Tribunal Criminal Tribunal for the Former Yugoslavia

Page 19460

 1                           Wednesday, 22 August 2012

 2                           [Defence Closing Statement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.28 p.m.

 6             JUDGE FLUEGGE:  Good afternoon.  First of all, our apologies for

 7     the delayed start.  There were technical problems, some computer

 8     problems, but I hope that they are resolved.

 9             As yesterday, I would kindly ask the registrar to call the case.

10             THE REGISTRAR:  Good afternoon, Your Honours.  This is case

11     number IT-05-88/2-T, the Prosecutor versus Zdravko Tolimir.  Thank you.

12             JUDGE FLUEGGE:  And since these are the last sessions, I would

13     kindly ask the Prosecution for the appearances.

14             MR. McCLOSKEY:  Good afternoon, Mr. President, Your Honours.

15     Peter McCloskey, together with Kweku Vanderpuye, Rupert Elderkin,

16     Abeer Hasan, and Janet Stewart.

17             JUDGE FLUEGGE:  Thank you very much.

18             And for the Defence.

19             THE ACCUSED: [Interpretation] Thank you, Mr. President.  My name

20     is Zdravko Tolimir.  Together with me is my legal advisor,

21     Mr. Aleksandar Gajic.  Thank you.

22             JUDGE FLUEGGE:  Thank you very much.

23             Mr. Tolimir, very briefly I told you yesterday if there is

24     anything which causes problems for you, health problems, you should

25     indicate that to the Chamber immediately and you may request a pause, a

Page 19461

 1     break, so that you are able to conduct your closing arguments properly

 2     today.  Because of the delayed start, we will consider if you need -- I

 3     should put it in a different way.

 4             We gave you one day, like the Prosecution yesterday, for your

 5     closing arguments.  We lost 15 minutes.  We will see how it develops

 6     today.  And we still have the opportunity to have rebuttal and rejoinder

 7     arguments by tomorrow so that you shouldn't feel under pressure, time

 8     pressure, by giving your oral submissions.

 9             Mr. Tolimir, you have now the floor for your final oral

10     submissions.

11             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I would

12     like to greet everybody present in this courtroom and may God give you

13     all the blessings for all the good deeds that you are going to do.  May

14     God's will be done in these proceedings and not necessarily mine.

15             Once again, thank you for the good communication with me.

16             In the third amended indictment, the Prosecutor presented a lot

17     of accusations against Tolimir and tried to corroborate those by

18     speculative documents without any factual basis.  At the very beginning,

19     I have to say that the series of accusations that have been presented in

20     the final brief were not present in the third amended indictment.

21     However, since they're not founded, I do not need to defend myself by

22     pointing to the facts that were not contained in the indictment.

23             In the proceedings before this courtroom, in order to consider

24     the facts as being established based on the indictment, they have to be

25     proven beyond a reasonable doubt.  And the Defence doesn't have to prove

Page 19462

 1     anything.  It is the Prosecutor that has to prove -- the Prosecutor has

 2     to prove both the objective elements of all the charges that are

 3     contained in the indictment as well as the subjective elements of the

 4     crimes, the mens rea and the knowledge which is required for every crime.

 5     Criminal responsibility is always individual and all the facts have to be

 6     considered exclusively within the context of individual and subjective

 7     responsibility.

 8             In my final brief -- in his final brief the Prosecutor starts

 9     with the thesis:  According to which Tolimir was one of the closest

10     advisors and the person of --

11             THE INTERPRETER:  Could the accused be asked to slow down.  It is

12     impossible to follow.

13             JUDGE FLUEGGE:  Mr. Tolimir, the Chamber wants to listen

14     carefully to all your arguments.  The interpreters asked you to slow

15     down, otherwise they are not able to translate properly.  Please read

16     your text a little bit more slowly so that everybody can follow.

17             THE ACCUSED: [Interpretation] Thank you, Mr. President.  After

18     the break I will try to provide the interpreters with a copy of what I'm

19     reading and I apologise to them.

20             The accused assumes criminal responsibility of General Mladic

21     which was never proven and was not a matter of trial in these

22     proceedings.  The fact that during the war Tolimir was the assistant

23     commander of the Main Staff of Republika Srpska for intelligence and

24     security cannot serve to draw any conclusions about the criminal

25     responsibility of Zdravko Tolimir.  The idea of a court trial is to

Page 19463

 1     establish the truth and this is something what the Defence tried to do

 2     throughout the proceedings; however, that was not the case with the

 3     witnesses who struck a deal with the Prosecution --

 4             JUDGE FLUEGGE:  Please read slowly.  Please read slowly.  The

 5     interpreters can't follow.  And if you have hard copies of your

 6     presentation, it could be delivered now to -- with the assistance of the

 7     court usher to the interpreters in the booths.  That would be very

 8     helpful.

 9             Mr. Gajic --

10             THE ACCUSED: [Interpretation] I have instructed my advisors to

11     make those copies and they will do it with your leave, of course.

12             JUDGE FLUEGGE:  With the assistance of the court usher that can

13     be --

14             THE ACCUSED: [Interpretation] We have one copy now.

15             Thank you --

16             JUDGE FLUEGGE:  In the meantime --

17             THE ACCUSED: [Interpretation] Those witnesses have presented a

18     series of --

19             JUDGE FLUEGGE:  In the meantime you should continue during the

20     period when this matter is resolved, but please read slowly.

21             THE ACCUSED: [Interpretation] Thank you.

22             This refers to the testimonies of those witnesses who presented a

23     series of lies without any proof charging other persons, primarily

24     Momir Nikolic and Witness PB-057 [as interpreted] who testified as viva

25     voce witnesses, and then also Deronjic, whose contradictory testimony was

Page 19464

 1     adopted according to Rule 94 bis.  In these proceedings we heard a number

 2     of members of UNPROFOR who were deployed in Bosnia and Herzegovina as

 3     peacekeepers.  As a matter of fact, they actually contributed to the

 4     promulgation of the war and they acted in favour of BiH army.  Let me

 5     remind you of the testimony that the Trial Chamber heard.  For example,

 6     Witness Petar Skrbic, on transcript page 18649, testified that he

 7     attended a meeting which was also attended by Tolimir and commander of

 8     NATO for Europe Admiral Leighton Smith, who said that the role of NATO

 9     was to establish a balance of powers between the Army of

10     Bosnia-Herzegovina and Republika Srpska.  If NATO representatives didn't

11     hide that fact, today those who contributed the most to the

12     implementation of that policy don't want to talk about that, and they are

13     the representatives of the command structures of UNPROFOR.

14             The way the role of UNPROFOR is presented today is best

15     corroborated by the Dutch Institute for War Documentation which is partly

16     in evidence in this case.  I'm referring to P610, paragraph 2, in which

17     it is stated:

18             "Although it was stated differently in the public, the lawyers of

19     the Royal Dutch Army prepared Dutch witnesses for testimonies and

20     carefully examined their statements with the approval of

21     Colonel Karremans.  The progress of statements which may have opened some

22     issues were deleted or reworked.  At the end of day, the Ministry of

23     Defence and the Prosecution did not pay attention to the Dutch Battalion

24     but to Karadzic and to Mladic."

25             False reporting happened during the war in the territory of

Page 19465

 1     Bosnia and Herzegovina --

 2             JUDGE FLUEGGE:  Sorry for interrupting.  We want to have a clear

 3     and correct record.  I think there is one mistake and we would like to

 4     clarify that.  On page 5, line 8, there is a reference to the commander

 5     of NATO for Europe, Admiral Dayton Smith.  I don't know if that is

 6     correct or if that is incorrect.  Perhaps you repeat the name.

 7             THE ACCUSED: [Interpretation] I apologise.  The name is

 8     Admiral Leighton Smith.  Thank you.

 9             JUDGE FLUEGGE:  Thank you.  That clarifies and you should

10     continue.

11             THE ACCUSED: [Interpretation] The false reporting that was

12     happening during the war in Bosnia and Herzegovina was something that

13     General Smith mentioned in one of statements at D192, and I quote:

14             "Commanders sometimes submitted false reports to their superiors

15     when they didn't want to hear things."

16             One of the problems during the war in the territory of the former

17     Yugoslavia was the question of the enclaves which had been proclaimed

18     demilitarised and protected areas and nevertheless they were used as

19     military strongholds.  This was not only the case with Srebrenica and

20     Zepa, but also with other enclaves, for example, Gorazde and Bihac which

21     effectively served as a NATO army which became very prominent during the

22     NATO aggression, the Army of Bosnia and Herzegovina and Croatia against

23     the Republic of Serbia with the help of Rapid Reaction Forces.

24             Without understanding the context within the developments

25     happened during the period of the indictment, it would be impossible to

Page 19466

 1     see what the role of NATO and UNPROFOR was.  I am referring to D324,

 2     page 2 in Serbian and 3 in English, and this is actually the statement by

 3     the officer of DutchBat van Duijn, who provided that statement before the

 4     commission of the Dutch parliament, and I quote:

 5             "There was no peace there; however, we were told to maintain that

 6     peace as best as we could.  It was a political order to monitor how both

 7     sides maintained that peace."

 8             The Prosecutor charges Tolimir with participating and

 9     contributing to the implementation of two parts of joint criminal

10     enterprise:  Forcible removal and killing of males in Srebrenica.  And

11     based on that in the third amended indictment, it formulates three

12     charges.  None of the allegations which could serve as the basis for the

13     conclusion of criminal responsibility are based on the facts which can be

14     proven beyond reasonable doubt in these proceedings.

15             The Prosecutor charges Tolimir with participation in the alleged

16     criminal enterprise, whose alleged goal was to forcibly remove and deport

17     Muslims from Srebrenica, and I quote:

18             "The Prosecutor says that Tolimir largely contributed to the

19     implementation of the joint criminal plan of the participants in the

20     joint criminal enterprise."

21             In that the moment when that alleged criminal plan was conceived,

22     according to the Prosecution, was the 8th of March when the directive of

23     number 7 was passed in 1995.  The Prosecution also emphasises the

24     important role of Tolimir in drafting of that directive; however, the

25     Prosecution did not prove the concrete participation of Tolimir in the

Page 19467

 1     drafting of directive 7.  Tolimir was not in charge of writing it nor was

 2     he involved in the wording of that directive.  He played the role that in

 3     all the armies of the world is assigned to the assistant commanders for

 4     security and intelligence.

 5             THE INTERPRETER:  Could the witness -- could the accused please

 6     be asked to slow down when reading.  It is impossible to follow.

 7             JUDGE FLUEGGE:  Mr. Tolimir, the interpreters again asked you to

 8     slow down.  They can't follow.  And we want to have everything what you

 9     have to say to be reflected on the record.  Please read slowly.

10             THE ACCUSED: [Interpretation] Thank you.  I apologise.

11             And that role consists in submitting information about the enemy

12     and proposing measures of intelligence and security support in keeping

13     with the relevant regulations.  As is stated in the final brief by the

14     Prosecution in paragraph 164, I quote:

15             "Mladic received proposals with regard to those elements of the

16     directive that concerned that area -- their areas of work or their

17     sectors.  And if those elements were adopted, they would be included into

18     the final version of the directive."

19             In the parts of directive 7 which referred to the intelligence

20     about the enemy and the intelligence and security support, there is

21     nothing illegal.  What is written in the parts of the directive in which

22     there is information about the enemy and its intentions has been shown as

23     completely truthful and was useful in practice during the war and after

24     the war.

25             Directive 7 in its challenge part which concerns the task of the

Page 19468

 1     Drina Corps was never changed.  The directive 7 itself which was passed

 2     on the 8th of March, 1995, and which was passed by

 3     Commander Radovan Karadzic was soon replaced by directive 7/1 which was

 4     issued by the commander of the Main Staff of the Army of

 5     Republika Srpska, General Ratko Mladic.  In that directive there is no

 6     reference to the creation of unbearable conditions for the civilian

 7     population.

 8             The Prosecutor talks be all the actions that had to do with the

 9     enclaves and ties them with directive 7, including the alleged

10     restrictions on the humanitarian aid convoys.  However, in the relevant

11     part of directive 7 it is stated, and I quote:

12             "Daily planned combat activities to create conditions of total

13     uncertainty."

14             Delivering humanitarian aid is not a combat activity; therefore,

15     it is not comprised by directive 7.  Let me remind you, directive 7/1

16     which was passed soon after directive 7 is completely in keeping with the

17     rules of international law of war and the role of Tolimir again consisted

18     in submitting intelligence about the enemy.

19             In paragraph 199 of its final brief, the Prosecution claims that

20     the purpose of directive 7 was to deprive the population of Srebrenica

21     and Zepa of the supplies that they needed for survival and thereby to

22     cause a humanitarian catastrophe.  However, there is no mention in any of

23     the directives of this intention nor is there any evidence that the VRS

24     deprived the population of the bare necessities.  If the Prosecution

25     speaks about the so-called ostensible restrictions, these kind of

Page 19469

 1     restrictions envisaged by directive 7 could not in any way be conducive

 2     to depriving the population of what they needed for survival.

 3             The evidence presented in this case demonstrate that the

 4     humanitarian convoys reached the enclaves even during the period when

 5     attacks on the Army of Republika Srpska were launched from these

 6     enclaves.

 7             There was one convoy scheduled for the 11th of July even which

 8     indicates that there was no planned activity for the capture of

 9     Srebrenica, but the plan was to separate Srebrenica and Zepa and to have

10     these enclaves demilitarised.  As one of the elements of the so-called

11     JCE of the removal or deportation of the civilian population of

12     Srebrenica and Zepa, alleges the purported restriction of humanitarian

13     convoys.  In paragraph 60 of the indictment, as well as in their final

14     brief, they say and I read:

15             "Tolimir imposed restrictions on UNPROFOR and humanitarian

16     convoys."

17             The allegations about so-called or purported illegal activities

18     as presented in this case are not accurate and are not based on the

19     established facts.  Therefore, I assert that truth has to be established

20     in every trial and that it cannot be based on what was being served as

21     the propaganda apparatus of UNPROFOR and NATO.

22             We have to make distinction between UNHCR convoys because their

23     main purpose was to provide food for the population of Srebrenica;

24     however, on more than one occasion they were abused and the commodities

25     were delivered to the BH army in the enclaves.  As for UNPROFOR, the

Page 19470

 1     purpose of these convoys was to deliver food and materiel for the needs

 2     of the UNPROFOR within the enclaves and they had nothing to do with the

 3     situation of the civilian population.

 4             As demonstrated by the evidence presented here, UNPROFOR was also

 5     involved in providing ABiH army and materiel.  The totality of the

 6     evidence presented in this case, it can reasonably be concluded that both

 7     types of convoys were intended to create conditions for the Army of BH to

 8     be able to conduct offensive actions from the enclave in order to tie-up

 9     the territories of the enclave with the central territory of the Army of

10     BH.

11             First of all, concerning humanitarian aid or UNHCR convoys,

12     neither Tolimir nor the Main Staff of the VRS did -- had no authorisation

13     with regard to granting approval or denying approval for the movement of

14     the convoys in the territory of Republika Srpska.  In the relevant period

15     of time, the responsibility for granting approvals for humanitarian aid

16     was in the hands of a co-ordinating body for humanitarian operations that

17     was headed by a civilian while the VRS exclusively had the task of

18     providing security and checking of the convoys and to secure the routes

19     of the movement of the convoys.  The VRS didn't have an authority and

20     didn't have any way of limiting the supply of humanitarian supply, nor

21     did it impose any restrictions on humanitarian assistance.

22             As for the responsibility for granting humanitarian convoys, an

23     illustrative exhibit is D303, it is an order issued by the chief of the

24     Main Staff of the VRS on the 31st of August, 1994, in which it explicitly

25     says:

Page 19471

 1             "You know that the Main Staff of the VRS does not have any

 2     further authority or responsibility to grant the entry and the movement

 3     of the" --

 4             THE INTERPRETER:  Could Mr. Tolimir please slow down.

 5             JUDGE FLUEGGE:  Mr. Tolimir, I have to stop you because the

 6     interpreters have -- are now getting difficulties again.

 7             Mr. McCloskey.

 8             MR. McCLOSKEY:  I very much apologise for interrupting, but we

 9     have in the translation the chief of the Main Staff.  Now there is a

10     Chief of Staff of the Main Staff who we know is General Milovanovic and

11     there is the commander of the Main Staff, as we know is Mladic.  The

12     chief of the Main Staff as translated is unclear who the General means,

13     and I apologise to the General but our translators need to be able to fix

14     that so we know whether you are talking about Milovanovic or Mladic.

15             JUDGE FLUEGGE:  It can easily be checked by looking into the

16     document, D303, but this is a typical result of the speed of your

17     submission.  Again I have to ask you to read slowly.  It's in your

18     interest so that the Chamber is in the position to receive your full and

19     the entire oral submission.  Please continue.

20             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I'm

21     going to repeat what Mr. McCloskey has pointed out.

22             Exhibit D303, an order issued by the chief of the Main Staff of

23     the Army of Republika Srpska on 31st of August, 1994, explicitly says the

24     following ... so we are talking about the chief.  There was only one

25     chief and that was Milovanovic.  And I quoted this paragraph.

Page 19472

 1             In Exhibit D307, the document signed by General Mladic on the

 2     16th of January, 1994, reads, and I quote:

 3             "Pursuant to the order issued by the president of

 4     Republika Srpska, Dr. Radovan Karadzic ..."

 5             Item 3 of the said order, confidential number 01-128/94, is

 6     amended in the following way:

 7             "All disputes with UNPROFOR and military observers shall be

 8     resolved exclusively through command of the corps of the Main Staff of

 9     the VRS.  And as far as the international humanitarian organisations are

10     concerned, this is going to be resolved through the government

11     co-ordinating body for humanitarian aid."

12             Concerning the responsibility for issuing decisions for

13     humanitarian aid in the relevant period, that is to say from March of

14     1995, is clearly being indicated in Exhibit P689, which is a decision on

15     setting up a state committee for co-operation with the United Nations

16     international humanitarian organisations, which explicitly in Article 6

17     says:

18             "The issuing of permits for humanitarian convoys and the movement

19     of UN personnel and that of humanitarian organisations in the territory

20     of Republika Srpska, shall be done pursuant to a decision taken by the

21     committee and will be implemented by the co-ordinating body."

22             Therefore, there is no evidence then in the course of 1994 and

23     1995 Tolimir was ever involved in the issues relating to humanitarian aid

24     convoys for Srebrenica and Zepa.  There is not a single document proving

25     that that was the case and proving that Tolimir was at all involved in

Page 19473

 1     these matters or that he had any impact on the restrictions of

 2     humanitarian aid convoys.  That was neither within the scope of his

 3     responsibility nor was it the responsibility of the VRS.  The VRS's duty

 4     was to provide security for the convoys and to check them.

 5             In paragraph 211 of its final brief, the Prosecution says, and I

 6     quote:

 7             "Despite the fact that the state committee had been set up, it

 8     was the Main Staff of the VRS who had final authority to impose

 9     restrictions to humanitarian convoys at their own discretion."

10             The Prosecution has no evidence to support this.  On the

11     contrary, the Main Staff staff of the VRS could not amend any decision

12     taken by the co-ordinating body for the humanitarian aid as well as those

13     taken by the committee.

14             As said by Witness Slavko Kralj on transcript page 18383 when

15     asked whether the Main Staff of the VRS was able to change the decisions

16     approving the movement of convoys in the territory of Republika Srpska,

17     he responded as follows:

18             "This document could have been amended only based on the decision

19     taken by the organ that had originally issued it."

20             The Main Staff of the VRS did not have an authority to amend

21     government documents.  The duty of the Main Staff of the VRS was to issue

22     a document, notifying the check-points about convoys that were given or

23     denied permission to pass, which was a routine activity in which the

24     chief of the staff or those who were entrusted with technical matters

25     would deal with.  This document in every aspect had to be in compliance

Page 19474

 1     with the decision of the co-ordinating body for humanitarian aid.

 2             In annex C of its final brief, the Prosecution makes reference to

 3     the restrictions of the humanitarian aid convoys by extracting pieces and

 4     parts of documents in which huge quantities of food and other necessities

 5     are stated as having reached the enclave.  As an example of such

 6     restriction, the Prosecution says cylinders of oxygen, matches, plywood,

 7     oil, lubricants, et cetera, which is not necessary for the life of the

 8     civilian population; however, the Prosecution failed to analyse the

 9     quantities of food that reached Srebrenica and Zepa in the relevant

10     period.  From the documents that were presented to this Trial Chamber, it

11     is clearly evident that considerable quantities of food and other bare

12     necessities required for the life of civilians have, indeed, reached the

13     enclaves.  However, the problems with the commodities from the

14     humanitarian aid are of a quite different nature because the humanitarian

15     aid was primarily used in order to supply the Army of BH in the enclaves

16     and the priority was given to its members.  This was testified to by

17     Witness PV-073 [as interpreted] on page 642 of the transcript, where he

18     says that his son had been digging trenches for the BH army in exchange

19     for food.

20             All the humanitarian aid convoy problems are attributed by the

21     Prosecution to the VRS; however, during the months preceding the attack

22     on Srebrenica, the main problem was neither the VRS nor Republika Srpska,

23     but rather the problems that existed between the Dutch Battalion and

24     UNHCR.  In the study of the Dutch Institute for War Documents, which is

25     an Exhibit P619, page 6, reads that:

Page 19475

 1             "The Dutch Battalion also checked the convoys ..."

 2             And then it goes on to say:

 3             "On the 20th of June, another UNHCR convoy" --

 4             JUDGE FLUEGGE:  Please slow down.  It's impossible to follow.

 5     The interpreters are sometimes three or four lines behind you.  Carry on,

 6     please.

 7             THE ACCUSED: [Interpretation] I am quoting a portion of the study

 8     of the Dutch Institute.

 9             "On 20th June, another UNHCR convoy arrived in the enclave, this

10     time with 56 tonnes of sugar, beans, salt, fish, flour, soaps, powder,

11     milk, and biscuits.  And once again the Dutch Battalion searched the

12     convoy even more thoroughly than if it had been done by the VRS.

13     According to the information provided by the UN military observers

14     present on this location, the commander of the convoy objected to the

15     inspection carried out by the Dutch Battalion and informed his staff

16     thereof.  The result was that this convoy was delayed until the next day

17     until the Dutch Battalion changed its procedure."

18             It goes on to say as follows on page 6 that:

19             "The impact of these disagreements between the UNHCR on the one

20     hand and the Dutch Battalion and Army of BH on the other was that the

21     UNHCR convoys would be suspended for as long as the ABH army suspended or

22     gave up on mandatory and thorough inspections.  That would mean that the

23     Dutch Battalion would have no reason to conduct any inspections of the

24     convoy.  Franken was not satisfied with this.  He perceived it as an

25     attempt to put the Dutch Battalion against the ABH and to make them as

Page 19476

 1     two confronting parties.  His opinion was that the Dutch Battalion

 2     certainly did not want to act in accordance with what was dictated by the

 3     Army of BH, and in this case concerning UNHCR it is demonstrated that

 4     there was no willingness to allow the inspections of their convoys.  They

 5     thought that adhering to their own principles and rules are much more

 6     important than the supply of the humanitarian aid, and they should not

 7     lay the blame on the Dutch Battalion and ABH for whatever happened."

 8             THE INTERPRETER:  Can the accused please continue from paragraph

 9     28.

10             JUDGE FLUEGGE:  Mr. Tolimir, the interpreters asked you to

11     continue from paragraph 28 again so that everything is on the record.

12             THE ACCUSED: [Interpretation] In a nutshell, on the issue of

13     these convoys, the failure to deliver humanitarian aid cannot be

14     attributed to the alleged restrictions put in place by the VRS or any

15     body or organ of Republika Srpska.  Furthermore, Witness Slavko Kralj

16     testified at page -- transcript page 18406 that in the month of May of

17     1995 convoys were not reaching the enclave during the VRS shelling

18     campaign.  They themselves suspended the movement of convoys without

19     having even reported to anyone the fact that they had given up on some of

20     these convoys.  They were not restricted by either the co-ordinating body

21     or the VRS.  Simply put, these convoys did not reach check-points.

22     According to the evidence of Witness Kralj, transcript page 18407, the

23     same practice was in place during the NATO aggression on Republika Srpska

24     in the months of September and October of 1995.

25             Numerous pieces of evidence were adduced at trial which point to

Page 19477

 1     a continued practice of misuse of humanitarian aid convoys.  Firstly,

 2     humanitarian aid was distributed among the members of the BH army and was

 3     used by the BH army in the enclaves, whereas humanitarian aid convoys

 4     were used as a means of smuggling in weapons and ammunition intended for

 5     the BH army.  Since the enclaves were getting ready to engage in the

 6     operation of joining up the enclaves with the central part of the

 7     territory.  By way of illustration, the convoy that was sent to Zepa in

 8     June of 1995, a large amount of ammunition was found hidden in flour

 9     sacks.  We had occasion to see video-clip P2126 and Exhibit D78, wherein

10     the Rogatica Brigade reported about having found a certain amount of

11     ammunition in the convoy travelling to Zepa.

12             We also saw Slavko Novakovic's reports speaking about the

13     practice of misuse of these convoys, namely, Exhibits D73 and D214.

14     Speaking about the practice of using UNHCR convoys as means of supplying

15     BH army are documents such as Exhibits D197, D198, and D199.

16             Let us mention here Exhibit D80 only.  It bears the signature of

17     Suljo Hasanovic, chief of the defence ministry branch in Srebrenica dated

18     the 5th of June, 1995, wherein the defence secretariat in Tuzla was

19     informed of the fact that a certain amount of food and fuel had been set

20     aside for the needs of the BH army, and I quote:

21             "After having been taken out of the humanitarian aid contingent

22     which arrived in this area through the UNHCR and one of the batches of

23     aid had been received from the Dutch Battalion."

24             According to the rules of international humanitarian law, the

25     goods intended for a civil population may not be placed at the disposal

Page 19478

 1     of military units.  This was precisely done in Srebrenica and Zepa.  The

 2     capabilities of the BH army to prepare and carry out sabotage and

 3     terrorist operations out of the enclaves and to work toward preparing the

 4     operation of joining up the enclaves with the central BH territory

 5     directly depended on the supplies coming from the humanitarian aid, and

 6     not only those but also on the supplies at the disposal of the DutchBat.

 7     Under those circumstances, Republika Srpska was entitled to restrict the

 8     use of humanitarian aid, but it had not done so.

 9             The allegation against Zdravko Tolimir, that he had participated

10     in the imposition of restrictions on humanitarian aid convoys in order to

11     create unbearable conditions, living conditions, for the civilian

12     population, is unfounded in more than one way.  The issue of convoys

13     related to the logistic supplies for UNPROFOR is quite separate from the

14     issue of UNHCR convoys which were intended for the humanitarian needs of

15     the civilian population.

16             Ever since its deployment there, UNPROFOR and the DutchBat in

17     Srebrenica failed to perform their basic duties.  The main duty of

18     UNPROFOR was to demilitarise the enclave, but this had never even been

19     attempted; quite the contrary.  The UNPROFOR forces present in the

20     enclave tolerated the fact that Muslims were armed, had regular meetings

21     with them, and - as indicated by Exhibit P2120 - even developed a plan of

22     joint action in the event the VRS would attack the enclave.  And this

23     plan was supposed to be kept secret even from UNMOs.

24             Now, in paragraphs 228 and 229 of the Prosecution final brief, it

25     is stated that because of the restrictions imposed on UNPROFOR by the

Page 19479

 1     VRS, UNPROFOR was unable to fulfil its mandate.  However, the evidence

 2     clearly shows that UNPROFOR had not been engaged in fulfilling their

 3     mandate to begin with, namely, the demilitarisation of the enclaves, and

 4     instead proceeded to tolerate the BH army in the enclaves who had been

 5     arming busily and reorganising themselves in preparation for offensive

 6     combat.  The fact that the VRS wasn't the party that was making the work

 7     of UNPROFOR impossible is clearly shown by the fact that ever since its

 8     deployment in the enclave UNPROFOR or the DutchBat did not enjoy freedom

 9     of movement.  This is illustrated by the so-called Bandera Triangle,

10     where 100 DutchBat members were captured immediately upon their

11     deployment there.

12             As stated by Witness Boering at transcript page 9032, we did not

13     have actual freedom of movement.  On the basis of evidence adduced at

14     trial, one cannot conclude that the VRS restricted UNPROFOR in the

15     fulfilment of their mandate; quite the contrary.  The Republika Srpska

16     army kept alerting UNPROFOR to the fact that they had been failing to

17     fulfil their mandate and that they had been allowing the BH army to use

18     the enclave as their military stronghold.

19             At paragraph 228 of their final trial brief, the Prosecution

20     mentioned the issue of air-lifts as a means of providing supplies for

21     UNPROFOR.  Exhibit P710, a telegram that General Janvier sent to Annan -

22     and I repeat that, P710, the telegram sent by General Janvier to Annan on

23     the 18th of April, 1995, indicates that this means of supplies would have

24     had far-reaching consequences.  The actual reasons motivating the

25     air-lifts as means of supplies were presented by General Rupert Smith in

Page 19480

 1     their statement given to the Prosecution, D193, page 8.  Therein he

 2     states:

 3             "I explained to Mladic that as an officer of the United Nations,

 4     I supported sanctions as a necessary part of the peace process.  I also

 5     explained to him that the blockade of the enclave would have prevented me

 6     from carrying out the duty that I had in respect of my soldiers which

 7     could not be tolerated and which would result in the supplies being

 8     brought in by helicopter, and that would include NATO military operations

 9     as well."

10             All of this was taking place in the period when Muslims were busy

11     preparing themselves for the operation of joining up the enclaves with

12     the central BH territory.

13             Behind all these various requests there was the aspiration on the

14     part of UNPROFOR to have convoys transit the Republika Srpska territory

15     without any inspections or checks whatsoever.  As indicated in the study

16     produced by the Dutch Institute for War Documentation

17     P619 [as interpreted], page 2, and I quote:

18             "Smith wanted a decision to be taken at the highest possible

19     level with a view to ensuring a freedom of movement rather than have that

20     freedom depend on the circumstances prevailing or the various conditions,

21     such as the possibility of checking convoys."

22             Thereafter the VRS had to be notified of the fact that as part of

23     the existing rules of engagement UNPROFOR was prepared to engage in

24     combat to protect these convoys and to call in close air support.  This

25     is P169, page 2.

Page 19481

 1             However, the VRS consistently complied with the procedure

 2     proposed by UNPROFOR itself, specifically the issue of UNPROFOR convoys

 3     was regulated under two agreements, the general cessation of hostilities

 4     agreement, Exhibit P1011, and the agreement titled: "The Principles of

 5     the Freedom of Movement," which was stipulated at the proposal of

 6     UNPROFOR and signed by General Tolimir on behalf of the VRS and General

 7     Brinkman on behalf of UNPROFOR.  This is Exhibit D77.

 8             The agreement regulated the way in which UNPROFOR convoys were to

 9     be cleared, were to move, and to be checked.  This agreement, however,

10     does not apply to humanitarian aid convoys and had nothing to do with the

11     supply of humanitarian aid of the civilian population.

12             The witness who was best placed to speak to the issue of the way

13     in which decisions were taken with regard to UNPROFOR convoys and to the

14     role of Tolimir therein was Slavko Kralj.  And the Trial Chamber should

15     pay due attention to his evidence.  General Tolimir and General Gvero

16     were representatives of the VRS in the central joint commission at the

17     meetings of which UNPROFOR convoy movements were negotiated as well as

18     other issues relating to the freedom of movement.  Tolimir did not have

19     the authority to either approve or deny the approval for the movement of

20     convoys.  He could merely provide his opinion on the information arising

21     from the meetings of the joint central commission.

22             The decisions were taken either by commanders or chiefs of

23     staffs.  Or, in their absence, the officer who was entrusted with that

24     task by his commander.

25             Tolimir and Gvero participated in the procedure where certain

Page 19482

 1     requests by UNPROFOR were examined - there was evidence adduced to that

 2     effect as well - because they were members of the joint central

 3     commission.  This was confirmed by Witness Kralj at transcript

 4     page 18281:

 5             "At the meetings of the joint central commission, the type of

 6     goods and the quantities of goods that may be transported were

 7     discussed."

 8             Secondly, it was proven at trial that in deciding on approvals

 9     for UNPROFOR convoys, care was taken of the quantities that are required

10     for UNPROFOR purposes in order to allow it to operate and to have

11     sufficient foodstuffs for soldiers.  The goods that could have been used

12     as supplies for the BH army and that were not necessitated by the

13     DutchBat were not given clearance, as was the case, for instance, with

14     large quantities of Plexiglass, ski gear, and similar.

15             On the issue of weapons and ammunition, the DutchBat in

16     Srebrenica and the Ukrainian Battalion in Zepa were hostages of the

17     BH army which was able to disarm them at will and to seize their weapons.

18     By way of illustration, the instance where weapons and ammunition were

19     seized off the Ukrainian Battalion in Zepa, Exhibit D55, paragraph 94.

20             Now, there is also Exhibit D105 which clearly speaks about the

21     fact that the weapons and equipment intended for UNPROFOR could possibly

22     also have been used for the purposes of the BH army.  This is one of the

23     reports produced by Avdo Palic and intended for the BH army General Staff

24     dated 16 July 1995 which reads, and I quote:

25             "We have been disarming UNPROFOR as per the previously received

Page 19483

 1     instructions."

 2             In other words, there was a plan to disarm UNPROFOR, and that

 3     plan was held by the Muslims in the Army of Bosnia and Herzegovina.  The

 4     Prosecutor's thesis that the situation involving UNPROFOR convoys

 5     contributed to the disabling of the UNPROFOR and that that's why they

 6     couldn't demilitarise the area is at least unfounded, if not more than

 7     that, and it shows the speculativeness of the Prosecutor's argument.

 8     Namely, UNPROFOR in the enclaves had enough weapons and ammunition from

 9     the moment that they arrived in the enclave.  From the moment they

10     arrived in the enclave, they did not take any serious measures in order

11     to disarm the BiH army in the demilitarised zones.

12             The UNPROFOR whose duty was to demilitarise the enclave never

13     used weapons against the BiH army.  Whatever weapons they had, they

14     placed against the VRS on the 9th and 10th and 11th of July, 1995, and in

15     addition to that the convoys were tendentiously used against the VRS.

16     The true situation with the convoys is demonstrated by D304 which is a

17     document issued by Mr. Akashi on the 1st of March, 1995.  That document

18     shows the way the BiH army treated UNPROFOR.  In a nutshell in paragraph

19     5 on page 4 it is stated, and I quote:

20             "First of all, the Bosnian government and Bosnia and Herzegovina

21     are abusing the relative peace which was established after the agreement

22     on the cessation of hostilities was signed in order to put financial

23     pressure on UNPROFOR with regard to the agreements."

24             I continue with the quote:

25             "Secondly, taking into account the reorganisation of the Army of

Page 19484

 1     Bosnia and Herzegovina and the gathering of a large quantity of forces

 2     and logistics support in the key areas, we believe that an attack is in

 3     the offing and that that attack could be launched as soon as the weather

 4     conditions improve.

 5             "Thirdly, the intention of the government, inter alia, is to

 6     convince the international community that the agreement on the cessation

 7     of hostilities is not functioning, and in that way they want to discredit

 8     the Bosnian Serbs.  As a matter of fact, the Bosnian government is the

 9     one which has caused more problems because of the introduction of new

10     restrictions on the freedom of movement and that's why they refuse to

11     attend the meetings of the Joint Commission.  That is why UNPROFOR has

12     reached a stalemate and the problems cannot be resolved in an adequate

13     way through the work of the Joint Commission.  On the other hand, the

14     restrictions that the Serbs have introduced have been largely weakened,

15     although they are still in charge and they still control the delivery of

16     fuel into the enclaves."

17             The Prosecutor speaks about the alleged participation of Tolimir

18     in the restriction of UNPROFOR convoy in paragraph 60(A) and portrays

19     that involvement as an attempt to create unbearable conditions for the

20     civilian population of Srebrenica and Zepa.  This allegation is

21     completely unfounded, since UNPROFOR convoys did not have anything to do

22     with the position of the civilian population in the enclaves of

23     Srebrenica and Zepa.

24             The Prosecutor points out that the goal of the VRS was to create

25     unbearable conditions for the population of the enclaves of Srebrenica

Page 19485

 1     and Zepa.  However, among the multitude of evidence which prove that this

 2     was not the goal of the VRS is also a statement by Major Franken that he

 3     provided to the Prosecutor.  This is P607, which says, inter alia:

 4             "During that period the Serbs proposed to the Muslims to trade

 5     with them at the prices that prevailed in the black market in the

 6     enclaves.  After several rounds of negotiations, the civilian authorities

 7     of the enclaves allowed the Serbs to supply the enclaves.  We insisted

 8     that goods should be sold at the market price or what would have been the

 9     market price and that the Dutch Battalion should not have any commercial

10     role in that."

11             This fitted well within our own idea of normalising a

12     relationship with -- among the warring parties.  Very soon rumours spread

13     that that initiative did not bode well with the groups that controlled

14     the black market.  The local military authorities stated that the ban

15     came from the top echelons of the military leadership although similar

16     things functioned well in Gorazde.  I suppose that the initiative to

17     boycott the trade actually came from the military leadership in the

18     enclave."

19             The proposal that was made by the Serbs with regard to

20     establishing trade relationship with Srebrenica is completely contrary to

21     the Prosecutor's thesis and the allegations that there was an intention

22     to create a totally unbearable conditions for the population of the

23     enclave.  One of the contributions in the alleged joint criminal

24     enterprise regarding the expulsion from the civilian population from the

25     enclaves is the operation which was carried out by the

Page 19486

 1     10th Sabotage Detachment on the 23rd June, 1995.  In paragraph 890 of the

 2     Prosecutor's final brief, the Prosecutor proposes a totally

 3     uncorroborated allegation according to which, and I quote:

 4             "Tolimir approved the engagement of the 10th Sabotage Detachment

 5     in the implementation of terrorist activities against the civilian

 6     population of Srebrenica with a view to making the living conditions in

 7     the enclaves unbearable."

 8             THE INTERPRETER:  Could the accused please be asked to slow down

 9     when reading.

10             JUDGE FLUEGGE:  Mr. Tolimir, I have to stop you again.  The

11     interpreters asked that you slow down while reading.  You are all the

12     time reading your own text and the quotations.  Please bear in mind that

13     many people have to follow.  Slow down, please.

14             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I

15     apologise to the interpreters.

16             First of all, besides the fact that the facts are unfounded, the

17     Prosecutor did not include that in the indictment.  In that operation, or

18     rather, Colonel Salapura testified about the operation by the 10th

19     Sabotage Detachment.  He was engaged in the preparations for that

20     operation and he testified that:

21             "It was a diversionary operation that did not have any

22     consequences," and that "implementing that diversionary action was just

23     an admonishment to the forces in Srebrenica not to take action against

24     the VRS."

25             First of all, there is no proof that Tolimir approved that

Page 19487

 1     operation.  Indeed, there could be no evidence to that effect because

 2     Tolimir was not in a position to either order the use or use the

 3     10th Sabotage Detachment.  That detachment was an independent unit of the

 4     Main Staff of the VRS which was directly subordinated to the commander,

 5     i.e., to the Chief of Staff.  That military operation had not been

 6     directed against the civilian population which is clearly demonstrated by

 7     P2200 issued on the 21st of June, 1995.  That document was signed by

 8     Colonel Salapura.  And this document speaks about the use of the

 9     10th Sabotage Detachment.  The 10th Sabotage Detachment was provided

10     clear instructions in paragraph 1, and I quote from that paragraph:

11             "To collect data, to plan and to implement the task.  The person

12     responsible for all that is the commander of the 10th Sabotage Detachment

13     and the chief of the intelligence department of the Drina Corps."

14             In paragraph 6 of the document it says:

15             "When implementing the task, strictly adhere to the following:

16             "UNPROFOR members should not be threatened, avoid inflicting

17     casualties among the women and children."

18             This document shows that the Prosecutor's allegation about that

19     operation is completely unfounded and that its objective was not to

20     attack the civilian population or to intimidate it.  That diversionary

21     action was not an attack against the civilian population which is also

22     corroborated by a report by Ramiz Becirovic who drafted it on the 27th of

23     June, 1995, and which says that nobody was hurt during that operation.

24     If anybody had been hurt, Ramiz Becirovic's report would certainly have

25     contained that information.  In any case, nothing is said about Tolimir's

Page 19488

 1     actions in the third amended indictment as Tolimir's contribution to the

 2     alleged joint criminal enterprise, and that's why this operation by the

 3     10th Sabotage Detachment is not relevant when it comes to considering

 4     criminal -- Zdravko Tolimir's criminal responsibility.

 5             The Prosecutor regards the attack against Srebrenica unlawful.

 6     For example, in paragraph 259 of the final brief, the Prosecutor says:

 7             "The attack against the Srebrenica enclave had two legitimate

 8     military goals:  To achieve the demilitarisation of the enclave and thus

 9     disabling the 28th Division from launching attacks from the enclave and

10     to completely cut the contact between the two enclaves.  However,

11     creating unbearable conditions for the population of the enclaves

12     constituted the violation of the international laws."

13             Moreover, by interpreting General Smith's testimony the

14     Prosecutor states, and I quote that:

15             "The attack against the enclave was not the only choice for the

16     VRS."

17             The Prosecutor erroneously states that the goal of the Krivaja 95

18     operation was to create unbearable conditions for the population of

19     Srebrenica, whereas he never mentions the real reason for attacking

20     Srebrenica -- or rather, he mentions the real attack against Srebrenica.

21             The attack that was launched on the 6th of July, 1995, was the

22     only possible situation primarily because of the fact that the BiH army

23     had carried out operations to link-up the territory of the enclaves with

24     the central part of the territory during the period of time when the

25     all-out aggression against the territory of Republika Srpska was being

Page 19489

 1     prepared.  If the VRS had not carried out an attack against Srebrenica

 2     and Zepa, in the following months it would have faced offensive

 3     operations at several fronts.

 4             JUDGE FLUEGGE:  Mr. Tolimir, it's now over 15 minutes before

 5     4.00.  It's time for the first break although we started a little bit

 6     later, and I think it would be a convenient time for our first break.

 7     For your benefit and for the benefit of the interpreters, I would kindly

 8     ask you to make sure, together with Mr. Gajic, that all interpreters have

 9     the text of your submissions and also the court reporter should be

10     provided with one copy.

11             We adjourn and resume at quarter past 4.00.

12                           --- Recess taken at 3.47 p.m.

13                           --- On resuming at 4.16 p.m.

14             JUDGE FLUEGGE:  Mr. Tolimir and Mr. Gajic, can you tell us if the

15     interpreters and the court reporter have now a hard copy each?  I see you

16     nodding, Mr. Gajic.  Thank you very much.

17             But nevertheless, I would kindly remind you again to slow down

18     while reading.  It's not possible to follow in that speed.  And again,

19     it's in your interest.  If we lose sentences which are important, then

20     it's not in your interest and therefore you should really read slowly.

21             Please continue, Mr. Tolimir.

22             THE ACCUSED: [Interpretation] Thank you, Mr. President.

23             I have left out one sentence from the previous paragraph which

24     says:

25             "The exclusive reasons for Krivaja 95 are legal and legitimate."

Page 19490

 1             Republika Srpska had a right to attack the ABH in Srebrenica and

 2     Zepa and claims pursuant to Article 60 of Protocol I to the Geneva

 3     Conventions; namely, due to frequent, serious, and fundamental violations

 4     of the agreement on demilitarisation which included extensive attacks

 5     from the enclaves, the VRS was relieved of its obligation to treat this

 6     area as a demilitarised zone and had the right to attack it.  The reasons

 7     for the attack on Srebrenica and the aims of the attack are clearly

 8     stated in Exhibit P1202, which is an order for active combat operations

 9     issued at the -- by the then-commander of the Drina Corps,

10     General Zivanovic, which contains as the reason for active combat

11     operations as such:

12             "We estimate that in the forthcoming period the enemy is going to

13     intensify its operations towards the area of responsibility of the

14     Drina Corps and to intensify offensive operations focusing on the Tuzla,

15     Zvornik, and Kladanj-Vlasenica axis with the parallel and simultaneous

16     engagement of the 28th Infantry Division from the enclave of Srebrenica

17     and Zepa in order to cut off the area of responsibility of the

18     Drina Corps and to link up the enclaves with the central territory of the

19     former BiH under the control of the Muslim forces.  In recent days,

20     particularly active are Muslim forces from Zepa and Srebrenica enclave.

21     Sabotage and terrorist groups are being infiltrated who are attacking and

22     torching villages, killing civilian population, and smaller units are

23     being sent to the areas around Zepa and Srebrenica enclave, particularly

24     persistent in trying to link up the enclaves and creating this

25     corridor ..." and then it goes on to say about the plans of the Muslims.

Page 19491

 1             There is an abundance of evidence which show that the linking up

 2     of the enclave with the central territory of the BH Federation was the

 3     main and the sole reason for the operation Krivaja 95.  I make reference

 4     to P2369, a document produced on the 9th of November, 1994, by

 5     Brigadier General Enver Hadzihasanovic from the Supreme Command of the

 6     armed forces of the Republic of Bosnia-Herzegovina, addressed to the

 7     commander of the 8th OG Srebrenica, Naser Oric, which details the plan

 8     for the implementation of this idea which is defined in the following

 9     way:

10             "By means of active combat operations, liberate the temporarily

11     occupied territories of Bosnia-Herzegovina, namely, Bratunac, Vlasenica,

12     Sekovici, Zvornik, and Kalesija municipalities, and link up free

13     territories of Zepa and Srebrenica with the free territories of Zvornik,

14     Kalesija and Zivinice, with a view of creating a permanent free corridor

15     for delivering supplies to the population and logistical support of units

16     of the BH army and creating a basis for further liberation of

17     north-Eastern Bosnia as a whole."

18             This plan was something that both the VRS and UNPROFOR knew about

19     because it is explained in that way in the final brief of the Defence in

20     paragraphs 414 to 419.

21             The fact that the aim was to militarily defeat ABH in order to

22     prevent the linking up of the enclaves with the central territory of BH

23     is described by General Mladic in a conversation that he had with

24     General Smith.  Namely in the statement that General Smith gave to the

25     Prosecution, and that is D193, page 9, General Smith speaks about the

Page 19492

 1     meeting that he had with General Mladic, at which General Mladic

 2     explained to him, I quote:

 3             "That he was expecting an attack, a Bosnian attack, from eastern

 4     enclaves in which case he would attack the enclaves in order to destroy

 5     the ABH but would be respecting in doing so his interpretation of the

 6     borders of the safe zone and not the interpretation of the UN."

 7             And then Smith concludes as follows:

 8             "Finally, after this series of meetings I reached the conclusion

 9     that the Bosnian Serbs have become aware that further fighting is

10     unavoidable and that some sort of solution must be found during the year.

11     The eastern enclaves were too strong and the BH army deployed within

12     these enclaves constituted a clear threat, particularly because the army

13     of the Bosnian Serbs felt that there was a possibility for them to be

14     faced by attacks on several fronts."

15             Everything that was happening in and around the enclaves was the

16     consequence exclusively of total unpreparedness on the part of UNPROFOR

17     to implement the agreement on demilitarisation reached in 1993 and the

18     agreement on general cessation of hostilities admitted into evidence as

19     P1011 in whose Article 6:

20             "The parties undertake to adhere to the agreement on

21     demilitarisation of Srebrenica, Zepa without delay and in full the one

22     that was concluded on the 24th of May, 1993.  Unfortunately, instead of

23     general cessation of hostilities and demilitarisation of the enclave, the

24     ABH in Srebrenica and in Zepa were arming themselves and reorganising

25     themselves in order to carry out the operation of linking up the enclaves

Page 19493

 1     with the central part of BH.  In addition to representatives of the VRS,

 2     the ABH and the Croats, the agreement was signed as witnesses thereby

 3     guaranteeing its implementation, representatives of UNPROFOR, namely,

 4     General Michael" --

 5             JUDGE FLUEGGE:  Mr. Tolimir, please stop and wait.  The

 6     interpreters haven't finished the sentences you were reading before.  You

 7     should from time to time look at the transcript and to see if it is still

 8     going on, and then you shouldn't start the next sentence.  Please be very

 9     careful.  The last words were -- which are recorded were:

10     "Representatives of UNPROFOR, namely, General Michael" and then it

11     stopped.  Please continue.

12             THE ACCUSED: [Interpretation] "Michael Rose and Yasushi Akashi.

13     This agreement was binding for UNPROFOR, including General Smith,

14     General Nicolai, and the DutchBat.  Instead of honouring the agreement on

15     the general cessation of hostilities, Republika Srpska was under severe

16     sanctions whilst the Army of Bosnia and Herzegovina, contrary to the arms

17     embargo was arming itself and reorganising itself and carrying out

18     offensive operations within the framework of the so-called spring

19     offensive.  Intensive sabotage and terrorist operations launched from the

20     enclave are documented, inter alia, by following exhibits:  D1, D16, D52,

21     D53, D62, and D76.

22             In Exhibit D238, which is an intelligence report dated 26th June

23     1995, on page 2 it is said:

24             "The Muslim forces, the 28th Division, on the night between the

25     25th and 26th June of this year, launched an offensive from the

Page 19494

 1     Srebrenica and Zepa enclave by infiltrating our territory with several

 2     sabotage and terrorist groups.  They blocked UNPROFOR in Srebrenica under

 3     the pretext that they failed to protect the demilitarised zone.  One

 4     should not rule on the possibility that some members of the UNPROFOR were

 5     disarmed.  The aim of this operation was most probably to link up our

 6     forces and to create favourable conditions for the operations by the 24th

 7     and the 26th Division from the direction of Kalesija, Zivinice, and

 8     Kladanj.

 9             Even the Prosecution witness Momir Nikolic stated in this

10     courtroom, and it's recorded on transcript pages 12565 and 12566, and

11     confirmed his statement given to the Dutch Institute for War

12     Documentation, the number of the statement is D206 which reads, I quote:

13             "The exodus from the enclave took the VRS by surprise.  They had

14     thought that Oric had gone to Tuzla and attempted to try and set up a

15     corridor towards Srebrenica.  Thereby, they would try to make a

16     breakthrough to both territories.  According to this scenario, the

17     2nd Corps would set off from Crni Vrh.  From a corridor thus created, the

18     Muslims would then cleanse the remaining territory towards the Drina and

19     cleanse it of all Serbs.  According to the information that the VRS had,

20     it -- this plan should have been implemented between the 20 and the 25th

21     of July, 1995.  That is the reason why Oric and other officers left the

22     enclave.  The Muslim side did not make any particular effort to keep the

23     plan about the corridor secret.  Moreover, they even make -- made an

24     announcement to this effect in order to create fear among the Serbian

25     population.  Twenty thousand Muslim forces were tasked with the cleansing

Page 19495

 1     of the other valley.  While he was sitting at the same table with

 2     UNPROFOR, Oric reportedly claimed that he was the only one capable of

 3     organising between 10- and 15.000 soldiers in the 28th Division.  That

 4     was sufficient to take the reports about the forming of the corridor

 5     seriously.  Even the inhabitants of the enclave were perhaps informed

 6     about the planned breakthrough.  In the recent months, large quantities

 7     of ammunition reached the enclave as well as doctors and medicines.  In

 8     May and June 1995, the traffic between Zepa and Srebrenica considerably

 9     intensified.  By following these kind of developments, the VRS asked for

10     a meeting with the Muslims in Karremans office.  However, Karremans

11     failed to invite the Muslims.  This was paragraph 41.

12             These as well as other pieces of evidence clearly show why the

13     Operation Krivaja was carried out, although the Prosecution does not cite

14     any specific allegations and charges.  In paragraph 889 of their final

15     brief, they state that Tolimir contributed to the JCE by providing

16     regular intelligence report about Srebrenica and Zepa in order to support

17     the forthcoming attacks.  First of all, providing intelligence

18     information to the commander and other units and institutions was not

19     something that was specifically conducted in the period between March and

20     July 1995.  Instead, Tolimir was doing that same thing throughout the

21     whole war and there are several hundred such reports admitted into

22     evidence.  By providing these reports, Tolimir carried out his duty of

23     the assistant commander for intelligence and security.

24             As time has shown, his reports were accurate and if by doing so

25     and by knowing that the Muslims were preparing attacks in order to link

Page 19496

 1     up the territories of the enclave with the centre part of the territory

 2     held by ABH, Tolimir did not contribute to any kind of joint criminal

 3     enterprise.  This is merely the collection of information and

 4     intelligence about the enemy, i.e., the BH army who throughout the whole

 5     period of the war was enjoying the protection of UNPROFOR and NATO and

 6     which were used for joint operations of the ABH, the Croatian armed

 7     forces, and NATO Rapid Reaction Forces and a joint aggression against the

 8     Republika Srpska towards the end of the war.

 9             The attack on Srebrenica was not an attack on the civilian

10     population, nor did it have anything to do with causing harm to the

11     civilian population.  We had occasion to see a video, which is the

12     Srebrenica video, indicating that on the 11th of July there was still

13     population housing their apartments in the centre of Srebrenica and that

14     there was provocation fire coming out directed at the VRS.  And the fact

15     that the target of this attack was not the civilian population was also

16     demonstrated by what Witness Kingori stated, namely, that there was

17     surprisingly few victims.  He said as much on transcript page 5571.

18             The Srebrenica proper was riddled with military targets, since

19     private homes, housing developments, public buildings, the PTT building,

20     as well as other buildings were used for the purposes of armed

21     formations, that's to say the BH army.  This is corroborated by the

22     Prosecution Exhibit P957 which is a document dated 22nd February 1995,

23     which contains information about the buildings used by the BH army.  Let

24     me repeat the exhibit number, it's P957.  Excellent.  Thank you.

25             A number of documents speak to the fact that neither operation

Page 19497

 1     Krivaja 95 nor the attack on Srebrenica were directed against the

 2     civilian population.  Among these documents are the ones authored by

 3     Zdravko Tolimir.  The way Tolimir went about the issue of the protection

 4     of UNPROFOR and the civilian population can be clearly found in several

 5     documents.  Firstly, in Exhibit D85, a letter Tolimir sent to

 6     General Krstic on the 9th of July, 1995, which reads, among others:

 7             "Special attention is to be given to the protection of UNPROFOR

 8     members and the civilian population."

 9             Exhibit D41 is another document that clearly indicates the

10     approach taken toward the civilian population of Srebrenica.  In the memo

11     dated 9th July 1995 sent by Tolimir to the Generals Gvero and Krstic, it

12     is stated, and I quote:

13             "Pursuant to the order of the president of Republika Srpska,

14     issue an order to all combat formations participating in combat around

15     Srebrenica to secure the highest possible protection and security for all

16     members of UNPROFOR and civilian Muslim population.  Give a clear order

17     to your subordinates that they are to refrain from destroying civilian

18     targets unless forced to do so by the strong resistance from the enemy.

19     Prohibit -- issue a prohibition of the torching of housing buildings and

20     make sure that the civilian population and prisoners of war are treated

21     in compliance with the Geneva Conventions of 12th August 1949."

22             In other words, the evidence that has been presented here shows

23     that Tolimir cannot be attributed the intent necessary for an attack on

24     the civilian population.  Tolimir did not order or issue any orders in

25     the course of combat, nor was he present in Srebrenica.  A commander of

Page 19498

 1     an operation will involve all the forces, assets, and the rest in the

 2     operation under his command, and in the course of that operation, in

 3     order to ensure that there is unity of command and singleness of command,

 4     all those involved in the operation are subordinated to the commander

 5     concerned.

 6             The position of the UNPROFOR was a threat to the VRS from the

 7     very start and they threatened with air-strikes against VRS positions

 8     around the enclave.

 9             THE INTERPRETER:  The interpreter asks the accused to start again

10     from that sentence.

11             JUDGE FLUEGGE:  Mr. Tolimir, the interpreters ask to start again

12     with the sentence because they didn't get everything.

13             THE ACCUSED: [Interpretation] Thank you.

14             The blocking positions and the green order were, according to the

15     evidence adduced in this case and as indicated by the Prosecution in

16     paragraph 289 of the trial brief, erected on the evening of the 9th of

17     July, 1995.  However, the VRS Main Staff did not issue a single order to

18     open fire on UNPROFOR; quite the contrary.  The VRS Main Staff issued

19     orders not to open fire on UNPROFOR and the civilian population.  This is

20     indicated, among others, by Exhibit D69, a memo which was designated as

21     urgent and sent by Milenko Zivanovic from the Pribicevac forward command

22     post personally to General Krstic and the VRS Main Staff personally to

23     Zdravko Tolimir, and it was a memo intended for their information which

24     reads, and I quote:

25             "The Main Staff has ordered that you do not open fire on UNPROFOR

Page 19499

 1     and that you avert any possible surprise attacks and intentions on the

 2     part of the Muslims to tie or to link up Srebrenica and Zepa.  I wish you

 3     plenty of luck and extend greetings.  General Tolimir."

 4             Evidence was adduced in this case about the so-called blocking

 5     positions erected by the DutchBat on the 9th July 1995.  At paragraph 292

 6     of their final trial brief, the Prosecution stated, and I quote:

 7             "The idea advanced by the Defence that the blocking positions

 8     were conceived with the objective of provoking the VRS into opening fire

 9     against members of the peace forces makes no sentence, in view of the

10     fact that the members of the peace forces and the civilian population had

11     been under fire for days and that nothing needed to be done to provoke

12     the VRS into opening fire."

13             As demonstrated by Exhibit D69, the VRS Main Staff ordered that

14     no fire should be opened on UNPROFOR, whereas the view that blocking

15     positions were conceived with the objective of provoking the VRS into

16     opening fire on UNPROFOR positions in order to ensure fire support was

17     not, in fact, an idea advanced by the Defence.  It is a fact based on the

18     evidence adduced in this case.

19             The allegations advanced by the Prosecution are contrary to what

20     the Prosecution witness stated, namely, General Nicolai, and what

21     van Duijn said before the commission of the Dutch parliament.

22     General Nicolai in a statement given to the Prosecution, which is D70,

23     stated the following at page 10, and I quote:

24             "On Sunday, the 9th, the VRS resumed their attack and it became

25     quite clear that they were not only attacking the southern part of the

Page 19500

 1     enclave but that their attack had the objective of the town of

 2     Srebrenica.  This led to several exchanges of consultations between the

 3     staff in Sarajevo and the staff in Zagreb, and the main issue discussed

 4     in these exchanges was under which conditions would the use of

 5     fire-power -- of air fire be allowed.  Zagreb clearly stated that

 6     General Janvier was not willing to resort to this ultimate measure before

 7     the DutchBat used their own weapons.  He wanted certain other steps to be

 8     taken before air-strikes would be resorted to.

 9             As a result of these consultations, we issued -- we gave an order

10     to the DutchBat to take up blocking positions south of the town of

11     Srebrenica so that should the VRS attack the town it would not only

12     constitute an attack on the civilian population but also an attack on

13     UNPROFOR units.  Thereby, all the necessary conditions for the use of

14     air-strikes would be met.  The Dutch Battalion complied with this order."

15             Consequently, the reason why blocking positions were erected was

16     without any doubt to create conditions to ensure that the VRS positions

17     can be bombed.  That a green order had been issued is shown by a number

18     of exhibits in this case.  Witness Franken stated at transcript page 3453

19     in lines 23 to 25, and I quote:

20             "By having issued a green order, we were engaging with the VRS

21     and the VRS became a target.  And in fact quite -- what was realistic and

22     correct was quite the contrary."

23             And at page 3484 he explained that:

24             "The fact that the green order was issued changed the mandate of

25     the Dutch Battalion and that the restrictions that had been there on the

Page 19501

 1     use of armed force disappeared in fact."

 2             Exhibit D324 is the statement given by van Duijn to the Dutch

 3     parliamentary commission investigating Srebrenica and at page 4 he speaks

 4     about this green order and the nature of the order, and I quote:

 5             "The order was issued as green, which means that there was a

 6     higher tendency toward hostilities.  We had been preparing for that order

 7     by trying to collect as much equipment as we had at our disposal and by

 8     deploying our soldiers.  We next went and took up positions.  The order

 9     was that we should return fire if fired upon and that we should first

10     fire above their heads, and I mean of the Serbs, and later right at them.

11     This was part of the combat order by Captain Groen.

12             "In fact, it was a green order which made use of certain blue

13     assets and this isn't the proper way of going about it.  If you are

14     complying with a green order, you have to resort to camouflage and make

15     sure that you carry out your operation with an element of surprise.  You

16     can surely not go about it by taking up positions out in the open,

17     without any cover, and with white vehicles and blue helmets."

18             On that same page there is something to be learned from the

19     question put by a member of the parliamentary commission.  He made a

20     statement to van Duijn and put a question to him.

21             "A month earlier the Dutch Battalion was engaged in drills in

22     these blocking positions.  Did you participate in these drills yourself?"

23             Van Duijn's answer was that he had not taken part in these

24     drills.  In other words, the DutchBat was ready to take up blocking

25     positions at a time when the attack on the enclave had not even been in

Page 19502

 1     the planning stage.  Had the purpose of these blocking positions been --

 2     or rather, that the purpose of these blocking positions was to attract

 3     VRS fire is also proved by the following quotation at page 5.

 4     Mr. Baker's question:

 5             "You took up these positions in a favourable moment.  You've

 6     already told us that it was supposed to be carried out with fire support.

 7     Was the purpose of these blocking positions also to attract the fire of

 8     the Bosnian Serbs as a way of bringing about fire support?

 9             Van Duijn's answer to that was, I quote:

10             "I realised at a later stage that this was what it was all

11     about."

12             In response to yet another question on page 6 van Duijn answered:

13             "At first we indeed fired above their heads.  I don't recall

14     exactly what was our order.  That was just one of the orders of the many

15     issued by Captain Groen, but I know that I issued my artilleryman an

16     order to shoot at the Serbian soldiers as soon as he saw them."

17             Actions by the DutchBat on the ground were such that on the one

18     hand, together with the BiH army, they participated in combat activities

19     against the Serbs, and they did everything that they could in order to

20     shell the VRS positions.  On the other hand, they sought protection from

21     the VRS.  In this case no evidence was adduced to the fact that members

22     of the Dutch Battalion who feared Muslims and joined the VRS side and

23     that in doing that they were exposed to any irregular treatment.  In

24     order to prove Tolimir's role in Operation Krivaja, the Prosecutor

25     alleges that Tolimir participated in the co-ordination and control of

Page 19503

 1     Krivaja 95 attack and providing support to that attack.  That's in

 2     paragraph 891.  The allegation provided by the Prosecutor can be found

 3     within the context of the charges contained in paragraph 60 of the third

 4     amended indictment, wherein it is stated that Tolimir contributed to the

 5     joint criminal enterprise by disabling UNPROFOR's military capabilities,

 6     including the prevention and control of the international protection for

 7     the enclaves from the outside, including air-strikes and international

 8     monitors."

 9             And it says:

10             "By his contact with UNPROFOR, he helped to disable UN

11     capabilities during the attack against Srebrenica.  To be more specific,

12     he lied to the UNPROFOR and co-ordinated with other officers from the

13     Main Staff and in the subordinated units."

14             This Prosecutor's allegation is unfounded from several aspects

15     and one of them is the fact that it is legally unfounded.  Since those

16     contacts were those that Tolimir maintained as part of his regular

17     duties.  First of all, the Prosecution claims in paragraph 270 of its

18     final brief that Tolimir was in the Main Staff of the VRS and in the

19     command of the Drina Corps in Vlasenica.

20             The Prosecution's allegation that on the 9th of July Tolimir was

21     in Vlasenica is not corroborated by any evidence.  The Prosecutor evokes

22     D85 in which it conveys the contents of a conversation with

23     General Nicolai.  First of all, Nicolai called the Main Staff and not the

24     command of the Drina Corps.  The command of UNPROFOR did not have a link

25     with the Drina Corps in Vlasenica.  Evidence D85 is a document issued by

Page 19504

 1     the command of the Drina Corps on the 9th of July, 1995, which was sent

 2     to the command of the Drina Corps at the forward command post at

 3     Pribicevac to the attention of General Krstic as well as to the sector

 4     for intelligence and security of the Main Staff to the attention of

 5     General Tolimir for his information.  It turns out that Tolimir sent a

 6     document to himself in order to inform himself about its contents.  It

 7     really doesn't make any sense.

 8             The only reasonable conclusion that one can draw from an analysis

 9     of this document is that Tolimir sent a similar document or a document

10     with the same contents from the General Staff and somebody in the

11     Drina Corps, probably General Zivanovic, forwarded it by having first

12     changed the heading.  Since this telegram was sent as urgent, it seems

13     that the sender did not have the time or indeed the need to add to it who

14     the telegram was sent by or anything else for that matter.

15             It is important to mention that in this document it is

16     particularly stated, and I quote:

17             "Pay special attention to the protection of UNPROFOR members and

18     the civilian population."

19             In other words, Tolimir was in the Main Staff of the VRS.  He

20     conveyed his communication with the UNPROFOR and he insisted on his men

21     protecting UNPROFOR members and the civilian population, despite the fact

22     that they threatened him with air-strikes that had already been planned.

23     This is also demonstrated by evidence D137.  That document shows that

24     that zone had to be created around Srebrenica and that's a quote and that

25     death zone had to be created by NATO aircraft.

Page 19505

 1             Tolimir did not lie to the UNPROFOR when he alerted them to the

 2     fact that the Muslims were using UNPROFOR APCs.  Let's remind ourselves

 3     of Franken's testimony on page 3456 of the transcript.  To the question

 4     as to whether he knew anything about the fact that checks were made,

 5     after the General Staff of the VRS had warned them that the Muslims were

 6     using six combat vehicles that were painted white, he answered, and I

 7     quote what Franken said:

 8             "I know that sometime in April I received a report from one of my

 9     observation posts.  They reported to me that two APCs 60, eight-wheelers,

10     painted in white arrived from south and that they drove into the enclave

11     at a very high speed.  We tried to stop them.  However -- or rather, to

12     confirm that they were there.  However, after that we never saw them

13     again.  During the attack we did not see them being used."

14             On page 3459, lines 16 through 19, Franken testified that in the

15     logistics report he saw that members of the Ukrainian Battalion in Zepa

16     reported a loss of six APCs.  Exhibit P1225 proves that those APCs were

17     indeed used.  That is an order for the attack against Zepa issued on the

18     13 July 1995.  In paragraph 7 of this document, page 3, it is stated, and

19     I quote:

20             "Be prepared for action against APCs which the Muslim army had

21     stolen from UNPROFOR and it is now using them against our own forces."

22             The Prosecutor alleges in paragraph 893 of the final brief that

23     during the operation Tolimir lied to UNPROFOR in order to try to buy

24     time, that he manipulated them in order to make it easier to the VRS to

25     occupy the enclave and to forcibly remove the population."

Page 19506

 1             The Prosecutor alleges that Tolimir's actions neutralised in the

 2     key, final phase of the Srebrenica operation the UNPROFOR troops so that

 3     UNPROFOR did not succeed in blocking the VRS attack and thus saving the

 4     enclave."

 5             General Nicolai and General Janvier, with whom Tolimir

 6     communicated within the telephone, did not make their decisions based on

 7     what Tolimir had told them.  Rather, they made their decisions based on

 8     their own intelligence, the intelligence that they received from the

 9     Dutch Battalion and in keeping with what they had intended to achieve.

10     During that period of time, Tolimir performed his regular duties and he

11     responded to UNPROFOR requests in the course of the operation during

12     which UNPROFOR from the day one sided up with the BiH army, which had

13     been previously planned at a meeting between Karremans and

14     representatives of the BiH army.  With them he co-ordinated his own

15     activities and he used all of the available force against the VRS on the

16     9th, 10th, and 11th July, and that also included air-strikes on the 11th

17     July 1995.

18             The objective of the attack against the enclave, as we have

19     already demonstrated, was not to attack the civilian population or the

20     UNPROFOR which is clear from several documents that Tolimir sent during

21     the relevant period.  The attack against the enclave was aimed at its

22     demilitarisation, at attacking and fighting against armed terrorist

23     groups, and those were legitimate objectives and those were legitimate

24     targets.  The Prosecution does not have a single piece of evidence based

25     on which it could prove that Tolimir's participation in that operation

Page 19507

 1     was against the civilian population.  The contrary is true.  He regularly

 2     issued instructions not to attack the civilian population and not to

 3     attack UNPROFOR.  Tolimir's participation in the attack against

 4     Srebrenica cannot be qualified as an attack against the civilian

 5     population.  His actions and negotiations with UNPROFOR during which he

 6     reported to the UNPROFOR on what he had received from the ground, he's

 7     taking measures in order to remove the bodies are not actions that would

 8     incriminate him.

 9             In paragraph 60(B) of the indictment, the Prosecution charges

10     Tolimir with the participation in the military arming of the Muslim

11     forces --

12             THE INTERPRETER:  Could the accused please slow down.

13             JUDGE FLUEGGE:  Mr. Tolimir, again you are asked by the

14     interpreters to slow down.  You should repeat the last sentence beginning

15     with the words:  "In paragraph 60(B) of the indictment ..."

16             THE ACCUSED: [Interpretation] In paragraph 60(B) of the

17     indictment, the Prosecution charges Tolimir with the participation in the

18     military defeat of the Muslim forces.  Allegedly, he did that by, and I

19     quote:

20             "He contacted the forward command post of the Drina Corps and the

21     president of Republika Srpska, Radovan Karadzic, with regard to the

22     combat operations surrounding Srebrenica and the decision on taking

23     Srebrenica."

24             This charge is unfounded, i.e., it cannot be considered any sort

25     of contribution to the alleged forcible removal of the population of

Page 19508

 1     Srebrenica.  Namely, Exhibit D41, which is Tolimir's document issued on

 2     the 9th of July, 1995, is clear with regard to the fact that the target

 3     of the attack was neither the civilian Muslim population nor the

 4     UNPROFOR.  In this document it is stated, and I quote:

 5             "I order you not to set residential buildings on fire and I order

 6     you to treat the civilian population in agreement with the

 7     Geneva Conventions dated the 12th of August, 1949."

 8             The text of this instruction is clear.  The Prosecutor considers

 9     the evacuation of the Srebrenica population unlawful, i.e., the

10     Prosecutor claims that that was the case of a forcible removal of the

11     population.  The decision on the evacuation of the civilian population is

12     not Tolimir's decision.  It was not a decision by the Main Staff of the

13     Army of Republika Srpska or the civilian bodies of Republika Srpska.

14     That decision was taken at the level of the United Nations and by the

15     authorities in Srebrenica.

16             What was the position of Republika Srpska towards the civilian

17     population of Srebrenica?  This can be seen from Exhibit D41 which is

18     Tolimir's document which says that the civilian population had to be

19     treated in keeping with the Geneva Conventions as well as Exhibit P23,

20     i.e., the decision on the appointment of the civilian commissioner for

21     the municipality of Srebrenica dated 11 July 1995.  In this decision, in

22     its paragraph 4, it is stated and I quote:

23             "The commissioner will make sure that the civilian and military

24     bodies, when it comes to all the citizens who participated in fighting

25     the VRS, should be treated as prisoners of war.  At the same time they

Page 19509

 1     will make sure that the civilian population can freely choose the place

 2     where they want to move to."

 3             Who is it who planned the evacuation of the population of

 4     Srebrenica?  This can be seen in Exhibit D174, a document which was

 5     issued on the 11th of July, 1995.  This is a telegram which Annan sent to

 6     Akashi and presents the UN policy towards the Srebrenica enclave.  It

 7     consists of a complete evacuation of Srebrenica.  In paragraph 2(B) of

 8     this document it is stated, inter alia, I quote:

 9             "UNHCR reports that 80 per cent to 90 per cent of the population

10     of Srebrenica (the total number of the population is about 40.000 people)

11     are made up of the displaced persons who had fled war activities at the

12     beginning of the war so that they don't have any property in Srebrenica

13     and they will not be attached to the enclave and they will be interested

14     in leaving for Tuzla.  One of the local UNHCR members in Srebrenica

15     stated today that practically all the people there wanted to leave the

16     enclaves."

17             Somewhat later it is stated and I quote:

18             "After the consultations with the Bosnian government in order to

19     avoid the continuation of the humanitarian disaster, the Bosnian Serbs

20     will be requested to allow all the population, including all the men, to

21     leave Srebrenica and to go to Tuzla if they so wish.  The Dutch Battalion

22     will be instructed to remain in Srebrenica until the moment the departure

23     of those people is agreed with the Bosnian Serbs."

24             Under ideal circumstances, a considerable number of armed

25     UNPROFOR members will stay in UNPROFOR at least until the moment

Page 19510

 1     everybody who wants to leave the enclave is gone.  This operation will

 2     have to be co-ordinated with the desire of the Dutch Battalion to

 3     evacuate its own forces from Srebrenica as soon as possible.

 4             In paragraph 3 of this document it is said:

 5             "UNPROFOR," and I quote, "UNPROFOR shall immediately commence

 6     negotiations with the Bosnian Serbs about:

 7             "1.  The supply of the necessary foodstuffs and medical supplies

 8     for the population of Srebrenica.

 9             "2.  About safe, speedy, and organised departure of all these

10     people from Srebrenica to Tuzla, including able-bodied men starting with

11     an urgent evacuation of the wounded.  This is going to be a major

12     logistical operation that could start as early as on the 13th of July.

13     This policy of the UNPROFOR was implemented by members of the Dutch

14     Battalion.  Namely, at the first meeting at the Fontana Hotel Karremans

15     told Mladic that UNPROFOR wished people to be pulled out, i.e., that they

16     were waiting for buses to arrive ...

17             JUDGE FLUEGGE:  We don't receive English translation at the

18     moment.

19             THE INTERPRETER:  The interpreters apologise.  We cannot follow

20     all the references.

21             JUDGE FLUEGGE:  Mr. Tolimir, the last part of the sentence which

22     is recorded is that "they were waiting for buses to arrive ..."  From

23     there on you should continue.

24                           [Trial Chamber and Registrar confer]

25             JUDGE FLUEGGE:  Could you please repeat the number of the

Page 19511

 1     document you are referring to so that it can be brought up on the screen.

 2             THE ACCUSED: [Interpretation] This policy of UNPROFOR was

 3     implemented by members of the Dutch Battalion; namely, Karremans at the

 4     first meeting --

 5             JUDGE FLUEGGE:  Mr. Tolimir, Mr. Tolimir, I asked you to give the

 6     reference again, the number of the document, so that it can be brought up

 7     on the screen which would assist the interpreters.

 8             THE ACCUSED: [Interpretation] P1008, pages 16 and 17 in Serbian

 9     and 19 to 21 and 26 and 27 in English.

10             JUDGE FLUEGGE:  Thank you.

11             THE ACCUSED: [Interpretation] And on page 20 of the transcript

12     from this meeting it is said, and I quote:

13             "What I was requested by General Nicolai and something that was

14     ordered to him by General Janvier in Sarajevo as well as by the

15     authorities, to stop what had been going on in the last six days on

16     behalf of the population, and for the benefit of the population, all of

17     us would like to maintain the status quo and then to -- the enclave to be

18     abandoned."

19             In other words, these are the statements made by Colonel

20     Karremans.  Therefore, one cannot attribute the forcible relocation of

21     the population to the VRS, having in mind that this operation was carried

22     out at the request of UNPROFOR and the civilian population of the enclave

23     and, at the same time, the Dutch Battalion asked them to abandon and

24     leave the enclave as soon as possible.  General Mladic did not want to

25     agree to that before he heard from representatives of the civilian

Page 19512

 1     population and he asked for two meetings with them.

 2             Tolimir was not in Srebrenica, either on the 12th or the 13th of

 3     July or before or after these dates.  However, in paragraph 354 the

 4     Prosecution says, and I quote:

 5             "That officers for intelligence at all levels within the VRS from

 6     the Main Staff downwards were under Tolimir's command and they

 7     supervised, co-ordinated, and carried out the operation of forcible

 8     relocation."

 9             This argument is totally unfounded and speculative.  First of

10     all, none of the officers or soldiers of the VRS or members of the MUP

11     was under Tolimir's command.  Tolimir could not issue any orders to them.

12     During combat operations, all individuals had to operate and follow the

13     orders of the commander of the operation and not Tolimir's proposals.

14     The officers who were present in Potocari and Srebrenica were directly

15     under the command of the operation commander.  They couldn't and they

16     didn't receive orders from Tolimir.  At the time, Jankovic was

17     resubordinated to the command of the Drina Corps and he served as a

18     liaison officer for UNPROFOR.  The Prosecution witness, Colonel Salapura,

19     said in this trial on 3rd May 2011, transcript page 13578, that sometime

20     between the 11th and 19th Radoslav Jankovic was subordinated to the

21     command of the Drina Corps.  In other words, everything he did he did

22     pursuant to the orders under the direction and control of the Drina Corps

23     and not of Tolimir.

24             The Prosecution corroborates their argument that Tolimir

25     controlled Jankovic by citing Exhibit P626.  First of all, there is no

Page 19513

 1     information contained in this document testifying to the fact that

 2     Tolimir had any knowledge about any criminal offence committed during the

 3     evacuation.  On the contrary, in his report Jankovic wrote the following,

 4     inter alia:

 5             "We believe that we wish to take control of the enclaves Zepa and

 6     Gorazde, and in order to do that it is necessary to portray the action in

 7     Srebrenica in the media in such a way that we are depicted as providing

 8     fair treatment to the population and even to the combatants who laid down

 9     their weapons."

10             One can only draw one reasonable conclusion from this.  Jankovic

11     has no information about any killing plans.  If there was a plan to kill

12     the able-bodied men, how was it then possible to portray it in the media

13     as receiving good treatment?  In paragraph 894 the Prosecution asserts

14     that Tolimir supervised, directed, and guided his subordinates, including

15     Jankovic, Popovic, Momir Nikolic, and as well as the military police of

16     the Bratunac Brigade and the Drina Corps, while they were directing a

17     forcible relocation of the population from Potocari on the 12th and 13th

18     of July which was -- and that he was fully aware of the illegality of

19     their actions.

20             This claim of the Prosecution is completely unfounded.  First of

21     all, where was Tolimir on the 12th and 13th July?  Was Tolimir present at

22     the meetings in the Fontana Hotel or did he participate in any other

23     operation relating to Srebrenica?  Tolimir informed the commander of the

24     operation and the security organs about everything he knew about the

25     enemy activities in accordance with the rules of war which is something

Page 19514

 1     that is going to be discussed later on in the rebuttal to the accusation

 2     about the alleged joint criminal enterprise of killing able-bodied men of

 3     Srebrenica.  None of the VRS officers who were present in Srebrenica was

 4     under Tolimir's command.  Tolimir did not supervise their work and he

 5     couldn't do that because that was the responsibility of their respective

 6     commanders and the operation commander who took part.

 7             Since Tolimir was not in Srebrenica on the 12th or 13th July and

 8     since he did not take part in the evacuation of the Srebrenica

 9     population, as requested by the UN officials, Tolimir cannot be

10     considered responsible for the alleged forcible relocation of the

11     population nor for opportunistic killings cited by the Prosecution in the

12     indictment.

13             The Prosecution has come forward with a series of unfounded

14     accusations against Tolimir with regard to the events in the area of Zepa

15     in July 1995.  In paragraph 60(D) of the indictment the Prosecution says,

16     and I quote:

17             "That Tolimir took part in the negotiations with the

18     representatives of Muslims of Zepa and offered them a choice between

19     evacuation or military action by the VRS."

20             This assertion is completely erroneous.  In paragraph 895 of

21     their final brief, the Prosecution alleges that Tolimir gave "illegal"

22     ultimatum by saying:

23             "That the population had to leave the enclave or face a military

24     action."

25             The Prosecution qualifies this as a criminal act of forcible

Page 19515

 1     relocation.  The meeting that the Prosecution qualified in the

 2     above-described way was documented in a number of exhibits.  First of

 3     all, P491 is Tolimir's report dated the 30th of July from the said

 4     meeting.  It says in the first sentence, and I quote:

 5             "On the 13th of July, 1995, at 1200 hours we had a contact a

 6     Hamdija Torlak, the president of the Zepa executive committee and

 7     Mujo Omanovic, a member of the War Presidency, about the demilitarisation

 8     of the enclave and the freedom of movement of the civilian population

 9     pursuant to the Geneva Conventions of 12th August 1995."

10             This document does not contain a single reference to any forcible

11     act of forcing the civilian population to leave the enclave.  The

12     commander of the Ukrainian Battalion in Zepa was also present at the

13     meeting.  This is Prosecution Exhibit P596 which is a memorandum dated

14     13th July 1995 drafted by Louis Fortin.  In paragraph 8 it is said, and I

15     quote:

16             "The commander of the Rogatica Brigade, accompanied by

17     General Tolimir and local representatives, held a meeting at the

18     Ukrainian command post 2 today at 12 00 hours.  The Serbs asked the Zepa

19     Bosnians to lay down their weapons, after which the civilian population

20     can either go or stay."

21             And the last sentence of paragraph 9 reads, I quote:

22             "The Serbs want to take hold of this pocket without fighting, if

23     possible."

24             In other words, the ultimatum had nothing to do with forcible

25     relocation of the civilian population.  It has been proven in this trial

Page 19516

 1     that there were many civilians in Zepa who wanted to leave the enclave.

 2     For example, the majority of the population was constituted by refugees

 3     who wanted to leave the enclave because other members of their families

 4     were either accommodated in other areas or they wanted to leave to third

 5     countries.

 6             Tolimir reports about these negotiations, which is Exhibit P491,

 7     and it reads, I quote:

 8             "We have provided guarantees for the evacuation of the entire

 9     civilian population and able-bodied men who surrendered their weapons as

10     well as security and safety for the civilian population who decide to

11     acknowledge the authority of Republika Srpska and to remain in its

12     territory."

13             Therefore, this is not about expelling population, but rather

14     allowing the able-bodied men who surrendered their weapons, that is to

15     say members of the Army of Bosnia and Herzegovina who wants to leave, to

16     be allowed to leave.  Therefore, it is clearly stated that safety will be

17     guaranteed to those who decide to stay behind.  This kind of conduct is

18     in compliance with the agreement on demilitarisation of Srebrenica and

19     Zepa from 1993 which was confirmed by an agreement on general cessation

20     of hostilities on 31st December 1994.  According to document P145 in

21     which Tolimir reports that the planned contacts were not made, he

22     indicates that the Muslim want, and I quote:

23             "Secure the support of the majority of the population for the

24     already-made decision to move out.  They informed most of the inhabitants

25     and soldiers that everybody will be allowed either to leave or to stay in

Page 19517

 1     the area of Zepa, provided they surrender their weapons and recognise the

 2     Serbian authority."

 3             A number of well-off Muslims showed interest to move out with

 4     their movable property and to move to the FRY or to -- through third

 5     countries, thereby wishing to avoid being engaged in the Army of

 6     Bosnia-Herzegovina.  With the mediation of UNPROFOR, we informed the Zepa

 7     leadership that the process of moving out and the surrender of weapons

 8     must commence at 900 hours on the 15th of July, 1995, if they decide not

 9     to move out under the offered conditions, we are planning to start combat

10     operations.

11             Therefore, this has nothing to do with the expulsion of the

12     population.  It has to do with the demilitarisation of the enclave.  It

13     has to do with the evacuation of those who are supposed to lay down their

14     weapons and not about the forcible removal of the civilian population.

15     That's why the accusation contained in paragraph 60 of the third amended

16     indictment is completely without foundation.  The objective of the attack

17     on Zepa was not the civilian population as, in fact, indicated in

18     Exhibit P1225.  It is a document by General Krstic dated the 13th of

19     July, 1995, titled:  "Order to attack the enclave of Zepa."

20             In item 9 of the order you can read the following, and I quote:

21             "The civilian Muslim population and UNPROFOR are not the targets

22     of our forces.  They are to be rounded up and kept secure under guard and

23     the armed Muslim groups are to be crushed and destroyed."

24             The orders of this and similar sort are not issued for the sake

25     of formality but to be complied with.  As was the case with Srebrenica,

Page 19518

 1     the area of Zepa was also passed off as a demilitarised zone and the

 2     Muslims routinely cited and exploited as far as they could this

 3     abominable lie.  As stated by Viktor Bezurchenko in the report entitled:

 4     "The Fall of Zepa," which is Exhibit D55, at paragraph 65, and I quote:

 5             "The BH army expected Zepa to attract the attention of the

 6     international media, and the moral guidance administration of the BH army

 7     General Staff had been developing instructions for a psychological

 8     operation related to Zepa.  It was the strategy of the BH army to deny

 9     the presence of any BH army units in Zepa, Srebrenica, or Gorazde, to

10     attribute any military operations to the unarmed population, and not to

11     admit to any or not to accept any discussions on evacuation."

12             The transcript does not state that this was D55, paragraph 65.

13     And let me continue.

14             What was truly going on is indicated in a number of documents

15     that were admitted into evidence in this case and I will cite only

16     several of them.  On the 14th of July, 1995, the War Presidency of Zepa

17     issued a decision to call general mobilisation.  This is Exhibit D349.

18     Under this decision, all the available resources and personnel were

19     placed in the service of the army.  General Petar Skrbic, in answer to a

20     question put by Judge Mindua, stated as follows, and I quote:

21             "This clearly states that all those who are able-bodied should be

22     placed at the disposal of the brigade and will become members of the

23     brigade without any additional conditions.  They are to be issued with

24     weapons, their work obligation is to be discontinued, and they are to

25     become full-fledged members of the brigade."

Page 19519

 1             The document is also significant because the way in which general

 2     mobilisation was called in Zepa and since this applied to able-bodied

 3     members of the army, in the case of their capture they would be entitled

 4     to the status of prisoners of war.

 5             Izetbegovic Alija Izetbegovic, the president of the BH

 6     Federation, spoke about the evacuation of Zepa with General Smith.  Thus,

 7     in document D363, a letter sent by Alija Izetbegovic to General Delic, it

 8     is stated and I quote:

 9             "I have just finished by talks with General Smith.  Perhaps I

10     should secure the evacuation of Zepa, and I mean women and elderly from

11     Zepa with the mediation of UNPROFOR."

12             And item 4 reads, and I quote:

13             "This contains a plan of the evacuation of the population of Zepa

14     which is to be applied in the event that neither the contents of items 1

15     or 2 are to be feasible.  And I am sending you annexed the plan of the

16     evacuation of the population of Zepa.  This plan states that it was

17     developed on the basis of the message that was sent out by the people of

18     Zepa on the 16th of July, 1995, and the information provided by the

19     commander of the OS Zepa of the 17th of July, and that it was on the

20     basis of these documents that talks were held with Alija Izetbegovic on

21     the 17th and 18th July 1995.

22             Now, the proposal that this document contains in item 2 is as

23     follows, and it's on the following page, and I quote:

24             "That the entire population of Zepa should be evacuated in an

25     organised fashion in evacuation groups and as soon as may be if possible

Page 19520

 1     forthwith, or rather, based on assessments of the situation on the ground

 2     in order to ensure their safe transport.  The BH army ought to secure the

 3     column of the population which is to be evacuated.  Those members of the

 4     population who are not able to be evacuated on foot for reasons of health

 5     or other reasons or to be put up in the UNPROFOR base in Zepa, and once a

 6     list of them has been drawn up are to be evacuated with the assistance of

 7     the International Red Cross, UNHCR, and other international institutions

 8     and transferred to the free territory.  These individuals are to be

 9     accommodated in the UNPROFOR base in Zepa right away and they should

10     follow the last unit leaving the territory of Zepa in order to ensure the

11     secrecy of the entire evacuation plan."

12             JUDGE FLUEGGE:  That was the end of the citation of the entire

13     evacuation plan.

14             Mr. Tolimir, it's now time for the second break.  I have no idea

15     how much time you will need to conclude your closing arguments.  You have

16     one hour left, three-quarters of an hour today and one-quarter of an hour

17     tomorrow.  I would like to invite you especially to address the core

18     issues of this case in the remaining hour.  As you know, since February

19     of this year, like the Prosecution, you have one day for presenting your

20     final submissions, your oral final closing arguments.  Will you be able

21     to finalise it within one hour?  This is one question I have for you and

22     I have one question for Mr. McCloskey and then we may know how to

23     proceed.

24             Are you able to indicate already now if you will need time for

25     rebuttal?

Page 19521

 1             MR. McCLOSKEY:  Yes.  Good afternoon, everyone, Mr. President,

 2     Your Honour.  Yes, we would like some time for rebuttal.  I doubt very

 3     much it will take all of the 30 minutes, but we have identified some

 4     issues.

 5             JUDGE FLUEGGE:  In any case, that makes clear that we are sitting

 6     tomorrow with the completion of Mr. Tolimir's submissions, with rebuttal

 7     by the Prosecution, and possible rejoinder by Mr. Tolimir.

 8             We have our second break now and -- no, first of all,

 9     Mr. Tolimir, will you be able to conclude your oral submissions in the

10     remaining hour?

11             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I have

12     24 pages left.  My legal advisor and I will try to cut it down unless we

13     are going to be able to present it all.

14             JUDGE FLUEGGE:  In preparing for your oral submissions you should

15     have thought about the length of the presentation, the speed of

16     everything you will present.  And I think you know that from February of

17     this year and you were reminded yesterday at the outset of our hearing

18     that you, as the Prosecution, will have one day, no more.

19             Mr. Gajic, I see you are on your feet.

20             MR. GAJIC: [Interpretation] Mr. President, my apologies, a small

21     intervention.  As we were preparing the closing arguments, if you look at

22     the word count it roughly corresponds to the word count of the

23     Prosecution's closing arguments and I was guided by that as I was working

24     with Mr. Tolimir on our submissions.  Our closing arguments even fall

25     somewhat short of that, that's to say one day's oral submissions by the

Page 19522

 1     Prosecution.  And I think we are more or less on the track and if we end

 2     up short of some 15 to 20 minutes, we will kindly ask for your leave to

 3     proceed until the end.

 4             JUDGE FLUEGGE:  I will repeat that it is necessary to prepare an

 5     oral submission of a reasonable length.

 6             Mr. Tolimir, you have indicated that you together with your legal

 7     assistant will try to make it short so that we can finish in the time

 8     given.

 9             We adjourn and resume quarter past 6.00.

10                           --- Recess taken at 5.50 p.m.

11                           --- On resuming at 6.16 p.m.

12             JUDGE FLUEGGE:  Yes, Mr. Tolimir.

13             THE ACCUSED: [Interpretation] Thank you, Mr. President.

14             We will skip a portion and I'll say that we are starting from

15     item 127 for interpreters' sake.

16             In a word, it was a plan of the Muslim authorities to evacuate

17     the entire population and you can glean that from the conversation

18     between Alija Izetbegovic and the population of Zepa.  Item 129, this

19     exhibit clearly demonstrates, namely D54, that the evacuation had been

20     planned secretly by the BH Federation leadership and that it had been

21     kept secret in order to accuse the VRS of attacking the civilian

22     population and driving them out.

23             Paragraph 130 reading sentence 5:

24             "Benjamin Kulovac and Hamdija Torlak have come as authorised

25     representatives for these negotiations in the manner envisaged under the

Page 19523

 1     relevant rules of the Geneva Conventions.  At this meeting Hamdija Torlak

 2     stated that the best solution would be to evacuate the entire population

 3     of Zepa.  When asked by General Mladic whether there was anyone who

 4     wanted to stay, he answered in the affirmative and said that there were

 5     ten families who wanted to stay and this is proved by the video-clip

 6     introduced into evidence as D108.

 7             I'll now move to paragraph 132.  On the other side, on the other

 8     hand, the ministry of the foreign affairs of the BH Federation had asked

 9     the Security Council back on the 17th of July to carry out the evacuation

10     as corroborated by D107.  This is the president's letter to the Security

11     Council dated the 20th of July, 1995, which requests the Security Council

12     to, or rather, this is the release by the Security Council requesting the

13     Bosnian Serbs to co-operate in this matter.

14             Let's move on to 134, Exhibit D58.  On the 24th of July, 1995,

15     the agreement on the disarmament of the able-bodied population in the

16     enclave Zepa was signed.  The Prosecution deny any importance that this

17     agreement may have, that's at paragraphs 426 to 431.  However, from the

18     perspective of international law this agreement is completely valid and

19     in keeping with the Geneva Conventions.  Its primary role is to ensure

20     that the Zepa Brigade be disarmed, and as for the civilian population,

21     item 7 of it states, and I quote:

22             "That the civilian population of Zepa shall in keeping with the

23     Geneva Conventions of the 19th of August, 1949, and the

24     Additional Protocol of 1977 be granted the freedom of choice as to

25     whether to stay in the area for the duration of the war conflicts.  In

Page 19524

 1     other words, nobody was being expelled.  It is only a matter of

 2     circumstance that the agreement was stipulated in the context of combat

 3     activities, but that does not detract from its validity.

 4             Let us move on to paragraph 135.  The role of Tolimir.  During

 5     the evacuation of Zepa was to work on the implementation of the 24 July

 6     agreement and to make sure that the evacuation is without any incidents.

 7     Tolimir was in the centre of Zepa escorting the convoy together with the

 8     commander of the Zepa Brigade, Avdo Palic.  And now we move on to

 9     paragraph 138, this is for the benefit of the interpreters.

10             The participation of Tolimir in the implementation of the

11     evacuation of the population of Zepa in keeping with the agreement which

12     was signed on the 24th of July, 1995, the evacuation of the civilian

13     population, including some military able-bodied men, cannot be considered

14     participation in any criminal enterprise.  Contrary to what the

15     Prosecution alleges in paragraph 60 under D1 of the indictment, Tolimir

16     made sure that the evacuation of Zepa was carried out without any

17     problems in keeping with the agreement that was signed on the 24th of

18     July, 1994 [as interpreted].  When it comes to the evacuation of the

19     population of Srebrenica, in that evacuation Tolimir did not play any

20     role.  He did not participate in it.  The only thing that he suggested

21     was to make a list of all military able-bodied men, including those that

22     were to be evacuated from the Potocari base.

23             In keeping with Alija Izetbegovic's plan, the civilian population

24     was indeed evacuated from Zepa in a safe manner and the BiH army did not

25     lay arms, but rather they continued fighting.  General Smith on page

Page 19525

 1     11597 of the transcript testified that in Belgrade Carl Bildt negotiated

 2     about the transfer of the Zepa Brigade across the river Drina into

 3     Serbia.  This is also mentioned in Viktor Bezurchenko's report entitled:

 4     "The Fall of Zepa."  This is Exhibit D55.  Ramo Cardakovic led the

 5     transfer to Serbia.  He was the Chief of Staff the 285th Brigade.  The

 6     Prosecutor treats that transfer of the Zepa Brigade as a crime of

 7     deportation which is charged in the indictment.  Exhibit D111 is the list

 8     of those who had crossed the Drina and who had been treated as prisoners

 9     of war in the Republic of Serbia.

10             You can see in this list that all those were military able-bodied

11     men who had been army members.  For a crime of deportation it is

12     necessary for those persons who crossed the border, resided legally in

13     the territory of Zepa; however, their stay in Zepa was illegal, it was

14     contrary to the agreement of the demilitarisation of the enclave,

15     according to Article 5 of the agreement on the demilitarisation of Zepa.

16     They should not have been allowed to enter or stay in the demilitarised

17     zone.  Additionally, they crossed over to Serbia of their own choice in

18     agreement with UNPROFOR members and the government in Serbia.  And they

19     were guided by the representative of the international community

20     Carl Bildt.  There is no single piece of evidence based on which one

21     might conclude that the VRS wanted to expel them across the border.

22             For those reasons the conditions for deportation as a crime

23     against humanity have not been fulfilled.

24             In the last paragraph of D488 it is stated, and I quote:

25             "We believe that the destruction of the convoys of Muslims from

Page 19526

 1     Stublic and Radava, Brloska Planina the Muslims would be --

 2             JUDGE FLUEGGE:  I just was reminded that this is a confidential

 3     document.  When you quote from this document you should be aware of that.

 4             THE ACCUSED: [Interpretation] I didn't understand.  What document

 5     is confidential?  D111.  Very well.  I apologise.  Well, you can protect

 6     it.  I did not understand that it was a protected document.

 7             JUDGE FLUEGGE:  It is D488 you asked or you referred to when you

 8     started to quote from it.

 9             THE ACCUSED: [Interpretation] It should be P488.  I misspoke.

10             JUDGE FLUEGGE:  Okay.  That's clarified the situation, P488.

11             Please continue.

12             THE ACCUSED: [Interpretation] In the last paragraph of that

13     document it is stated:

14             "We believe that the destruction of the convoys of the Muslim

15     population from the directions of Stublic, Radava and Brloska Planina the

16     Muslims would be forced to surrender quickly ..."

17             First of all, when it comes to convoys, we're not talking about

18     the civilian population but about a destruction of those features that

19     might be used for -- as hiding places for the population.  For example,

20     caves, different areas on the ground.  Mirko Trivic testified about that

21     on transcript pages 8625 and 8626.

22             The word "convoy" does not refer to the evacuees but the features

23     on the ground that may be used for hiding, so Tolimir does not suggest

24     that the population should be destroyed as it is ascribed to him, but

25     rather places where the evacuees could hide.

Page 19527

 1             Paragraph 152 for the benefit of the interpreters.  When it comes

 2     to the alleged participation of Tolimir in the alleged joint criminal

 3     enterprise - and we are talking about the killing of militarily

 4     able-bodied men in Srebrenica - the Prosecution bases its allegation on

 5     Tolimir's position as the assistant commander for security and

 6     intelligence.  However, when it comes to Zdravko Tolimir's participation

 7     in the alleged operation of the killings of prisoners of war, there is no

 8     evidence to that effect.  There can be no credible evidence.  In the

 9     course of this trial, not even the witnesses who struck a plea -- a

10     bargain with the Prosecution about the admission of guilt did not charge

11     Tolimir.

12             Paragraph 153.  When it comes to the consideration of the charges

13     that Tolimir has been charged with when it comes to the killing of

14     militarily able-bodied men in Srebrenica, it has to be mentioned that

15     Tolimir was engaged in Operation Zepa during that period of time and that

16     there is no single piece of evidence that Tolimir in the relevant

17     time-period at all knew about any operation to kill militarily

18     able-bodied Muslims.

19             Page 54 of the document that I'm reading from, where it says:

20             "In a series of paragraphs the Prosecution alleges," that is the

21     last word in the last sentence, "that Tolimir commanded, controlled, or

22     provided instructions to certain people who were in Srebrenica from the

23     12th of July onwards."

24             This is not founded at all.  There is no single piece of evidence

25     to that effect.  During the trial the Prosecution several times referred

Page 19528

 1     to P112.  This is the instruction on commanding the security organs of

 2     the VRS.  That instruction was issued in peace time due to the omissions

 3     that were observed in the work of the intelligence and security organs.

 4     In this document it is stated and I quote:

 5             "The security and intelligence organs are under the immediate

 6     command of the commander of the institutions to which they belong.  In

 7     professional terms they are subordinated to their superior commands.

 8     When it comes to professional command and control, I'm talking about the

 9     issuing -- I'm not talking about issuing orders, but rather the

10     authorities that are vested in any officer and that is to direct the work

11     of the organ and to make sure that they are properly trained.  When it

12     comes to the brigade corps, the security organs are independent and they

13     perform the tasks of counter-intelligence and other tasks envisaged by

14     the relevant regulations.  The assistant --

15             JUDGE FLUEGGE:  Mr. Tolimir, let me interrupt you for a moment.

16     You referred to P112.  You see on the screen that these are photographs.

17     It should be a different document number.  Can you repeat the number,

18     please.

19             THE ACCUSED: [Interpretation] P1112.

20             JUDGE FLUEGGE:  Thank you.  Please carry on.

21             THE ACCUSED: [Interpretation] The assistant commander of the

22     Main Staff of the VRS does not command.  He only professionally guides

23     his troops and works on the tasks entrusted with him by the commander.

24     Otherwise, the principle of the singleness of command would be impaired.

25     When it comes to the control, that can only be professional control,

Page 19529

 1     nothing else, and it doesn't imply the control of the organs of the

 2     security in the course of combat activities or any other tasks.  This is

 3     the task of a commander.  In order to control the work of the organ of

 4     security or any other organ, the person who controls that work has to be

 5     present or he has to be provided with appropriate reports also known as

 6     the reports of the security organs.  They're not sent to Tolimir but to

 7     the security administration.  Where Tolimir was during the evacuation

 8     that he participated in, nobody was killed.

 9             As for the rapport between the commander and the security organs,

10     this can be best illustrated by the testimony of the Prosecution witness

11     Keserovic, who said that on the 16th he received an order from

12     General Mladic as a security organ, he received an order from his

13     commander to go on a mission, to abort his regular activities.  He could

14     not not obey that.  He had to do that.  He had to come back and report to

15     the commander.  This illustrates the relationship with the commander and

16     the security organs irrespective of who the commander is, irrespective of

17     who is subordinated to whom.  Everybody's subordinate to the commander.

18     Professional services have only a professional role that facilitates the

19     implementation of any task.

20             When it comes to the events that ensued after the fall of

21     Srebrenica, there were no such reports at all.  There's no evidence that

22     Tolimir was aware of any killing operation at the relevant period and

23     that the reports were sent to him at Boksanica.  That was the front line

24     facing the Muslims.  That was an UNPROFOR check-point.  When negotiations

25     were underway, no reports could be sent there.  No reports indeed arrived

Page 19530

 1     there.

 2             The Prosecution alleges in paragraph 89 of its final brief that

 3     Tolimir was the only person in the Main Staff who was authorised and

 4     capable of controlling the security organs and controlling them in the

 5     implementation of the order to expel the civilian population and the

 6     militarily able-bodied men.  First of all, Tolimir did not have the right

 7     to command over the security organs.  Only the commanders had that right,

 8     the commanders of the units to which those organs belonged, including

 9     Keserovic.

10             Second of all, control means presence at the location where

11     killings are being committed.  Tolimir was neither in Srebrenica nor at

12     any other location where the killings were committed.  During the

13     Prosecution case, we did not hear any piece of evidence, we did not hear

14     any witness testifying to the fact that Tolimir was informed about the

15     operation to kill militarily able-bodied men.  We didn't hear that he

16     issued any proposals, instructions, or any other such thing involving the

17     killing of prisoners of war.

18             The Prosecution alleges that Tolimir, I quote:

19             " ...  applied his professional knowledge and skills within the

20     purview of military strategy in order to co-ordinate the work of

21     intelligence and security organs and agents ..."

22             That is in paragraph 2 of the final brief.  This also involved --

23     the military police that were used in order to implement that goal."

24             And this is a reference to objectives contained in the allegation

25     about the joint criminal enterprise.  The Prosecution does not have any

Page 19531

 1     proof for this allegation.

 2             Under the law, Tolimir has no right to command the

 3     security/intelligence organs or police organs; they're all subordinated

 4     to their respective commanders.  We're going back to Keserovic's example,

 5     who appeared here as a Prosecution witness, who had to carry out the task

 6     given by the commander and then had to come back and report to him and in

 7     the process he had to suspend his activities in training police forces.

 8             I am reading paragraph 167.  In other documents cited by the

 9     Prosecution supporting the alleged contribution of Tolimir to the killing

10     operation is the Defence Exhibit D49, which is a document sent by Tolimir

11     from Zepa on the 13th of July, 1995.  It clearly confirms that Tolimir

12     had no knowledge whatsoever about the alleged plan for killing prisoners

13     of war.  Please, document D49.  It clearly shows that Tolimir did not

14     have any knowledge about the alleged plan to kill prisoners of war.

15             In paragraphs 572 to 585, the Prosecution is making a speculation

16     and offering completely unreasonable conclusions.  First of all, in this

17     document Tolimir says, and I quote:

18             "If you are not able to provide appropriate accommodation for all

19     prisoners of war from Srebrenica," this part of the sentence indicates

20     that Tolimir is not addressing the issue of the accommodation of

21     prisoners of war in Srebrenica, but that this is being done by somebody

22     else.  This sentence only indicates that Tolimir has no responsibility

23     and no duties with respect to prisoners of war of Srebrenica.

24             Secondly, Tolimir insists on appropriate accommodation and that

25     can only be construed as accommodation that would be in compliance with

Page 19532

 1     the rules of the Geneva Convention which was explained in the final

 2     brief.  Tolimir also says that in the facilities of the 1st Light Brigade

 3     there are proper accommodation facilities that can house 800 prisoners of

 4     war.  Witness Carkic on transcript page 12740 testified that the

 5     facilities in Sjemec were used for a certain period of time as billeting

 6     facilities for one of the Rogatica Brigade units.  Therefore, the

 7     Prosecution's allegation that the accommodation was not suited for -- to

 8     its purpose was unfounded.

 9             Thirdly, this document was sent in the evening of the 12th July

10     1995 at around 10.00.  This cannot be interpreted as the fact that

11     Tolimir was informed about the killing operation or about any unlawful

12     treatment of prisoners of war.

13             THE INTERPRETER:  Interpreter's correction:  13th of July.

14             THE ACCUSED: [Interpretation] As for the Prosecution's assertions

15     that Tolimir warned about the drone, he in fact informed combat organs

16     that had capacity to destroy such aircraft.  In that period, the VRS was

17     under the threat from air attacks.  This is document 128 which was sent

18     only to the Drina Corps command and not to intelligence and security

19     organs.  As I said, the VRS was in the said period exposed to threat from

20     NATO and therefore the information about drones was something that was

21     regularly provided, which can be seen from Exhibit P1216, issued by

22     Milenko Zivanovic on the 5th of July, 1995, who was the commander of the

23     Drina Corps, which means that this was one day before the commencement of

24     Krivaja operation.  The document reads:

25             "Due to the possibility of NATO air-strikes, all subordinate

Page 19533

 1     units of the Drina Corps" -- so I repeat.

 2             "Due to the possibility of NATO air-strikes and the operations

 3     conducted by Rapid Reaction Forces around the enclave, particularly

 4     around the enclave of Srebrenica and with a view to providing protection

 5     to our forces from air-strikes with the focus in the general area of

 6     Srebrenica, all subordinate units of the Drina Corps and all

 7     anti-aircraft units within subordinate units as well as the available

 8     small arms and common weapons shall be placed at full combat preparedness

 9     in order to act in a timely manner against enemy aircraft and thereby be

10     ready to operate with all available weapons to attack helicopters used by

11     Rapid Reaction Forces in order to prevent flights over the front lines

12     and thereby risking the safety of our forces in depth, open fire at

13     aircraft and helicopters without seeking particular approval.  The

14     allegation that --

15             THE INTERPRETER:  Can Mr. Tolimir please repeat for the benefit

16     of the interpreters.

17             THE ACCUSED: [Interpretation] I'm reading paragraph 177.

18             Following a completely unreasonable conclusion contained in

19     paragraph 769 of the Prosecution's final brief in which the Prosecution

20     makes reference to an intercept of the conversation between Tolimir and

21     Popovic has nothing to do with prisoners of war of Srebrenica, namely,

22     I'm talking about P765 which states that Popovic was inquiring about a

23     relative of his who had been taken prisoner.  However, the Prosecution

24     extracted only one portion of that intercept and draws from it completely

25     unreasonable conclusion.  The relevant portion reads:

Page 19534

 1             "Popovic:  I am today in my base and I have some things to

 2     complete, therefore I remained here.  Tolimir is doing his job," which

 3     means that Tolimir was in the base and not out on the ground.

 4             Now the most striking example of speculative arguments is

 5     something that the Prosecution stated in terms of interpreting the words

 6     "he's doing his job" as a criminal order.  This document clearly shows

 7     that Popovic was in his barracks, in his office, and that he spent the

 8     whole day there.  This conversation cannot be used as proof that Tolimir

 9     gave any order to Popovic with regard to prisoners of war of Srebrenica,

10     particularly not what is being cited by the Prosecution in paragraph 775

11     in their final brief.

12             The Prosecution charges Tolimir for supervising the 10th Sabotage

13     Detachment on the 16th July and 23rd July while they were committing

14     murders in Branjevo and Bisina.  First of all, there is no evidence

15     indicating that Tolimir was aware at all with the activities of members

16     of the 10th Sabotage Detachment at any location.  Viktor Bezruchenko says

17     that on the 16th of July Tolimir sent information from Zepa.  Secondly,

18     the sabotage detachment, as explained earlier, was an independent unit of

19     the Main Staff and it was directly subordinated to the commander.  This

20     was testified to by Petar Salapura and Petar Skrbic.  There is not a

21     single shred of evidence that Tolimir either commanded or made any

22     decisions with regard to the engagement of this detention.

23             THE INTERPRETER:  Interpreter's correction:  Detachment.

24             THE ACCUSED: [Interpretation] I will take you up on your offer

25     and I will read the rest of the document, about ten pages tomorrow.

Page 19535

 1             Tolimir mentions, or rather, the Prosecutor speculates about

 2     Tolimir's participation in the joint criminal enterprise, namely,

 3     killings.  On page 20, lines 14 and 15, the Prosecutor alleges that

 4     Tolimir knew that Beara was in the Drina Corps.  In the relevant

 5     time-period Beara was subordinated to the Drina Corps and this

 6     information is -- was available to all sector members, but Beara did not

 7     report to Tolimir.  He did not information Tolimir.  It is unfounded when

 8     the Prosecution alleges that Tolimir supervised Beara and that Tolimir

 9     knew what Beara was doing, and this is what the Prosecutor said in the

10     final brief on 27, that Beara called Krstic.  Why didn't he call Tolimir?

11     The Prosecution suggests speculatively that he didn't do that for his own

12     reasons.  However, Beara could not report to Tolimir because Tolimir

13     never sent him on a mission and he was not accountable to Tolimir for the

14     tasks that he was assigned to.  He was subordinated to the Drina Corps

15     and he reported to the Drina Corps.

16             The Prosecution does not have a single piece of evidence about

17     any communication between any of the participants in the events of the

18     killing on the one hand and Tolimir on the other, and he doesn't have a

19     single proof of evidence about Tolimir's activity in that.

20             There is also speculation about Tolimir having criminally

21     prosecuted two members of the Fojnica Brigade for having helped Muslims.

22     There is no single piece of evidence that Tolimir had filed a single

23     criminal report and that he prosecuted any members of the Army of

24     Republika Srpska for having helped Muslims.

25             The security organs are not -- were not involved in criminal

Page 19536

 1     prosecution activities through Tolimir.  Tolimir was never involved in

 2     any legal matters [as interpreted].  It is -- the security organs did

 3     that directly in co-operation with the prosecutor's offices.

 4             JUDGE FLUEGGE:  Just for the record, I think there is a problem

 5     in page 75, lines 23 and 24.  I read:

 6             "Tolimir was never involved in any legal matters."

 7             Is that what you were saying, Mr. Tolimir?

 8             THE ACCUSED: [Interpretation] Tolimir was not involved in filing

 9     criminal reports.  He never prosecuted anybody.  Security organs did not

10     do that through Tolimir.  Security organs co-operated with prosecutor's

11     officers.  Tolimir was not involved.  Security organs co-operated

12     directly with the competent prosecutor's offices and courts.  This is

13     what I said in my conclusion if that is what you had in mind when you

14     intervened.  Thank you.

15             The Prosecutor in a number of their conclusions referred to the

16     testimony by Milenko Todorovic and his statement that Tolimir had told

17     him that he would come to Batkovic to see 1200 prisoners.  Tolimir never

18     said that.  Todorovic could never confirm that.  He didn't know when he

19     spoke to and who he spoke to.  So his allegations are unfounded.

20     Todorovic himself in his testimony on the 20th of April, 2011, when he

21     was faced with the Exhibit D226 on transcript page 13141 said:

22             "Thank God I can finally see the document that shows, or rather,

23     about which we have spoken at such a length."

24             He did not see that the document was issued in 1993.  However, he

25     saw that he was issued on the 16th of July.  The document was signed by

Page 19537

 1     the chief of staff General Manojlo Milovanovic, which points to the fact

 2     that Todorovic's recollection about who he had spoken to is not reliable

 3     enough.  Additionally, Todorovic's commander, Novica Simic, who was also

 4     a witness in this case, or rather, in the Popovic case, and his testimony

 5     was adopted through 92 quater rule, he testified in the Popovic case and

 6     the transcript from that trial was adopted as Exhibit P2756, and the

 7     relevant transcript pages are 28565 through 28570.  Novica Simic within

 8     the context of the topic of prisoners of war from Srebrenica did not

 9     mention Zdravko Tolimir.  However, he spoke about who he controlled, how

10     he controlled them, who he contacted, and how he made sure that a certain

11     number of prisoners of war were accommodated in the reception centre in

12     Batkovic.

13             I would like to conclude for today, the Prosecutor's assumption

14     that Mladic and Karadzic Tolimir -- ordered Tolimir to manage and control

15     the killing operation is not corroborated by any evidence.  It is just an

16     assumption which serves to deceive this Trial Chamber and the general

17     public about Tolimir's participation in these killings.  It is true that

18     Mladic and Karadzic never provided Tolimir with any order with regard to

19     the killing of prisoners of war.  There's no single piece of evidence to

20     prove that.  There cannot be such evidence because it simply did not

21     happen.

22             JUDGE FLUEGGE:  Mr. Tolimir, does that conclude your presentation

23     of today?

24             THE ACCUSED: [Interpretation] Well, what remains is something

25     that I would like to summarise in 15 or 20 sentences in the ten minutes

Page 19538

 1     that you will grant me as you promised, if you think that this would be a

 2     good ending to my closing argument.

 3             JUDGE FLUEGGE:  We can't do that today because we are at the

 4     limit and we can't sit longer than 7.00, but I think it's for your

 5     benefit to conclude your presentation tomorrow.  We will have a sitting

 6     in tomorrow afternoon and at the beginning you should sum up and conclude

 7     your presentation, and then you have some time to think about that again

 8     tomorrow in the morning and to finalise your oral presentation.  I think

 9     it's better than today to rush through the remaining part of your

10     presentation.

11             Would that be acceptable for you?

12             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I

13     believe that I will manage to finalise my closing argument tomorrow

14     within 15 minutes.  I apologise once again to the interpreters and to

15     you.  Thank you.

16             JUDGE FLUEGGE:  Thank you very much.

17             Then we will have the following programme for tomorrow.  First

18     the closing of the closing arguments, the remaining part, in 15 minutes;

19     then rebuttal by the Prosecution; if possible, rejoinder by Mr. Tolimir.

20     It's up to you and you may decide tomorrow what to respond to the

21     Prosecution.  And that -- in the end we have to deal with some documents

22     which are MFI'd and we have to decide how to deal with them, as I

23     indicated yesterday, and I hope the parties will be prepared to discuss

24     this matter.

25             We adjourn and resume tomorrow at quarter past 2.00 in this

Page 19539

 1     courtroom.

 2                           --- Whereupon the hearing adjourned at 7.03 p.m.,

 3                           to be reconvened on Thursday, the 23rd day of

 4                           August, 2012, at 2.15 p.m.