations continued and you'll see at paragraph 1872 of
2 the judgement the following morning a Muslim officer from the column
3 called Selikovic [phoen] was taken prisoner. He was treated and he was
4 sent back to his unit. Again, an example of humane treatment,
5 inconsistent with any intent or contribution to a joint criminal
6 enterprise to murder. At 10.00, Pandurevic and Muminovic agreed the
7 opening of the corridor, and at 1.00 it was opened. I'll return to this
8 point later, but I do submit that that act as a piece of evidence in
9 determining Pandurevic's deeds and thoughts and what inference the
10 Trial Chamber must have drawn is fantastically compelling. Do not
11 underestimate, we say, the significance of the disobedience of the order
12 he had been given to crush the column. That had come from Mladic through
13 Krstic. This was the column of the 28th Division. This was the unit
14 that had been the thorn in the side of the whole VRS in Srebrenica.
15 Pandurevic had the military capability to wipe it out and he chose not
17 Your Honour, that may be a convenient moment.
18 JUDGE ROBINSON: Thank you. We'll break for 20 minutes,
19 that's 35.
20 --- Recess taken at 3.15 p.m.
21 --- On resuming at 3.37 p.m.
22 JUDGE ROBINSON: Yes, Mr. Haynes.
23 MR. HAYNES: Thank you, Your Honour.
24 I'll just complete the story of the column. The column was
25 originally open for a period of 24 hours, but because there was
1 stragglers, Pandurevic kept it open for a further period, sent his men
2 out into the area around Baljkovica with megaphones to make sure that as
3 many people got through as was possible, and it's estimated that about
4 10.000 people passed through.
5 The Trial Chamber found at paragraph 1964 that in his interim
6 combat report of the 15th of July, Pandurevic was preparing to disobey
7 his orders, and I simply note within the time-scale of things that that
8 is within five and a half hours of his arrival back at Zvornik and no
9 more than four from his arrival at the forward command post. And the
10 Trial Chamber was satisfied that by then he had that in mind. On the
11 16th of July he wrote what can only be described as a dishonest report,
12 lying to his superior command, attesting to the fact that he was still
13 fighting when he wasn't and saying that some people had slipped through
14 but they were unarmed. That was quite the opposite of the position
15 because he was letting the whole Muslim column pass through, contrary to
16 his orders.
17 Two days later when, as the Trial Chamber found, he was fixed
18 with rather more complete knowledge of what had been going on with the
19 murder operation, he wrote the interim combat report of the 18th of July,
20 and I will read that to you. It said:
21 "During the last ten days or so, the municipality of Zvornik has
22 been swamped with Srebrenica Turks. It is inconceivable to me that
23 someone brought in 3.000 Turks of military age and placed them in schools
24 in the municipality in addition to the 7.000 or so who had fled into the
25 forests. This has created an extremely complex situation and the
1 possibility of the total occupation of Zvornik in conjunction with the
2 forces at the front. These actions have stirred up great discontent
3 among the people and the general opinion is that Zvornik is to pay the
4 price for the taking of Srebrenica."
5 Concurrently to that, he ordered the Zvornik Brigade to ensure
6 that all prisoners taken on the terrain were brought back to the
7 barracks, and you'll find that at paragraph 1893 of the judgement. The
8 reports which he wrote firstly to prepare his higher command for the
9 passage of the column and then condemning them for the murder operation
10 were described in these words by Judge Kwon in his dissenting opinion.
11 He said:
12 "They were the sole instance of a subordinate so openly
13 challenging Mladic in relation to the murder operation. I would add
14 this, they are the sole instance of any document recording the existence
15 of prisoners rather than referring to them in some sort of secretive
17 This material also the Trial Chamber in our submission rightly
18 felt was relevant to determine the purpose of his acts and deeds and his
19 involvement in the murder operation.
20 Throughout the 20th to the 24th of July he took and exchanged
21 prisoners at a time when for -- in other regions such as Bratunac,
22 prisoners were being routinely executed. On the 27th of July, he visited
23 his command superior General Krstic, the Trial Chamber found at
24 paragraph 1915, and asked Krstic if he had any more specific information
25 following his combat reports relating to the prisoners executed in
1 Zvornik area. According to Pandurevic, Krstic essentially told him that
2 it was not something that should be his concern and that he would deal
3 with the problem anyway.
4 On those facts as described by the narrative and attested to by
5 Pandurevic in evidence on oath, the Trial Chamber perfectly reasonably
6 concluded not only that Pandurevic's actions throughout the 30 hours from
7 noon on the 15th of July were not consistent with his membership of the
8 JCE nor as an aider and abettor to mass murder. Neither did they
9 consider that his actions in writing reports or letting the column go had
10 to be viewed with the cynicism that the Prosecution now invites. Quite
11 the contrary, in relation to the column they found the following:
12 "At the time in which other VRS members were actively hunting
13 down, capturing, and executing Bosnian Muslim men without mercy and
14 pursuing the genocidal claim, Pandurevic's decision to open the corridor
15 enabled the safe passage of thousands of Bosnian Muslim men is striking.
16 In doing so, thousands of men were potentially spared. Pandurevic's
17 action in this regard stands out as an instance of courage and humanity
18 in a period typified by human weakness, cruelty, and depravity."
19 Plainly, they were not regarded by the Trial Chamber in the same
20 way, even after the Prosecution had cross-examined him for hours as
21 self-serving or corroboration of his having accepted Mladic's illegal
22 order. In our submission, it would be quite wrong of you to reverse
23 those factual findings.
24 Under the Prosecution's first ground of appeal, we submit that
25 the alleged actus reus for the joint criminal enterprise is little more
1 than a linguistic sophistry. He did not accept Mladic's order, he did
2 not give any orders in relation to the murder operation, he did not
3 approve any orders, he didn't sanction the use of any resources or
4 assets, and he did not know they were being used such as they were.
5 I'll turn now to the appeal under Article 7(3). It is our
6 position that the correct standard of knowledge for a superior is that he
7 has to have reason to know that his subordinates have committed, are
8 committing, or are about to commit crimes. But we accept that the
9 terminology has become fuzzy and vague and we would welcome clarification
10 in this case. However, even under the lower standard of Strugar and
11 Nahimana we contend that the Trial Chamber was perfectly entitled to
12 conclude that they were not sure that Vinko Pandurevic was liable under
13 Article 7(3) for extermination and persecution, and I will briefly
14 underline why.
15 Extermination, this deals with the second question which we've
16 been asked to address. Essentially, these questions come back and back
17 and back again to the conversation between Pandurevic and Obrenovic in
18 the corridor of the Standard Barracks on the 15th of July, and we ask
19 rhetorically: What was it about what Obrenovic told him that would have
20 made him think that this was extermination or persecution. Pandurevic's
21 knowledge about the scopes of the crimes underway was skeletal in the
22 light of what he was told by Obrenovic. He had no information whatsoever
23 as to the numbers of prisoners brought to the area or even their
24 approximate location. He had no knowledge as to whether they were all
25 being killed or just some of them were being killed, nor as to whether
1 the executions were complete, over, or ongoing. All of those are facts
2 emerged later. The Trial Chamber found out that Pandurevic only learned
3 of the full scope of the operation on the 18th of July. He did not know
4 at that time that extermination was being committed. The use of the word
5 "enormous," moreover does not lead to the necessary inference --
6 influence that that is invited. There may have been enormous logistical
7 problems getting somebody to carry out the tasks, for example, and so we
8 submit that the brief conversation with Obrenovic was correctly
9 characterised by the Trial Chamber, as only giving rise to the necessary
10 influence that Pandurevic would have known of murder but not necessarily
12 Can I turn to the third question you have posed us about
13 persecution. Again, I'm sorry to say it involves an analysis of the
14 information passed from Obrenovic to Pandurevic on the 15th of July.
15 Nothing in that information could have conveyed to Pandurevic the reasons
16 why prisoners were being killed. He would not have known from what
17 Obrenovic said that they were being killed because of their ethnicity
18 rather than, for example, what they might have done or for some arbitrary
19 reason, in other words, revenge, or because some -- simply they were
20 enemy soldiers. The conversation with Obrenovic does not relay that
21 information in any way at all.
22 It's important also, given that the information was passed so
23 shortly afterwards, to bear in mind what Pandurevic learned from Grujic
24 and Bojanovic. In other words, that prisoners were being held in
25 schools, in other words, not dead yet. And that Bojanovic told him that
1 they were in buses on their way to Bijeljina which would have signalled
2 to Pandurevic, Batkovic, and hence exchange and not murder at all.
3 Unless there are any questions, those are my responses to your questions
4 2 and 3.
5 I'm going to move on now to the appeal in relation to
6 Pandurevic's failure to punish. In our submission, the Trial Chamber
7 correctly found that Vinko Pandurevic discharged his duty to punish by
8 writing the 15th of July and 18th of July reports and by his conversation
9 with Krstic. At paragraph 2062, the Chamber articulated as follows:
10 "Having considered all of the relevant evidence, the
11 Trial Chamber is satisfied that in his 15th and 18th of July interim
12 combat reports were a means, potentially the only such realistic
13 available means, for Pandurevic to communicate and report to the
14 competent authorities about the crimes that were committed in the Zvornik
16 The Trial Chamber also recalls that Pandurevic raised the issue
17 of the execution of prisoners in Zvornik with Krstic in person on the
18 27th of July, specifically Pandurevic asked Krstic if he had any more
19 specific information about the matter, to which Krstic responded that it
20 was not something that should be Pandurevic's concern and that he,
21 Krstic, would deal with the problem in the appropriate way.
22 The Prosecution challenged that finding by arguing that the
23 Trial Chamber added an element to the legal standard requiring for the
24 measures to be necessary, reasonable, and certain to be effective. That
25 is not what the Trial Chamber did. The correct standard, reasonable and
1 necessary measures means the availability of measures has to be assessed
2 on the basis of the circumstances surrounding each particular situation.
3 And that's the Blaskic appeals judgement at paragraph 417.
4 "Reasonable" means measures reasonably falling within the
5 material powers, not a question of substantive law but of evidence,
6 according to the Appeals Chamber in Halilovic, paragraph 63.
7 Pandurevic's material ability needs to be assessed, taking into
8 consideration the circumstances at the time. An abstract listing of all
9 the measures the Prosecution can think about now, some of which were not
10 even litigated during trial, is not the proper legal standard. This
11 brings me to question 4, the military prosecutor and other measures.
12 The Trial Chamber reasonably found that Pandurevic had taken the
13 only necessary and reasonable measures he could. This question,
14 Your Honours, cannot be divorced from reality. It has to bear upon the
15 circumstances in which the commander found himself, and I may reach
16 slightly outside this case and this courtroom for just a moment, but let
17 us take a look around ourselves. Karadzic is being tried down the
18 corridor for offences relating to the events of Srebrenica. Mladic is
19 being tried downstairs in relation to events concerning Srebrenica.
20 Beara, Tolimir, Miletic, Gvero, the whole Main Staff were involved in the
21 events at Srebrenica. By the 27th of July, when he visited Krstic,
22 indeed by the 23rd of July, when he spoke to Dragan Obrenovic, and I
23 particularly invite you to consider paragraph 1910 about that
24 conversation, Pandurevic was rightly aware that the whole of the
25 Main Staff was involved in these events. If he were here today offering
1 up the fact that he had reported his concerns to the military prosecutor,
2 an organ of the Main Staff of the Army of Republika Srpska, the
3 Prosecution would laugh at him and suggest that such a measure was wholly
4 inadequate to discharge his duties as a commander. They would say that
5 reporting this matter to the military prosecutor was mere window
7 It's worthy of note that during the many days he cross-examined
8 Vinko Pandurevic, Peter McCloskey never once suggested to him that that
9 was an option he should have chosen. Moreover, during the trial, the
10 Prosecution did not find it important enough to present evidence on the
11 military prosecutor, that's at the trial judgement paragraph 2057, and
12 the evidence that was presented mentioned by Mr. Wood this morning was
13 only suggestive of its impartiality. In our submission, the
14 Trial Chamber rightly looked at all the options available to Pandurevic
15 and decided that in the writing of reports to his immediate superior and
16 by personally visiting his immediate superior he had taken all necessary,
17 appropriate measures. That was a considered and intelligent reflection
18 upon the position he realistically found himself in.
19 We addressed the other points suggested or the other measures
20 suggested he might have taken regarding investigations and disciplinary
21 measures in our response brief at paragraphs 256 to 269, and I will not
22 and I doubt I have the time to go through them now.
23 It remains our position that the 15th and 18th of July reports,
24 as well as the conversation with Krstic, were the only reasonable and
25 necessary measures he could have taken. They created a written record,
1 higher command who were informed could deal with his superiors as well as
2 his subordinates. As for our position on question 5 which you've posed
3 us, the reports of the 15th and the 18th of July invite an inquiry which
4 is not in fact limited in time. So the question whether he can be found
5 liable for failing to punish the crimes committed before he returned to
6 Zvornik is moot because it is our case that the Trial Chamber correctly
7 considered that he had discharged that duty in relation to both the
8 crimes before and after his return. For what it is worth, we take no
9 position on the question as to whether as a matter of principle
10 Pandurevic could be liable for failing to punish those crimes which
11 occurred between the 13th and the 15th of July, when we say he was not in
12 command of the brigade. We note that in the Prosecution's submissions
13 this morning as to the relevant law on this topic, the one case they
14 didn't make reference to was that of Perisic, where the same legal
15 standard was applied and the Prosecution did not express the view that
16 they expressed here this morning, with the necessary effect that Perisic
17 was acquitted.
18 I'm coming to the end.
19 Paragraph 2209 of the trial judgement, the Trial Chamber
20 acknowledged the uncommon and extraordinary set of facts that set aside
21 the case of Vinko Pandurevic. One of its uncommon and extraordinary
22 features is the narrative I've described for you, whereby a young
23 commander doing, as the Trial Chamber found, the work of a soldier
24 properly, returned to his headquarters to be told that others had brought
25 into what is termed his zone of responsibility a lot of prisoners and
1 they were going about killing them. As you know, I did not address you
2 about Vinko Pandurevic's sentence. The Prosecution have done so today
3 and invoked the rights of victims. I wholly support the rights of
4 victims, as does Vinko Pandurevic, to whom the Trial Chamber in this
5 instance found to have performed a compelling act of assistance in
6 July of 1995.
7 One of the principal rights of victims is the right to truth, and
8 for all the rhetoric about the digger drivers and guards who in a formal
9 sense might have been Pandurevic's subordinates and who might have aided
10 and abetted unbeknown to him the scheme to murder people, the Prosecution
11 have repeatedly denied the victims of Srebrenica this right. But perhaps
12 they'll do so in a reply today. We know that a few soldiers from the
13 1st Battalion went to the Kula school to stand guard, but who was in
14 charge there? Who ordered the shootings to start? And at Petkovci, who
15 was in charge on the ground? Who ordered the killings to begin? And at
16 Orahovac and at Kula? The answer to that central question has always
17 born and continues to bear on every level of Pandurevic's culpability and
19 Unless you have any questions to ask of me, those are the
20 submissions I wish to make.
21 JUDGE ROBINSON: Thank you very much.
22 We'll now have the Prosecution's reply.
23 MR. KREMER: Thank you, Mr. President, Your Honours.
24 I'll just make some brief remarks on -- in reply on all of the
25 submissions other than those made on behalf of Mr. Nikolic, and my
1 colleague, Mr. Rogers, will reply to those.
2 I want to start by very quickly dealing with the Popovic and
3 Beara comments in relation to the cumulative conviction for conspiracy to
4 commit genocide responses, and I have no comments on Mr. Popovic's
5 response. But in respect of Mr. Beara my invitation to you is that you
6 should ignore his response as non-responsive. He does not address the
7 legal issue raised in the ground or in the submissions. What he used the
8 opportunity to do was to rehash his appellant's argument and challenge
9 the underlying factual findings on conspiracy to commit genocide, and in
10 our respectful submission that was improper. And I note that - and
11 Your Honours are probably well aware of this - that Beara did not file a
12 response to the Prosecutor's -- Prosecution appeal brief and, as such,
13 his response on paper, at least, again is not available to you for any
14 purpose that would serve you in terms of deciding this legal issue that
15 has been decided by the Appeals Chamber of the
16 International Criminal Tribunal for Rwanda.
17 In terms of Miletic, I have no comment, given the concession by
18 Ms. Faveau on this legal issue, and so I will turn to Mr. Pandurevic.
19 The submissions on grounds 1 and grounds 2 are interesting but
20 generally non-responsive because Mr. Pandurevic's counsel avoided the
21 central issue put forward by the Prosecution as the basis for the error
22 in 1972 and 1973 of the Trial Chamber's judgement. And that is, in
23 considering Vinko Pandurevic's shared intent for the joint criminal
24 enterprise to murder, the Trial Chamber ignored its own findings,
25 particularly the findings in relation to the words used and the meaning
1 that it derived from and found from the 15th July interim combat report.
2 Mr. Haynes avoids the question and it's been a question that I
3 think vexes him because the Trial Chamber did, in fact, spend a lot of
4 time analysing the evidence and making those findings so that our
5 position is, quite clearly, that there is a legal error, a legal error
6 that compels this Appeals Chamber to look at the findings and look at the
7 facts and make your own determination to see what the proper conclusion
8 would have been had the findings in 1948 been applied and the contextual
9 circumstances been used to do that evaluation. We have -- in our
10 submissions today and in our Prosecution appeal brief and reply we have
11 tried to help the Trial Chamber -- or the Appeals Chamber in evaluating
12 whether or not this ground of appeal is factually and legally founded and
13 also to provide you with ample references to the trial record to assist
14 you in making the determination that we suggest, with respect, you should
15 be making.
16 The standard of review put forward by Mr. Pandurevic's counsel in
17 our submission is wrong. It essentially suggests that if there is a
18 dissenting opinion then there is no possibility to make a determination
19 that no reasonable Trial Chamber could make that conclusion. Our
20 position is that this Appeals Chamber on a regular basis applies the
21 standard of review for appeals, and I won't tell you what the law is.
22 You know it and you apply it regularly. And this Appeals Chamber is not
23 afraid to take on the difficult and challenging job of reviewing factual
24 findings and evidence and replacing its findings on facts and guilt or
25 innocence in place of decisions made by Trial Chambers.
1 The emphasis in the response by Pandurevic is on the conversation
2 of Obrenovic and Grujic, but again without addressing the problem that it
3 create -- that is created by the 15th July ICR which suggests, as found
4 by the Trial Chamber, that Pandurevic in fact held much more knowledge
5 when looked at in the context of the conversations and the document.
6 During the course of his remarks, he made one submission relating
7 to prisoners and that prisoners were regularly exchanged from the 20th
8 to the 24th of July. I note to remind you of the fact that he has been
9 convicted for the aiding and abetting of murder of the ten patients from
10 the Milici hospital that were turned over to Popovic that you've heard
11 about in the proceedings, and I also refer you to paragraph 59 of our
12 reply, where we address this specific point in response -- in reply to
13 his response.
14 I can just simply repeat for Your Honours that we did in our
15 brief set out the basics of the legal and factual position of the
16 Prosecution and why an appeal on these two grounds should be allowed.
17 And Mr. Haynes, on behalf of Mr. Pandurevic, has replied -- responded in
18 full. The arguments that he advances this morning on these grounds add
19 little, if anything, to what he says in his response. And we have
20 addressed any points that are worth responding -- responding to in our
21 replies, and, consequently, I will rely on your study of the response and
22 reply and not bore you anymore this afternoon.
23 I'll pass the podium on to Mr. Rogers for a brief reply in
24 respect of the Nikolic points - thank you, Your Honours - unless there
25 are some questions.
1 MR. ROGERS: Your Honours, I have three points I wish to make in
2 reply to the submissions of my learned friend for Drago Nikolic. The
3 first relates to his assertions concerning withdrawal or extraction.
4 Your Honours, I want to address that suggestion that he withdrew from the
5 enterprise, that's Drago Nikolic withdrew. My learned friend at
6 transcript 64 said: The Trial Chamber considered the limited scope of
7 his acts and his withdrawal from the criminal acts prior to their
8 completion and he referred to the judgement at 1410. But, Your Honours,
9 this might imply that the Trial Chamber considered that Drago Nikolic had
10 made some positive decision to withdraw or, as my learned friend put it
11 later in the transcript at 74, that Drago Nikolic was nonetheless able to
12 extract himself at the earliest opportunity. But if we examine the
13 judgement at 1410, we see what they said. They said:
14 "His participation in the killing operation is limited in time
15 beginning on the night of 13 and ending suddenly midday on 16 July. As a
16 result, he is not directly implicated in the killings at
17 Branjevo Military Farm or Pilica cultural centre."
18 In our submission, that is not an extraction or a withdrawal.
19 This was not the Trial Chamber's impression of him at all. What they
20 said when considering his responsibility in relation to the joint
21 criminal enterprise to murder at paragraph 1392 was this:
22 "He played an important role in the organisation of the operation
23 by which the common purpose was achieved and he made a number of
24 contributions to that common purpose through his work, behind the scenes
25 of and at various detention and execution sites in Zvornik. Notably, he
1 arranged for personnel to guard and carry out executions and was
2 personally present at Orahovac in an organisational capacity at the
3 detention and execution sites at times when the executions were being
4 carried out. Through these acts, he made a significant contribution and
5 from his steadfast and resolute approach to the task given to him in the
6 murder operation, it is clear that he shared the intent of the common
8 Your Honours, the second that I wish to address is the comments
9 relating to Drago Nikolic's belief about the prisoners. At transcript
10 page 64, my learned friend referred to Drago Nikolic witnessing the
11 targeting of the Bosnian Muslims and said that:
12 "The Trial Chamber considered Drago Nikolic's belief that
13 prisoners as opposed to any other description of victims were being
14 brought in to the Zvornik area."
15 And he referred to the judgement at 1402-1403.
16 However, Your Honours, this reference should not be misunderstood
17 to indicate that Drago Nikolic only thought that prisoners were prisoners
18 of war. The Trial Chamber referred to Drago Nikolic's knowledge when he
19 left the Standard Barracks on the morning of the 14th of July, in
20 judgement 1404, when it stated:
21 "The only reasonable inference to draw from such a planning
22 meeting is that when he leaves Standard Barracks that morning, he knows
23 the details of the plan, the executions were to be carried out in
24 multiple locations in the Zvornik area, and the victims would number in
25 the hundreds to thousands. Later that morning, he sees the convoy of
1 buses, and, subsequently, he acquires first-hand information from his
2 observations at Orahovac about the composition of the victims, soldiers
3 and civilians, men, boys, and elderly. It was also apparent that these
4 unarmed weakened Bosnian Muslim males already in VRS custody constituted
5 no military threat."
6 Finally, I wish to address my learned friend's remarks concerning
7 contextual knowledge. At the transcript at page 72 of today's hearing,
8 my learned friend stated that contextual knowledge refers to the full
9 spectrum of the knowledge of the accused which necessarily has a bearing
10 on his understanding of the situation and accordingly on his actions.
11 Your Honours, I'd like to address you and take you to some of the
12 judgement findings referring to the broad spectrum of that knowledge to
13 contextualise it. In the judgement at 1418, dealing with the knowledge
14 requirements under Article 5, the Trial Chamber found that:
15 "Nikolic, as chief of security of the Zvornik Brigade, whose
16 commander took part in the attack on Srebrenica, knew of the military
17 attack against the protected Srebrenica enclave. He further knew that
18 the Bosnian Muslim prisoners were transported from Bratunac to Zvornik,
19 therefore he knew that these were prisoners who had come into the custody
20 of the VRS as a result of the attack on the civilian enclave of
21 Srebrenica. Nikolic saw that the Bosnian Muslim prisoners detained at
22 the Grbavci school and executed at Orahovac were not only soldiers but
23 also civilians and that no distinction or selection was made in terms of
24 those to be executed. Nikolic's acts of murder are clearly tied to the
25 attack on Srebrenica and Nikolic knew that this was the case."
1 Concerning their findings relating to extermination, the
2 Trial Chamber found that these murders were either within the common
3 purpose of the JCE to murder or were a natural and foreseeable
4 consequence of it. Nikolic participated in the JCE to murder and he also
5 ordered and planned murder as a crime against humanity. These murders,
6 to Nikolic's knowledge, were carried out on a massive scale with
7 thousands of victims; thus Nikolic committed, ordered, and planned murder
8 on a large scale. On the basis of these combined circumstances, the
9 Trial Chamber finds Nikolic guilty of extermination.
10 And the circumstances are further confirmed in their full context
11 in the Trial Chamber's judgement at paragraph 1426 concerning
12 persecution. They found:
13 "Nikolic participated in the killing operation with the specific
14 intent to discriminate on political, racial, or religious grounds. The
15 Trial Chamber is of the opinion that Nikolic's involvement in the
16 organisation and co-ordination of the massive-scale murder of a single
17 ethnic group, the Bosnian Muslims, shows his discriminatory intent.
18 Moreover, his active participation in the detention, killing, and
19 reburial, the circumstances and manner of which plainly display
20 discriminatory intent as previously found by the Trial Chamber is further
21 proof of Nikolic's intent. The Trial Chamber therefore finds that
22 Nikolic participated in the JCE to murder with specific intent to
23 discriminate on political, racial, or religious grounds, and thereby
24 committed persecution through murder and cruel and inhumane treatment."
25 Your Honours, those are the full contextual circumstances of
1 Drago Nikolic's acts. Your Honours, we have no further submissions
2 unless we can help you any further.
3 JUDGE ROBINSON: Thank you.
4 [Appeals Chamber and Legal Officer confer]
5 JUDGE ROBINSON: Yes, okay, we'll take the break now and return
6 at 20 minutes to 5.00.
7 --- Recess taken at 4.21 p.m.
8 --- On resuming at 4.41 p.m.
9 JUDGE ROBINSON: We come now to the personal addresses by the
10 appellants, and I advise all the appellants that they have a right, if
11 they wish to exercise it, to make an address.
12 Mr. Popovic, do you wish to make an address? The address is not
13 to exceed ten minutes.
14 THE APPELLANT POPOVIC: [Interpretation] Yes, Your Honours. It is
15 my intention to do so and I know that I have ten minutes.
16 Can I begin, Your Honours?
17 JUDGE ROBINSON: Yes, please do.
18 THE APPELLANT POPOVIC: [Interpretation] Thank you.
19 Your Honours, it is not my intention to repeat what was said in
20 either my appeal or my judgement. I just wish to point out some facts
21 that I noticed. I would like to say that I never even thought of
22 eliminating a group or part of a group belonging to the opposing side. I
23 never commanded, ordered, or made it possible for anybody to be killed.
24 During the conflict, I never commanded a combat unit. I did not
25 notice that it was the plan of my superiors to commit genocide or kill
1 anybody. Your Honours, is it possible that the genocide at Srebrenica
2 was committed by three security officers of whom I am one? On the other
3 hand, 14 persons have been tried here, of whom many were commanders,
4 which means that they exercised command duties in whose area of
5 responsibility crimes were committed and genocide by using their
6 resources and yet nobody was convicted of genocide.
7 It is observed that according to the findings of this Tribunal, I
8 was assisted in genocide by my commander, Krstic. In this courtroom
9 Article 17 of the temporary regulations of the VRS was shown, but it was
10 not correctly explained. Your Honours, an officer from the superior
11 command cannot come without any authorisation and do what he pleases, as
12 has been said, without a verification. If he has a written
13 authorisation, that's all right, but if he doesn't then he must be
14 verified by the superior officer in his own unit and in the superior
15 command. They must be informed.
16 And as for using the resources of a unit for which the commander
17 and the crews can be held criminally responsible, namely, engaging
18 manpower, using fuel, ammunition, machinery, and equipment, I can say
19 that I haven't had any conversations with Momir Nikolic by any means,
20 although this was -- this is contained in the judgement. I never talked
21 to Drago Nikolic about the entry of prisoners of war at Zvornik. I
22 didn't assist or wasn't present at any execution at Orahovac, and I saw
23 Acimovic for the first time in this courtroom. I
24 didn't take the members of the 10th Sabotage Detachment to Branjevo, and
25 I have never been at Branjevo, especially not at the time of the
1 execution. That people from Milici were members of the Zvornik Brigade,
2 I heard of them first -- for the first time here. Please pay attention
3 to P1309.
4 Your Honours, this intercept cannot establish a link between the
5 wounded at Milici and this. The commander says: I have prisoners, I
6 have injured men. But of course after such a fierce combat it is not
7 possible to take prisoner only healthy men. Of course there are wounded
8 people. And then there was the letter: Should I send the wounded to the
9 Zvornik hospital? What would be the point of sending the wounded from
10 Milici to the Zvornik hospital when they already had been there? And
11 thirdly, there are no entries in the log-book that I stayed at the
12 brigade at Zvornik on that day at all. And fourthly, these people
13 mentioned here were exchanged and I am still not familiar with the fate
14 of the wounded from Milici to this day.
15 Now let me say why the evidence has been so twisted. All --
16 everybody was at the Tribunal at the same time, Krstic, Obrenovic, Jokic,
17 Blagojevic, Momir Nikolic, some were politicians, some were servicemen.
18 Of course they had at their disposal evidence and everything that
19 incriminated them. They had time to think of how they could shift the
20 blame to somebody else. The system of the empty chair was used. The
21 character of this judgement is such that to my mind all evidence was
22 twisted in the worst possible manner. Where nobody recognised me, the
23 Trial Chamber did. When it was a person with a moustache, it was me.
24 When it was a person without a moustache, it was me again. If he was
25 tall with greyish hair, about 50 years old, it was me. If he was
1 standing beside a Kampanjola vehicle, it was again me. If he was driving
2 a Golf, of course it was me. A description was made which didn't fit me
3 at all, but it was me.
4 On a number of occasions I must have been at two places at the
5 same time, Dragasevac and Kozluk, for example, Kozluk and Nis, Orahovac
6 and Krivaca, although the distance is from 60 to 80 kilometres. Then how
7 can I defend myself? Half truths and lies were used here. Words were
8 taken out of context and all the evidence of the Defence was neglected
9 and different standards were applied to the Defence and to the
11 In not one case was the principle of favouring the defendant
12 applied. If the purpose was to convict me at all costs, then the
13 Trial Chamber surely achieved its goal and the red square shown by -- but
14 then the red square shown by the Prosecutor would not have been red,
15 there would have been an interruption in the line of command. But the
16 line of command is one thing and the professional lines are something
18 And let me finish by saying that I appeal to you to use both ears
19 in your heads. Thank you for listening to me. May I sit down?
20 JUDGE ROBINSON: You may, and I thank you for your statement.
21 Mr. Beara, do you wish to make a statement?
22 THE APPELLANT BEARA: [Interpretation] Your Honours, I thank you
23 for offering me to make a statement, but I have nothing to say. Thank
25 JUDGE ROBINSON: Thank you very much.
1 Mr. Nikolic, do you wish to make a statement?
2 THE APPELLANT NIKOLIC: [Interpretation] Mr. President,
3 Your Honours, for the second time I have the opportunity now to address
4 you. I did so at the end of my trial, and I can say without any
5 hesitation that what I said back then really helped me to cope with all
6 these events. Today that all the proceedings have come to an end, there
7 are many things I would like to say, but I am not a man of many words and
8 it has never been easy for me to show my feelings. That's why I'll be
10 At the very start I would like to thank my Defence counsel and my
11 Defence team. It has been eight years now since they began to work with
12 me, and irrespective of the final outcome I wish to say thank you. Not
13 only did my attorneys help me a lot, but working with them I learned a
14 lot about myself too.
15 Likewise, I would like to express my gratitude to the witnesses
16 who came to witness -- who came to testify in my defence, and many did so
17 jeopardising themselves although they didn't even know me. Of course I was
18 not satisfied with the judgement, which in many respects was surprising.
19 I really hope that the submissions made this week have convinced you that
20 what is described in the judgement is not what actually happened.
21 However, regardless of the outcome and the sentence that I will receive in
22 the end, I must tell you what weighs heaviest on my mind, namely, that I'm
23 simply not the man described in the judgment. My attorneys explained to me
24 that whatever I say today will not affect my proceedings in any way
25 because I did not testify, and yet I wish to say at least for those who
1 are following this trial -- these proceedings that I didn't know about the
2 prisoners arriving in Orahovac until the late evening of the 13th of July
3 and until I was summoned to the meeting with Beara and Popovic on the
4 following day. When I met with them, I was not informed that the prisoners
5 would be killed. It was a very short meeting, during which I was informed
6 that for security reasons a great group of prisoners would arrive at
7 Bratunac and that they will be put up at different schools in the area to
8 be exchanged. To my mind, it was a crazy idea because of the security risk
9 to the population. And only later when armed people unknown to me arrived
10 at Orahovac, I realised that the prisoners would be killed. From that
11 moment on I focused on two things: I wanted to protect the young members
12 of the military police from my brigade from being involved in that
13 nightmare and I wanted to protect myself, for which I deeply regret.
14 There were conditions for me to do more, in spite of my low rank and my
15 lack of influence, and I am paying a heavy price today for this grave
16 mistake. I wish this had never happened and I'm truly sorry that all
17 these people were killed.
18 No matter how we look at that war, such a tragedy cannot be justified.
19 And finally, I wish to say that from my arrival to the
20 Netherlands more than eight years ago, I was well treated by the guards
21 at the Detention Unit and that all Judges and attorneys treated me with
22 respect, for which I am grateful to them. At this moment I really am
23 unable to say anything else. Thank you.
24 JUDGE ROBINSON: Thank you very much, Mr. Nikolic.
25 Mr. Pandurevic.
1 THE APPELLANT PANDUREVIC: [Interpretation] Your Honours, at trial
2 I used the opportunity to testify for 22 days in public session and
3 without any protective measures. I did not hesitate to answer every
4 single question. I described the events that were relevant to the area
5 and time covered by the indictment. I did so fully, honestly, and with
6 the best of intentions. I think that my testimony was the best way to
7 address the Chamber and tell them what I knew; however, Your Honour, I
8 also appreciate highly this opportunity to address you here. My career
9 as an officer who graduated from the military academy started in
10 Slovenia, where I stayed when the war broke out. This was a war that the
11 JNA officers were not ready for and had not been preparing for. The
12 whirlwind of the war took me from Slovenia across Croatia to Bosnia and
13 Herzegovina, where the war was even more cruel, just as any civil war is,
14 yet another war that we weren't prepared for. I was always guided by the
15 values that were given to me by my family and my father who always said:
16 Do not look beyond the fence into the neighbour's yard; rather, live as
17 best you can. And I did so during the war, treating others humanely,
18 assisting the enemy as far as the laws of war and human ethics dictated.
19 As an officer, I went through various training courses, such as the one
20 in Ljubljana, where I got a master's degree in social studies, and I
21 attended other courses that had to do with the social sciences in the
22 army. I had various duties including that of an assistant professor at
23 the University of Sarajevo. All the duties in the army were command
24 duties from the battalion commander to the brigade commander, as well as
25 the duties of the deputy commander of the Main Staff of the VRS.
1 As you know, Your Honour, I'm the only accused in this case --
2 and I was the one who fully experienced the command responsibility in the
3 war. Addressing the issue of command responsibility is a sensitive
4 thing. One has to approach it from one's own view of ethics. To discuss
5 command responsibility, or rather, in the US army military view, for the
6 months of January/February 2012, there is a critical view of the fact
7 that the -- commanders are responsible for everything that their
8 subordinates may do. [In English] A commander is responsible but very
9 often not in control.
10 [Interpretation] An army is a human organisation where,
11 unfortunately, bad things happen. One cannot anticipate them and know
12 how to react. When chaos emerges, the commander needs to take decisions.
13 In terms of organisation, we cannot expect the commander to bear
14 responsibility for all the criminal actions on the part of his
15 subordinates unless he was aware of and ignored these circumstances or
16 engaged in activities that were conducive to such criminal acts.
17 The VRS was a people's army, and the commander was unable to
18 supervise and manage one 's units 24 hours a day, seven days a week.
19 This was impossible. To control a brigade is not the same as controlling
20 a crew on the ship. The commander cannot keep tabs on all the bad
21 things; however, the commander is responsible for creating -- [In
22 English] A commander is responsible but very often not in control.
23 [Interpretation] In the period between 4 and 15 July, I was
24 absent from the AOR of the brigade. I was in command of a different unit
25 and had no effective control over the Zvornik Brigade. In that period, I
1 did not receive a single report from the Zvornik Brigade nor did I issue
2 a single order to the Zvornik Brigade. As is well-known, Your Honours,
3 after the capture of the members of the 28th Division of the BH army,
4 some of them were transported to the Zvornik municipality and were then
5 executed. These prisoners of war were not within the AOR or
6 responsibility of the Zvornik Brigade. The execution of these soldiers
7 in the Zvornik municipality was a deed of individuals who were not
8 members of the Zvornik Brigade but of other structures of the VRS. These
9 criminal activities did include some members of the Zvornik Brigade;
10 however, they did not do so under my order, approval, or tacit approval
11 as brigade commander. The Trial Chamber was not able to come across a
12 single illegal order that I would have issued in relation to the
13 prisoners of war. As a former member of the VRS and as a human being, I
14 condemn most strongly all these crimes and express my commiseration with
15 the victims.
16 The members of the 28th Division who were captured by the members
17 of the Zvornik Brigade in July 1995 were prisoners of war in the custody
18 of the Zvornik Brigade. They survived and they were treated in
19 accordance with the international humanitarian law regulations. They
20 were sent to the Batkovic camp near Bijeljina and were later exchanged.
21 There were 145 of them.
22 As His Honour Judge Kwon put it, I was the only one who did not
23 stay silent about any of the events that happened in the territory of the
24 Zvornik Brigade; rather, I noted down all these events in my regular and
25 interim combat reports as information came to me. This is the only
1 official information in the VRS documentation mentioning the execution of
2 the prisoners. The information that I noted down in my reports was not
3 further conveyed in other reports. My interim command report that I
4 issued on the 18th of July and sent to the Drina Corps shows what I knew
5 of the prisoners executed in the Zvornik Brigade. These reports, in
6 addition to my oral reports, constitute my legal duty to report to my
7 superior of the illegal events in my AOR.
8 It was impossible or quite something that I was not able to do,
9 that's to say to try and have those who committed these crimes punished
10 because they were not within my AOR. I was also there to release the
11 column by opening up the corridor. Your Honour, I think as brigade
12 commander under those circumstances I did act within the remit of my duty
13 as commander and I did as was right. As I did back then, I do now
14 condemn the fact that these crimes happened and I apologise on my behalf
15 and on behalf of the Zvornik Brigade to all the victims and their
17 I thank you, Your Honours. I thank the Prosecution and
18 especially my Defence team.
19 JUDGE ROBINSON: Thank you very much.
20 Mr. Zivanovic says there's an error in the transcript.
21 MR. ZIVANOVIC: Yes, Your Honour, I noticed -- I noticed an error
22 in transcript. It is on the page 104, lines 16 and 17, it reads -- these
23 are Mr. Popovic's words:
24 "I saw Drago Nikolic for the first time in this courtroom ..."
25 The name "Drago Nikolic" is the error because Mr. Popovic said:
1 I saw Srecko Acimovic for the first time in this courtroom. Thank you.
2 JUDGE ROBINSON: Very well, the correction will be made.
3 I'm sorry, you have a comment on that, Mr. Bourgon?
4 MR. BOURGON: No, it's a different topic, Mr. President --
5 JUDGE ROBINSON: Well, because we have --
6 MR. BOURGON: -- which has to do with what Mr. Nikolic told the
7 Trial Chamber -- the Appeals Chamber, sorry.
8 JUDGE ROBINSON: [Microphone not activated]
9 THE INTERPRETER: Microphone for His Honour, please.
10 JUDGE ROBINSON: I'm sorry, I said we are now going to hear from
11 Mr. Miletic who has asked that his personal statement be read by his
13 Counsel, you may read his statement.
14 MS. FAVEAU: [Interpretation] Thank you, Your Honour. I'm going
15 to read Mr. Miletic's statement in the language he has written the
16 statement, i.e., in Serbo-Croatian.
17 Your Honours, anything that I may have to say about the judgement
18 and the assessment of evidence or the way the Trial Chamber proceeded
19 would be superfluous. I am certain that through the evidence presented
20 by my Defence team you were able to arrive at all the relevant
21 information related to me personally and the position I had during the
22 war in the former Yugoslavia. Primarily, I'm referring to my duty in the
23 staff sector of the Main Staff which did not have any de facto or de jure
24 command authority outside of the administration for operations and
25 training and outside of the south sector when the Chief of Staff was
1 absent from the command post.
2 None of the commands of the former JNA or the VRS had within its
3 establishment the role of adviser. It turns out here that my immediate
4 superiors included both the Chief of Staff as my immediate superior and
5 the commander who was my superior second in the line and was the
6 immediate superior of the Chief of Staff. Under the law, the rules of
7 engagement and instructions, this is impermissible and impossible and
8 contrary to the establishment of the Main Staff.
9 Unlike the Chief of Staff and the assistant commander who had
10 command authority over specific units, I did not have any subordinate
11 units and I could only ever issue direct orders to the senior officers
12 from the administration for operations and training. None of my
13 subordinates or myself, for that matter, were ever seen in Srebrenica or
14 Zepa in July 1995. It is an exclusive right of the commander in all the
15 armies across the world to make decisions and in this way express his
16 intention as to the way in which he wishes to reach the objective, and
17 nobody else within the command has that right and especially not the
18 chief of the administration for operations and training.
19 In principle, where the commander is that is where the command
20 is. Nobody has the right, nor would the commander allow for that, to
21 co-ordinate the work of the commander and his subordinates. Nobody can
22 be more informed about the situation in the battle-field where the
23 commander is present than the commander himself, and this was what the
24 Trial Chamber erred in. Co-ordination implies co-ordination and
25 management, and senior officers can exercise co-ordination only pursuant
1 to a written order from the commander of the Main Staff.
2 My role within the drafting of the directive was regulated in
3 precise terms in the instructions for the work of the commands and staffs
4 and annexes, paragraphs 95 to 140 and 95 to 103, where it is stated where
5 decisions are made within a team, this is what the role of the operations
6 officer will be in drafting the directive. The operations officer will
7 draft the plan according to which the commander will work and take
8 decisions pursuant to the order and instructions from the commander or
9 the Chief of Staff. He will also assess own forces and the terrain and
10 make an assessment of the time and will make an assessment for the
11 Chief of Staff to draw conclusions from.
12 Further duties of the operations organ until the -- a decision is
13 taken includes noting down or recording proposals given by the
14 Chief of Staff or the tasks that the Chief of Staff may have for the
15 units and command and control and will also write down the proposals from
16 the assistant commander -- from assistant commanders within their
17 professional lines of duty. Thereafter, the commander himself will make
18 his decision known by either adopting these proposals fully or partly or
19 making his own decision. The commander will then issue a task to the
20 Chief of Staff and other members of the team who are then to formulate
21 sections of the directive from their own purview and send them to the
22 operations officer. The chief of the operations sector will then put the
23 directive together and would put the various proposals into the various
24 sections so that they, the directive itself, would have the proper shape
25 and form. In keeping with paragraphs 103.3, 493, 502, and 504 of the
1 instructions governing the work of commands and staffs.
2 The operations sector has the duty to compile and draft the
3 directive on the basis of the proposals received without amending it or
4 modifying it in any way and submit it to the Chief of Staff, who will
5 review the draft and send it on to the commander. This is the way the
6 Directive 7 and 7.1 were drafted. At the meeting of the commanders which
7 took place on the 3rd of March, 1995, which is noted down in the
8 commander's diary, the commander took the decision and I drafted the
9 directive according to the said method.
10 The directive and the disk on which the directive was recorded
11 were handed over on the 4th of March, 1995, to the Chief of Staff who was
12 supposed to read it and send it on to the commander. And this is how
13 things happened because both I and the Chief of Staff were away from the
14 Main Staff in the days that followed. The directive was produced on a
15 computer. It is hard for me, therefore, to understand why there is no
16 pagination on the first and last page and why the last line on page 10
17 should be repeated on -- as the first line on page 11. I could not have
18 made such a mistake because Milovanovic would have spotted it and
19 returned the directive to me. Normally he never would miss such
21 I would like to draw your attention to a couple of details about
22 myself as a human being, officer in general. I have been in detention
23 for eight years now and I have been socialising with the detainees of all
24 ethnicities and I have never had the slightest of problems with that. I
25 was born in a mixed village in Eastern Bosnia. The whole family of mine
1 is multi-ethnic. My wife is a Croat and our convictions that religion
2 and ethnicity do not matter is something that we have transferred to our
3 children. My son is also married to a Croat and my daughter is married
4 to a Macedonian. We believe that multi-culturality is -- in the family
5 is our enormous wealth. Religion, ethnicity, or the colour of the skin
6 have never been the parameters based on which we would judge people.
7 In the beginning of the war, my two friends, one of them Zeljko,
8 a Croat, and Muharem, a Muslim, risked their lives to help me pull out of
9 Sarajevo the families of my brother and sister. As a young man I lived
10 in Sarajevo and I cannot even begin to describe how sad I was when I had
11 to leave it in 1967 for Zadar and it was even harder for me to see what
12 was happening to Sarajevo during the war. I am 100 per cent sure that I
13 and most of the senior officers of all ethnicities did not wish for the
14 war to happen. We knew what war meant, unlike many of the hot heads who
15 had no idea what they were doing. The war did not bring any good to
16 people, only innocent victims, destroyed homes, and devastated families.
17 My value judgement is such that there can be no justification for
18 a crime. I am certain about what I am and what I did. I was
19 honourable -- I was an honourable soldier and a general, and primarily as
20 a human being I can say that my conscience is clear and I can look
21 everybody in their eye. An honourable and honest man has nothing to be
22 ashamed of.
23 Now, what is important here are victims, victims that do not have
24 a colour of the skin, religion, or ethnicity. They are simply innocent
25 victims, and, as such, deserve that the truth be heard of their fate. I
1 want to pay my respects and my condolences to their families.
2 I did not have the intention of contributing to the tragic fate
3 of any person through action or inaction. I went through life doing an
4 honest job of work and caring for my family. That's why I volunteered as
5 soon as the indictment was published on the 15th of February, 2005,
6 because I believed that an innocent man has nothing to fear. I
7 volunteered to come before this Court.
8 Your Honour, thank you for giving me the opportunity to address
9 you in this way and for your patience in hearing me out.
10 Radivoje Miletic, Scheveningen, 6 December 2013.
11 JUDGE ROBINSON: Thank you very much.
12 MS. FAVEAU: [Overlapping speakers]
13 JUDGE ROBINSON: Mr. Bourgon.
14 MR. BOURGON: Thank you, Mr. President. With your leave, I'd
15 like to address quickly the Chamber. Maybe it would be better if
16 Mr. Nikolic could remove his earphones, Mr. President, because it has to
17 do with something that he said.
18 JUDGE ROBINSON: This is a strange request.
19 MR. BOURGON: It's -- the reason, Mr. President, is that he
20 informed us before what he would say and there's something in the
21 transcript that took us by surprise and we don't know if it was said
22 either in English or in his language.
23 [Appeals Chamber and Legal Officer confer]
24 JUDGE ROBINSON: Mr. Bourgon, I've consulted with my sister and
25 brothers and we will not accede to the request.
1 I turn now to the last matter, the next Status Conference in this
2 case is due to be held on or before the 22nd of December, 2013, and I
3 consider it wise to address the issues that would arise in such a
5 Currently the Appeals Chamber is seized of seven motions, which
6 are all under consideration and the decisions will be issued in due
8 Now, prior to adjourning I'd like to ask each of the appellants
9 whether they wish to raise any concerns regarding their health or the
10 conditions of their detention.
11 Mr. Popovic, do you have any matters that you wish to raise?
12 THE APPELLANT POPOVIC: [Interpretation] No, Your Honours.
13 Everything is all right for the time being.
14 JUDGE ROBINSON: Thank you very much.
15 Mr. Beara?
16 THE APPELLANT BEARA: [Interpretation] Everything is the way it
17 should be. Thank you. I have no problems at all.
18 JUDGE ROBINSON: Thank you.
19 Mr. Nikolic.
20 THE APPELLANT NIKOLIC: [Interpretation] Mr. President, I have no
21 problems. Everything is fine.
22 JUDGE ROBINSON: Thank you.
23 Mr. Pandurevic.
24 THE APPELLANT PANDUREVIC: [Interpretation] Your Honours, the
25 conditions are good and everything is in line with the regulations.
1 Thank you.
2 JUDGE ROBINSON: And are there any additional matters to be
3 raised by the Prosecution or the Defence?
4 MR. KREMER: Not by the Prosecution, but I note that Ms. Faveau
5 has not spoken on behalf of her client. She may want to offer --
6 MR. OSTOJIC: [Microphone not activated]
7 MR. KREMER: No, no, vis-a-vis his health and the conditions of
9 JUDGE ROBINSON: Very well.
10 Ms. Faveau.
11 MS. FAVEAU: [Interpretation] Your Honour, could we go in
12 closed session or private session.
13 JUDGE ROBINSON: Yes.
14 [Private session]
1 [Open session]
2 THE REGISTRAR: Your Honours, we're back in open session.
3 JUDGE ROBINSON: Yes, any other matters to be raised?
4 MS. NIKOLIC: [Interpretation] Your Honours, I respect the
5 decision that you took a minute ago with regard to the submission of
6 Mr. Bourgon, but I kindly ask you to allow us to have the transcript
7 corrected subsequently because I heard what Mr. Nikolic said but it was
8 recorded differently. And we will try to correct the transcript if you
9 allow. Page 107, lines 18 through 23, are the reference in this regard.
10 [Appeals Chamber and Registrar confer]
11 JUDGE ROBINSON: Yes, I'm reminded that there is in place a
12 Registry procedure for the verification of the transcript, and I advise
13 that you follow that.
14 This concludes the hearing of the appeals. I'd like to thank on
15 behalf of the Chamber the parties for their submissions, I'd also like to
16 express my gratitude to the interpreters, the court reporters, the
17 court officers, the court ushers, the audio/visual staff, IT, security,
18 and all staff involved for their assistance and co-operation during this
19 week. The Chamber will issue its judgement in due course.
20 We are adjourned.
21 --- Whereupon the hearing adjourned at 5.24 p.m.