1 Wednesday, 2 July 2003

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.01 a.m.

5 JUDGE MUMBA: Good morning. Please call the case.

6 THE REGISTRAR: Good morning. Case number IT-95-9-T, the

7 Prosecutor versus Blagoje Simic, Miroslav Tadic, and Simo Zaric.

8 JUDGE MUMBA: Yes, Mr. Krgovic.

9 [Defence Closing Statement]

10 MR. KRGOVIC: [Interpretation] Good morning, Your Honours. Good

11 morning to all the participants in these proceedings.

12 Your Honours, yesterday we left off at the point when we were

13 commenting on the Prosecutor's brief, the parts that have to do with the

14 alleged contradictions between the statements made by Miroslav Tadic and

15 the statements made by Radovan Antic, Jovo Savic, Stevan Nikolic, and Simo

16 Zaric. The Defence believes that there is no contradiction whatsoever. If

17 one looks at pages 16778 and 16779, when Witness Antic testified and he

18 says that Miroslav Tadic telephoned to the command on the 17th of April in

19 the morning and asked whether his presence was absolutely indispensable

20 and Witness Antic said to him that it wasn't. Furthermore, he confirmed

21 the assignment that Miroslav Tadic had. All of it starting from the 18th

22 of April, 1992 onwards. So there is no contradiction in view of what

23 Miroslav Tadic had stated.

24 Simo Zaric on page 19254 says that on the 18th of April, Commander

25 Antic issued orders to collect illegal weapons in the 4th quarter, and

1 that both he and Tadic were informed about it on that day. Goran

2 Buzakovic was another witness in the Defence case and he was a direct

3 participant in the arms collection in the 4th quarter. The Prosecutor

4 takes his testimony out of context, and he suggests to the witness that

5 Miroslav Tadic and Simo Zaric had the task of overseeing arms collection.

6 However, he keeps silent with regard to the answers given by Witness

7 Buzakovic. On page 16672, he says that on that day, and on the previous

8 day, he did not see Miroslav Tadic in the places where he was involved in

9 collecting weapons.

10 As for the date when he started collecting weapons, he refers to

11 the 18th of April.

12 The Defence furthermore does not see any contradiction whatsoever

13 that the Prosecutor refers to, and this has to do with the testimony of

14 Miroslav Tadic and the testimony of Witness Nikolic, especially not in the

15 part that the Prosecutor quoted, that is, D47/4, paragraphs 36 and 37.

16 Furthermore, in their final brief, the Prosecution invokes the

17 statements of Witness C who allegedly saw Miroslav Tadic on the 17th of

18 April, early in the morning, in his street, as he was walking in front of

19 a tank. The testimony of Witness C is in contradiction to all other

20 statements. First of all, no tank appeared in Bosanski Samac in that

21 street on the early -- in the early morning of the 17th. That morning,

22 Witness C was not at his home, which was after all confirmed by Stojan

23 Damjanovic in his statement on page 17784, when he described the meeting

24 with the father of Witness C, who was concerned about his son, who had not

25 appeared at home that day. If the Trial Chamber wants to know where

1 Witness C was that morning, they should just look at D25/4 and there on

2 the list there you will find his name. It is quite clear where he was

3 that morning, like most Prosecution witnesses who testified here. In the

4 same street, a few houses away from Witness C's house, were Osman

5 Jasarevic and Delic Dragan, Prosecution witnesses who lived there. None

6 of them, although they were asked, had seen either a tank or Miroslav

7 Tadic walking along the street in front of this alleged tank.

8 On the contrary; as opposed to the Prosecution, the Defence

9 believes that the testimonies of Simo Zaric, Stevan Nikolic, Radovan

10 Antic, Jovo Savic, testified to the fact that Miroslav Tadic had a minor

11 role in the 4th Detachment and that he made no contribution whatsoever to

12 the takeover of power.

13 Furthermore, the Prosecution claims that there was coordination

14 between the 4th Detachment and the paramilitaries. This is incorrect,

15 because the Defence proved during its case that the weapons handover was a

16 voluntary exercise. No houses were entered. There was no coercion

17 whatsoever. No lists were compiled of persons who had had weapons, and

18 therefore people were not arrested on that basis or rather on those

19 grounds.

20 The Defence believes that it was proven during these proceedings

21 that people were arrested on the basis of lists that had been found at the

22 police station because it is evident that many arrests took place

23 subsequently, after these lists had been found, and therefore the grounds

24 for arrest were membership in the paramilitary unit that was organised by

25 the SDA. This is as far as the town of Bosanski Samac is concerned at

1 least. Witnesses Goran Buzakovic, Radovan Antic, Fadil Topcagic who took

2 part in the weapons collection, just like all Prosecution witnesses who

3 testified here, stated that no one was arrested on that occasion.

4 Furthermore, the Prosecution says that it is irrelevant whether

5 the 4th Detachment took part in the takeover of Samac during that night or

6 whether they simply joined in this exercise on the 17th of April in the

7 morning and that the effect of the intentional inactivity of the 4th

8 Detachment with a view to power takeover and the activities of the 4th

9 Detachment in terms of taking weapons away and going out to the embankment

10 was the consolidation of power of the new Serb regime and in keeping with

11 joint criminal enterprise with a view to persecution. The Defence

12 believes that the Prosecution did not present a shred of evidence that

13 would corroborate this thesis. The role of the 4th Detachment and how

14 they understood their assignment was best described by Witness Marko

15 Kuresevic, president of a party that Simo Zaric belonged to and most of

16 his witnesses.

17 Kuresevic was a serious and credible witness and he said that the

18 role of the 4th Detachment was not to protect the authorities, either

19 Serb, Croat, or some third authorities, but the protection of all

20 inhabitants of Bosanski Samac, as well as the territory of the

21 municipality. Marko Kuresevic said that he did take part in the war, as a

22 member of the 4th Detachment, but not in order to remove the non-Serb

23 population and to have the non-Serb population leave this territory. He

24 said that he took part in this war in order to protect his family, to

25 protect this territory, to protect his wife, who was a Croat, and his

1 daughters-in-law who are Croats. You will find this on page 17870. That

2 is the position of the Defence of Miroslav Tadic and the reason why he was

3 engaged in the 4th Detachment.

4 His awareness and action were aimed at helping all citizens

5 through his activities, not acting with any kind of intention of expelling

6 non-Serbs from this territory.

7 Furthermore, when the Prosecutor speaks about the inactivity of

8 the 4th Detachment, they refer to the statement made by Jovo Savic, when

9 he gives his personal opinion that the members of the command were aware

10 of the fact that the inactivity of the 4th Detachment made it possible for

11 the new regime to come into power. However, his opinion does not have

12 probative value in the opinion of the Defence because it is simply an

13 opinion and this does not show that there is had a link between the

14 takeover of the town and the activities of Miroslav Tadic.

15 Jovo Tadic testified that he did not talk to a single member of

16 the Crisis Staff or any members of the command about these developments.

17 He said that he was presenting his personal opinion and his personal

18 position. When cross-examined by the Defence of Blagoje Simic when

19 explicitly asked about what he knew about the discrimination of the

20 non-Serb population of Bosanski Samac he said this was his opinion. He

21 said this on page 17271. Furthermore, witness Jovo Savic presented his

22 opinion about arrests on discriminatory grounds and he also presented his

23 assumptions as he said to my colleague Mr. Pantelic when he was asked

24 about that. And his response to a direct question put by the Prosecutor

25 as to whether he had ever visited the buildings of the Territorial

1 Defence, the SUP, the high school or places where detainees were held, he

2 said he had never been there. I'm referring to 17154 and 17155.

3 Furthermore, when the Prosecution asked him whether he was ever present

4 during the interrogation of detainees or whether he ever visited military

5 prisons, the witness gave a negative answer yet again. This is page

6 17156.

7 THE INTERPRETER: Could the speaker kindly be asked to slow down.

8 JUDGE MUMBA: Mr. Krgovic, you are too fast. Could the please

9 slow down so the interpreters can keep pace with you and also be able to

10 interpret every word.

11 MR. KRGOVIC: Yes, Your Honour [Interpretation] Furthermore, when

12 the Prosecutor asked witness Savic to described what happened in Samac and

13 to speak about the roles of various authorities in Samac, witness

14 Jovo Savic said that he was in Samac very seldom and that in that period,

15 1992 and 1993, he was primarily if he command in Pelagicevo and that he

16 did not have any knowledge as to what had been going on in Samac and that

17 primarily everything that he was saying is his very own opinion. This is

18 17169.

19 Jovo Savic is a fact witness, not an expert. His personal opinion

20 does not have probative value and the political position that he presents

21 is also of no probative value. He is supposed to testify. His personal

22 political views cannot serve as grounds for establishing knowledge of the

23 fact that by failing to act, persecution was supported in Bosanski Samac.

24 After all, the Prosecution did not put a single question to Miroslav Tadic

25 as to whether this omission on the part of the 4th Detachment helped the

1 establishment of the regime based on discriminatory grounds. It seems to

2 us that the first time that they remembered that this was the case was in

3 their final brief. And what was this position and power that Miroslav

4 Tadic had so that through his omission and failure to act he could have

5 contributed to anything let alone the establishment of a government on

6 allegedly discriminatory grounds? Further on, when the Prosecution speaks

7 about illegal arrests and the role of Miroslav Tadic, it gives sweeping

8 statements without stating what his contribution to these arrests is. The

9 Prosecutor says that there is ample evidence that the arrests took place

10 on discriminatory basis.

11 As opposed to that, there is evidence that arrests were carried

12 out on the basis of lists found in the police station and related to

13 unlawful armed formations of the SDA and HDZ, and that these persons were

14 arrested for the fact that they were suspected of having committed crimes

15 that are punishable in any legal system. The Defence has to comment on

16 the double standards of the Prosecution. In paragraph 144, the

17 Prosecutor, when speaking about the captured Serbs in Odzak, called them

18 the Serb soldiers, the military prisoners. As for the arrested Muslims

19 detained in Samac, the Prosecutor refers to them as imprisoned civilians.

20 MR. KRGOVIC: [Interpretation] I said arrested armed Muslims. So

21 I'm talking about line 17 on page 7. Arrested armed Muslims.

22 The Defence also proved that all the persons arrested that

23 Dragan Delic referred to and that the Prosecutor refers to in paragraph

24 151 and who were with them at the time were members of the paramilitary

25 unit of the SDA and the HDZ and they were members of the Territorial

1 Defence of the BH, an armed formation as it was described by

2 Alija Fitozovic and as it was represented in document D51/3. Or that

3 there was a suspicion that they participated in the arming, which was the

4 reason why Dragan Delic was arrested.

5 The Defence never claimed that all persons arrested had taken part

6 in armed operations. Most of them certainly did, like Ibrahim Salkic, the

7 Dagovic brothers, Hasan Subasic, Kemal Mehinovic, Izet Izetbegovic,

8 Witness N, Witness A, Witness M, Witness M, and many others. Which in the

9 opinion of the Defence was proven through the testimony of many witnesses.

10 The statement of Dragan Delic confirms a fact that is opposite to what the

11 Prosecution has been claiming and that is that there is no link between

12 the searches, the arms handover and the arrest, because Delic was arrested

13 only towards the end of May 1992, when dubious financial transactions were

14 revealed in the company where he was general manager.

15 Witness Sarkanovic, that the Prosecutor refers to, is

16 mention -- mentions only a few cases of arrest of persons who were not on

17 lists. One of them is Hasan Izetbegovic, who was released after having

18 given a statement and that is what Sarkanovic said. The Prosecution

19 confirms what their own witnesses said, that people did not know why

20 Witness M was arrested and that this was not explained, especially in view

21 of Witness M. And this is in contrast to all the evidence presented,

22 especially the evidence that was introduced in relation to his trial in

23 Bijeljina, that is D24/3 and also the testimony of witness Arandzic,

24 Stevan who was wounded by Witness M on the 17th of April. He testified

25 through deposition 169, 170.

1 The claim made by the Prosecution that people were arrested due to

2 fabrications and bizarre criminal activity is totally groundless. Witness

3 P himself that the Prosecutor refers to confirmed on page 11534 that he

4 had been armed, that he had been commander of an illegal military unit in

5 his own village. Are these fabricated allegations and bizarre criminal

6 activities? What about Ibrahim Salkic, a member of a sabotage

7 group as he testified himself on page 3182? Was he a leader of a group

8 that offered armed resistance? And Hasan Subasic, a member of this same

9 group. Are they innocent passers-by and persons who are arrested only

10 because they were Muslims and Croats.

11 Many witnesses, both of the Prosecution and of the Defence, saw

12 them walking through town armed and in the military formation. Witness G

13 said that she saw Hasan Subasic and he had purportedly been sitting at his

14 own home. When witness G testified, that is something that very few

15 people can forget, who ever heard it. Is it probable that she lied? The

16 Prosecution in their brief say that the authorities under the control of

17 Muslims in Sarajevo had abolished the crime of armed rebellion and that

18 accusations that the Muslims had rebelled against their own state are

19 groundless and incorrect because in the territory of Republika Srpska

20 these regulations were in force and people like Witness M were tried and

21 convicted for such crimes. If one looks at document D24/3, one will see

22 that Witness M was tried and convicted on the grounds of armed rebellion,

23 that particular crime.

24 In their final brief, paragraph 156, the Prosecution claims that

25 the policemen, the paramilitaries, coordinated the arrests in keeping with

1 lists which could only have been compiled by the Crisis Staff. The

2 Prosecutor does not offer a single proof for this allegation, nor do they

3 refer to any particular document or testimony. What is the Prosecution

4 basing this claim upon? The Defence does not seem to understand. Neither

5 do we understand how they concluded that Stevan Todorovic was appointed

6 chief by the Crisis Staff. During this trial, it has been proven beyond

7 doubt that Stevan Todorovic was not appointed by the Crisis Staff.

8 When the Prosecution speaks about the reasons for arrests of

9 certain political officials of the HDZ, the only grounds given is

10 persecution and they refer to Miroslav Tadic's testimony and a sentence in

11 that testimony which has been taken out of the context. Forgetting

12 conveniently to mention that when Miroslav Tadic said political prisoner,

13 he meant prisoners who had been arrested. Political officials of the SDA

14 and the HDZ were arrested because they headed an armed formation that

15 killed 1.600 people.

16 MR. LAZAREVIC: On page 10, line 8, He meant politicians who had

17 been arrested not prisoners who had been arrested.

18 JUDGE MUMBA: That is page 10, line 8.

19 MR. LAZAREVIC: Yes, Your Honour.

20 JUDGE MUMBA: Yes. Thank you for the correction. That is why it

21 is important to be a bit slower.

22 MR. KRGOVIC: [Interpretation] Furthermore, when speaking about

23 Zasavica and the arrests of people, the Prosecution claims that the people

24 were transferred from Bosanski Samac to Zasavica in May, not a shred of

25 evidence has been offered that in May or in June anyone was brought to

1 Zasavica to be isolated, not a single witness from Tisina, as the

2 Prosecutor claims, did not confirm that they were indeed in Zasavica.

3 Witness Q described in his testimony that all the surrounding

4 villages were abandoned by Croats prior to the outbreak of conflict.

5 Witness P described, in his testimony, that people, that is, women and

6 children who had been taken to Crkvina from Zasavica were eventually

7 brought back to Zasavica but does not mention any of the inhabitants of

8 the surroundings villages as being brought back to Zasavica.

9 As far as the connection between the arrests of non-Serbs and the

10 exchanges that took place, the Prosecution has not offered a single piece

11 of evidence to confirm the nexus between those two occurrences. People

12 were arrested for reasons that have been mentioned many times, but not

13 because of the exchanges. Witness Stevan Todorovic, on page 9563, said

14 clearly that only the police had the authorities to release or arrest a

15 person before the procedure was taken over by the Prosecution.

16 Miroslav Tadic has also been accused of cruel and inhumane treatment of

17 non-Serb civilians. Again, the Prosecution in paragraphs 186 to 188

18 accuses Miroslav Tadic without offering proof or evidence and does not

19 specify what exactly the cruel and inhumane treatment of non-Serb

20 civilians entailed. Miroslav Tadic himself said in his testimony that

21 when in July he heard that certain people entered the prison to beat

22 prisoners there, he drew Stevan Todorovic's attention to that and Stevan

23 Todorovic told him to mind his own business. As most of the citizens of

24 Samac, Miroslav Tadic was simply afraid of Stevan Todorovic. When he

25 spoke about the massacre in Crkvina, Miroslav Tadic said that certain

1 things were not done precisely because of the fear that people had, fear

2 of Stevan Todorovic and the Specials from Serbia. However, Miroslav Tadic

3 expressed his willingness to find the bodies of those who had been killed

4 in Crkvina to shed light on the crime and not to hush it up as the

5 Prosecutor claims. Miroslav Tadic never ceased to work on that task to

6 this very day as testified by witness Velimir Maslic on 14215. In his

7 interview of 1998, Miroslav Tadic made no secret of his knowledge of that

8 event, but he also spoke of the great fear that took hold of people

9 following that particular event.

10 In paragraph 202, the Prosecution ties Miroslav Tadic to cheating

11 and keeping prisoners away, keeping prisoners hidden without a single

12 proof by constructing a link between Simo Zaric, who was allegedly seen

13 outside the TO building when he was visiting the International Red Cross

14 and think this sufficient to have Miroslav Tadic convicted of holding

15 prisoners in inhumane conditions. The link between the arrival of the

16 International Committee of the Red Cross and Miroslav Tadic the

17 Prosecution derives from an unfinished sentence in part of the interview

18 by Stevan Todorovic.

19 When presenting this part of the interview, the

20 Prosecution -- of the Prosecution Stevan Todorovic did not provide any

21 kind of answer which is -- and no wonder, regarding the part of the

22 interview that the witness was shown which contains an unfinished sentence

23 which in that form can be interpreted in several ways. Unlike -- as

24 opposed to that, Velimir Maslic, who was a competent person, provided a

25 detailed and repeated description of all the contacts with the

1 International Committee of the Red Cross in Bosanski Samac.

2 There is the part of the interview where Stevan Todorovic speaks

3 who the representatives of the International Committee of the Red Cross,

4 the police, and the executive committee came to see but it wasn't Miroslav

5 Tadic. The Prosecution finds this part of the interview inconvenient and

6 that's why they did not confront Stevan Todorovic with that particular

7 section of the interview.

8 JUDGE LINDHOLM: Excuse me for interrupting you, but just as to

9 clarify my own picture of what you are saying. On page 12, line 5, you

10 say keeping prisoners hidden without a single proof by constructing a link

11 between Simo Zaric, who was allegedly -- do you really mean Simo Zaric or

12 should it be Miroslav Tadic?

13 MR. KRGOVIC: [Interpretation] Your Honours, we heard testimony of

14 a witness who saw during the visit of the International Red Cross

15 Simo Zaric allegedly out the TO building, outside the SUP building, and

16 the Prosecutor, in his final brief, claims that Zaric and Tadic worked

17 together on hiding this without mentioning a single piece of evidence

18 placing Tadic in this context and without explaining what their

19 role -- what the role of Tadic was in all of this.

20 JUDGE LINDHOLM: Thank you so much. That clarifies the matter.

21 MR. KRGOVIC: [Interpretation] Furthermore, the Prosecution

22 claiming in paragraph 110 that the Crisis Staff made a decision to

23 transfer prisoners to Batkovici does not offer a single testimony that the

24 prisoners were transferred to the prison pursuant to a decision by Andrija

25 Bilosevic. This was ascertained during this trial. However the Crisis

1 Staff was not even in existence when this event took place.

2 At any rate, the Defence of Miroslav Tadic believes that

3 Miroslav Tadic had nothing whatsoever to do with holding civilians and

4 detaining them in inhumane conditions. This is also true of Zasavica,

5 because many witnesses confirmed that they were taken to Zasavica at the

6 end of August and beginning of September 1992, when Miroslav Tadic had

7 nothing whatsoever to do with the civilian authorities.

8 Furthermore, the assertion that civilians were held in Zasavica

9 for the exchanges has not been proved because Miroslav Tadic had nothing

10 to do with Zasavica nor did he ever go to Zasavica, except once as

11 described in his interview. And as testified by Witness K, witness for

12 the Prosecution who claims that she never saw him in Zasavica.

13 Furthermore some of those people went home and then went to be exchanged

14 as testified by witness Gordana Pavlovic when speaking about Almira Bobic

15 who was in Zasavica and then returned home in December 1993, only to

16 exchanged later on. That was in depositions page 81. On the basis of

17 everything that has been presented in this trial, the Defence believes

18 that Miroslav Tadic is not responsible for these three counts of the

19 indictment that he has been charged with.

20 JUDGE MUMBA: Thank you, Mr. Krgovic.

21 Mr. Lukic again.

22 MR. LUKIC: [Interpretation] Good morning, Your Honours. I will

23 move on and speak about count 3 of the indictment, inhumane conditions. I

24 will talk about forced labour. The Defence has offered in their work, a

25 detailed analysis of the concept of forced labour or, rather, work

1 obligation. Right at the outset, I would like to point out that

2 international enactments and documents fully define work obligation and

3 when, according to the legislation of a certain country, this work

4 obligation can be assigned. According to the Prosecution, their

5 interpretation of forced labour follows from the fact that dangerous,

6 illegal, humiliating and unpaid work was done. The Defence explained that

7 any kind of work in town at that time was dangerous, in town or throughout

8 the territory, in a state of war, so there were incidents of civilians

9 getting killed when they were working in shops in the town centre. All

10 work was legitimate, because it was envisaged by provisions and by laws.

11 The Prosecution, in formally defining who was in charge of the

12 work obligation, refers to two quotes by Djordje Tubakovic and Simo Zaric.

13 However, if we analyse accurately all the testimonies, you can understand

14 very clearly what these two witnesses were actually saying. I wonder how

15 it was possible that in the Prosecutor's trial brief, in paragraph 225,

16 footnote 561, that the Prosecutor found convenient the testimony of

17 Djordje Tubakovic and only several days later here in this courtroom we

18 heard this very witness giving oral evidence and the Prosecution finding

19 the witness totally inconvenient and making an oral motion with the Court

20 to reject his entire testimony. In paragraph 19 of Exhibit D184/3, which

21 is Djordje Tubakovic's statement --

22 MR. WEINER: I object. That's not what I said. I'd object to

23 that. That's misquoting counsel. If you want to check the record. I

24 said that his testimony was not worthy of belief in relation to Mr. Tadic,

25 in my argument. It wasn't that all of his testimony was not worthy of

1 belief. Thank you.

2 MR. LUKIC: [Interpretation] I would like Your Honours to correct

3 myself in that respect, but later I will speak again about certain

4 portions and how the Prosecution seemed to like one witness at one time

5 and dislike the same witness at another time. Paragraph 19 of Exhibit

6 D184/3, statement by Djordje Tubakovic, there is an accurate definition of

7 who exactly was in charge of the work obligation which was the secretariat

8 for National Defence. Not a single word of the witness in that paragraph

9 brings Miroslav Tadic into any kind of even loose connection with work

10 obligation as such. What the paragraphs states is the very essence of all

11 the evidence and all the testimonies that clearly point to who was

12 responsible and in charge of the work obligation. Simo Zaric, whom the

13 Prosecutor also refers to their interview, Exhibit Number P141, claims,

14 when speaking about work obligation, that it was physical labour and that

15 the person in charge was Bozo Ninkovic on behalf of the secretariat for

16 National Defence. In paragraph 226, the Prosecution mistakenly

17 establishes that work had to be voluntary, and they construct a mistaken

18 link or a false link as to the person really had a choice to work or not

19 to work and they refer to the Krnojelac judgement, paragraph 471.

20 However, in the Krnojelac judgement, where forced labour is referred to

21 and when it is established whether the person really took up forced labour

22 of their own free will and whether there was any choice at all, we're

23 talking about an entirely different case. We are talking about persons

24 who are going to forced labour from the prison in which they are held,

25 persons to which the work obligation does not apply.

1 Another set of regulations is applied to such persons in keeping

2 with the rules of those prisons. Defence witness DW2/3 described how he

3 volunteered to go and perform work while he was in detention. As a

4 consequence of that, he had certain benefits in his status as detainee.

5 Prosecution witnesses for Batkovic went to the same kind of voluntary

6 labour as testified by Witness I in DW8/3. When the same witness, DW2/3,

7 was released from detention he was released to the same company and to the

8 same tasks that he had before. He was given a decision on work obligation

9 and he returned to the job that he had throughout the period relevant to

10 the indictment.

11 MR. LAZAREVIC: [Previous translation continues]... Witness I. If

12 I remember correctly, there wasn't any Witness I before this Tribunal.

13 Here it's on line 19 and 20. There is something that is not particularly

14 clear in the transcript.

15 MR. LUKIC: [Interpretation] Very well. On page 16, line 20, I was

16 referring to Witness DW8/3.

17 JUDGE MUMBA: I see, yes. Not Witness I. Can we clear this?

18 Because in line 20, page 16 --

19 MR. LUKIC: [Interpretation] Yes, certainly.

20 JUDGE MUMBA: Which witness?

21 MR. LUKIC: [Interpretation] That's what I had in mind. Instead of

22 the word Witness I, it should read Witness DW8/3.

23 So this thesis on the existence of voluntary choice for someone to

24 choose whether they wished to work or not and trying to prove the

25 existence of forced labour through that is mistaken and a parallel is

1 drawn from a totally different situation. The procedural matters related

2 to work obligation in this case is legal and regulated by the law and by

3 the law on work obligation. It is not a voluntary action as the word

4 itself says, and there can be punishment in case of non-compliance.

5 Now, who is it that decides on work obligation? Witness K

6 testified, and my colleague Pantelic referred to that yesterday in

7 connection with the statement about the computer of the Crisis Staff. I

8 will say that she did not see the signature on the invitation that was

9 issued. We should point out that Witness Safet Dagovic and

10 Ahmet Sehapovic confirmed that issued call-ups for work obligations were

11 signed by Bozo Ninkovic. Bozo Ninkovic himself on page 1338 stated that

12 lists were compiled by coordinators, by the coordinator of the work units

13 and that at the beginning the coordination was Dzevad Kapetanovic, "Beg,"

14 the very same man that Witness K refers to.

15 The Prosecution claims that the secretariat for People's Defence

16 was formally responsible for forced labour and I would like to stress the

17 word "formally" here. Nowhere is it explained why is that secretariat

18 considered to be formally responsible when its competency and

19 responsibility are regulated by law, decree, and there are many pieces of

20 written evidence which go to show the relationship between all of the

21 users of the work obligation and the department of the Ministry of

22 Defence.

23 This department, pursuant to all of the evidence and written

24 documents, reported to the regional department of the ministry, whereas at

25 the level of the local government, it mostly cooperated with the Executive

1 Board. All of the witnesses, both of the Prosecution and of the Defence,

2 testified to this effect and all of them claimed that this organ was

3 competent for that, this organ headed by Bozo Ninkovic.

4 During the trial, the Trial Chamber pointed out that special

5 weight will be assigned to written evidence. We interpret this to mean

6 that if they remain -- if they're consistent with the testimony of

7 witnesses, then all of that will go to support the facts that under 1

8 could be forgotten, and under 2, represent something that could not have

9 been directly found out by the witness, but this witness rather made his

10 conclusions out of context.

11 A typical example supporting this is the episode with woodcutting,

12 which we analysed in detail in our brief, also referring to the

13 relationship between the Executive Board, Ministry of Defence, and

14 secretariat for economy and the work brigade. However, since the

15 Prosecution failed to mention these documents, I will now use the

16 following few minutes to point out to the Trial Chamber something that

17 must be clear and something that the Prosecutor chose to forget.

18 Document D92/1. The Prosecution referred to it in its final

19 closing arguments. The decision of the Executive Board, dated 18th of

20 September, 1992, on organising fall, autumn works. I would like to ask

21 both the Trial Chamber and the Prosecution to read in detail Article 1,

22 Article 3, as well as Article 9, and especially the order accompanying it.

23 Document D112/3 -- no. I apologise. D112/1, which is a letter to the

24 Executive Board by the department of Ministry of Defence. I will quote

25 the document to my colleague Mr. Di Fazio. Document 137/1. Again, the

1 same applies here. Document 137/1. The order of the Executive Board to

2 the coordinator of the work defence.

3 THE INTERPRETER: Interpreter's correction. The document previous

4 to this one was 131/1.

5 MR. LUKIC: [Interpretation] I would like to see any written

6 evidence which makes a link between the civilian defence staff and the

7 forced labour. The Prosecution doesn't know what to do with its argument

8 concerning forced labour, and they have to somehow incriminate my client.

9 JUDGE MUMBA: Mr. Lukic, can we just go back to your mentioning of

10 the two documents? Because we are not sure what the interpreter means

11 when she says the previous one was 131/1. Can you just refer to their

12 numbers, the last two documents you discussed.

13 MR. LUKIC: [Interpretation] I apologise to the interpreters once

14 again. So the document before the last one was D131/1, whereas the last

15 document is D137/1, which is a letter of the Executive Board, dated 25th

16 of September, 1992.

17 I will continue.

18 JUDGE MUMBA: Yes. Thank you.

19 MR. LUKIC: [Interpretation] This task which the Prosecution

20 assigned to itself required a lot of instances of combining various facts,

21 a lot of instances of strange logic, and something to which we referred

22 yesterday, which is taking out the words out of context, especially when

23 it comes to the forced labour and the role which Tadic played in that

24 respect. This is where they invested a lot of work.

25 I would have to observe the following: This thesis linking the

1 civilian defence staff with forced labour and looting is something that

2 occurred to the Prosecutor at the end of the trial, when they realised

3 that they had nothing in their hands. None of their witnesses, except for

4 Nusret Hadzijusufovic, was asked about whether Miroslav Tadic or civilian

5 defence staff issued any instructions to them or coordinated forced

6 labour. These witnesses of the Prosecution spent hours and days here

7 testifying about forced labour and looting.

8 The Prosecutor didn't ask any questions of this nature of Bozo

9 Ninkovic, nor of Ljubo Vukovic, about the lists of shops that, according

10 to the Prosecutor, were looted. They didn't ask it of Miroslav Tadic

11 either. And then they remembered Hadzijusufovic and decided that that was

12 the solution. It was better to have at least one witness who would

13 explain in detail how very deeply Miroslav Tadic was involved in forced

14 labour and looting explain in detail how very deeply Miroslav Tadic was

15 involved in forced labour and looting.

16 What else does the Prosecution need? They need to take out of the

17 context the facts related to some witnesses who are linked to Tadic. The

18 Prosecutor mentions that people were frequently taken out of forced labour

19 by the civilian defence staff, supporting this with the statement of

20 Vukovic,who described the inventory of goods in shops. However, they are

21 forgetting that, according to Vukovic, this task lasted for some ten days

22 and that he was given several workers to complete this.

23 The only witness of the Prosecution describing this episode is

24 Nusret Hadzijusufovic, who spent one whole day working on this. You can

25 take a look at page 6904 of the transcript regarding this. The Prosecutor

1 then goes on to state that people were frequently engaged by the civilian

2 defencestaff to change window panes on the houses that have been damaged

3 during shelling, including the health centre, hospital, and so on. We

4 don't know how often this was done and we don't know what the Prosecutor

5 means when they state this. However, the Defence will say that they

6 accept thesewords and that Miroslav Tadic is proud of these facts. If

7 this constitutes a crime against humanity, then he is prepared to take the

8 consequences on behalf of all of the people who were involved in repairing

9 homes, houses, and organising shelters.

10 Repairing homes to all citizens of Samac is something that has

11 been frequently mentioned, especially with regard to mens rea concerning

12 persecution. This is something that Witness Vukovic testified about. The

13 Prosecution did not deny this; however, they, in their brief, stated that

14 this should be taken as a mitigating factor, whereas yesterday in their

15 closing arguments they said that there shouldn't be any mitigating factors

16 for Tadic. However, in their brief, they said that it should be

17 considered as a mitigating factor that he helped with organising shelters.

18 A few days ago we heard from the Prosecution a new thesis that the

19 civilian defence staff appropriated stolen goods or appropriated

20 construction material, and they used the witness of Volasovic's statement

21 to support this. I would like the Prosecution in their response to tell

22 us where is it that Mr. Volasevic stated something of this nature, because

23 we couldn't find that in the transcript. However, we could find the

24 testimony of Vukovic, who stated that they applied to the Executive Board

25 to be given glass for window panes, and there is also an exhibit, D113/3,

1 which is aletter by the civilian defence staff sent to the Executive Board

2 and asking for glass to be provided by the Uniglas company, which is a

3 glass manufacturing company.

4 The Prosecution [as interpreted] depicts Miroslav Tadic as this

5 central figure of forced labour, and this false thesis is further

6 attempted to be supported by the testimonies of Vukovic, Volasevic, and

7 Hadzijusufovic. However, the Prosecution neglects numerous testimonies of

8 testimonies ofother witness who deny this and which are in conformity with

9 the testimonies of Vukovic and Volasevic. In their final brief the

10 Prosecution gave a detailed analysis of the tesimony of Hadzijusufovic,

11 both with respect to the work obligation and looting.

12 I apologise. I said the Defence, but it says here the

13 Prosecution, page 22, line 16.

14 No. I apologise. Page 22, line 20, I said Defence there. I

15 apologise.

16 We don't have to go into detail with respect to the thesis of the

17 Prosecution as to whether Hadzijusufovic was not truthful. However, we

18 have reasons to believe that he lied fully aware of that. The problem

19 with his testimony is that he is a completely incompetent witness. The

20 fact thatthe Prosecution depicts him as a slave picturesquely and that he

21 couldn't have known all of the regulations and documents, this is

22 something that shows us what kind of witness the Prosecution is using to

23 build their thesis upon.

24 Let me remind the Trial Chamber. Hadzijusufovic is somebody who

25 does not know that the secretariat for People's Defence exists and then

1 all of a sudden he remembered that it did exist. Then he claimed that

2 that secretariat did not exist during the wars then he didn't know who was

3 Milos Bogdanovic, what Bozo Ninkovic was involved in, he didn't know what

4 civilian defence was but he knew for a fact that Miroslav Tadic was the

5 main person involved in forced labour and looting. Based on what? Based

6 on hearsay evidence and testimony. That is quite impressive. The

7 Prosecutor is fully aware of this and that's why they need reinforcement.

8 And this is something that we shall turn to now.

9 The thesis and taking out of context the testimonies of Vukovic

10 and Volasevic, this is what they're using. Now, all of the evidence

11 concerning the inventory and the list of things that the people from

12 civilian defence were involved in and something that Vukovic testified

13 to. Vukovic and Volasevic claimed that the list, complete list of shops,

14 including some 15 to 16 shops in early May of 1992 existed and that vacant

15 shops were inventoried, including three pharmacies of the companies from

16 Serbia, which had perishable goods and dangerous chemicals and other

17 items. This job lasted for 10 to 12 days and that following that, the

18 civilian protection staff had nothing more to do with any sort of

19 activities involving any kinds of goods. They said that this job had been

20 organised by the Executive Board and that the establishment of that

21 commission entailed peopleappointed by the Executive Council and not

22 people from the Tadic's civilian defence staff, as the Prosecution claims.

23 Since the Prosecutor did not challenge the testimony of Vukovic,

24 nor did they ask him anything about the list of shops, then they

25 attempted, in cross-examining Volasevic, on page 17765, to get an answer

1 concerning these activities. However, Volasevic confirmed, just like

2 Vukovic did, exactly what kind of goods these were, why they were put

3 away, and this is something that the Prosecutor forgot to put in their

4 final brief.

5 The Prosecution, when referring to Vukovic and Volasevic, also

6 forgot to mention that this was one single job or task that was completed

7 in ten days. The Prosecution failed to mention that Hadzijusufovic was

8 involved in this, for just one day, and that even he himself said that the

9 inventory of goods was made on that occasion, and this was in full accord

10 with testimonies of Defence witnesses who confirmed that this was one

11 single task which was done competently and had nothing to do with looting.

12 What is more indicative are other pieces of evidence and

13 testimonies which the Prosecution is ignoring, fully disregarding the

14 numerous pieces of evidence showing who was in charge of the forced

15 labour. What the Prosecution is ignoring is that all of the rest of the

16 witnesses of theProsecution came here and testified for many days about

17 the forced labour, including labour. We will mention them. Within the

18 work platoon, as direct participants, the following witnesses testified:

19 Witness L, Witness M, Witness K, Esad Dagovic, Kemal Mehinovic, Witness E,

20 Witness C, Witness Hajrija Drljacic, Ediba Bobic. All of these witnesses

21 knew Miroslav Tadic from before the war. All of these witnesses had

22 direct contacts with him. Some of them even saw him in front of the

23 pensioners' centre. Some like M came to his headquarters and spent time

24 there. I will admit that some of them did not favour my client, so

25 therefore were not likely to forget anything regarding Tadic's

1 activities. However, none of these witnesses ever mentioned that Miroslav

2 Tadic and his civilian protection staff had any role in work obligation.

3 The Prosecutors never asked any one of these witnesses concerning

4 Miroslav Tadic and forced labour, and when they asked some of them who was

5 responsible for that, who was in charge of that, they would invariably get

6 the answer saying that the department of People's Defence was in charge

7 ofthat and Bozo Ninkovic. All written evidence supports this, and what is

8 most bizarre for the Prosecution is that this is also confirmed by

9 Mr. Bozo Ninkovic.

10 Aware of all of this, the Prosecutor has to engage in yet another

11 construction and then allegedly the civilian protection was one of the

12 major beneficiaries as far as the work brigade was concerned, and yet

13 again this cannot be supported by any of the evidence proffered, because

14 not a single witness except for Hadzijusufovic confirmed this. And what

15 he saidwas that he worked only for one day. As opposed to this

16 construction made by the OTP, their witnesses say what they did, who they

17 worked for, and where they worked.

18 When they do not have the evidence needed to support their

19 statements, then they again start constructing things, and they say that

20 the civilian defence staff and this part of the Ministry of Defence were

21 in the same building, in order to facilitate cooperation, and then they

22 say that both ofthese institutions were headed by members of the Crisis

23 Staff. The Prosecutor forgets the evidence that points to the fact that

24 there was a single telephone in that building.

25 Now, how did Hadzijusufovic make any conclusions when Celic

1 allegedly said to him that orders were coming from above? In the closing

2 arguments, we heard yet another interesting thesis in this respect from

3 the Prosecution, namely, that Tadic could, by way of his own authority,

4 issue orders tocoordinators of work obligation, that he had something to

5 do with sending workers to the separation and to build bunkers.

6 The Prosecutor refuses to read the statements of Vukovic and

7 Volasevic, that they were carrying telephone messages to Kapetanovic and

8 Celic and that Tadic could not give any orders to anyone. Your Honours,

9 please look at 14633.

10 As for building bunkers, they quote the Defence allegedly, that

11 they refer to Tubakovic and Ninkovic, whereas the Defence precisely

12 referred in paragraph 273 to the fact that Radovan Antic was in charge of

13 this particular work and that he was given this work force in the

14 secretariat forNational Defence. Please look at pages 16767 and 16770.

15 What is also forgotten is that all the evidence that was presented

16 and that relates to the parties that used the work brigade, this civilian

17 protection staff of Miroslav Tadic was certainly one of the beneficiaries

18 that needed, so to speak, people the least. And it was not for their

19 ownbenefit but for the benefit of the citizens of Samac.

20 Then the Prosecutor goes on to describe work obligation and what

21 various witnesses did, and he refers to the statements made by witnesses

22 that we've just mentioned. But there is no reference whatsoever to

23 Miroslav Tadic or his staff any longer. The same goes for the analysis of

24 forcedlabour and plundering in relation to Odzak. There is no reference

25 whatsoever to Tadic or his staff.

1 Then they only refer to the cleaning of streets, the cleaning of

2 houses, hard labour, in paragraph 245. And then in the footnote, they

3 mention all these witnesses that I mentioned a short while ago, not to go

4 through all of that again. Please look at all these statements, Your

5 Honours. Please look at these footnotes and see whether there's any

6 mention of Miroslav Tadic there whatsoever. Unless the Prosecution thinks

7 that Witness K, who mentioned a lady called Mara, nicknamed Brka, the one

8 with the moustache, is that who was meant, or was it Tadic who was meant?

9 Bozo Ninkovic apparently is not such a bad witness for the

10 Prosecution. It's not like they first treated him. They always refer to

11 him when they want to say something about my client. The Prosecution

12 refers to Ninkovic's statement in paragraph 248, that the representatives

13 of the civilianprotection directly spoke to officials that had to deal

14 with work obligation, Ninkovic was good for that, as far as they were

15 concerned. However, Bozo Ninkovic does not say that the civilian defence

16 had the authority to take workers without approval given by the

17 secretariat for NationalDefence and Valosevic explained that these workers

18 were under the Ministry of Defence and they had to address their request

19 to them, and I'm referring to the civilian protection staff.

20 However, taking these statements out of context and out of their

21 entirety, the Prosecution omitts those parts of Ninkovic's statement that

22 have to do with the following: That the Ministry of Defence was in charge

23 of work obligation. Please look at the transcript 13680. And that

24 Miroslav Tadic, or rather, his civilian defence staff, could not give any

25 orders to anyone. Please look at page 13549 yet again.

1 That is the kind of evaluation of evidence that is offered by the

2 Prosecution, according to the following principle: I take what suits me.

3 A witness lies a bit and then does not lie and then is a bit forgetful or,

4 on the other hand, has a good memory. And all of this is supposed to

5 serve their ultimate objective.

6 And finally, in relation to the claims made by the Prosecution

7 that has to do with shop lists. May I conclude by saying that the

8 Prosecutor, through an incompetent, tendentious statement made by

9 Hadzijusufovic, which I underline was contradictory to all other

10 statements, tried to portray in a completely different way work that was

11 conscientious,professional, and well done, such as making lists of shops

12 in May, and they constructed this to mean that this had to do with forced

13 labour and looting.

14 An important aspect of the work of Miroslav Tadic through the

15 civilian protection staff, which was not his protection staff, it was the

16 civilian protection for all citizens of Samac; the Prosecutor is trying to

17 discredit him yet again without wishing to accept clear evidence that they

18 did not challenge and that is that this civilian protection staff

19 wasengaged in doing one of the most useful jobs that could be done for the

20 citizens of Samac.

21 The Prosecution shoot themselves in the foot when they say that

22 Miroslav Tadic was the key man related to forced labour, when in paragraph

23 253 they say that they -- that Simo Zaric was involved. And they are

24 trying to involve Simo Zaric in forced labour as such, and this has to do

25 with aSnjezana Delic episode. If Tadic were such a powerful man, why

1 would he have to talk to Simo Zaric and ask him about this? If, according

2 to the Prosecution, Miroslav Tadic was the main person in charge of forced

3 labour, according to what logic espoused by the Prosecution would he have

4 toconvey to Simo Zaric this request made by Snjezana Delic? The

5 Prosecution invokes of testimony of Snjezana Delic and interprets things

6 that they did not even ask her about. In their construction, why did the

7 Prosecution not quote the statement of Delic and when she testified that

8 MiroslavTadic said that he was not the one who decided about that? The

9 Defence believes that the answer to this question is quite clear, quite

10 simply, this did not suit the Prosecution.

11 On the basis of everything I've said so far and which was

12 particularly emphasised in our final brief, the Defence claims that the

13 Prosecution did not offer a shred of evidence that can prove beyond a

14 reasonable doubt to the Trial Chamber that Miroslav Tadic was criminally

15 liable in any way,according to Article 7(1).

16 Your Honours, I wanted to speak about looting, but in view of the

17 time frame, I'm just going to say a few words. If the Court finds that

18 Miroslav Tadic has nothing to do with forced labour and looting under

19 quotation marks, if I can put it that way, then he is not certainly

20 culpable as far as this particular count is concerned either. I would

21 like to drawthe attention of the Trial Chamber to another thing, document

22 P88, whereby the Prosecution wants to link up the crisis -- the civilian

23 defence staff with the lists of shops, and this is supposed to be crown

24 evidence in terms of plundering. There is no reference to what the

25 civilian protectionstaff actually did. There is not a shred of evidence

1 that the civilian protection staff took part in the organisation of

2 establishing warehouses, and this is what the Prosecution claims.

3 Their key witness, Hadzijusufovic, their key witness for forced

4 labour, says that these goods were stored in Agrooprema, and this

5 document, P88, talks about two completely different warehouses, may I

6 remind you of that, one in Obudovac, one in Samac. And these are goods

7 that have to be taken out of a zone of war operations and this has nothing

8 to do whatsoever with what they are trying to say and they are trying to

9 link the civilian protection staff to that.

10 Your Honours, I'm now going to move on to a subject that we worked

11 on the most in our final brief. After all, I see that the Prosecutor has

12 devoted quite a few pages of their final brief to that subject and that is

13 deportation, forcible expulsions, and relocations.

14 It is obvious that this count in the indictment, in terms of how

15 the Prosecution sees the role of the commission for exchanges and the role

16 of Miroslav Tadic in this commission, is a particularly important part of

17 the indictment. This was the reason why during the proceedings we called

18 a significant number of witnesses to testify about exchanges. Why we

19 offered to the Trial Chamber such a large number of documents and other

20 evidence. Finally, this is why we decided to focus on that in our final

21 brief as well.

22 As for the definition of deportation, forcible relocation, and

23 expulsion, we gave our legal analysis in terms of the similarities and

24 dissimilarities in our final brief. So I'm not going to refer to that at

25 all.

1 However, I am going to say a few words about something that I

2 heard from the Prosecutor in their closing arguments, and I think that

3 this is contentious from the point of view of the Defence. Namely, I'm

4 referring to the thesis that all persons who were expelled from the

5 country were expelled primarily to Croatia, another state. The exchanges,

6 if they are indeed deportation acts, as the Prosecution claims, have a

7 special characteristic. These exchanges were carried out and negotiated

8 with commissions of the HVO, for the most part, also with Muslim

9 commissions and, up to a certain extent, with commissions of the Republic

10 of Croatia. This primarily refers to the detained Serbs, and you have

11 documents to that effect.

12 Almost all Prosecution witnesses confirmed that from the places

13 where the exchanges took place, primarily Dragalic and Lipovac, and we

14 heard about that, they went to Orasje for the most part. At first they

15 mentioned Odzak. Both of these towns were under HVO control. Therefore,

16 the final destination of these persons - I repeat, final destination - was

17 within Bosnia-Herzegovina, but it was under the control of different

18 authorities, another authority. Reference to this is made in the Krstic

19 and Naletilic cases. As for these facts, there is evidence proffered by

20 Osman Jasarevic, Jelena Kapetanovic, Esad Dagovic, Witness A.

21 In this connection, we challenge the claims made by the

22 Prosecution in paragraph 101, because all persons who were exchanged went

23 via Croatia, and all negotiations in relation to the victims from Samac

24 were with the HVO and we know that this is the Croatian community of the

25 Croatian Posavina.

1 Persons who went to the state of Croatia or via the state of

2 Croatia to third countries, in view of the form that was required by the

3 state of Croatia - please recall the letters of guarantee - had the status

4 of persons, citizens, who were going to visit someone, because it was only

5 on that condition that they could stay on Croatian territory, and we wrote

6 about this in detail in our final brief.

7 In our final brief, at the very outset, we presented the views of

8 Miroslav Tadic in relation to exchanges, and also his position as far as

9 exchanges were concerned, and I should like to focus on that now.

10 Miroslav Tadic was involved in exchanges after a large number of Serbs

11 were detained in the municipality of Odzak in May 1992. Several thousand

12 are mentioned in this context. Throughout this period, after that, he

13 worked on exchanges. Starting from October 1992, he became a member of

14 the municipal commission for exchanges.

15 The exchanges that he took part in were not unlawful or

16 involuntary. They were carried out on the basis of principles that were

17 applied and established by the International Red Cross. Exchanges as

18 carried out by the Samac commission were not a vehicle for persecution but

19 a vehicle for exercising free choice of individuals in terms of whether

20 they would stay or leave from a particular territory, whether they would

21 like to go to the territory that was under the control of the other side.

22 People who worked on the basis of such principles in these exchanges were

23 engaged in humane endeavours, with the objective of helping all,

24 irrespective of ethnic background.

25 Miroslav Tadic and the commission did not have the authority to

1 ask personally and to decide whether somebody could be exchanged or not.

2 Miroslav Tadic could not stop anyone through his own free will or coerce

3 anyone to go for an exchange. The commission for exchanges was not

4 receiving any instructions or was it involved in any plan or cooperation

5 for carrying out this final state of ethnic cleansing of the territory.

6 Written evidence was provided, as well as verbal testimony, that through

7 this commission, over 800 detainees and civilians left the municipality of

8 Samac and also that about 140 to 150 went through military commissions.

9 They were detainees who left Batkovic. But this was not under the Samac

10 commission.

11 As regards this count in the indictment, again we have to deal

12 with figures, because the indictment is based on figures. In paragraph

13 295, the Prosecution refers to statistical indicators, and also the report

14 of Mr. Robert Donia, then their demography experts. This is P133. And

15 the report of the Special Rapporteur of the United Nations, dated the 17th

16 of November, 1993.

17 However, what the Prosecutor forgot in his final brief is that by

18 way of evidence there is also the expert opinion of Professor Dr. Svetlana

19 Radovanovic. The Defence knows why. Therefore, I shall have to refer in

20 a few words to statistical expertise, although I wrote about it in detail

21 in our final brief.

22 The task of both experts, the expert of the Defence and of the

23 Prosecution, was to assist all of us, notably the Trial Chamber, to

24 establish whether, in the period of the indictment, there were ethnic

25 changes in the pattern of the population in the municipalities of Bosanski

1 Samac and Odzak.

2 What did the Prosecution offer the Trial Chamber through the

3 expert opinions of their own experts? Ewa Tabeau, for instance, an expert

4 for death rates, for mortality, for death rates, does not know that in the

5 census of 1991, the workers working abroad temporarily were also included.

6 It was only later that she stated that this was possible. She carries out

7 an analysis by comparing citizens and taking into account the different

8 areas covered by the municipality, the area covered before the war and

9 after the war. She includes whole villages, Muslim-populated villages in

10 although they were not in the municipality in 1991 - they were not living

11 there at that time - in order to increase the number of non-Serbs in the

12 municipality.

13 And yet, during cross-examination, when this let me say

14 manipulation was found out, she admits that she made a mistake and after

15 being ordered by the Trial Chamber, she inserts corrections into her work,

16 and excludes from her analysis about a third of the population of the

17 municipality of Samac and almost half of the Odzak population, adding that

18 they lived in divided settlements. Then she goes on and draws the final

19 conclusion, that ethnic cleansing was carried out of the municipalities of

20 Samac and Odzak Vukosavlje, ethnic cleansing, an extensive one, and she

21 goes as far as to say that this was the most extensive example of ethnic

22 cleansing, the most extensive instance of ethnic cleansing in the

23 territory of Bosnia-Herzegovina.

24 It took only several questions by laymen, the Defence counsel, to

25 show that her tables, Exhibit P133, shows the percentage of ethnic

1 cleansing of Serbs from Odzak as much higher, because as she shows, there

2 were only 0.48 per cent Serbs left there, as opposed to the 3.000 voters

3 that were there in 1991. In 1997, there were only 28 of those left.

4 However, according to the objective analysis by this expert, this

5 does not deserve to be labelled as ethnic cleansing, let alone extensive

6 ethnic cleansing. Her analysis was entitled "changes to the ethnic

7 make-up of the population," not changes to the ethnic make-up of the

8 Croats and Muslims. So much for her.

9 Svetlana Radovanovic, an expert for demographic analysis, a

10 Defence witness, drew a different conclusion. She concluded that there

11 were no reliable statistical data that could show with accuracy how the

12 ethnic make-up of the population was made, if we look at the same

13 territory before and after the Dayton Accords without singling out

14 settlements or rather at municipal level. The ethnic make-up of the

15 population in these areas is the same in 1997 as it was before the war,

16 according to her. She is a professor of demographic analysis, but she did

17 not think herself competent enough to announce ethnic cleansing. She

18 provided a very accurate and detailed analysis of the sources of

19 population censuses and the reports by OSCE, which she considers not as

20 reliable sources but rather as very flimsy sources. Both of these

21 experts, however, agreed on one thing: That if we employ statistical

22 methods, there is no way for us to ascertain how and to what extent the

23 structure, the ethnic make-up of the population changed in the period

24 between 1991 and 1993, which is an essential thing and which is key to

25 this criminal procedure, because we are, after all, acting before a

1 criminal court. If we leave these experts statisticians aside and leave

2 their findings in the drawers, although I do have several interesting

3 theses and observations connected with how people declared themselves in

4 terms of ethnic backgrounds. Once we do that, what do we have to do? We

5 have to rely on other testimonies, on the testimonies of other witnesses,

6 an issue we have also addressed in our final brief.

7 Having no other evidence of the change in the ethnic make-up in

8 Samac, the Prosecution has found a different solution by referring to

9 sections of the report of the Special Rapporteur which actually relate to

10 other parts of Republika Srpska and does not even mention the

11 municipalities of Samac and Odzak. We read in the Prosecution's trial

12 brief about some villages that no one in this case has ever heard of.

13 This is supposed to be a new method of criminal procedure called analogy.

14 One uses the report by the Special Rapporteur which is not a well-known

15 fact under Rule 94, dated 17th November, 1993. I would have liked the

16 Prosecution to clarify something about their final brief, because I

17 believe that this document, unlike the other two, was not tendered into

18 evidence during the trial, although it was tendered under Rule 94, as a

19 well-known fact. The Defence still believes that even if it is a

20 well-known fact, this document can only be tendered and admitted into

21 evidence during the trial itself, so as to be formally acknowledged by the

22 Trial Chamber. That's what the Rules say.

23 If the Prosecution failed to tender it into evidence during the

24 trial itself, during the evidentiary proceedings, I ask of the Trial

25 Chamber to disregard that document.

1 What did the Defence offer in terms of figures? A method often

2 employed by the Prosecution, talking about figures. When media covered

3 this trial, there was talk of extensive ethnic cleansing, which was a

4 quote from the indictment. Now we had this spectacular figure of 22.000

5 inhabitants of the Odzak municipality, and what's left of that now?

6 You've heard the evidence. They all left in an organised manner before

7 the Army of Republika Srpska even arrived in the territory. Eight

8 thousand inhabitants of Bosanski Samac never budged from where they were.

9 Those were mostly Croats and Muslims. Because they ended up in the other

10 entity, of the divided municipality. And both experts, the Prosecution

11 and our own expert agreed on this. 4.500 inhabitants of the Croat

12 villages left prior to the 17th and 18th of April and during those two

13 days, in 1992. We've had a number of witnesses testifying to this. I

14 will not now go on to mention their names, but they are in our trial

15 brief.

16 Stjepan Blazanovic evacuated about 250 men in early May. So much

17 for the figures. So much for the expert opinions.

18 The Prosecutor refers to a large number of testimonies of

19 witnesses who they asked whether, on the 17th of April, they wanted to

20 leave Samac, forgetting that many of those witnesses clearly said that

21 they had put their families away somewhere safe prior to the 17th of

22 April. The Prosecutor refuses to see that what we're talking about is a

23 rational fear, fear of war, fear of war operations. The Defence has

24 addressed this issue in detail in our final brief. We also emphasise that

25 a significant number of Serb families also left prior and during the war,

1 as mentioned by my colleague Pantelic yesterday.

2 The Prosecutor then refers to a number of witnesses who said they

3 had no intention of leaving Bosanski Samac but were forced to do so.

4 I think this may be a convenient time for a break, Your Honours.

5 JUDGE MUMBA: Yes. We shall take our break now.

6 --- Recess taken at 10.30 a.m.

7 --- On resuming at 11.00 a.m.

8 JUDGE MUMBA: Yes, Mr. Lukic, you're continuing.

9 MR. LUKIC: [Interpretation] I have a correction to make with

10 regard to the transcript. My colleague Pantelic suggested that instead of

11 the term ethnic make-up, we should be using the term "ethnic composition."

12 And on page 37, line 24 when I referred to Stjepan Blazanovic, I said "and

13 his sabotage group from Croatia." This was something not reflected in the

14 transcript.

15 I will pick up where I left off talking about the allegations of

16 the Prosecution.

17 The Prosecutor referred to several witnesses, saying that they had

18 no intention of leaving Samac but rather that they were forced to leave

19 Samac. The Prosecutor, however, refuses to quote witnesses who were free

20 to leave Bosanski Samac but didn't, who prior to the 17th of April, 1992,

21 lived in Samac and still live there. Although the Prosecutor wishes to

22 minimise their number, during this trial, we heard live testimony from a

23 number of those witnesses, which I will now not name individually.

24 In paragraph 300, the Prosecutor refers to testimonies regarding

25 the several ways to leave Samac. The Defence team has addressed this in

1 our final brief, and we invoke those facts with regard to the same

2 testimonies that were invoked by the Prosecution. However, the only thing

3 that the Prosecution considers important is to use this to prove their

4 allegation that those different ways to leave Samac only applied to

5 non-Serbs. The Prosecutor forgets the testimonies telling us that the

6 Serbs too were using their privately owned vehicles to put their families

7 away and take them to a safe place, that there was a huge convoy, a bus

8 convoy, of probably the same buses that were later used for the exchanges.

9 On those buses, there were many mixed families who left for Serbia in

10 mid-May. The Prosecution forgets that the Serbs too had to falsify

11 documents and authorisations to leave Samac. They should look at Zeljko

12 Volasevic's testimony to reassure themselves.

13 When the Prosecutor speaks about different ways to leave the

14 territory individually, they refer to the testimony of Witness E, who was

15 forbidden to leave town in the first days of war, but his wife and

16 children did leave. The Prosecution, however, refuses to refer to the

17 continuation of the same testimony by Witness E, the very next sentence.

18 In fact, where Witness E says that his Serb neighbour who was with him in

19 the car was also not allowed to pass through the checkpoint, and the

20 nationality of his neighbour was clearly pointed out. Please have a look

21 at page 7665 of the transcript.

22 And now for the exchanges. The Defence asserted that the legal

23 way, and I'm saying this without inverted commas, without quotation marks,

24 the legal way for persons who wanted to leave the Samac territory and

25 cross to the territory held by a different entity or state, the legal way

1 was a procedure called exchange. The Defence in their final brief

2 clarified why these exchanges were not at all for the violation of

3 fundamental human rights, but rather a tool for exercising those same

4 rights; not persecution, but rather humanitarian work. The Prosecution

5 seems to have a problem with that because they avoid addressing some key

6 issues raised by the Defence or rather address them very briefly only.

7 What they are left with are auxiliary methods. The first way they wish to

8 challenge the procedure of these exchanges was bribery and money that was

9 offered in order to be exchanged.

10 The first thing I would like to point out is that we analysed in

11 detail in our final brief, testimonies with regard to the charges of

12 bribery. As far as this issue is concerned, we are in the middle of a

13 criminal procedure and there is a need to compare testimonies for the

14 Trial Chamber, for the Court to be able to reach an unequivocal

15 conclusion. The Prosecution has already referred to witnesses analysed by

16 the Defence, but what we can say in a general way is that those witnesses

17 were mutually contradictory and exclusive, and mutually exclusive. The

18 only thing we can glean from those testimonies is rumour, hearsay, always

19 including a different detail discrediting their whole story, their whole

20 testimony. All the witnesses who referred to that particular

21 incident - I'm talking about the incident involving Sabah Seric - left

22 through an exchange, were exchanged and left Batkovici, without paying any

23 fee to anyone. Some of those witnesses left during the very first

24 exchanges, from Batkovici such as Witness C and Witness E, a month or two

25 after they arrived in Batkovici. All those who refer to the incident

1 described it in different ways, and in this multitude of details,

2 discrepancies became obvious during cross-examination.

3 Can we please go into private session for a moment, for the

4 benefit of protected witnesses and their identities.

5 JUDGE MUMBA: Yes.

6 [Private session]

7 (Redacted)

8 (Redacted)

9 (Redacted)

10 (Redacted)

11 (Redacted)

12 (Redacted)

13 (Redacted)

14 (Redacted)

15 (Redacted)

16 (Redacted)

17 [Open session]

18 MR. LUKIC: [Interpretation] Just a correction. This refers to

19 witnesses who are not protected witnesses, Hajrija Drljacic and

20 Hasan Subasic.

21 It appears, however, that these witnesses did not discuss details.

22 They all seemed to remember these details in a whole lot of different

23 ways, as to when exactly this happened, whose names were called out, and

24 how the whole thing developed. There is something unequivocal and

25 something that is not convenient for the Prosecution. There are exchange

1 lists showing that Sabah Seric was on one of those lists and there was a

2 clear procedure to leave Batkovici and to get approval to leave, of which

3 there is ample evidence on the part of the Defence and which the

4 Prosecution turns a blind eye to. There is also the testimony of

5 Makso Simeunovic, one of the favourite Defence witnesses in the eyes of

6 the Prosecution. There is the testimony of Grujicic, and now the question

7 I'm asking is: Did Tadic really have so much authority as to be able to

8 influence the Main Staff of the Army of Republika Srpska, the military

9 prosecutor, or any of the security bodies by merely taking from Seric one

10 or two hundred German marks and this is where a discrepancy occurs between

11 the testimonies.

12 How come that Hasan Subasic followed the testimony via the

13 Internet and claims that the event took place as both Witness M and Kemal

14 Mehinovic claimed in the course of 1993? These were testimonies in open

15 session. We all know beyond a shadow of a doubt, and I mean Sabah Seric,

16 that he left on the 24th of December, 1992. This has not been challenged.

17 We know because a witness said this in closed session, so Mr. Subasic,

18 when he was following the testimony on the Internet, was not in a position

19 to hear this.

20 Yesterday, we heard a new evidence. We don't know which witness

21 said it, in fact, so I would like to ask the Prosecutor to tell us who

22 said it, that Tadic received gold, jewellery, and other valuables. We

23 never heard a word mentioned about this during the trial. The Prosecutor

24 referred to Hajrija Drljacic, which is their main hearsay witness,

25 concerning everything that took place in the Samac municipality. Her

1 testimony concerning bribery is devoid of any significance except when it

2 comes to rumours, and I do not deny that. Her entire testimony involving

3 a large number of facts was based on secondhand information or hearsay.

4 She claimed herself that during her stay in Samac she heard nothing of

5 bribery but that she heard that later, after she was exchanged. However,

6 she claimed that bribery was an open secret.

7 What is something that cannot be denied is that none of the

8 witnesses who were in Batkovici ever claimed that they gave money to Tadic

9 then, and all of them later came to be exchanged.

10 The Defence did not deny rumours concerning offering of the

11 bribery. The Prosecution has no evidence to support this, and in their

12 final closing arguments, they are supporting this by rumours. The Defence

13 decided to mention the words of His Honour Judge Singh who was a member of

14 this Trial Chamber and who said during the trial: Are we go to have

15 evidence of rumours? This is a criminal court.

16 Another witness in this courtroom, when pressed by the Prosecutor

17 to confirm bribery, said: I cannot confirm that this man took money.

18 Rumours are rumours, and facts are facts. This was stated by Kemal Bobic,

19 the man who did not want to support even the testimony of his own wife,

20 precisely because of these rumours, and he gave an oath, a solemn

21 declaration, just like all other witnesses.

22 This entire story with rumours does have a logic of its own, and

23 the Defence sees it in quite a different story of Miroslav Tadic mentioned

24 during his testimony. When explaining his work in exchanges, he in one

25 emotional moment, I will call it, said as follows, and I will paraphrase

1 this: Everybody considered me to be guilty, or everybody blamed me, those

2 who had arrived, those whom I couldn't bring here, those who died and

3 didn't manage to come here, as well as those who were exchanged and got

4 killed afterwards. All of them blamed me.

5 Perhaps somebody would not make a link between these two stories.

6 However, the Defence is convinced that due to a dislike that some people

7 felt with respect to Miroslav Tadic, as well as with respect to all other

8 people who were involved in this great, important task, that this is what

9 caused these rumours about bribery.

10 I don't think that the Prosecution managed to prove anything

11 beyond reasonable doubt as to any link between Miroslav Tadic and the

12 bribery.

13 Now, as to whether residents were asked whether they wanted to be

14 exchanged, that's a different topic. The Prosecution said that some of

15 the witnesses never were asked whether they wanted to be exchanged or not,

16 but they were simply told to get ready. Witness A and Witness C, and

17 Delic Dragan. However, the Defence witnesses given by people who were

18 involved in exchange, as well as some witnesses of the Prosecution, stated

19 that all of the people had to state whether they wanted to cross over or

20 not at the exchange line. They were asked by the Red Cross

21 representatives whether they wanted to be exchanged, and this is something

22 that Dragan Lukac testified to, as did Witness M and Vasovic.

23 However, the Prosecution forgot to mention that witnesses who had

24 been sought by somebody else were asked whether they wanted to cross or

25 not. The Prosecutor referred to testimony of Dragan Delic, who said that

1 nobody asked him whether he wanted to be exchanged. However, they

2 neglected the testimony of his wife Snjezana, who said that she went to

3 the Red Cross several times and talked to Tadic, asking that her husband

4 be exchanged.

5 What is essentially important is what has been proven, which is

6 that a large number of these people had been sought by the other side,

7 somebody on the other side wanted them to come to the exchange line, where

8 they had to expressly state whether they wanted to cross or stay at home.

9 So the only thing needed was the permission from police and military

10 security organs during the time they were detained in Samac, and only upon

11 the permission being issued by these authorities and if these individuals

12 had been sought by other side, regardless of whether they had been sought

13 by families or not. Sometimes they were sought by authorities on the

14 other side. Therefore, only upon all of these conditions these people had

15 to state whether they wanted to be exchanged or not at the exchange line.

16 The Prosecution claims that Tadic was the architect of the

17 exchanges. We have to state once again that he was involved together with

18 other people between May and October 1992. Perhaps he was the most high

19 profile among them. However, he was not the one who made decisions, which

20 is the way the Prosecution depicts him. Tadic does not want to denigrate

21 his work in exchanges. He simply wants to put it in a factual framework.

22 The Prosecution wants to use typical constructions in order to deny this.

23 On page 46, line 1, I said that Tadic was the person --

24 perhaps -- the person who figured perhaps the most prominently in that.

25 MR. LAZAREVIC: Your Honours, we suggest that the use of term

1 "exposed."

2 JUDGE MUMBA: For which one? Because he said he was the most --

3 MR. LAZAREVIC: For Mr. -- For what -- for the term that Mr. Lukic

4 used here, instead of word "perhaps he was the most high profile among

5 them," on page 45, line 25, and page 46, line 1.

6 JUDGE MUMBA: Yes.

7 MR. LUKIC: [Interpretation] I thank my colleague Lazarevic.

8 When in their brief in footnote 831 the Prosecution refers to that

9 statement, they do not want the Trial Chamber to take into account the

10 continuation of that part of testimony of Mr. Tadic which pertains to the

11 fact that in October 1992 the formal decision on the commission for

12 exchange was made, why was a man who until that time was an informal

13 president of an unexisting commission, then why did he not then become its

14 president? And this is something that Todorovic and Jez were against, and

15 many witnesses confirmed that, especially the testimony of Witness DW1/3.

16 The written statement of that witness confirms that Tadic was replaced

17 because he pleased Croats too frequently.

18 The decision doesn't know why -- the Defence doesn't know why the

19 Prosecution claimed that Miroslav Tadic was generally responsible for

20 negotiations concerning the exchange of the citizens of Bosanski Samac and

21 the mechanism of that. All of the evidence in this trial points clearly

22 to the period of time and the level of his responsibility and competence

23 when it comes to negotiations. This can be clearly gleaned from the

24 notebook of the centre for information, which is a very clear evidence of

25 the content of the negotiations. It clearly stems from that, that then,

1 in 1992, Tadic could not make any decision because he did not have a

2 consent from relevant authorities.

3 Upon his appointment as member of the commission, the

4 communication between the Samac commission and other commissions,

5 especially that of the 1st Krajina Corps and East Bosnia Corps, which were

6 military commissions and pertained to prisoners which fell under the

7 jurisdiction of those military commissions, therefore, any communication

8 between them went through the president of the commission, which can be

9 gleaned from correspondence between Grujicic and Maslic, some four or five

10 documents that have been admitted into evidence and fully explained.

11 Wishing to raise their thesis on joint criminal enterprise to a

12 higher level, and especially that about persecution as well, the

13 Prosecution tries to show that there was a link there with respect to

14 exchanges and involvement of institutions. It is clear to the Defence

15 that there was a certain framework of that cooperation and evidence was

16 introduced to support this. We have already mentioned the procedure in

17 Batkovici. And in addition to that, we also claim that as long as people

18 were held in detention in Samac, certain institutions and exchanges were

19 linked only as a result of the fact that a conditional consent was

20 needed. It was not cooperation, as the Prosecution claims. It was not a

21 cooperation, because Tadic could not take anybody out of detention and

22 have that person exchanged without receiving prior to that a consent from

23 police, security organs, and later on from the military, General Staff,

24 military judiciary, and military prosecutor.

25 The only term to describe this would be that this was done upon

1 conditional consent. Todorovic testified about this; however, the

2 Prosecutor chose not to quote that. When asked explicitly by the Defence

3 counsel of Tadic, Todorovic stated that not a single person was taken out

4 by Miroslav Tadic without prior police consent.

5 The Defence doesn't understand why is it, if not wanting to make a

6 link between various institutions and exchanges, why does then the

7 Prosecution mention centre for social work and then calls that centre

8 Tadic's centre? Are they trying to increase the significance of the role

9 of Tadic? Are they speculating that Tadic had something to do with the

10 centre when in fact he did not? Nor did the centre have anything to do

11 with these exchanges. The facts speak to the contrary, and they are quite

12 accurate when describing how is it that this was place where people signed

13 up for exchanges.

14 Witness Maslic stated that the Red Cross received messages through

15 the International Red Cross and then sent it on to the families. This was

16 confirmed by Milka Petrovic, and there is also written correspondence to

17 prove this between -- written correspondence between local Red Cross

18 chapters within Republika Srpska and elsewhere. It is logical that this

19 is where people came to sign up in order to leave, but this is also a

20 place where people came to report that they wanted to leave during the

21 evacuation in May of 1992, as well as in following evacuations, which

22 unfortunately did not take place. This is something that Volasevic,

23 Tadic, and Vukovic testified about. It is clear that the job of the local

24 Red Cross was not only to have a list of people who wanted to be exchanged

25 but that this is where people came to get information concerning their

1 departure. Sveto Vasovic confirmed this in his testimony.

2 The Prosecution stated that Miroslav Tadic was the one who decided

3 who was to be exchanged, and once again, they are taking out of context

4 the testimony of Mrs. Snjezana Delic. In footnote 841, she, Snjezana

5 Delic, said that she went to sign up with the Red Cross in order to find

6 Tadic, who was in charge, and in order to convey her request to him.

7 However, in that part of the transcript, he -- she had previously stated

8 that she knew that the Red Cross was where people went to sign up for

9 exchanges and that she went to talk to Tadic, who told her that it wasn't

10 a problem for her and the children to leave, but, however, there was a

11 problem for her husband to leave. And on that page, she stated exactly

12 what Tadic had stated as to who decided on -- as to who decided on whether

13 her husband was going to be exchanged or not. She does mention some

14 Crisis Staff in Pelagicevo, and she is probably there referring to the

15 security organ of the brigade which was stationed, the 2nd Posavina

16 Brigade, which was stationed in Pelagicevo, and she also mentioned her

17 personal knowledge about Todorovic being in charge of that. However, this

18 is not a good ground for the Prosecution to conclude based on that that

19 Tadic was the one who decided on departure of civilians. She referred to

20 Hadzijusufovic and his conversation with Vasovic.

21 However, on page 14972, Vasovic described in detail the process of

22 citizens signing up themselves and giving their particulars and stating

23 that they wished to leave. The procedure was such that these people then

24 sent their request to the Red Cross and then the lists were sent on to

25 Mr. Mihajlovic, who was president of the local Red Cross chapter, and that

1 following that, the lists were taken elsewhere in order to get consent for

2 that.

3 What is essential concerning departure of individuals, I will say

4 civilians who reported to the local Red Cross, was stated by people who

5 were directly involved in those tasks, Maslic, Grujicic, Vasovic, and

6 Simeunovic, and I have to say, Witness DW1/3 is especially important

7 there, due to his credibility. The Prosecution doesn't mention this

8 witness frequently because it doesn't suit them, but this witness stated

9 that civilians went to the Red Cross to discuss their exchange, and if

10 military commissions were involved in the exchange, then civilian

11 commissions would frequently tell them that there was a need for civilians

12 also to cross over and that this was usually done on the day of the

13 exchange itself. Please take a look at page 14806 of the transcript.

14 The Defence agrees to a large extent with the evidence referred to

15 by the Prosecution which concerns the significant role of the police in

16 the exchanges. Why was police security detail needed is fully explained by

17 the episode of Witness A. This episode is also very relevant due to the

18 fact that it describes the relationship between Tadic and Todorovic and

19 his people. I've mentioned this episode yesterday as well.

20 As for the significance and the role of the police in terms of

21 exchanges, the Defence refer to this in their final brief. The

22 Prosecution does refer to Todorovic, though, and he said that he was only

23 asked about the release of smaller groups and that actually it was the

24 Crisis Staff that decided about larger groups of prisoners and also

25 important detainees.

1 He, Todorovic, like in most of his testimony, tried to diminish

2 his own importance in this way. Mr. Pantelic referred to this, and I draw

3 your attention to that.

4 However, as opposed to Todorovic, Svetozar Vasovic has no reason

5 to lie or to heighten or lessen Todorovic's importance. He said quite

6 clearly who was God almighty in Samac and that he, Vasovic, communicated

7 exclusively with this God almighty as far as exchanges were concerned.

8 This statement of Vasovic's coincides with the statements of all persons

9 who could have had some knowledge about how approval was given for

10 exchanges.

11 Witness Vasovic and D156/3 both corroborate that.

12 The only evidence on the basis of which the Prosecution wishes to

13 draw Tadic into higher regional and state structures who are in charge of

14 exchanges are the request to leave and for the members of the commission

15 to move about, which was signed by Slobodan Markovic. Tadic is not even on

16 that list, but Grujicic said later that he got this permit, too. However,

17 this document only corroborates the thesis of the Defence that military

18 negotiators and representatives of the civilian commissions went together

19 to negotiations because these negotiations were are dangerous physically,

20 as they entailed movement through territory where there were war

21 operations going on. How does the Prosecution come to the conclusion that

22 Maslic was the formal president of the commission and that Tadic was the

23 most important member of the commission, even after October 1992? The

24 Prosecution refers to the period before the 2nd of October and the

25 testimony of DW1/3 is something that we quoted only a few minutes, and the

1 Prosecution did not actually quote this witness.

2 In its final brief, the Defence spoke about the activities of Tadic

3 that were quite contrary to this trade that the Prosecution referred to.

4 The Prosecution referred to cannon fodder, livestock trade, something to

5 that effect. However, the exchange of Witnesses A and Q is telling

6 evidence of this. Please look at all the lists of exchanges and you will

7 see how many persons, Witness A was exchanged for and how many persons

8 Witness Q was exchanged for.

9 In footnote 913, the Prosecution refers to the status of detainees

10 on the basis of the Mazowiecki report. However, the status of prisoners

11 is precisely stipulated in documents of the International Red Cross. In

12 193/3,the International Red Cross states that a prisoner is, in relation

13 to exchanges, a very specific category of people, and this same is

14 referred to by the creators of the Dayton Agreement, Article 9, annex

15 1(a), paragraph 1. Also, the document of the ICRC dated the 24th of

16 March, 1993, Prosecution Exhibit 179, refers to the same thing. This is

17 an agreement concluded between the warring parties on the 1st of October,

18 1992, and this was done under the auspices of the ICRC.

19 The same standards were applied when referring to detainees in

20 terms of their release. But the term "mutual release" or "exchange" is

21 used as well. The thesis of the Prosecution that in some documents the

22 word "release" is referred to and that this is only the release of

23 prisoners rather than exchange is also contrary to the written evidence,

24 even that supplied by the Prosecution, because exchanges are referred to

25 in that context as well.

1 Also the term "mutual release" is nothing but exchange.

2 The Defence believes that this kind of definition of the term

3 "prisoner" was more broadly interpreted than in the Geneva Conventions

4 and this was motivated precisely by humane reasons, so that status would

5 not have these persons detained longer than necessary, and the proceedings

6 involved were supposed to be brought to an end as quickly and as simply as

7 possible. So it was again this humane endeavour that the commission was

8 engaged in. The Defence, on the basis of all evidence presented, sees the

9 acts of the Samac commission to be fully in line with these documents.

10 The claim made about the cooperation between the military and

11 civilian commissions is quite unfounded. The Prosecution says that they

12 just geographically cover different regions. Again, this is a

13 construction. What is essential is that as regards the prisoners from

14 Batkovic, consent was given by the highest military, judicial, and

15 security organs, and they gave this consent to military commissions only.

16 This is referred to in documents D167/3, D170/3, D172/3, D173/3, D174/3.

17 Also, this was testified to by the key persons involved in this, Maslic,

18 Grujicic, Simeunovic, Witness DW1/3 as well.

19 As for the document on the appointment of Mr. Grujicic as

20 president of the commission, this was signed by General Talic, the Defence

21 claims, and this is based on the testimony that the military commissions

22 significantly assisted civilian commissions, and this is referred to in

23 document D180/3as well. But please take a careful look at document

24 D181/3, the letter that Grujicic sent to the International Red Cross.

25 This also says that what is requested is to establish a corridor for the

1 free flow of the civilian population. This document was written in June

2 1993. There were so many problems involved, due to war operations, and

3 everybody wanted to have this established.

4 Prosecution claims that Tadic often went to Batkovic. Tadic never

5 denied that he had been to Batkovic a few times. Now, whether this

6 happened often or a few times, it is for you to judge, Your Honours. Count

7 how many times this happened between December 1992 and June 1993, and also

8 he did not take part in some of this at all, and this was testified to by

9 witnesses. The Defence stated clear-cut reasons that fully contest what

10 was said about receiving bribes. However, what is shocking in the final

11 brief is linking up the testimony of Grujicic that had to do with fuel and

12 why Tadic paid for this fuel. My judicial opinion is that such

13 constructions do not belong in criminal proceedings, and therefore, I am

14 not going to make an effort to enter a polemic with this.

15 Perhaps we can see how Tadic did make every effort for Witness A

16 to be exchanged, and he opposed those hoodlums of Todorovic's. And the

17 Prosecution constructed that Tadic had an interest to have the exchange

18 carried out because there was money involved on his part.

19 When challenging the positions of the Defence that have to do with

20 exchanges, the Prosecution minimalises the Defence thesis. The

21 Prosecution claims that only some persons were asked as to whether they

22 wanted to be exchanged or not. The evidence states otherwise. Everybody

23 stated their views as to whether they wanted to be exchanged or not. This

24 was testified to by those who organised exchanges and those who were

25 actually exchanged.

1 Even Witness Hadzijusufovic, such a highly contentious witness,

2 had to say that he had to state whether he wanted to be exchanged or not

3 in the presence of UNPROFOR representatives. Also the testimony of

4 Witness DW8/3 says that he did not say whether he wanted to be exchanged

5 or not at the actual line, but that Tadic said that he should remain on

6 the bus. Had they analysed - "they," the Prosecution - everything that

7 took place on the 29th of January, 1993, in Lipovac, they would have seen

8 why this was done, because all the witnesses said that this was a rather

9 special exchange because the representatives were not allowed to be

10 present in the UNPROFOR tent when the persons involved were actually

11 stating their views. Tadic, simply fearful of what would happen, he said

12 to the man who wanted to be exchanged: Just stay behind. And then he

13 worked this out with the negotiators of the opposing side, without any

14 problem whatsoever. So that is what the Prosecution does when they take

15 things out of context.

16 The Defence is perplexed by what the Prosecutor said in his final

17 arguments. We have the impression that they are challenging what the

18 Defence proved, that people were stating whether they wanted to be

19 exchanged or not at the actual line of exchange and that on the other side

20 they would say that they did not want to cross over. The Defence

21 understands that these facts are disastrous for the Prosecution

22 themselves, that they undermine their entire thesis about the exchanges as

23 a vehicle for persecution, but we do not understand the arguments

24 presented by the Prosecution, because both in the final brief and in the

25 arguments, the Prosecution said that citizens after all did state their

1 views at the exchange itself.

2 Now, this is supposed to prove that Mladen Borbeli did not

3 categorically state to the opposite side that they -- that he did not want

4 to cross over, because he had to put it so categorically in order for the

5 Prosecution to attach appropriate weight to it. But then why didn't the

6 Prosecutor ask Witness Borbeli here in the courtroom, "why did you state

7 this categorically?"

8 Witness DW2/3 testified about how persistently the other side was

9 seeking him and how much he had beseeched Tadic not to have him appear at

10 the exchange line knowing that if he were to oppose crossing over to the

11 other side he could create problems for himself being a reserve officer,

12 and at that time his family. His family was already on the other side.

13 This testimony is something that does not affect the Prosecutor.

14 It doesn't mean a thing to the Prosecutor. Why doesn't the Prosecutor

15 look at paragraph 11 of the 92 bis statement of Avdo Arslanovic? This is

16 D123/3, who described how he was taken to the separation line in order to

17 convince his own relative that he did not want to leave Samac. And do you

18 know what happened to this Arslanovic, Mr. Prosecutor? Read his

19 statement. You accepted this statement. You did not want to

20 cross-examine him. You did not want to call him. You did not challenge

21 anything at that point. This Arslanovic, had he come to testify here, to

22 you, he would have told you that he lives in Samac, that he stayed in

23 Samac, that he lives in Samac until the present day, and he would have

24 told you about all the things that Tadic did for him and his family, this

25 inhumane Miroslav Tadic.

1 I don't have to specifically state the person concerned is a

2 Muslim.

3 Your Honours, please take a look at document D102/3, and the

4 Prosecution may do so as well. These are minutes on the talks that were

5 held in Gradacac between the Muslim and the Serb commission, and the

6 members of the families who were stating their views there as to whether

7 they wanted to be reunited with their families or not.

8 JUDGE MUMBA: Mr. Lukic, if I may remind you, your time is up,

9 unless you would like to use your one hour.

10 MR. LUKIC: [Interpretation] I shall really make an effort to speed

11 up now. I will have to take time off that additional hour, then, and I'm

12 going to see what the Prosecution is going to say to me and then I will

13 see what I'll say in rebuttal and Mr. Pantelic tells me perhaps he'll give

14 me a minute or two.

15 The Prosecution invoked the Krnojelac judgement with regard to

16 force, and this is not contested. This is part of the Statute of the

17 International Criminal Court. However, from this same Krnojelac

18 judgement, the Prosecution did not want to read a very interesting

19 position put by the Trial Chamber and is only a few paragraphs after the

20 one they quoted. What is said there: "There is general evidence that

21 detainees wanted to be exchanged and that those selected for so-called

22 exchanges freely exercised their choice to go and that they did not have

23 to be forced. The Trial Chamber is not satisfied that the displacement of

24 these individuals from Foca necessarily involved in the choice," their

25 choice is something I underline, "was involuntary." This is paragraph 483

1 of the Krnojelac judgement. It has to do with the camp in Foca.

2 Now, who was this who did not want to be exchanged from Samac?

3 Your Honours, the Prosecution suggested to you that you put yourselves in

4 the position of Snjezana Delic. This should certainly be done, but not in

5 a one-sided manner. That, after all, is the mandate of this Trial

6 Chamber, to evaluate all the evidence presented and to pass judgement.

7 The Trial Chamber cannot only pass judgement by accepting what a witness

8 said. The Court is going to evaluate this in the context of other

9 evidence and other feelings. Your Honours, in the same way, you should

10 put yourselves in the position of Dario Radic, who was arrested, who was

11 detained, whose father was detained. Put yourself in the position of

12 DW8/3, who was present when Todorovic killed Antesa in the SUP. What they

13 went through and why they stayed behind.

14 Finally, put yourselves in the position of Miroslav Tadic. Just a

15 moment, please.

16 I said Witness DW8/3, who was present in the SUP building when

17 Todorovic killed Antesa.

18 Finally, put yourselves in the skin of Miroslav Tadic. His

19 colleague, Snjezana Delic, asked her -- asked him to help her concerning

20 the exchange for her two children and her husband, who had been Tadic's

21 student and Tadic could not help her. This is one of the images from this

22 trial, this case, that you have to look at and evaluate when judging the

23 merits of the case. It is only in that way that you can comprehensively

24 look at the entirety of all of this. I'm just going to say a few more

25 words about the International Red Cross and Miroslav Tadic and their

1 relations.

2 The Prosecution overrates the far-sightedness of Tadic's Defence

3 as concerns the decision by the Court related to the International

4 Committee of the Red Cross. Miroslav Tadic had a great interest in

5 clarifying the role of the International Red Cross as concerns facts

6 relevant for his Defence. Tadic testified on a number of occasions about

7 his relationship with the International Red Cross. These interviews were

8 released in 1998 and the Trial Chamber passed its decision as concerns the

9 International Red Cross in 1999. Do you really believe we are so

10 far-sighted as to know that the Trial Chamber would have a ruling on the

11 International Red Cross and then continue to make constructions as the

12 Prosecutor claims? Everything in this case testifies to that. The

13 Prosecution even at that point could have offered proof of this visit to

14 the International Red Cross at that point even, but they didn't.

15 The Samac committee, through the evidence invoked by the

16 Prosecution and by the Defence, acted in keeping with instructions by the

17 International Red Cross, although these instructions, as we have seen,

18 were issued in spring 1993. What most worried the Prosecution during the

19 trial is the fact that all the negative occurrences referred to in the

20 report by the Special Rapporteur emphasising the lack of free will and the

21 exercise of free choice, the use of coercion and the impossibility to

22 exercise their rights, this has nothing to do with the work of the

23 commission for the exchanges in Samac.

24 Your Honours, have you ever heard during this trial that someone

25 made anyone else to force a statement that they did not wish it to return?

1 Did anyone chase a person across a minefield during an exchange? Did

2 anyone disappear while being exchanged? Was anyone killed while being

3 exchanged? Was there an exchange on the line of fire, in the line of

4 confrontation, except the one that took place on the 26th of May, 1992, in

5 Zasavica? Were the citizens made to produce any proof that they had

6 complied with their duties? All of this did take place in

7 Bosnia-Herzegovina, according to the report by the Special Rapporteur, but

8 he does not ever refer to Samac. During this trial, we never had a shred

9 of evidence to this effect. Those were the so-called exchanges, whereas

10 these were exchanges that were carried out in keeping with the rules of

11 the International Red Cross.

12 Did the Special Rapporteur ever refer to Samac, Odzak, or Gradacac

13 or the members of the local commissions? The towns in which Serbs,

14 Muslims and Croats alike, members of the civilian commissions and military

15 commissions worked on a selfless task with a lot of self-sacrifice and all

16 were working in the same manner and along the same -- and on the same

17 principles. That's what all these documents -- documents in this case are

18 talking about. That's what we addressed in our opening argument and all

19 these people speak about Miroslav Tadic.

20 The Prosecutor is placing all of these people in the same position

21 as Miroslav Tadic. The Prosecution wishes to say that such exchanges in

22 their formal definition of ethnic separation by the use of force, that

23 such exchanges were supposed to be a vehicle of ethnic cleansing. If it

24 were up to the Prosecution, they would like to forbid anyone to leave

25 their homes during war in order to keep people from calling this an

1 exercise in ethnic cleansing. That must by all means be prevented. But

2 the word that those people actually carried out would not only be valid by

3 the Prosecution. Where are the people who worked on the exchanges

4 according to the same principles that Miroslav Tadic applied? Safet

5 Kikic, you have him on the recording. He is a public prosecutor, a

6 representative for the Muslim commission. Mijo Matanovic, another person

7 to be shown on the recording. He is the president of the canton assembly

8 of the regional assembly. Grujicic writes books, if anyone cares to read

9 them, and he says in his books wherever they were people who were detained

10 or who had been killed, members of the commission were there too.

11 Amor Masovic, then president of the Federation commission, got an

12 award for the humanitarian worker of the year. Ivan Grujic, today's

13 president of the Croatian commission for missing persons, worked on the

14 exchanges back then, and he still is working on the same tasks.

15 Rodoljub Trkulja, who is referred to in the document of the 1st Krajina

16 Corps, a minister in the government of Republika Srpska.

17 However, the Prosecution thought of Miroslav Tadic of all people,

18 who worked according to the same set of principles as all the other people

19 during the exchanges, all the other people that I've referred to, in order

20 to use him to prove their allegation about the exchanges as a vehicle for

21 persecution. And this is what is so absurd about the accusations related

22 to these exchanges and about the participation in them.

23 The Prosecution cites the example of the exchange that took place

24 on the 4th of September, 1992, and Miroslav Tadic, allowing the women,

25 children, and elderly people who the Prosecutor claims are civilians, and

1 they were, to board the buses on the playground outside the school

2 building. They were followed all the way to Dragalici, and he was

3 responsible, allegedly, because in Dragalic, before the representatives of

4 the International Red Cross, he made it possible for them to say whether

5 they wished to go or to say. He is to blame, they say that Snjezana and

6 Dragan Delic with their two children had to sit on the bus and remain

7 there, and he is to blame that Mladen Borbeli said to the representatives

8 of the International Red Cross that he did not wish to go.

9 Just a note to the interpreters. I am now moving on to page 37,

10 the last passage in that page. The Prosecution is fully aware that the

11 existence of real choice of freedom of choice as to if someone wanted to

12 leave or to stay is the key to the issue of deportation or forced

13 resettlement. That's why I address this question in my final brief. The

14 Defence claims that the choice was there and it was real. It was an

15 option that was offered and it was not a threat or a menace. The fact is

16 that at the time when the persons were making their choice as to whether

17 they wished to stay, leave the prison and cross over to the other side or

18 return to their homes was a real choice that they were given. This is

19 something the Trial Chamber must judge in a truthful light and according

20 to objective criteria.

21 I will now speak again about something that I spoke in our final

22 brief, and this is something that's also common in the fourth Geneva

23 Convention provided by its very creators. The conference especially had

24 in mind the protection of persons belonging to ethnic or political

25 minorities and subject to discrimination or persecution, and therefore

1 perhaps wishing to leave the country. In order to make it possible for

2 them to exercise this legitimate desire, the conference has decided to

3 implicitly approve voluntary resettlement and to only ban forced

4 resettlement or settlement by force. The whole key of this trial,

5 referring to these changes, is whether those who took part in the

6 exchanges through the commission for the exchanges were legitimately

7 exercising their right or desire to leave the area. The motives were

8 plenty: Fear of war, reuniting families, even the desire to fight for the

9 opposite side, of course. But it was made possible for all of them to

10 exercise their legitimate desire and right to choose whether they would

11 stay or leave.

12 Can we please run, briefly, the video, P33, which I have prepared

13 for the Honourable Trial Chamber. I've also prepared a transcript of this

14 interview so the Trial Chamber can follow the video. You have this in the

15 documents. I've also provided a copy for the interpreters. The document

16 is 103A/3. Your Honours, you will hear two brief excerpts from statements

17 provided by persons who were exchanged, a Serb woman and a Croat prisoner.

18 [Videotape played]

19 THE INTERPRETER: [Voiceover] "My son moved to Belgrade in 1975 and

20 he is working in the Military Medical Academy, and his wife, my

21 daughter-in-law, and his son is working with the army as well.

22 "Inaudible.

23 "It's four years now since my husband died, and I am all alone.

24 "You have nobody.

25 "No, nobody, just me. The children are living on their own, one

1 in Bosnia, and the other in Belgrade.

2 "Inaudible. Two daughters and all my family.

3 "What was your life like in Croatia up to now?

4 "As far as I'm concerned it's okay, but you see, son, what shall

5 I do if I get sick tomorrow, I have nobody to support me and my children

6 are not allowed to come. If I kick the bucket, nobody will dare to come.

7 Now I have applied for the exchange. I will go and join my children.

8 What else can I do?"

9 MR. LUKIC: [Interpretation] Thank you. Can we have the other

10 interview, now, please. Can we run the other video now, please.

11 [Videotape played]

12 THE INTERPRETER: [Voiceover] "So I can hardly complain.

13 "And tell me also where are you intending to go now?

14 "I want to find my family. I have received a message from the Red

15 Cross that the family is in Osijek. So my primary concern is to find my

16 family. As to other things, I don't know.

17 "And then you will probably take a gun again.

18 "I cannot say. This is something I do not decide about.

19 "And would you like that this war comes to an end and the killing

20 stop.

21 "I would by all means like all these evens to stop and that I

22 never have to take the gun again in my hands."

23 MR. LUKIC: [Interpretation] We heard this from the Prosecution day

24 before yesterday. The Exchange Commissions were separating families. The

25 name of this woman is Danica Blagojevic. Her name was very difficult to

1 make out. Her name might as well have been Marija or Mirsada. She could

2 have been a Croat. She could have been a Muslim.

3 She said: "if I kick the bucket, there is no one to come and see

4 me." And the young man who was released from prison, you will see the

5 whole transcript. He had been kept in prison for a year and a half.

6 Where is he going? He said: "I'm going to find my family." How, was the

7 question. Through an exchange. So much for reuniting families. Even

8 now the Defence points out, while remaining in their position from the

9 final brief, is that the exchanges that took place through the Samac

10 commission were humanitarian work and all those who wished to leave could

11 exercise their right to leave in a safe and legal way.

12 If the Prosecution is unable to accept the fact that Defence

13 witnesses who talked about Tadic kept using the word "humanitarian" and

14 the Prosecution in their cynicism quoted this in inverted commas. May I

15 remind them then what one of their own key witnesses said of Tadic, page

16 11696, "I want to greet him on this occasion." The only Prosecution

17 witness greeting one of the accused. Page 11746.

18 [In English] "I greeted him" -- [Interpretation] "I greeted him

19 sincerely because in that" -- [In English] "some humaneness towards me."

20 [Interpretation] Let us please now go to page 11774. [In English]

21 "Gratitude to him and I can report that again because of his humaneness

22 towards me."

23 All those present in the courtroom know full well who was the man

24 who stated this. When I look at his words, I think he's the most reliable

25 character witness for Miroslav Tadic. This witness, in relation to his

1 own profession, can he be viewed as incompetent to judge someone's

2 humanity or someone's humaneness? I'll leave this up to the Prosecution

3 are. Let them be the judge of this. You know who the witness was who

4 stated this.

5 I must talk about sentencing now, and I must say several words

6 about the Prosecution's sentencing recommendation. They say that the most

7 incriminating circumstance is the voluntary factor with the accused in

8 taking part in the persecutions as well as in the period in which they all

9 carried out the actions as charged. But one cannot prove in the case of

10 Markla [phoen] the mens rea, which is a necessary element of the act. An

11 act does not exist without voluntary action involved which means that it

12 cannot be taken as an aggravating circumstance. If you look at the period

13 relevant to the indictment, then you must draw particular attention to the

14 period in which the person was occupying a certain position, the person

15 indicted was occupying a certain position. The period relative to the

16 indictment is long and we must accused involved in the separate periods

17 during this whole period relevant to the indictment.

18 The Prosecution claims that Miroslav Tadic was a key member of the

19 Crisis Staff. The evidence says differently. He became a member of the

20 Crisis Staff on the 23rd of April, 1992, and prior to that he had nothing

21 to do with any authorities or politics. He remained a member of the

22 Crisis Staff until July 1992, and when the War Presidency came into

23 existence, he ceased being a member. Even during that period, he did not

24 come to the meetings very often, and he did not attend a single meeting

25 that the Prosecution refers to as crucial, the one concerning Djurdjevic's

1 appointment or the meeting with representatives of the military

2 authorities concerning a signing of the document of the 13th signatories.

3 The Prosecution's view on the lack of cooperation was addressed by

4 the Defence in our final brief. Here we shall speak about the degree of

5 cooperation necessary for cooperating with the Tribunal, which is what

6 they said the other day. This is not in the Rules. The Rules only speak

7 about cooperation with the Office of the Prosecutor. And this is the kind

8 of cooperation that we addressed in our final brief. Cooperation with the

9 Tribunal, in our view, can only be related to assisting the Court and the

10 economic nature of the trial itself, and that is what Tadic testified to,

11 if you just think back to that. The admission of that is very essential

12 as concerns cooperation with the Tribunal, but what the Rules actually

13 state is cooperation with the Prosecutor.

14 As for what the Prosecutor claims in his final brief and in the

15 closing arguments, they did nothing but admit that Tadic's cooperation was

16 significant and considerable, because they do refer to his cooperation and

17 to the interviews which he granted them. Both the quality and the

18 quantity of this cooperation were essential and considerable. They keep

19 referring to that and they keep quoting Tadic in that respect. The fact

20 that he surrendered only 16 months after the indictment was published, we

21 shall not speak about that, because the Trial Chamber has already

22 evaluated these facts in their judgement of Milan Simic. They both

23 surrendered on two consecutive days. But for the sake of the transcript,

24 we wish to state the following: Miroslav Tadic, I'm deeply convinced, was

25 the first accused to actually phone the Prosecutor and to agree to be

1 interviewed by phone.

2 Now, am I correct in stating this? I don't know. I'm not seeking

3 an answer from the Prosecution, but what I would like to ask them to do is

4 to look again at their views when they state that he offered no

5 cooperation whatsoever.

6 I will just say a couple of words concerning Tadic's character.

7 This goes I think to his mens rea, and I did address this in my final

8 brief, but I must say something for the sake of myself and for the sake of

9 Mr. Tadic now. I've spent years sitting with him in the Detention Unit

10 working on this case, speaking about the tragedy that he went through

11 after the death of his parents. He never referred to this. He never even

12 told me. It was some other people who told me. When I asked him if he

13 wished to refer this to the Trial Chamber, I was aware of the effect that

14 this might have with the Judges and with the Prosecution. He didn't give

15 me an answer. I was aware that the whole story of his family, of him

16 socialising with Croats, would show him as a highly moral person, and I

17 saw his reaction after he was asked the question by Judge Williams. And

18 it was then that together with Tadic I understood in this courtroom that

19 he proved to be exactly the man that I believed him to be, and that's why

20 he's fully entitled to say, proudly so, that 40 members of his family,

21 different members of his family, are in mixed marriages, that his daughter

22 was married to a Croat, that he has two grandchildren from that marriage

23 and that he was friends with Vinko Dragic's grandfather, who was an

24 Ustasha.

25 How come then the Prosecution numbered several Croats and Muslims

1 who were held by Tadic during the war cynically forgetting the number of

2 those who had been expelled? I will use technical numbers; 31 Croats and

3 Muslims testifying for the Prosecution. They testified against all of the

4 accused. I said 31.

5 They testified against the four accused. 12 Muslims and Croats

6 testified for Miroslav Tadic, out of which -- which were not great friends

7 with him before the war, as you have heard. Some of them were just

8 acquaintances. And I, as Defence counsel, considered it an honour that

9 they agreed to come here and testify before this Trial Chamber. Five of

10 them, I think, spent time in a camp.

11 Are these isolated individual cases with which Tadic -- or against

12 whom Tadic concealed his joint criminal enterprise? Would the help

13 provided to Salkic considered his son's concealment be considered

14 something to support this? He also helped Arslanovic when his wife's

15 funeral had to be organised, he also brought personal belongings to

16 Krajnovic, Mihalj, he gave wood to a Muslim, old Muslim lady, wood from

17 the warehouse of the civilian protection staff.

18 I will now bring my closing arguments to a close, and I will just

19 say a few words concerning the sentence proposed by the Prosecution.

20 The Prosecution basically proposed a life sentence for Miroslav

21 Tadic. Yes, you have heard me well. Perhaps they did not wish to

22 explicitly say so, that in their opinion, Miroslav Tadic could, at the age

23 of 87, fit completely in his environment upon his release from prison.

24 Perhaps they counted on him behaving himself well in prison and therefore

25 being released at the age of 80. Perhaps they believed that his poor

1 health would improve in prison and that this would fulfil the objective of

2 sentencing.

3 When according to what Prosecution proposed, Miroslav Tadic leaves

4 the prison, Stevan Todorovic, somebody who repented before this Court,

5 would already be free for 15 years, fully rehabilitated and socialising

6 with Muslims and Croats. In this way, the international community would

7 protect itself from those people who wanted to help somebody; however,

8 this was seen by someone as being a crime.

9 Thank you.

10 JUDGE MUMBA: Thank you, Mr. Lukic.

11 Mr. Pisarevic. We have about 15 minutes before our break. I'm

12 wondering whether you would like to start now or we take an early break.

13 MR. PISAREVIC: [Interpretation] Your Honours, I would rather have

14 our break now.

15 JUDGE MUMBA: We'll take our break now and continue our

16 proceedings at 12.35.

17 --- Recess taken at 12.15 p.m.

18 --- On resuming at 12.35 p.m.

19 JUDGE MUMBA: Yes, Mr. Pisarevic. You'll start.

20 MR. PISAREVIC: [Interpretation] Good afternoon, Your Honours.

21 The Defence of Mr. Zaric is aware of the fact that before us, the

22 Defence of Mr. Blagoje Simic and that of Mr. Miroslav Tadic gave their

23 closing arguments. Much has been stated in their closing arguments of

24 those things that the Defence of Mr. Zaric wanted to point out as well, in

25 view of the fact that we fully support the position of the Defence of

1 Mr. Simic and Mr. Tadic when it comes to the legal analysis of the

2 jurisprudence of the joint criminal enterprise, we therefore support what

3 has been stated by the other Defence counsel.

4 The Defence of Mr. Zaric stands by what has been stated in our

5 final brief, and during our closing arguments, we will devote most of our

6 attention to responding to Prosecutor's final brief and their closing

7 arguments.

8 Further on, the Defence of Mr. Zaric believes that all of the

9 facts stated in our opening speech were proven by us before this Trial

10 Chamber by way of bringing a large number of witnesses who testified as

11 Defence witnesses for Mr. Zaric.

12 The Defence of Mr. Zaric further considers that the existence of

13 joint criminal enterprise has not been proven beyond reasonable doubt

14 during the trial, especially not at the level of Bosanski Samac

15 municipality. However, even if the Trial Chamber accepts that there was a

16 joint criminal enterprise, even if the Chamber believes that it has been

17 proven, then Simo Zaric definitely was not the person who participated in

18 that kind of enterprise in any way.

19 Even though we support the positions taken by the Defence of

20 Mr. Simic and Mr. Tadic, the Defence of Mr. Zaric believes it necessary to

21 point out some of the aspects contained in the definition of the joint

22 criminal enterprise in accordance with the accepted jurisprudence of the

23 Tribunal. Based on the definition that this Tribunal gave to the joint

24 criminal enterprise in the appeals judgement in Tadic case, which is

25 something that the Prosecution also referred to, both in their final brief

1 and in their closing arguments, it is clear that joint criminal enterprise

2 could be split into three groups, and that mens rea of participants

3 differs based on which group we are talking about.

4 The first group of joint criminal enterprise is the one in which

5 participants act in accordance with the joint goal and where participants

6 have the same kind of criminal intent. The other group is composed of

7 those cases in which participants are personally aware of the fact that

8 there exists a system of abuse and where participants intend to contribute

9 to the joint system of abuse. The third group is composed of those cases

10 where there is a joint intent to follow a certain type of conduct but

11 where an act was committed which, although it falls outside of the

12 criminal intent, still represents a natural and foreseeable consequence of

13 that joint goal.

14 This position reflects two main characteristics of the ways one

15 can participate in committing a crime against humanity, which is a state

16 of mind or awareness on joint acting within an existing agreement, as well

17 as participation in the perpetration of an act which is either included in

18 the agreement or stems from it. Acting within the joint criminal

19 enterprise of an aider and abettor means that they were knowingly

20 assisting or encouraging the perpetrator with intention to contribute to

21 the implementation of an agreed goal. In order for there to be a criminal

22 liability, it is necessary to establish that the accused, in a significant

23 way, participated in implementing the criminal enterprise or that he held

24 a position of authority such that one can assume that he wielded influence

25 over the implementation of the criminal plan and design.

1 In view of the facts established in this case, there are no

2 elements which, according to the jurisprudence of this Tribunal, are

3 necessary in order to establish that somebody belonged to the joint

4 criminal enterprise. There are no such elements on the side of

5 Mr. Zaric. So either when it comes to participating or when it comes to

6 aiding and abetting.

7 First of all, there was not a scrap of evidence given by the

8 Prosecution that established a state of mind of Mr. Zaric when it comes to

9 existence of a criminal enterprise or when it comes to an intention or

10 willingness on his behalf to contribute or aid to the implementation of

11 the goals of a criminal enterprise.

12 The Defence has proven that Mr. Zaric, from the 5th of January,

13 1992 and onwards, during the time covered by the indictment, was a member

14 first of the Yugoslav People's Army, and then following that, the Army of

15 Republika Srpska. Similar to all other citizens of the then SFRY in

16 Bosnia and Herzegovina who responded to the mobilisation call-up, so

17 similar to them, Mr. Zaric, as a reserve military commander with a status

18 of non-commissioned officer and a rank of sergeant, became a member of the

19 JNA. As such, he was appointed assistant commander in the 4th Detachment

20 for intelligence and security affairs, morale, and information.

21 Tens of thousands of people who responded to the mobilisation in

22 Bosnia and Herzegovina surely could not have all been aware of the alleged

23 participation in joint criminal enterprise, nor can they be considered as

24 part of that enterprise. By joining the Yugoslav People's Army, Mr. Zaric

25 can certainly not be considered as a person who was aware of -- or the

1 person who intended and was willing to participate in any way in a joint

2 criminal enterprise.

3 Based on the ethnic composition of the 4th Detachment of the

4 Yugoslav People's Army, where Mr. Zaric was assistant commander, and where

5 members of all ethnic communities served who lived in Bosanski Samac, the

6 town, it is clear that members of that detachment cannot be considered

7 part of joint criminal enterprise and who participated in persecution of

8 non-Serb population. The many Muslims and Croats, as well as members of

9 other non-Serb ethnic groups who belonged to the 4th Detachment, was

10 something that was not challenged by the evidence presented before this

11 Trial Chamber. The mere fact that all members of the detachment,

12 regardless of their ethnic or religious background, received military

13 equipment and weapons, clearly indicates that during the establishment and

14 the existence of the detachment, there was no willingness or intention on

15 their behalf to be members of the joint criminal enterprise intended to

16 persecute non-Serbs.

17 Simo Zaric, as well as other members of the 4th Detachment, were

18 never aware of the fact that they were jointly acting within some existing

19 agreement or participating in acts which are covered by that agreement or

20 stem from them and are all part of joint criminal enterprise. Similarly,

21 they were not aware that they acted as aiders and abettors in the joint

22 criminal enterprise, nor did they give knowingly any assistance or

23 encouragement to perpetrators with the intention to contribute to the

24 implementation of an agreed goal. Neither Simo Zaric nor other members of

25 the 4th Detachment had awareness on existence of any plan intended to

1 persecute non-Serb population in town and Bosanski Samac municipality.

2 The final brief of the Prosecution, paragraph 67, states that

3 Simo Zaric had a vital position in the 4th Detachment as assistant

4 commander for intelligence and security, morale, and information and also

5 that he was entrusted to supervise the disarming of the non-Serb

6 population, and that in this way he took part in the forcible takeover of

7 power, knowing that this was being done on the basis of joint criminal

8 enterprise, aimed at persecuting non-Serbs.

9 As for the position of Mr. Zaric in the 4th Detachment and his

10 powers as assistant commander, this was extensively referred to in the

11 Defence final brief. The only thing that the Defence wishes to add to

12 this is something that was never contested before this Tribunal, and that

13 is that the collection of weapons had been ordered by the commander of the

14 17th Tactical Group to the commander of the 4th Detachment, who further on

15 issued orders to his deputy and his assistant commanders and other

16 soldiers.

17 As for the order he had received, Mr. Zaric had to carry it out,

18 according to all rules of service in the JNA, because if he were to refuse

19 to carry out an order, he would be criminally liable before the competent

20 military organs. All the activities related to this order and carried out

21 by Mr. Zaric consisted of the following: Checking out the way how the

22 order of the commander of the 4th Detachment was being carried out. The

23 members of the 4th Detachment collected weapons only in the Fourth

24 Quarter, which is along the outskirts of town, on the embankments, towards

25 the Bosna and Sava Rivers, where the already deployed members of the 4th

1 Detachment were at their positions. Weapons were collected from all

2 citizens, irrespective of their ethnic affiliation. The goal of that

3 operation was not the takeover of power or the persecution of the non-Serb

4 population, but the safety and security of the members of the detachment,

5 who were already at their positions, in order to prevent them from being

6 in the midst of crossfire. That means that they would not be shot at from

7 the back and from the directions of the Sava and Bosna Rivers.

8 In paragraph 68, the Prosecutor states that the Crisis Staff

9 entrusted Mr. Zaric with the confidential position of head of national

10 security, to which he was appointed less than two weeks after the takeover

11 of power. On the basis of agreement between the civilian authorities and

12 the military, he allegedly had free access to the Territorial Defence

13 building and the SUP, with a view to interrogating non-Serbs who had been

14 detained, beaten, and mistreated on the basis of joint criminal

15 enterprise.

16 According to the position upheld by the Prosecution, the

17 interrogation of prisoners was one of the indispensable acts in promoting

18 the system of persecution. The Prosecutor also states that Zaric's

19 position made it possible for him to transfer about 50 non-Serb detainees

20 to military detention, where their humiliation, mistreatment, and

21 interrogation were continued. These facts were also extensively referred

22 to in the final brief of Mr. Zaric's defence, in paragraphs 70 through 77,

23 and this Defence fully abides by everything it said in that brief.

24 Nevertheless, the Defence deems it necessary to put certain events

25 in chronological order in order to create a truthful picture regarding the

1 activities of Mr. Zaric in the initial days of the conflict. The decision

2 to appoint Mr. Zaric as head of national security was adopted on the 29th

3 of April, 1992. This is document P81. By that date, Mr. Zaric had

4 already carried out the interviews he had with four detainees, namely,

5 Mr. Tihic, on the 20th of April, 1992; and the Bicic brothers; and

6 Omer Nalic, on the 27th of April, 1992.

7 So, after having interviewed these persons, or rather, when he

8 interviewed these persons, Mr. Zaric had not even formally been appointed

9 to the position of head of national security for the municipality of

10 Bosanski Samac. After his formal appointment to this position of head for

11 national security in Bosanski Samac, Mr. Zaric did not carry out a single

12 interview with any one of the detainees. Not a shred of evidence was

13 provided to support that.

14 The Prosecution's allegations regarding the free access that

15 Mr. Zaric had to the Territorial Defence building are unfounded, because,

16 except for the occasion when detainees were being transferred from the

17 Territorial Defence to the barracks in Brcko, Mr. Zaric never entered the

18 Territorial Defence building, and not a single witness who testified

19 before this Tribunal established that he or she had seen Mr. Zaric at the

20 Territorial Defence building.

21 As for the actual interviews, Mr. Zaric carried out these

22 interviews and took these statements on the basis of the orders he had

23 received from his superior officers. Lieutenant Colonel Stevan Nikolic,

24 commander of the 17th Tactical Group, and the head for intelligence and

25 security affairs in the 17th Tactical Group, Maksim Simeunovic. The

1 objective of taking statements was to establish the involvement of

2 officers of the Yugoslav People's Army from the 17th Tactical Group in the

3 illegal selling of military weapons. This was testified to by witness

4 Nikolic on the following pages: 19306 through to 19317, and

5 Mr. Simeunovic on page 18596 of the transcript.

6 It is precisely for that reason, namely, because he received an

7 order with a clear objective to collect information, Mr. Zaric conducted

8 four interviews only. He conducted four interviews within a time period

9 of ten days. So the interviews and the statements that Mr. Zaric compiled

10 on that basis did not have a discriminatory nature, which must necessarily

11 be established in order to state that persecution was committed, and they

12 were not aimed at persecuting the non-Serb population within joint

13 criminal enterprise. Rather, the objective was to establish the

14 responsibility of the members of the Yugoslav People's Army in the illegal

15 selling of military weapons.

16 What is also unfounded is the claim made by the Prosecution that

17 the position of Mr. Zaric made it possible for him to transfer detainees

18 from the Territorial Defence to the barracks in Brcko. Since the

19 Prosecution did not precisely state which position they specifically have

20 in mind, the Defence is going to deal with two possible options. If the

21 Prosecutor meant the formal position of head of national security held by

22 Mr. Zaric, the Defence wishes to highlight that the transfer of detainees

23 to Brcko was carried out on the 26th of April, 1992, that is to say,

24 before his formal appointment as head of national security. Elementary

25 logic indicates that Mr. Zaric could not have taken advantage of the

1 position that he had not even been appointed to.

2 However, if the Prosecutor meant the position of Mr. Zaric as

3 assistant commander of the 4th Detachment, that position of Mr. Zaric's

4 was not nearly such that he could have independently transferred any

5 detainee from the Territorial Defence to the barracks in Brcko. During

6 the proceedings, it was proven that Mr. Zaric had only initiated the

7 transfer of detainees from the Territorial Defence building to the

8 barracks in Brcko, while the decision about this and the organisation of

9 this transfer were carried out by his superior officers, certainly with

10 his participation.

11 In the final brief of the Prosecutor, in paragraph 69, it is

12 stated that military and civilian authorities entrusted Mr. Zaric with

13 participation in a television interview soon after the takeover of power

14 in which the new Serb authorities continued to humiliate the detained and

15 beaten political adversaries, using them for propaganda purposes, and that

16 Mr. Zaric, aware of their detention conditions, on the basis of joint

17 criminal enterprise, voluntarily took part in the implementation of that

18 task. The evidence presented shows how unfounded such allegations made by

19 the Prosecution are.

20 First of all, the question of voluntary participation in the

21 interview that was given to a journalist from TV Novi Sad was refuted by

22 the statement made by witness Stevan Nikolic, commander of the 17th

23 Tactical Brigade of the JNA, who, before -- who testified before this

24 Trial Chamber that he himself issued an order to Mr. Zaric to give this

25 interview to the journalist from TV Novi Sad.

1 The actual place where he would give the interview was not decided

2 upon by Mr. Zaric himself. It was the journalist from TV Novi Sad who

3 decided about that. Mr. Zaric did not know who all the persons

4 participating in this would be, or whether anybody would be giving an

5 interview at the same time.

6 Relationships of superiority and subordination in military

7 structures do not allow for the possibility for the subordinate not to

8 carry out an order. That was the position of Mr. Zaric. Not a single

9 piece of evidence has been proven that Mr. Zaric received any instructions

10 from the civilian authorities to the effect that he should have given this

11 interview, and the Prosecution did not present any evidence to this

12 effect.

13 Finally, Mr. Zaric could not have known or even assumed what the

14 programme would eventually look like. Mr. Zaric could not have influenced

15 the way the programme would have turned out in any way. Mr. Zaric could

16 not have influenced the fact that his interview might have been used for

17 propaganda purposes, especially bearing in mind the fact that this was a

18 TV programme, a TV station, from Yugoslavia. Mr. Zaric only saw the

19 programme, the final product, when all other viewers saw it, throughout

20 the territory of Yugoslavia. This clearly indicates that there is no

21 willingness, awareness, or intent on the part of Mr. Zaric to participate

22 in a joint criminal enterprise aimed at any kind of persecution.

23 In paragraph 70 of the Prosecutor's final brief, it is stated that

24 Mr. Zaric, acting in his capacity as head of national security,

25 accompanied the Crisis Staff on their visit to Belgrade in late May or

1 early June 1992, on which occasion they met Frenki Simatovic. Something

2 that has not been proven in any way as regards this allegation by the

3 Prosecution is Mr. Zaric's position in capacity as head of national

4 security at the time the visit to Belgrade was made. Aside from the fact

5 that Mr. Zaric never assumed this position, the very decision on his

6 appointment was formally put out of force before the trip to Belgrade.

7 In paragraph 71 of the Prosecutor's final brief, it is stated that

8 in May 1992, the Crisis Staff entrusted Zaric with negotiations

9 surrounding the release of Serbs that had been illegally detained in

10 Odzak, the release of these detainees through an exchange, and that in

11 July 1992, he was appointed deputy president of the war council for

12 security issues in Odzak. By virtue of this position, he was receiving

13 orders and sending reports to the Crisis Staff, which continued the

14 persecution through the use of coercion, forced labour, and looting in

15 Odzak.

16 As far as the Defence is aware, not a single piece of evidence

17 during this trial corroborated the Prosecution's allegation that the

18 Crisis Staff had entrusted Mr. Zaric with negotiations surrounding the

19 exchanges with the Odzak side. The Defence has already thoroughly

20 analysed two contacts of Mr. Zaric with the representatives from Odzak in

21 paragraphs 411 through 420. We do not wish to reiterate this, but we

22 would like to point out the fact that the first contact Mr. Zaric ever

23 made with the Odzak side had been initiated by the Odzak side, and that

24 the Crisis Staff of the municipality of Samac had nothing whatsoever to do

25 with that. The only connection there was the fact that Mr. Zaric had

1 applied for permission to have Witness Q brought out of detention to

2 attend the negotiations. The reason that Mr. Zaric required the presence

3 of Witness Q when he met with the Odzak side was that when he was informed

4 and invited, the Odzak side asked, in as far as it was possible, to bring

5 Witness Q.

6 [Microphone not activated] In the transcript page 81, line 21,

7 when he talked with the other side he only says when he met. Because

8 there was not any meeting.

9 MR. PISAREVIC: [Interpretation] During those contacts with the

10 Odzak side, Mr. Zaric never negotiated the possibility to carry out an

11 exchange. The Defence has called a number of witnesses to testify to

12 this. Allow me to mention the following witnesses: Kosta Simic, the page

13 in the transcript is 16956; Teodor Tutnjevic, pages 16950 and 16951; and

14 Mr. Ivan Cukic. His deposition, page 7.

15 As for his appointment and the tasks that Mr. Zaric carried out in

16 Odzak, the Defence has addressed this thoroughly in its final brief in

17 paragraph 78 through 84. The only thing we would like to point out yet

18 again is that Mr. Zaric did not receive orders from the Crisis Staff of

19 Bosanski Samac or report in any way to the Crisis Staff.

20 The Prosecution has not produced a single shred of evidence to

21 corroborate this allegation. The tasks carried out by Mr. Zaric in Odzak

22 had nothing to do with the use of forced labour or looting in Odzak.

23 Throughout this period, throughout this whole month that Mr. Zaric

24 spent in the territory of Odzak municipality, he was a regular member of

25 the Army of Republika Srpska and he worked on collecting information and

1 discovering crimes and criminals, crimes that had been perpetrated against

2 Serbs in Odzak during the time that the HVO, the Croatian Defence Council,

3 was in power there.

4 In addition to Mr. Zaric himself, Witness Teodor Tutnjevic,

5 Witness Dusan Gavric, and a Rule 92 witness, Misko Pavic, also testified

6 to this. Furthermore, although in paragraph 72 of their final brief the

7 Prosecutor claims that the participation of Mr. Zaric in the

8 implementation of the joint criminal enterprise is less considerable than

9 the participation of Mr. Simic and Mr. Tadic, the Prosecution nevertheless

10 claims that he had the intent to participate and accepted the intent of

11 persecution.

12 The Defence believes that we have proven that Mr. Zaric in no way

13 participated in the joint criminal enterprise. He never expressed any

14 intent to participate. He never expressed his consent with the goals of

15 this enterprise, this enterprise of persecution, nor did he ever agree

16 with those goals or accept them as his own. However, the Defence of

17 Mr. Zaric fully agrees with the position of the Prosecution, as set out in

18 paragraph 94 of their final brief, that the crime of persecution contains

19 in itself an element of discriminatory intent and that the perpetrator

20 must consciously act or omit to act with the intent to discriminate on

21 racial, religious, or political grounds.

22 In addition to other subjective elements, and in relation to

23 discriminatory intent, the following question must be asked, the question

24 of the significance of motive for criminal law. The Defence is well aware

25 of the fact that the motive is not part of the description of this

1 criminal offence, according to the Statute of the Tribunal, but we believe

2 it is important to raise this issue before this Trial Chamber. The motive

3 is most usually defined as the psychic driving force of a certain form of

4 human behaviour, as the internal driving force which, without the man

5 always being aware of it, drives an individual to certain forms of

6 behaviour. The motive is usually in correlation with the intent and the

7 goal that one wishes to attain.

8 As the act under Article 5(H) of the Statute requires inhumane

9 treatment of civilian -- of the civilian population to be carried out on

10 the grounds of their racial, political, or religious allegiance,

11 consequently, the motives for the perpetration of this act can be

12 different, motives such as hatred, revenge, religious and national

13 intolerance, and the like. It is in our view justified to ask the

14 following question: If the crime of persecution has been committed, is it

15 necessary to establish the motives why the crime of persecution was

16 committed?

17 When we are looking for a specific intent in an act or in a crime,

18 as is the case with the crime of persecution, and this intent must be of a

19 discriminatory nature, then it appears almost indispensable to establish

20 the motives for this action. During the trial, the Prosecutor never

21 proved a single motive on the part of Mr. Zaric that would have acted as

22 the driving force in the creation of discriminatory intent against the

23 non-Serb population. On the contrary; the personal and family

24 circumstances of Mr. Zaric clearly indicate that he could not have had any

25 possible motive for racial, religious, or political discrimination, and he

1 still does not have any such motive.

2 In our view, our view as the Defence of Mr. Zaric, the absence of

3 motive rules out the existence of discriminatory intent, the

4 discriminatory intent being a requisite element for the crime of

5 persecution under Article 5(H) of the Statute. Mr. Zaric's Defence

6 believes it necessary to briefly address another legal issue, which is

7 related to the possibility of the cumulative relationship between the

8 crime of persecution and deportation and unlawful resettlement.

9 Without wishing to discuss the right of the Prosecutor to

10 challenge the right of the Prosecutor to have cumulative charges for both

11 of these crimes set out in the indictment, the Defence prefers to focus on

12 the possibility to prove responsibility and to pronounce a single

13 judgement, a unified judgement, for both these crimes. As for criminal

14 responsibility entailed in international crimes, an issue that is

15 particularly important is the following: Can there be cumulative charges

16 or, in other words, concurrence of crimes, if the actions of an individual

17 display the characteristics of a number of different crimes? Or, on the

18 other hand, are we then dealing with a single crime in some form of a

19 quasi-concurrence?

20 We're trying to give an answer to this question. We should start

21 from the basic nature of international crimes and the way in which they

22 differ from other crimes. That, first of all, means that these crimes, as

23 a rule, are not aimed against an individual, against an individually

24 identified specific person, but are rather committed against an

25 unspecified number of people who are not individually identified. A plan

1 precedes perpetration of international crimes. They also need to be

2 organised in order to be carried out, and they do not represent

3 spontaneous, unruly behaviour of individuals. International crimes are

4 committed continuously and successively in a shorter or longer period of

5 time.

6 All international crimes are committed with premeditation and with

7 some crimes it is necessary for that premeditation to be of a specific

8 nature, namely, to be dolus specialis. However, certain international

9 crimes have their specific characteristics, although some of their forms

10 are almost identical, because the majority of them are based on Geneva

11 Conventions or other international conventions.

12 So that, for example, a murder is mentioned both in violations of

13 Geneva Conventions, Article 2 of the Statute, genocide, Article 4 of the

14 Statute, and crimes against humanity, which is Article 5 of the Statute.

15 This situation is similar with deportation, torture, and infliction of

16 physical and mental pain and suffering. All of this ought to be paid

17 attention to when deciding problems which can arise with cumulative

18 charging and convictions for these crimes. The crime against humanity was

19 not envisaged as an individual crime, either in international conventions

20 or in criminal legislation of certain states. However, in Article 5 of

21 the Statute of the Tribunal, it is said that the Tribunal has jurisdiction

22 when it comes to prosecution of perpetrators of crime against humanity

23 which encompasses murders, exterminations, slavery, deportation, arrests,

24 torture, rapes, persecution on political, racial, ethnic, or religious

25 grounds, and other inhumane acts, when these acts are aimed against

1 civilian population and are perpetrated during an armed conflict of

2 international or internal nature.

3 Based on these provisions, it follows that there is no essential

4 difference between majority of crimes against humanity and war crimes

5 against civilian population. All of the above acts are incorporated in

6 Geneva Conventions and the 2nd protocol. Therefore, it could be said that

7 these crimes cannot exist as independent crimes, that the acts needed for

8 this crime to exist, the victim, and the time of perpetration, fully

9 coincide or are fully identical to those of the crime against civilian

10 population. Based on this, we have to conclude that the same act cannot

11 be constituted to represent both a crime against humanity and a crime

12 against civilian population, or rather, that this cannot be a case of

13 ideal concurrence of offences or plurality of offences when it comes to

14 these crimes. Crime against humanity covers several alternatively defined

15 acts. Therefore, commission of several of those acts against the same

16 victim will not represent concurrence of several offences, but rather just

17 one single offence.

18 We have to conclude that there is no plurality of offences either

19 when acts described in Article 5 of the Statute are committed successively

20 against certain civilians because the nature of this crime is such that it

21 necessarily is committed against several or a large number of individuals

22 and through several acts of perpetration. However, we must not forget

23 that the Statute, in Article 2, does not list all forms of crimes against

24 civilian population which are envisioned by Geneva Conventions and

25 additional protocols, but rather classifies some of them as crimes against

1 humanity, such as extermination, slavery, deportation, and so on.

2 With respect to what we have said earlier about the crimes

3 described in the Statute of the Tribunal, we ought to describe their

4 relationship in a bit more detail, especially from the aspect of

5 concurrence or plurality of offences. With respect to that, we shall

6 point out two basic principles which have been generally accepted in the

7 theory of criminal law.

8 Concurrence or plurality of offences exists when a perpetrator

9 with a single or several acts committed has committed something that

10 constitutes two or more individual crimes for which he is tried in the

11 same trial and given a single sentence. There we can classify this into

12 an ideal concurrence of offences, when we have one act and several crimes;

13 and a real concurrence of offences, where we have several acts and several

14 crimes. It has also been widely accepted that when one act fulfills

15 requirements needed for several crimes, the perpetrator is not always held

16 responsible for all of the crimes, but rather just for one. This is a

17 case of the so-called quasi-ideal concurrence of offences, and we can have

18 this situation in four cases.

19 The first case is when the perpetrator commits one act which

20 represents -- which have qualifications of several crimes; however, these

21 crimes are such that one is general and one is specific. So the specific

22 crime is a special form of a general crime. This is such a case when we

23 apply the following rule, which is: "lex specialis derogat legi

24 generalis," or rather, the perpetrator is held responsible only for the

25 specific, special crime. I will repeat: "Lex specialis derogat legi

1 generalis." such a relationship would exist if deportation as crime

2 against humanity would appear only as a special form of a deportation as a

3 crime against civilian population. In that case, the perpetrator would be

4 responsible only for the crime in Article 5 of the Statute and not for the

5 one in Article 2 of the Statute.

6 The other instance of a quasi-ideal concurrence of offences is

7 when the crimes committed are subsidiary to each other, so that one crime

8 is the primary one, a basic one, and the other one is the subsidiary one.

9 And here we apply the rule "lex primaria derogat legi subsidiaria" based

10 on which the perpetrator is held responsible only for the basic primary

11 offence.

12 We would have this kind of a case where -- with respect to the

13 same victim. That victim would be, let's say, arrested or tortured, which

14 is Article 5(E) and (G) of the Statute, and the same victim would be

15 killed, which is Article 5(A) of the Statute, in which case the

16 perpetrator would be responsible only for the murder. We can have a

17 quasi-ideal concurrence of offences when two crimes are committed, one of

18 which consumes the other, because in that case we would use or apply the

19 rule "lex consumes derogat legi consumptae." and therefore the

20 perpetrator would be held only for the -- responsible only for the greater

21 offence. For example, we would have a crime of genocide if members of one

22 ethnic group would be initially persecuted, Article 5(H) of the Statute,

23 and then based on that ethnic background, they would be killed, which is

24 Article 4(A) of the Statute.

25 And finally, quasi-ideal concurrence of offences could exist when

1 we have a situation of alternativity. For example, if for one crime there

2 are several possible acts, it is sufficient to commit just one single act.

3 However, the same crime would exist when several envisioned acts are

4 committed against same victim. For example, if somebody was arrested

5 during an armed conflict and then raped and then killed, then we would

6 have only one single crime, which would be a murder based on Article

7 5(H)(A) of the Statute.

8 JUDGE MUMBA: I just wanted to get clarification from you

9 following on your submission regarding persecution and genocide. I would

10 add perhaps -- or would you agree that of course the mens rea for either

11 persecution or genocide in either case would have to be proved, because it

12 doesn't carry the same mens rea, for persecution and genocide?

13 MR. PISAREVIC: [Interpretation] Mens rea is required for

14 persecution as well, according to our interpretation.

15 JUDGE MUMBA: Yes, I know that. What I'm saying is there are

16 differences between the mens rea for genocide and the mens rea for

17 persecution. Because you are saying that if it's the same victim, then

18 the crime -- the more serious one would apply. But then even at that stage

19 the mens rea would still have to be proved for that more serious crime.

20 MR. PISAREVIC: [Interpretation] Yes, naturally. Naturally.

21 However -- Your Honours, is this time for our break now?

22 JUDGE MUMBA: Yes.

23 MR. PISAREVIC: [Interpretation] Because we had some changes.

24 JUDGE MUMBA: Yes. We'll break now and continue at 14.15 hours

25 --- Recess taken at 1.45 p.m.

1 --- On resuming at 2.14 p.m.

2 JUDGE MUMBA: Yes, Mr. Pisarevic, you continue.

3 MR. PISAREVIC: [Interpretation] In conclusion of this analysis,

4 the Defence believes that in the particular case, in this case which is

5 before this Trial Chamber, among deportation, under Article 5(H) of the

6 Statute and the act of unlawful deportation and transfer set forth in

7 Article 2 of the Statute, there is a relationship of a special and general

8 criminal offence, and therefore one person cannot be held responsible for

9 both of these crimes because here we have a case of ideal concurrence of

10 offences. The Defence raised this issue in view of the fact that this

11 theory is a theory of continental law and since we believe this Court to

12 be a mixture of continental law and common law, then, in our opinion, the

13 Trial Chamber should agree with this position, which is something that is

14 supported by us lawyers who come from the continental legal system.

15 The Defence of Mr. Zaric will now turn to individual charges

16 contained in the 5th amended indictment and assertions of the Prosecution

17 regarding that in their final brief. In paragraph 111 of the final brief

18 of the Prosecution, it is stated that the command of the 17th Tactical

19 Group, under coordination with Milos Bogdanovic, sent a group people to

20 attend special training in Ilok, which is in Serbian Krajina in Croatia,

21 and they supported this with a statement of Milos Savic. The Defence

22 believes that the Tribunal should not draw any conclusions on alleged

23 involvement of the 17th Tactical Group in sending people to Ilok solely

24 based on the statement of Milos Savic, in view of the position he held in

25 the 1st Detachment, which is that of an ordinary rank-and-file soldier, as

1 well as that after they returned to Batkusa, he was a member of the

2 Serbian police in municipality of Bosanski Samac, under the command of

3 Stevan Todorovic and civilian authorities. And this is what witness

4 Naser Sejdic said in his evidence, who was himself a member of the Serb

5 police. Taking into account a fairly low position in the hierarchy that

6 this witness held, his knowledge as to who organised the departure of

7 these people to attend training is pure speculation, and in that regard,

8 of much more significance is the testimony of witness Maksim Simeunovic,

9 who was chief of security and intelligence affairs within the 17th

10 Tactical Group, as well as the commander of the 17th Tactical Group,

11 Stevan Nikolic, who testified here before this Honourable Chamber and said

12 that they knew nothing about people being sent to attend training in Ilok.

13 In terms of the meeting in Donji Zabar a day after the Specials

14 landed in Batkusa, the Prosecution, in paragraph 114 of their final brief,

15 claimed that then the Specials were placed under the command of the 17th

16 Tactical Group and they say that this is corroborated by the testimony of

17 Stevan Todorovic.

18 As for the testimony of Stevan Todorovic and his credibility, a

19 lot was said about this in the final brief of Mr. Zaric's Defence. The

20 Defence is only pointing out the testimony of Lieutenant Colonel Nikolic,

21 the commander of the 17th Tactical Group, in relation to the same event.

22 He stated that at the meeting in Donji Zabar that was held on the 12th of

23 April, 1992, the leaders of policemen from Republika Srpska Krajina were

24 present, Dragan Djordjevic, Crni, and Srecko Radovanovic, Debeli, as well

25 as Blagoje Simic, Mirko Jovanovic, president of the Executive Board of the

1 Serb municipality of Samac, and Stevan Todorovic, chief of the Serb police

2 of the Serb municipality of Samac. And that they said to him then that

3 these persons were members of the police.

4 This testimony of witness Nikolic is on transcript pages 18453 to

5 18456.

6 Also, witness Nikolic stated that these persons who came by

7 helicopter to Batkusa on the 11th of April, 1992 were never under the

8 command of the 17th Tactical Group or within its actual ranks. This is

9 contained in his statement, namely, D47/4.

10 In relation to the claims made by the Prosecution in paragraph 117

11 regarding the meeting between Blagoje Simic and Nikolic, which purportedly

12 took place on the 15th of April, 1992, the Defence of Mr. Zaric wishes to

13 point out that with the exception of Todorovic, who claimed that he had

14 indirect knowledge about this, neither Blagoje Simic nor Stevan Nikolic

15 corroborated in their testimonies that such a meeting -- that any meeting

16 ever took place on the 15th of April, 1992 between the two of them.

17 The Defence of Mr. Zaric, on this basis, believes that this fact

18 was not proven beyond a reasonable doubt.

19 In paragraph 118, it is stated that on the 17th of April, in the

20 morning, in Crkvina, the members of the Crisis Staff were present, as well

21 as Fadil Topcagic and Dimitrije Ivanovski from the 4th Detachment.

22 Bearing in mind the detailed explanation that Fadil Topcagic gave in his

23 statement according to Rule 92 bis - this is D34/4 - also in his testimony

24 before this Tribunal during his cross-examination by the Prosecution in

25 connection with his coming to Crkvina, the question arises as to this

1 particular specific case and the relevance of the fact therein, that

2 Fadil Topcagic and Dimitrije Ivanovski were members of the 4th Detachment.

3 The Defence believes that this fact is of no relevance in this

4 case.

5 In paragraph 119 of the final brief of the Prosecution it is

6 stated that witness Milos Savic during the night of the 16th of April came

7 to the silo and that he found the members of the 4th Detachment there and

8 also that this was confirmed by the testimony of witness Aleksandar

9 Jankovic. It is possible that these witnesses did come across members of

10 the 4th Detachment by the silo, but they could have only come across the

11 members of the 4th Detachment that were patrolling the outskirts of town,

12 where the mentioned silo is. And also, these patrols were carried out on

13 the basis of the agreement reached between all political structures at the

14 meeting of the council for security at the local commune of Bosanski

15 Samac.

16 As for these patrols, witness Radovan Antic referred to them,

17 commander of the 4th Detachment, then, Jovo Savic, deputy commander of the

18 4th Detachment, and Mr. Zaric himself. Also that these patrols were part

19 of the regular tours of the outskirts of the town of Bosanski Samac.

20 As for the allegations made by the Prosecution in paragraph 122

21 that two witnesses of the Prosecution heard Mr. Zaric talking through a

22 Motorola in the early morning hours of the 17th of April, 1992, the

23 Defence has already addressed this in its final brief. The fact that

24 witness Aleksandar "Aco" Jankovic, as a member of the Serb police, had a

25 Motorola precisely testifies to the extent to which members of that unit

1 were equipped. They were so well equipped as opposed to the 4th

2 Detachment, which did not have such means of communication. Not at a

3 single point in time was it controversial in these proceedings that

4 Mr. Zaric during the night between the 16th and 17th of April 1992, was it

5 controversial that Mr. Zaric met Aleksandar Jankovic or had any contact

6 with him. So the only conclusion that can be drawn on the basis of the

7 evidence presented is that during that night, through the Motorola, the

8 witnesses of the Prosecution heard the communications between members of

9 the special Serb police, or rather, the Specials.

10 It would not be -- it could not be upheld if the Trial Chamber

11 were, on the basis of the testimonies of two witnesses, to accept this

12 allegation made by the Prosecution, that Mr. Zaric, on that morning of the

13 16th and 17th of April, talked over a Motorola, especially bearing in mind

14 that a voice is distorted through radio communications.

15 As for the collection of illegal military weapons from the

16 citizens of Bosanski Samac, there has been sufficient reference made to

17 that, both in the briefs of the defences of Mr. Zaric and Mr. Tadic, as

18 well as in the closing arguments, and therefore the Defence will no longer

19 speak about these allegations made by the Prosecution.

20 The assertion of the Prosecution that the SDS Crisis Staff could

21 not have taken over civilian authority without military assistance, or

22 could not have remained in power without support and participation of the

23 military raises an additional question, and that is: Once the objective

24 of the 4th Detachment and the action taken by them on the 17th of April,

25 1992, still the preservation of the newly established government or

1 something else. The Defence has proven that the 4th Detachment, through

2 actions related to setting up defence lines and collecting weapons,

3 military weapons, in the Fourth Quarter, carried out legitimate military

4 operations of a defensive nature, on the basis of orders received from a

5 Superior Command. The 4th Detachment did not protect or support the newly

6 established government and Crisis Staff, nor did it take part in the joint

7 criminal enterprise of persecution, as alleged by the Prosecutor. The 4th

8 Detachment defended the citizens of Bosanski Samac from incursions made by

9 the forces of the HVO and the army of the Republic of Croatia from the

10 directions of Prud and the Republic of Croatia, on the basis of orders

11 they had received from the command of the 17th Tactical Group.

12 There was nothing illegal, unlawful, or discriminatory in the

13 orders that the 4th Detachment received and carried out. None of these

14 orders have any characteristics of a crime. The duty of the 4th

15 Detachment and its commander, Radovan Antic, as a JNA unit, as well as of

16 all its members, was to carry out orders issued by their Superior Command,

17 in this specific case, the command of the 17th Tactical Group. And the 4th

18 Detachment did carry out these orders.

19 The question of coordination between the members of the 4th

20 Detachment and the members of the paramilitaries and the police in terms

21 of collecting weapons, and this is something that the Prosecution

22 indicates in paragraph 130, is best refuted by the fact that a certain

23 number of members of the 4th Detachment were arrested by members of the

24 paramilitary and the police, on the 17th of April, 1992, and that weapons

25 were seized from a large number of members of the detachment. Witnesses

1 testified about that. Mihajlo Topolovac, Vaso Antic, Petar Karlovic.

2 Had there been coordination in carrying out the operation of

3 weapons collection between the 4th Detachment and the paramilitaries and

4 the police, as alleged by the Prosecution, it is quite certain that

5 members of the 4th Detachment could not have been arrested or have their

6 weapons taken from them. While commenting Exhibit P127, a document of 13

7 signatories, the Prosecution, in paragraph 133, draws a fully erroneous

8 conclusion in connection with the following: That Colonel Nikolic

9 recognised the group of Specials as an elite unit of Serb commandos before

10 the forcible takeover. The document itself shows that this was some five

11 or six days after they had come. The date of their arrival is not

12 contested. That's the 11th of April, 1992, when five or six days are

13 added to that date, it is obvious that this is the time immediately upon

14 the forcible takeover of Bosanski Samac, when this group publicly became

15 an integral part of the Serb police of Bosanski Samac. Not a single one

16 of the military documents that the Prosecution refers to in paragraph

17 134of their brief, and these are documents P19, P21, and P23, indicates

18 that there was any coordination and cooperation between the military and

19 paramilitary forces in respect of the takeover of power in Bosanski Samac.

20 The Prosecutor's remark concerning document D28/4, saying that

21 it's self-incriminating and that it speaks about the 4th Detachment taking

22 over control over vital facilities and buildings in the town is, to say

23 the least, ill-founded. This is an announcement made by the 4th

24 Detachment, dated 19th of April, 1992. First and foremost, this

25 announcement of the 4th Detachment dated 19th of April, 1992, was

1 addressed to Muslims, Serbs, Croats, and Yugoslavs. It was addressed to

2 people belonging to all the different ethnic groups, exhorting them to

3 help the 4th Detachment in its task of defending the town. The

4 announcement was written following an attack by the HVO from the direction

5 of Prud on the 18th of April, 1992, and after the shelling of Samac from

6 the territory of the Republic of Croatia had begun.

7 Speaking of control over the vital facilities and buildings, this

8 announcement makes clear that a military viewpoint is being discussed,

9 namely, the banks of the River Sava, the bridges, and the features

10 suitable for putting up resistance to the attack by the enemy. Whatever

11 the Prosecution thinks about this document, one thing is certain: The

12 announcement as a document by the 4th Detachment does not contain any

13 discriminatory intent whatsoever, and it was not a document meant to

14 incite discrimination on racial, ethnic, or religious grounds.

15 The allegation of the Prosecution in paragraph 136 of the brief

16 that it was not important whether the 4th Detachment actually took part in

17 the takeover from the very beginning of the attack, or rather, joined in

18 in the course of the day on the 17th of April, but that there was a

19 deliberate failure to react to an armed rebellion against duly elected,

20 legally elected government was designed to help the newly created Serb

21 authorities consolidate and pave the way for the joint criminal

22 enterprise. This has already been commented on in our final closing

23 argument.

24 It has not been known to happen up to now that the JNA ever

25 participated in the overthrow of any government, not in the municipalities

1 that were populated by Muslims as the majority group, not in the

2 Croat-dominated municipalities, and not in the Serb-populated

3 municipalities. That, after all, was never the remit of the JNA.

4 We believe that something needs to be added to these two remarks

5 of the Prosecution. The position of Simo Zaric in deciding how the

6 detachment was to be used and what its tasks would be is far above his

7 level of responsibility. Mr. Zaric, as has been proven, had no authority

8 to command. The only people who could actually exercise command over the

9 17th Tactical Group were commanders Stevan Nikolic; the commander of the

10 4th Detachment, Radovan Antic; and his deputy, Jovo Savic.

11 This Trial Chamber has had occasion to hear four witnesses,

12 Witness Nikolic, Witness Simeunovic, Witness Antic, and Witness Savic.

13 All these four witnesses were Mr. Zaric's superior officers. All four

14 of these witnesses confirmed before this Trial Chamber that they were the

15 ones issuing orders to Mr. Zaric and that Mr. Zaric carried out those

16 orders. What the Defence of Mr. Zaric would like to know is the

17 following: What was the criterion applied by the Prosecution when

18 indicting Mr. Zaric, bearing in mind the fact that Mr. Zaric had four

19 other persons who were in terms of their authority his superiors and who

20 had the authority to issue orders to him, who did in fact issue orders to

21 him, orders that he was bound to carry out?

22 Reflecting on the testimony of Jovo Savic in paragraph 137, the

23 Prosecution reiterates the allegation from the previous paragraph, about

24 the fact that the operations carried out by the 4th Detachment made

25 possible a consolidation of the newly established authorities in Bosanski

1 Samac. As we have already spoken about this, about the objective of the

2 orders that the 4th Detachment received and carried out, the Defence will

3 no longer address these issues.

4 In paragraph 138, the Prosecution again makes an allegation in

5 reference to the document of the 13 signatories, that Nikolic welcomed the

6 Serb Specials before the takeover of the town. It is our position that we

7 have succeeded in proving that this allegation is false. We would like to

8 point out that the use of the expression "liberation of Bosanski Samac"

9 was common in that time. It was the way people spoke. The term was widely

10 used in all military documents of the time in reference to areas

11 controlled by the Serb forces. This term was also used in reference to

12 areas under the HVO and the BH army.

13 Finally, bearing in mind the allegation of the Prosecution that

14 Mr. Zaric in his interview to the OTP said that Nikolic had placed the

15 paramilitaries under his command, the Defence would like to invite the

16 Trial Chamber to go back to the audio recording of Mr. Zaric's interview

17 to the OTP, Exhibit Number P140 ter, in order to establish once and for

18 all that Mr. Zaric was talking about placing the paramilitaries under the

19 control and not under the command of the 17th Tactical Group, or rather,

20 Commander Nikolic.

21 On the basis of everything we have said, it is clear that the

22 allegation of the Prosecution in paragraph 139 is completely unfounded,

23 namely, their allegation that the JNA and the Serb paramilitary forces

24 were subject to the same command structure of the JNA, both prior and

25 following the takeover, and that they acted together in carrying out the

1 joint criminal enterprise. The allegation made by the Prosecution

2 contained in paragraphs 145 and 146 that members of the 4th Detachment

3 arrested men of Croat and Muslim ethnicity is likewise completely

4 unfounded.

5 The Prosecution refers to Ibrahim Salkic's testimony, a witness

6 who was not at all arrested by Fadil Topcagic, but rather by two persons

7 who took him away in a car to the SUP building and who, in Salkic's own

8 testimony, were not even members of the 4th Detachment. Witness Fadil

9 Topcagic, who testified before this Trial Chamber, stated that a while

10 ago, Ibrahim Salkic came to see him at his home, together with his family,

11 crying and told him that he had lied before the Tribunal in relation to

12 him and Simo Zaric, a testimony that this Trial Chamber has heard before.

13 Furthermore, the testimony of Osman Jasarevic that he was arrested

14 by the members of the paramilitary alongside with Nikica Bjelojevic, of

15 whom Jasarevic said that he was a member of the 4th Detachment of the JNA,

16 is false. It has not been contested that Jasarevic was not a member of

17 the detachment and that he did not know who were the members of the

18 detachment and which persons were not members of the detachment. So his

19 assertion that Bjelojevic was a member of the 4th Detachment is pure

20 speculation.

21 The Prosecution's conjecture in paragraph 150 of their brief that

22 it would not have been logical for the 4th Detachment to start disarming

23 the paramilitary units of the SDA and the HDZ, asking them to hand over

24 their weapons of their own free will, remains merely in the realm of

25 speculation. On the basis of a fact that had been proven, namely, that the

1 4th Detachment collected weapons in the Fourth Quarter, in which no units

2 of the HDZ and SDA were present or active, unlike the centre of town. It

3 is clear that this allegation of the Prosecution has no foundation in the

4 evidence.

5 In paragraph 153, the Prosecutor, when explaining the reasons for

6 the arrest of certain persons, among other things, invokes witnesses

7 Mustafa Omeranovic and Witness M. First of all, Witness Mustafa

8 Omeranovic spent only one day in detention, after which Commander Nikolic,

9 Lieutenant Colonel commander of the 17th Tactical Group, and alongside

10 with the other detained members of the 4th Detachment, he was released.

11 Witness M was fully familiar with the reasons for his arrest in

12 September 1992, namely, shooting and injuring witness Stevan Arandzic, who

13 himself testified to this in the form of deposition in Belgrade,

14 transcript page 170. The allegation that the -- there was no reason to

15 arrest this witness, the allegation made by the Prosecution, is completely

16 unfounded.

17 In connection with paragraph 154 in the Prosecutor's brief and the

18 alleged participation of Mr. Zaric in the interrogation of Ibrahim Salkic,

19 the Defence of Mr. Zaric wishes to point out that neither the testimony of

20 Ibrahim Salkic himself nor that of any other witness or evidence, can we

21 gather that Mr. Zaric ever interrogated this particular witness, Mr.

22 Salkic. On the contrary, Mr. Zaric briefly entered the office in the SUP

23 building, in which this witness was being interrogated by the chief of the

24 crime department, Milos Savic. Testimony of witness Salkic can be found

25 in the transcript, page 3293 and 3294.

1 The allegations made by the Prosecution in paragraph 160 that

2 Mr. Zaric was conducting interviews together with a journalist are

3 completely unfounded. Exhibit P16 clearly indicates that all questions,

4 those addressed to Mr. Zaric and those addressed to the remaining

5 participants, or rather, persons being interviewed, were asked only by

6 this journalist of the Novi Sad TV, Minja Pavlovic. So that the

7 allegation that Mr. Zaric conducted these interviews together with the

8 journalist is totally unfounded.

9 Much has been said about this interview and therefore the Defence

10 does not wish to repeat our assertions. Now, as regards the allegations

11 in paragraph 164, namely, that Mr. Zaric told Witness Q that he could only

12 be exchanged in the all-for-all exchange, the Defence points out that this

13 fact that Witness Q did not wish to be exchanged until all members of his

14 flock crossed over to the other side, in addition to Mr. Zaric, Witness

15 DW1/3 testified about this as well, in the same way that Mr. Zaric did.

16 Not one of the witnesses, Kosta Simic, Teodor Tutnjevic, Bozo

17 Ninkovic, who were present during the conversation between Witness Q and

18 Father Ivo Simic from Odzak, confirmed allegations of the Prosecution

19 contained in this paragraph.

20 Invoking the testimony of Mr. Zaric in paragraph 165 of their

21 final brief and commenting on the reasons which prompted Mr. Zaric to say

22 to some prisoners that they were political prisoners, the Prosecution

23 knowingly ignored a fact that has been established clearly during the

24 trial, namely, Witness Sulejman Tihic, Witness Dragan Lukac, and Witness

25 A, who were in the group that Mr. Zaric called a group of political

1 prisoners, in their testimony confirmed that they were in possession of

2 illegal firearms, military firearms.

3 Allegations of the Prosecutor that Miroslav Tadic and Simo Zaric

4 had a significant role in discriminatory arrests, which is described in

5 paragraph 177, is completely unfounded, are completely unfounded.

6 Participation in overseeing collection of weapons is not related to

7 arrests at all, nor could Mr. Zaric at all suppose that there would be

8 arrests after the event of the 17th of April, 1992.

9 Furthermore, Mr. Zaric never used prisoners in propaganda

10 purposes, nor did he participate in negotiations on the exchanges.

11 Neither can the interrogation of several detainees in order to uncover a

12 chain of illegal weapons trade on involvement of members of the JNA may be

13 considered a discriminatory act.

14 What is especially indicative is that when Prosecution, in

15 paragraph 188 of their final brief, in speaking about the massacre in

16 Crkvina, they failed to mention the conduct of Simo Zaric following his

17 finding out that there had been this crime. This is not coincidental,

18 because all of the acts of Mr. Zaric are contrary to all of the claims of

19 the Prosecution about him being a member of the joint criminal enterprise.

20 Public condemnation of this crime which took place in Crkvina informing

21 the superiors, travelling to Belgrade in order to report on the crime.

22 All of this clearly demonstrates that Mr. Zaric did not accept and was, in

23 fact, was opposed to what was going on in Bosanski Samac municipality.

24 Mr. Zaric condemned, in strong terms, this crime, in the document

25 of 13 signatories, which is Exhibit P127, and he did that even before this

1 Tribunal was founded.

2 The Defence believes that the Trial Chamber ought to ask itself

3 whether this is a typical conduct of a person who was a member of a joint

4 criminal enterprise and who accepts the goals of that enterprise. In its

5 brief, the Defence devoted significant attention to an event described in

6 paragraph 202 of the Prosecution's final brief and pertains to the

7 testimony of Ibrahim Salkic, about how he saw Mr. Zaric in front of the

8 SUP building with Stoko Sekulic during the visit of the International Red

9 Cross. Salkic himself didn't say that Mr. Zaric entered the premises of

10 the TO, and this testimony can be found on page 3282 and 3283 of the

11 transcript. Neither did witness Stoko Sekulic, who testified that on that

12 occasion, Milan Simic was with him, rather than Mr. Zaric. Witness

13 Sekulic testified about that on page 18065 of the transcript. Therefore,

14 this allegation of the Prosecution remains completely unfounded.

15 The attempt of the Prosecution to depict the transfer of prisoners

16 from the building of the TO to the barracks in Brcko as another proof in

17 favour of the existence of a joint criminal enterprise is simply

18 unbelievable. This can be found in paragraphs 204 to 206. The humane

19 reason for transferring those prisoners is thus distorted and put in a

20 context where they don't belong. Mr. Zaric's position concerning the

21 transfer of prisoners and reasons that led to that is something that can

22 be gleaned from the testimony of Sulejman Tihic, who, when describing that

23 event, said that Simo Zaric joyfully hugged him and kissed him and told

24 him they were saved, after ensuring that they would be transferred from

25 the TO building to the garrison in Brcko. This testimony of Mr. Tihic can

1 be found on page 1445 of the transcript.

2 The Defence would like to ask the Trial Chamber to once again ask

3 itself whether this would be a typical behaviour of a person who willingly

4 participates in joint criminal enterprise and shares its g goals.

5 In paragraph 206, the Prosecution accepted that the conditions in

6 the barracks in Brcko were significantly better than those in the TO

7 building in Bosanski Samac. However, with the proviso that that lasted

8 for a very brief time and that after the conflicts broke out in Brcko, the

9 prisoners were transferred to Bijeljina, where once again they were

10 treated harshly and inhumanely. In addition to what was already stated

11 concerning the position and responsibility of Mr. Zaric in the 4th

12 Detachment, namely, that he neither could decide nor organise the transfer

13 of prisoners, the Defence would simply like to add that the barracks in

14 Brcko is located outside the area of responsibility of the 4th Detachment,

15 whereas the one in Bijeljina, outside of the area of responsibility of the

16 17th Tactical Group. So that everything that happened to the prisoners

17 was completely outside the scope of responsibility and authority of

18 Mr. Zaric.

19 Allegations of the Prosecution that Fadil Topcagic, as member of

20 the 4th Detachment, returned prisoners from Batajnica to Bosanski Samac,

21 which can be found in paragraph 208 of the Prosecution's brief, is

22 completely -- are completely groundless, because at that time, the 4th

23 Detachment existed no longer, and the circumstances surrounding the travel

24 of Topcagic to Batajnica to bring back prisoners are explained in detail

25 in his 92 bis statement and were not challenged during his

1 cross-examination before this Trial Chamber.

2 Paragraphs 216 to 223 of the Prosecutor's brief contain some

3 similar allegations concerning Mr. Zaric's interview to the Novi Sad

4 television. Not one of the Prosecution's witnesses stated that Zaric

5 forced them to talk to journalists. His participation in the TV Novi Sad

6 interview should be seen in what it actually was, namely, that he was one

7 of participants, he was one of persons giving interview, he came there on

8 orders of his superior and spoke about his knowledge on the paramilitary

9 formations in Bosanski Samac based on documents that had been found and

10 documents that were shown in the footage.

11 The authenticity of those documents was confirmed by witness

12 Alija Fitozovic, as well as numerous other witnesses heard during the

13 trial.

14 I will simply list the following witnesses: Todorovic,

15 Sarkanovic, and Jekic.

16 In paragraph 230, the Prosecution claims, and this is completely

17 unfounded, that members of the 4th Detachment took workers to perform

18 forced labour. Much has been said about the extent of speculations of

19 Prosecution witnesses as to who was and who was not a member of the 4th

20 Detachment. They did not have real, truthful information regarding that,

21 especially during the relevant stated period of time, the Army of

22 Republika Srpska was already established, so that the soldiers were

23 members of the 5th Battalion of the Army of Republika Srpska, rather than

24 the 4th Detachment of the Yugoslav People's Army. A large number of

25 people wearing uniforms and having weapons were not members of the 5th

1 Battalion, but rather had various posts within police, Ministry of

2 Defence, and other organs. That is the case of Mile Zoranovic, called

3 Pancir, who most frequently guarded persons performing forced labour and

4 was not a member of the 5th Battalion of the Army of Republika Srpska.

5 Explaining the participation of the accused and the forced labour,

6 the Prosecution, in paragraph 252, states that Mr. Zaric's wife was forced

7 to sweep streets. This fact precisely shows us what was the influence of

8 Mr. Zaric when it came to work obligation and to what extent he was

9 capable of relieving at least his wife of the duty to sweep streets,

10 regardless of how much he desired to do that. In the same paragraph of

11 the Prosecution brief, they refer to the statement of Witness K, who

12 allegedly was ordered by Mr. Zaric to sweep streets in Odzak, and this is

13 a complete distortion of facts which had been established during the

14 trial.

15 The tasks performed by Mr. Zaric in Odzak had nothing to do with

16 the people performing work obligation. The jobs performed by workers who

17 had work obligation were assigned by commissioners, by the commissioner

18 for the town of Odzak, whose name is Dusan Gavric. Dusan Gavric gave

19 evidence to that effect before this Trial Chamber.

20 As to the testimony of Witness M and his credibility, I will say

21 that that was covered quite well in the final brief. Therefore, we

22 believe it is not necessary to add anything to that.

23 In its brief, the Defence also dealt with the quite unfounded

24 allegations made by the Prosecution in paragraph 253, that Mr. Zaric

25 allegedly freed Snjezana Delic of work obligation. Since this was

1 explained in detail in paragraphs 365 to 367 of the final brief of the

2 Defence, what the Defence wishes to point out now is that Mr. Zaric

3 addressed Milos Bogdanovic, who, as head of the department of the Ministry

4 of Defence, was in charge of questions related to work obligation too, and

5 that what is most likely is that precisely Bogdanovic reacted by drawing

6 the attention of Stojan Blagojevic to the fact that Snjezana Blagojevic,

7 as the mother of two young children, was not subject to work obligation.

8 THE INTERPRETER: Interpreter's correction, Snjezana Delic, not

9 Snjezana Blagojevic.

10 MR. PISAREVIC: [Interpretation] It is also unfounded to state that

11 at the request of Snjezana Delic's father-in-law to have her problem heard

12 can be considered to -- can be considered as giving authorisation to free

13 someone of work obligation. There is ample evidence that was heard during

14 these past two years, and no one mentioned that Simo Zaric was in charge

15 of work obligation in the town of Bosanski Samac. Also, what is stated in

16 paragraph 254 of the Prosecutor's brief is unfounded, that Mr. Zaric, as a

17 senior officer in the 4th Detachment was involved in the programme of

18 forced labour, invoking the testimony of Safet Dagovic involving a speech

19 that he allegedly made in August 1992 in front of the memorial centre.

20 Witness Jovo Savic, in his testimony, clearly stated that he was the

21 person who made a speech before the 5th Battalion, and also that Milos

22 Bogdanovic was present then as well, who also made a speech on behalf of

23 the ministry. It is not being challenged that this is a time period when

24 Mr. Zaric had duties in Odzak. So the Prosecutor would have to make up

25 his mind. What are the duties that Mr. Zaric carried out in the month of

1 October 1992? There is just one thing that is certain, and that is that

2 he could not have been in two different places at the same time, both in

3 Samac and in Odzak.

4 Even the testimony of Witness M, in contrast to what witness

5 Dagovic said about this, is in contrast to what witness Dagovic said about

6 this, and therefore this testimony of his cannot be accepted as reliable

7 evidence in these proceedings.

8 Paragraphs 276 to 291 of the Prosecution brief pertain to the

9 specific accusation levelled against Mr. Zaric, namely, taking statements

10 from detained persons. The Defence of Mr. Zaric can only take this to be

11 as a lack of legal arguments and proper evidence in the hands of the

12 Prosecution. As for taking statements from a few detainees by Mr. Zaric,

13 the Defence already stated its views in its final brief, and it will now

14 respond only to some of the assertions made by the Prosecution.

15 The Prosecutor believes that taking statements from detained

16 persons constitutes participation in a system of discriminatory

17 interrogations, with the knowledge that vis-a-vis detained non-Serbs,

18 persecution is being carried out by other participants in the joint

19 criminal enterprise. This thesis is unfounded, as far as Mr. Zaric is

20 concerned, on the basis of the evidence presented here.

21 As for the allegations made by the Prosecution about some kind of

22 a central role played by Mr. Zaric in the interviews, that is totally

23 unfounded, particularly bearing in mind the fact that he interviewed only

24 four detainees. All statements of detainees that were given to Mr. Zaric

25 were compiled truthfully. Nothing was added to them and nothing

1 inaccurate was entered into them.

2 When statements were taken, no force or threats were resorted to

3 on the part of Mr. Zaric, which was confirmed by all witnesses who

4 testified in this regard, namely, Mr. Tihic and the Bicic brothers,

5 Muhamed and Hasan Bicic.

6 We've already said what the objective was of having these

7 statements taken. This had to do with finding out who the JNA officers

8 were, who were involved in illegal weapons sales. When statements that

9 have become part of evidence are quite simply read, and these are exhibits

10 D8/4 and D9/4, it's quite clear that they do not differ in any way from

11 what these witnesses stated before this Tribunal as well. Although other

12 evidence also clearly indicates that these two witnesses, Muhamed and

13 Hasan Bicic, did take part in fighting in Bosanski Samac on the 17th of

14 April, 1992, as well as that Mr. Zaric was aware of this fact, this is not

15 contained in their statements given to Mr. Zaric in Brcko, which, in

16 addition to the other facts that were mentioned, clearly shows that they

17 were not treated in a discriminatory fashion at all.

18 As for the allegations contained in paragraph 284 that Mr. Zaric

19 purportedly ordered the duty policeman to beat Kemal Mehinovic, the

20 Defence claims that Mehinovic's statement is quite untruthful and this was

21 refuted in the best possible way by the evidence that was presented during

22 Mr. Zaric's Defence case. First of all, pictures of the interior of the

23 SUP building from Bosanski Samac, along with the details of the room where

24 Mehinovic was detained as well as the direction in which the door opens

25 shows quite clearly that he could not have seen Mr. Zaric by the entrance,

1 as he claimed before this Tribunal. This video footage of the police

2 station is D44/4.

3 This is what witness Vladimir Sarkanovic testified about as well.

4 His statement can be found in the transcript on page 16548. This witness

5 spent his entire career in the police station in Bosanski Samac, and he

6 confirmed that the door on these particular premises was not changed since

7 1992, and finally, witness Savo Djurdjevic, page 17631 of the transcript,

8 who was on duty when Kemal Mehinovic was beaten, stated categorically and

9 testified that Simo Zaric had not ordered that, or that he never gave any

10 such orders, nor could have he given such orders to have any of the

11 detainees beaten.

12 In paragraph 286 of the final brief, the Prosecution again is

13 trying to diminish the importance of Zaric's behaviour in term of

14 initiating the transfer of detainees to Brcko, claiming that the reason

15 for this was to continue taking the statements concerned in an unhindered

16 fashion. Such a position taken by the Prosecution has a deficiency in the

17 field of logic and that is that there were no impediments in Mr. Zaric's

18 way to take these statements in Bosanski Samac and also that out of the 56

19 persons that were transferred to Brcko, only three gave statements.

20 Mr. Zaric was never aware that when taking statements, he was in any way

21 acting in a discriminatory manner or that this in any way constitutes a

22 contribution to joint criminal enterprise in terms of persecution. The

23 Defence underlines yet again that the only objective for having these

24 statements taken, the ones that Mr. Zaric took, that is, was to establish

25 the involvement of officers of the Yugoslav People's Army in illegal sales

1 of military weapons.

2 The Defence of Mr. Zaric believes that the allegations of the

3 Prosecution contained in paragraph 310 of the final brief do not

4 correspond to the evidence adduced, namely, the allegation that early in

5 the month of May, the Crisis Staff asked Mr. Zaric, Mr. Tadic, and

6 Bozo Ninkovic to negotiate about the exchange of prisoners who are being

7 held by Croats in Odzak is quite contradictory to what was said during

8 their testimonies with regard to this event by Bozo Ninkovic,

9 Miroslav Tadic, and Simo Zaric himself. All three testified that they

10 took part only in compiling lists of Serbs who remained in the territory

11 of the municipality of Odzak, and that they did not conduct any

12 negotiations that had to do with exchanges. Their engagement was over

13 once the lists were compiled and once these lists were handed over to the

14 local Red Cross.

15 Obviously, this activity of Mr. Zaric's, which has nothing to do

16 with exchanges, but the Prosecution, for want of other evidence, is trying

17 to put Mr. Zaric within a context of exchanges, nevertheless.

18 The allegations made in paragraph 321 about Mr. Zaric informing

19 the Crisis Staff about developments in his negotiations with Odzak are

20 exaggerated. Bearing in mind that Mr. Zaric reported to the Crisis Staff

21 only once to the effect that Odzak was proposing an exchange on an

22 all-for-all basis and that after that he did not have any contacts,

23 official or unofficial ones, with the Crisis Staff in respect of the

24 exchanges issue.

25 The allegations contained in paragraph 322 of the Prosecution

1 brief constitute a partial distortion and changing the meaning of the

2 words that were actually uttered by Mr. Zaric, namely, document P142 ter,

3 pages 79 and 80, clearly showed that Simo Zaric was not the person who was

4 supposed to agree to the proposal made by the Odzak side, along with the

5 consent of the Crisis Staff. The essence of the answer that Mr. Zaric

6 gave to the Prosecutors was that he would convey the proposal of the Odzak

7 side to the Crisis Staff of Bosanski Samac and that he would then convey

8 the answer of the Samac Crisis Staff to Odzak, when they talk again. This

9 is quite clear from the mentioned parts of Mr. Zaric's interview.

10 The allegations of the Prosecution contained in paragraph 321 are

11 totally unfounded, namely, that Simo Zaric and Miroslav Tadic together

12 negotiated about the first exchanges after the takeover on the 26th of May

13 in Zasavica and on the 5th of July in Lipovac in 1992. First and

14 foremost, no evidence whatsoever was adduced about Mr. Zaric's

15 participation in negotiations concerning the July exchange in Lipovac,

16 which took place on the 4th of July, 1992. This was never adduced during

17 the proceedings. Mr. Zaric explained during his testimony in which

18 capacity he happened to be at that exchange.

19 It is the position of the Defence that mere presence at the

20 exchange by no means signifies participation in the negotiations or its

21 organisation, as the Prosecution has been trying to represent this.

22 (Redacted)

23 (Redacted)

24 (Redacted)

25 (Redacted)

1 (Redacted)

2 (Redacted)

3 (Redacted)

4 On two occasions, Simo Zaric had contact with the Odzak side over

5 radio link in the presence of Witness Q. However, he did not, as alleged

6 by the Prosecution in paragraph 326, order Witness Q to propose an

7 all-for-all exchange. Quite the contrary; Witness Q never said that

8 Mr. Zaric had asked any such thing of him. The fact is that after the

9 second conversation there was an exchange, and the Prosecution is trying

10 to use this fact to prove that it was the result of Mr. Zaric's

11 involvement, which, however, is quite groundless, because then the

12 question would be --

13 MR. LUKIC: [Interpretation] My apology, Your Honours. I have the

14 same problem as with the closing argument of the Prosecutor. I would like

15 to have line 6 and 7 on page 114 redacted from the transcript. Lines 6

16 through 9 on page 114.

17 JUDGE MUMBA: Yes. It will be redacted.

18 MR. PISAREVIC: [Interpretation] The question is: Why would

19 Witness Q have been taken two other times to negotiations together with

20 Miroslav Tadic? Also, numerous evidence coming from witnesses that were

21 heard before this Trial Chamber, Bozo Ninkovic, Kosta Simic,

22 Teodor Tutnjevic, and Mr. Zaric himself, indicates how the second

23 conversation between Mr. Zaric and the representatives of Odzak ended.

24 Mr. Zaric was insulted, threatened, and that was the end of the

25 conversation. No agreement was ever reached. And Mr. Zaric never again

1 went to the premises of the communication centre, nor did he have any

2 further contact with the representatives of Odzak municipality.

3 The Defence would particularly like to point out that Witness Q

4 also stated that Mr. Zaric had left and that he had no further knowledge

5 of what happened. So the portion of his statement referred to by the

6 Prosecutor in their brief is mere speculation on his part.

7 The Prosecution's allegation of Mr. Zaric's alleged announcements

8 on the radio in connection with detaining Croats was refuted by the

9 testimonies of Witness Vaso Antic and Witness Pasaga Tihic who both

10 confirmed that Simo Zaric was never present on the premises of Radio Samac

11 nor did he ever address the public on the radio. His interview to Novi

12 Sad TV was broadcast on several occasions, though.

13 Your Honours, perhaps this would be a convenient time to break.

14 JUDGE MUMBA: Yes. I would like to wait for the registry

15 assistant to have the page signed for redaction.

16 And while I'm waiting for that, Mr. Pisarevic, you did give 15

17 minutes to Mr. Pantelic. I wanted to find out whether it's from your main

18 time of three hours or it's from your reply of one hour.

19 MR. PISAREVIC: [Interpretation] Your Honours, it boils down to

20 more or less the same for me. I have five pages to go. This may take

21 between 15 and 20 minutes.

22 JUDGE MUMBA: That's what you have, actually. That's the balance

23 you have for your three hours. So if you continue tomorrow for 15, 20

24 minutes, then that will be the end of three hours. And then your reply

25 time will be 45 minutes. All right?

1 MR. PISAREVIC: [Interpretation] That's fine.

2 JUDGE MUMBA: And tomorrow we shall sit from 9.00 only up to 12.30

3 hours and then continue on Friday from 9.00 up to 13.45 hours.

4 It should be 6 to 9, line 6 to line 9, because counsel continued

5 citing the evidence of the same witness.

6 MR. PANTELIC: Your Honour, can I have just a few seconds, please?

7 JUDGE MUMBA: Yes.

8 MR. PANTELIC: Could we have your guidelines and with regard to

9 the -- tomorrow's scheduling. I mean, based on the principle of the

10 equality of arms and fairness of trial, we believe that since the

11 Prosecution will have more than 18 hours for preparation for rebuttal

12 until tomorrow morning at 9.00 and then we shall be in situation to hear

13 them only tomorrow morning, assuming, let's say, 9.15 or 9.30, then one

14 hour of their submission, and obviously the Defence will be in a little

15 bit unfair situation. So what I kindly ask you, in order to consult with

16 my colleagues, which we could -- because this is a joinder case, which

17 topics we could cover. I would kindly ask you for at least two hours'

18 break tomorrow after the Prosecution's submission so that we could be

19 ready -- or even one Defence team to be ready to proceed. Because, you

20 know, comparing to 18 hours and -- I mean, two hours, it's more than fair,

21 I believe.

22 JUDGE MUMBA: I think if you can discuss that with your colleagues

23 after we have risen and then the matter will be communicated through the

24 legal officer to the Trial Chamber. The Trial Chamber will be able to say

25 how we shall sit tomorrow and Friday. But whatever happens tomorrow, our

1 proceedings will end at 12.30 hours and then we can continue on Friday.

2 We shall rise now.

3 MR. PANTELIC: I'm much obliged, Your Honour. Thank you.

4 --- Whereupon the hearing adjourned at 3.50 p.m.,

5 to be reconvened on Thursday, the 3rd day of

6 July, 2003, at 9.00 a.m.

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