Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8757

1 Monday, 9 June 2008

2 [Open session]

3 [Prosecution Closing Statement]

4 --- Upon commencing at 9.07 a.m.

5 JUDGE MOLOTO: Good morning to everybody in and around the

6 courtroom.

7 Madam Registrar, would you please call the case.

8 THE REGISTRAR: Good morning, Your Honours; good morning to

9 everyone in the courtroom. This is case number IT-04-83-T, The

10 Prosecutor versus Rasim Delic.

11 JUDGE MOLOTO: Thank you very much. May we have the appearances

12 for today, starting with the Prosecution.

13 MR. MUNDIS: Thank you, Mr. President. Good morning, Your

14 Honours, to my learned colleagues from the Defence, General Delic, and

15 everyone in and around the courtroom.

16 For the Prosecution, Daryl Mundis, Laurie Sartorio, Matthias

17 Neuner, Aditya Menon, and Kyle Wood.

18 JUDGE MOLOTO: Thank you very much.

19 And for the Defence.

20 MS. VIDOVIC: [Interpretation] Good morning, Your Honour. Good

21 morning to the colleagues from the Prosecution, to everyone in and around

22 the courtroom. Vasvija Vidovic and Nicholas Robson representing

23 General Delic with our legal assistants, Lejla Gluhic, Lana Deljkic, Asja

24 Zulo, and our intern Claire Bonnel.

25 JUDGE MOLOTO: Thank you very much. The purpose of today's

Page 8758

1 session is to hear the closing arguments of the parties.

2 Mr. Mundis.

3 MR. MUNDIS: Thank you, Mr. President.

4 Let me begin by just briefly telling the Chamber the approach

5 that the Prosecution will be taking with respect to closing arguments

6 today.

7 I will start with some very general comments concerning the

8 questions put to the parties by the Trial Chamber. Mr. Menon will then

9 address that part of indictment relating to the June 1993 crime base in

10 Maline. That will be followed by Mr. Wood who will discuss the crime

11 base concerning the July 1995 crimes; followed by Laurie Sartorio, who

12 will be addressing the Chamber with respect to the September 1995 crime

13 base. And we will then conclude with Matthias Neuner who will address

14 general issues concerning command and control and indicators or indicia

15 of effective control.

16 Let me start by turning to the -- to the Trial Chamber's

17 questions and specifically questions 1, 2, and 3.

18 If we could please go to the PowerPoint presentation.

19 Questions 1 and 2, as put by the Trial Chamber, will be addressed

20 by Ms. Sartorio, and question number 3 will be addressed by Mr. Menon.

21 Questions 5 and 8 will be addressed by Mr. Neuner, and I will address the

22 Trial Chamber on the remaining questions.

23 Question 4, the Trial Chamber asked what the significance of the

24 presence of foreigners or Arabs within the ranks of the 7th Muslim

25 Mountain Brigade; and, of course, this evidence was led pursuant to

Page 8759

1 paragraph 24 of the indictment, which alleged that on the 8th of June,

2 1993, units of the 3rd Corps, including the 306th Mountain Brigade,

3 7th Muslim Brigade, and the Mujahedin launched an attack on Maline.

4 The short answer to the question, as put by the Chamber, is that

5 there was no evidence adduced at the trial that the 7th Muslim Brigade

6 was involved in the attack on Maline on the 8th of June, 1993 as the

7 Prosecution alleged. However, there was evidence that foreign fighters

8 were in the 7th Muslim Brigade, and the Prosecution asserts that that

9 clearly demonstrates that foreigners were not exclusively with the

10 Mujahedin from Poljanice or subsequently in the El Mujahedin Detachment.

11 And I will briefly run through a few of the exhibits that clearly

12 indicate the presence of the foreign fighters within the 7th Muslim

13 Mountain Brigade. Let me stress that the primary reason that that

14 evidence was related to Maline, and there has been no evidence that the

15 7th Muslim Mountain Brigade was involved in that attack. But, as I have

16 indicated, it is important, we believe, in terms of the overall context

17 of this case the evidence that relates to the presence of foreigners or

18 Arabs within the 7th Muslim Mountain Brigade throughout the indictment

19 period.

20 Again, Exhibit 108 indicates that as at least as of the 15th of

21 March, the 7th Muslim Mountain Brigade had 1.439 soldiers. And in

22 paragraph 2 of this document, there is reference to around 60 Arabs or

23 Turks that were not included in the overall total numberless with respect

24 to the 7th Muslim Mountain Brigade as of March 1993.

25 JUDGE MOLOTO: May I interrupt.

Page 8760

1 MR. MUNDIS: Yes, Your Honour.

2 You've told us that the 7th Muslim Mountain Brigade was not

3 involved in the Maline incident.

4 MR. MUNDIS: That's correct.

5 JUDGE MOLOTO: In that event, the 7th Muslim Mountain Brigade is

6 not accused of having committed any other crimes in this indictment.

7 MR. MUNDIS: In this indictment, that is correct.

8 JUDGE MOLOTO: In that event, it looks like -- I had asked that

9 question, I'm quite satisfied with your answer, I don't think you need to

10 go any further.

11 MR. MUNDIS: Thank you very much Your Honour.

12 We'll then turn, if we can, to slide 20.

13 The next question that I will addressing Your Honours on is

14 question number 6, which indicates: Is it Prosecution's case that

15 Rasim Delic had actual knowledge of the crimes allegedly occurring in

16 1995, or only that he had reason to know of these crimes?

17 Your Honours, the Prosecution case is that the accused

18 Rasim Delic had reason to know of the crimes allegedly occurring in 1995;

19 although, there is evidence from which the Trial Chamber could infer that

20 he had actual knowledge.

21 The Celibici Appeals Chamber judgement, in paragraph 239, clearly

22 states that the relevant information only needs to have been provided or

23 available to the commander or, in the Celibici Trial Chamber's words, in

24 the possession of the commander. It is not required, the Prosecution

25 submits, that the commander actually acquainted himself with the

Page 8761

1 information, merely that it has been provided to him or is otherwise

2 available or in the possession of the commander.

3 JUDGE MOLOTO: I'm going to ask you to deal with "available."

4 Can you going back to that quotation from the Celibici case.

5 Could we have that quotation from the Celibici case?

6 I would like you to deal to what extent "provided or available

7 to" is supposed to mean.

8 MR. MUNDIS: We will get to some evidence in just a moment,

9 Your Honour; but, basically, the issue of "provided to" or "available to"

10 or "in the possession of" would indicate reports that are being sent up

11 the chain of command, and based upon the available evidence, for example,

12 concerning bulletins or security reports that witnesses testified should

13 have been made available to the top level of the ARBiH. That is

14 information that was going up the chain of command which it would be

15 reasonable to assume would be brought to the attention of the commanding

16 officer and/or addressed to members of his staff, which, when fully

17 functioning, would be in a position to make that information available to

18 the commanding officer.

19 There is also, for example, case law -- earlier case law from the

20 hostage case which has been incorporated into the commentaries of

21 Additional Protocol I by the ICRC, which states at paragraph 3545 of the

22 Additional Protocol I commentary: It seems to be established that a

23 superior cannot absolve himself from responsibility by pleading ignorance

24 of reports addressed to him or by invoking temporary absence as an

25 excuse.

Page 8762

1 The issue of knowledge of the 1995 crimes is set forth in

2 paragraphs 376 through 385 of the Prosecution's final trial brief.

3 For example, in paragraph 376, the Prosecution sets forth

4 citations to exhibits from ARBiH security bulletins, concerning the

5 criminal activity of the El Mujahedin Detachment in August and

6 September 1995. And as Your Honours will see on the screen - and, again,

7 this is an extract from paragraph 376 - in the approximately 25-day

8 period from 11 August 1995 through 4 September 1995, a number of security

9 bulletins addressed criminal activity or criminal behaviour by members of

10 the El Mujahedin Detachment, including serious crimes and other

11 misdemeanors on the 19th of August, 1995; physical abuse on the 26th

12 of --

13 JUDGE MOLOTO: Sorry. It is one thing to say serious crimes and

14 misdemeanours, it is quite another to state categorically what kind of

15 crimes these are. Obviously, if it is a -- are these the kind of crimes

16 that are justiciable in this Court.

17 MR. MUNDIS: Your Honours, this evidence goes to the fact of

18 knowledge or inquiry knowledge or the need for the accused to make

19 further inquiries concerning what is contained in these reports. So this

20 issue goes to the point of inquiry type of notice that would put him on

21 knowledge as to alleged criminal activities by this detachment in the

22 period leading right up to the September 1995 crime base. And so we

23 would submit that this goes very much to the point of knowledge and

24 notice, and particularly inquiry notice.

25 JUDGE MOLOTO: I am with you on that one. What I do want to know

Page 8763

1 is: Is this knowledge of the type of crime that he is currently accused

2 of, or is it just a question of you desecrated or the kind of crimes or

3 misdemeanours that were mentioned, like harassing ladies in the streets,

4 et cetera? Are these war crimes?

5 MR. MUNDIS: Well, there is, perhaps, no indication from these

6 bulletins that these would rise to the level of war crimes. What we're

7 simply stating is that this is a detachment which the accused knew and

8 other members of the ARBiH and 3rd Corps knew had a propensity to commit

9 crimes.

10 JUDGE MOLOTO: That's enough. Thank you.

11 MR. MUNDIS: Turning to the next topic that we have addressed in

12 the brief, and which I think needs to be stressed, is the fact that much

13 of this informing concerning the capture of the prisoner of war and

14 civilians by the El Mujahedin Detachment in September 1995 was publicly

15 available.

16 Exhibit 1194, the ARBiH publication Prva Linija for 1 October

17 1995 contains articles that deal with the combat activities in the period

18 July through September 1995, making specific reference to the

19 El Mujahedin Detachment, which, again, would tend to indicate that there

20 might have been crimes committed. There's a reference, for example, to

21 liquidation of Chetniks.

22 Please go to the next slide.

23 There is also clear reference to the fact that the El Mujahedin

24 Detachment had captured Chetnik prisoners of war.

25 Similarly, Exhibit 1195, the patriotic list edition of

Page 8764

1 October 1995 makes reference to Chetnik officers taken prisoner.

2 Now, given the evidence concerning the June 1993 crime base,

3 which Mr. Menon will be talking about shortly, the fact that the

4 Mujahedin from Poljanice whom the Prosecution asserts were the corps, if

5 you will, the basis which the El Mujahedin Detachment was formed, from

6 the very day the accused Rasim Delic assumed command of the army of

7 Bosnia and Herzegovina, which was, of course, 15 years ago yesterday, he

8 was on notice that this unit had a propensity to commit these types of

9 crimes, and particularly crimes involving prisoners of war.

10 So the simple fact that this public information, on top of

11 security service bulletins, put him on notice, we would allege, that the

12 El Mujahedin Detachment had prisoners of war, coupled with this

13 propensity for that unit or members of that unit to commit crimes, should

14 have put him on notice that something was amiss.

15 We go to the next topic. Further information from the 3rd Corps

16 concerning the capture of and crimes committed against prisoners of war

17 and civilians in 1995. Exhibit 669 is an important piece of evidence.

18 This is a document from the 3rd Corps sent up the chain of

19 command, dealing with operation -- operative activities against the

20 El Mujahedin Detachment and intelligence regarding that detachment. It

21 was addressed to the ARBiH General Staff security administration. And

22 attached to that this document, Exhibit 669, or being forwarded with it

23 were two intercepted faxes from the 3rd Corps El Mujahedin Detachment.

24 The second report that was part of this ARBiH 3rd Corps security

25 report going up the chain of command clearly states the Mujahedin gained

Page 8765

1 ground and entered a group of Serbian villages and took 60 prisoners

2 after the killing.

3 We would, again, assert that this document was one which would

4 have been available to the accused, and the testimony of Dzemal Vuckovic,

5 the head of the analysis and information affairs department in the

6 military security administration of the General Staff, was asked some

7 questions about this document. He clearly indicated, as reflected on

8 page 5513 of the transcript, that this report was sent to us, meaning the

9 Security Administration, by the 3rd Corps. And if we look also at his

10 consolidated 92 ter statement, paragraph 57, he again makes reference to

11 what was subsequently admitted as Exhibit 669 and stated this should have

12 been reported to the top level, the same or next day.

13 We would assert, Your Honours, that this clearly demonstrates the

14 accused should have been on notice and perhaps had actual notice based

15 upon this testimony that this document in particular should have been

16 sent to the top level of the ARBiH.

17 JUDGE MOLOTO: Is it the Prosecution's position that once

18 information has reached the Security Administration, then it meets the

19 retirement of "available to" or "provided to"?

20 MR. MUNDIS: Yes. And, again, I will stress what I indicated at

21 the beginning, which was that the Prosecution is primarily relying upon

22 the notion that he had reason to know and was put on inquiry notice.

23 However, based upon the totality of the evidence presented, including the

24 evidence from persons such as Mr. Bukovic from the Security

25 Administration, and other witnesses who have testified about how these

Page 8766

1 types of reports were routinely handled, that the Trial Chamber can make

2 the inference that this information was in the actual possession of the

3 accused Rasim Delic, and, therefore, he had clear notice of what was

4 happening.

5 JUDGE MOLOTO: Let me be quite clear that I understand and that

6 we are on the same wave length in your response to my earlier question.

7 In other words, once information reaches the administration, security

8 administration services, irrespective of whether or not that is evidence

9 of that information actually be given to the accused, that "provided to"

10 and "available to" him as a retirement would be satisfied. That is the

11 position.

12 MR. MUNDIS: That is the position of the Prosecution.

13 JUDGE MOLOTO: I just wanted to understand.

14 MR. MUNDIS: Information coming to the staff, the Main Staff, the

15 General Staff of the ARBiH, is information, we would assert, is in the

16 position or made available to the commander.

17 JUDGE MOLOTO: Thank you.

18 MR. MUNDIS: Let me turn now to question 7 which has two prongs.

19 The first prong concerns continued reliance the El Mujahedin's

20 contributions and whether or not that would constitute risk that further

21 violations could be committed by that unit.

22 In response to this question, the Prosecution will submit that

23 continued reliance on the El Mujahedin Detachment's contributions,

24 without taking any measures or further measures to monitor or discipline

25 the members of that detachment, in fact does constitute acceptance of the

Page 8767

1 risk that further violations would be committed by that unit.

2 The issue of knowledge of past crimes was dealt with very

3 recently by the Appeals Chamber in the Hadzihasanovic and Kubura case,

4 and there the Appeals Chamber clearly states that knowledge of past

5 crimes can put a superior on notice of the risk of future crimes.

6 Turning to paragraph 30 of the Appeals Chamber judgement in

7 Hadzihasanovic and Kubura, the Appeals Chamber clearly indicated that a

8 case by case assessment would be necessary, and that a Trial Chamber may

9 take into account the failure by a superior to punish the crime in

10 question.

11 The Appeals Chamber went on to state that such a failure is

12 relevant to the determination of whether a superior possessed information

13 that was sufficiently alarming to put him on notice of risk that similar

14 crimes might be carried out by subordinates and justify further inquiry.

15 And that, the Prosecution asserts, is the clearly the case presented by

16 the facts in evidence in this proceeding.

17 It is also important to look at the final sentence of --

18 [French on English Channel]

19 JUDGE MOLOTO: We're having a problem. There's

20 cross-interpretation.

21 MR. MUNDIS: Let me repeat.

22 It is also important to look at the final sentence of

23 paragraph 30 of the Appeals Chamber judgement, which states the Appeals

24 Chamber stresses that a superior's failure to punish a crime of which he

25 was actual knowledge is likely to be understood by his subordinates at

Page 8768

1 least as acceptance, if not encouragement much such conduct, with the

2 effect of increasing the risk of new crimes being committed.

3 That language from the Appeals Chamber is particularly important

4 in this case, because, again, as will be seen by the comments of

5 Mr. Menon in a few moments, following the crime in Maline and Bikosi on

6 the 8th of June 1993 and the subsequent notice that was made available to

7 the accused in June 1993, failure to take steps to discipline the

8 Mujahedin from Poljanice who were involved in that crime, coupled with

9 the fact that in August 1993, the accused ordered the formation of the

10 El Mujahedin Detachment, which would included, we would submit, members

11 of the Mujahedin from Poljanice, falls clearly within the scope of the

12 final sentence of this paragraph.

13 To be quite clear, we are not suggesting that knowledge of past

14 crimes automatically puts a superior on notice of the risk of future

15 crimes. As the Appeals Chamber has clearly said, a case by case

16 assessment is necessary taking into account the facts of the case: Past

17 crimes must have been committed in circumstances making it possible for

18 the superior to foresee the recurrence of such crimes, thereby requiring

19 him to take the steps necessary to address the risk.

20 In this case, there are, the Prosecution's submits, three primary

21 factors that the Trial Chamber should look at with respect to the issue

22 of risk: The nature and extent of the detachment's prior criminal

23 conduct, and we've talked about already this morning and it will

24 addressed throughout the remainder of today; the general reputation and

25 operating methods of the detachment; and the nature of the continued

Page 8769

1 assignments given to the detachment, knowing of their prior conduct.

2 We would submit that a superior who is on notice of a risk of

3 future crimes is required to do more than simply making further

4 inquiries. A superior who is on notice of a risk of future crimes must

5 take the necessary and reasonable steps to prevent the future crime from

6 occurring. And depending upon the circumstances, this may involve making

7 additional inquiries and/or taking concrete steps to reduce the known

8 risk of such crimes.

9 In this case, as the Chamber is well aware, evidence was led that

10 not only was the El Mujahedin Detachment, or the Mujahedin from Poljanice

11 more specifically, involved in crimes of June of 1993, but criminal

12 conduct and criminal activity continued throughout the indictment period.

13 The Paul Godale murder being an example of criminal activity from

14 January 1994, and Exhibit 658 relates to this crime.

15 As a result of that, an operative plan was put in place.

16 Exhibit 658 discusses the security assessment of the findings concerning

17 that incident, being the murder of Paul Godale; and, of course, that

18 document also indicates that the interviews were to be conducted of

19 members of the detachment based on the established facts that the vehicle

20 used by the murderers belonged to the El Mudjahedin unit. We would,

21 again, submit that this constitutes risk, acceptance of risk, that

22 members of this detachment were involved in, in this case, the Paul

23 Godale case, killing of a humanitarian worker.

24 But this information concerning criminal activities didn't stop

25 in January 1994. It continued into 1995, when, in the words of

Page 8770

1 witnesses, the security assessment and security situation concerning

2 members of the El Mujahedin Detachment continued to be a problem.

3 Exhibit 964 relates to what came to be known as Operation Vranduk.

4 This document clearly indicates that the El Mujahedin Detachment

5 had members whose behaviour is very suggestive from a security point of

6 view. Similarly, this document, which was written by General Jaserevic

7 from the Security Administration, makes reference to illegal activities

8 and actions committed by some members of the detachment. As a result,

9 General Jaserevic suggested establishing an operative action the

10 El Mudjahedin Detachment, to include secret listening and recording,

11 secret monitoring and observing, secret searches, and secret control of

12 the mail.

13 General Delic approved this plan, putting into place

14 Operation Vranduk on the basis of the information contained in this

15 exhibit.

16 On the 15th of June 1995, as demonstrated by Exhibit 665, further

17 information on intelligence from the El Mujahedin Detachment, addressed

18 to the Main Staff Security Administration, there is more reference to

19 crimes committed by -- by members of the El Mujahedin Detachment,

20 including the liquidation of a number of Chetniks. It's indicated in

21 this document that two such persons were slaughtered and their heads

22 carried throughout the villages down the Krivaja river, showing the heads

23 to the locals and school children.

24 JUDGE MOLOTO: Were those two killed in combat, or were they just

25 killed when they were not in combat.

Page 8771

1 MR. MUNDIS: It is unclear, Your Honours, from the document.

2 However, what is more telling than the actual killings is the fact that

3 these soldiers, whether killed in combat or subsequent to combat,

4 apparently based on the document, had their heads decapitated and those

5 heads were then paraded through local villages, to include being shown to

6 school children. That is precisely the type of notice, whether those

7 soldiers were killed in combat or not, that should have been extremely

8 alarming when it reached the Security Administration of the Main Staff,

9 and, therefore, was available, in our submission, to the accused.

10 JUDGE MOLOTO: Thank you.

11 MR. MUNDIS: This document concludes by indicating that the

12 Security Administration will continue to follow the conduct of the

13 El Mujahedin unit members through operative work and subsequently make

14 reports.

15 Let me turn now to the second prong of question 7, which asked

16 whether a referral by the 3rd Corps for investigation to the military or

17 civilian prosecutor would meet the requirements of material ability to

18 punish.

19 Of course, the requirement of effective measures, which is the

20 third element of superior responsibility, and the material ability to

21 punish, the first element of superior responsibility, are flip sides, if

22 you will, of the same coin. In order to have a superior subordinate

23 relationship, one must have, or a commander must have, effective control,

24 which means the material ability to prevent or punish. Superiors can

25 only be held responsible when they take effective measures within one's

Page 8772

1 material ability.

2 In this sense, with respect to the question concerning referral,

3 Exhibit 25, which is the order on district military courts is, in our

4 submission, particularly informative on this point.

5 Article 27 consists of three paragraphs. The second

6 paragraph relates to what might be more colloquially known as referral:

7 The military commander of the military unit institution is obliged to

8 inform immediately the district military prosecutor or supreme commander

9 about information referred in paragraph 1 of this article; paragraph 1,

10 of course, being crimes.

11 But it is interesting to note that this paragraph that talks

12 about referral is the second paragraph of Article 27. The first

13 paragraph of Article 27, which is displayed on the screen in front of

14 you, also puts certain other obligations on military commanders: The

15 commander of the unit and the military institution is obliged to make

16 certain actions, so that the person who committed the criminal act, for

17 which official prosecution is foreseen, does not hide or escape, and the

18 traces and objects which may be used as evidence are preserved, and to

19 collect all information that may be useful for conducting the criminal

20 procedure.

21 We would submit that simply referring the matter to the relevant

22 district military prosecutor' office, in light of this statutory

23 requirement, is insufficient, unless the steps taken contain in the first

24 paragraph of Article 27 have also been fulfilled; that is, --

25 I see my colleague on her feet, Your Honours.

Page 8773

1 JUDGE MOLOTO: Yes, Madam Vidovic.

2 MS. VIDOVIC: [Interpretation] Your Honours, I apologise

3 interrupting my colleague. I would just like to some receive guidance

4 from you.

5 If the Prosecutor is using a document that we objected to,

6 rather, we objected to a erroneous translation, and we sought officially

7 to have the translation corrected, and now this document is being placed

8 before you as an exhibit as evidence, I think that this might mislead the

9 Trial Chamber, and since this is something that has occurred several

10 times in several important situations, whether it would be visible for me

11 to seek it.

12 For instance, here, the translation reads military commander;

13 whereas, it should read senior officer, starijesne [phoen], in Bosnian.

14 And this paints a completely different picture from what you get, and

15 this is -- this goes beyond the context of what the Prosecutor is talking

16 about. I do apologise for rising, but --

17 JUDGE MOLOTO: Thank you, Madam Vidovic. Was your objection

18 upheld at the time you raised it?

19 MS. VIDOVIC: [Interpretation] Yes, Your Honour. Moreover,

20 afterwards, having seen that they are again using documents that we have

21 made clear that they have been mistranslated, I again sought from the

22 CLSS --

23 JUDGE MOLOTO: [Previous translation continues] ... Mr. Mundis,

24 apparently, you are using a document about which the Defence objected and

25 about which the Chamber upheld the objection.

Page 8774

1 Now, I have no recollection of this.

2 MR. MUNDIS: Yeah. Let me perhaps -- perhaps the best way to go

3 forward would be if the registry could pull up Exhibit 25, and we'll just

4 go to the version that has been available in e-court. It is possible

5 that this exhibit -- I don't have a specific recollection of that either.

6 It is possible that this exhibit, the translation was corrected and it

7 simply wasn't uploaded into the systems that the Prosecution uses. That

8 is certainly within the range of the possible.

9 I'm happy for the registry to pull up the official version of

10 Exhibit 25. And if we could go in that document to Article 27, I don't

11 think it is going to make much of a point with respect to the point I'm

12 talking, but I'm happy -- of course, the corrected version of the

13 translation is the one we rely on; and if I have made an error, I

14 apologise for that.

15 JUDGE MOLOTO: Thank you.

16 Will the registry please help us with bringing up Exhibit 25 on

17 the screen.

18 MR. MUNDIS: So I, obviously, stand corrected based on - it's

19 Article 27 - the first and second paragraphs. I, obviously, stand

20 corrected with respect to the version that I had put on the screen.

21 But the point, Your Honours, is the same. The senior officer in

22 a military unit or a military establishment shall take measures to

23 prevent the perpetrator of a criminal offence from going into hiding or

24 escaping.

25 In other words, the point we're trying to make is that referral

Page 8775

1 in the absence of taking the other measures, both to ensure the

2 perpetrator does not escape or that the evidence of the criminal offence

3 is not destroyed or otherwise lost, is an extremely important component

4 that senior officers in military units or a military establishment must

5 take; that is, a simple referral to a criminal court or a district

6 military prosecutor's office may not be enough in situations where the

7 perpetrators are allowed to escape and/or evidence is not properly

8 collected.

9 So, the point being that referral might be sufficient in cases

10 where the military unit has taken the proper steps set forth in

11 Article 27. But if those steps have not been taken, simply referring the

12 event or alleged crime to a district military prosecutor' office is

13 insufficient in and off itself, unless the steps envisioned by Article 27

14 are not taken.

15 The final point I would make on this issue of referral, with

16 respect to obligations of commanders, the Prosecution's pre-trial brief,

17 at paragraphs 20 through 20.11, contain a very detailed explanation of

18 the obligations of commanders. And we would refer Your Honours back to

19 that document for additional information in that respect.

20 At this point in time, Your Honours, I will turn the floor over

21 to my colleague Mr. Menon, who will address you on the June 1993 crime

22 base.

23 JUDGE MOLOTO: Mr. Menon.

24 MR. MENON: Thank you, Your Honours. My approach will be to

25 focus on specific paragraphs from the -- from the Defence final brief,

Page 8776

1 and to highlight evidence which we believe counters the arguments that

2 the Defence have made.

3 I begin at paragraph 194 of the Defence final brief, where the

4 Defence state the military action in the Bila valley was a low intensity

5 combat action, not a major operation. They say this was not an attack on

6 the whole Bila valley, but rather focussed towards Velika Bukovica.

7 We believe that the evidence shows otherwise. We believe the

8 results which the ARBiH realized on the ground show that its focus was,

9 in fact, on seizing control of the Bila valley.

10 We see here Exhibit 1213, in relation to which Mr. Halim Husic,

11 when asked which villages controlled villages by the ARBiH at the

12 beginning of June 1993, he indicated that villages 1, 13, 2, 9, 5, 12,

13 and 3 were controlled by the ARBiH.

14 Your Honours, this would roughly correspond to half of the Bila

15 valley; therefore, half of the valley at the beginning of June 1993 was

16 controlled by the ARBiH and half of the valley was controlled by the HVO.

17 We see Exhibit 1213 again, Your Honours, in relation to which

18 Halim Husic, when asked which villages the ARBiH had control over after

19 the 10th of June 1993, he indicated that all of the villages, at least

20 the villages marked 1 to 14, were in the control of the ARBiH. In

21 essence, Your Honours, after the 10th of June 1993, the ARBiH controlled

22 the Bila valley. Whilst the Defence may claim that the ARBiH was not

23 focussed on seizing control of the Bila valley, we would submit that the

24 successes which they obtained through combat in the Bila valley betray

25 the objectives that they had when they entered into that combat.

Page 8777

1 We see here paragraph 193 from the Defence final brief, where

2 they indicate that it can be concluded that the combat action in the Bila

3 valley arose ad hoc based upon an immediate need for assistance and

4 without any proper prior planning.

5 We believe that the evidence shows that in the days prior to

6 8 June 1993, 3rd Corps commander Enver Hadzihasanovic was committed to

7 undertaking military action in the Bila valley, and that he would not

8 have done so unless the military action which followed was, in fact,

9 planned.

10 We see here, Your Honours, Exhibit 283, which is a BritBat

11 document. The document speaks of a meeting on the 5th of June 1993,

12 which involved amongst others the 3rd Corps Commander Hadzihasanovic and

13 Witness Alistair Duncan. We see that the document reports that during

14 that meeting, General Hadzihasanovic adopted an extremely hard line

15 attitude throughout the meeting. And we see that, on the basis of that

16 meeting, that BritBat concluded that the ARBiH were no longer prepared to

17 retrain themselves and were, in fact, likely to take military initiative

18 in the Lasva valley. Witness Alistair Duncan testified that the Bila

19 valley was at the western end of the Lasva valley.

20 We move on to the 6th of June 1993. Exhibit 284 speaks of two

21 meetings that were held that day. Hadzihasanovic was supposed to attend

22 the evening meeting but refused, maintaining his previous position that

23 it was now too late for negotiation. BritBat concluded that the

24 3rd Corps, judging by the attitude of its commander, seems poised for

25 further military action having clearly rejected the concept of

Page 8778

1 negotiation.

2 8 June 1993, Your Honours. BritBat's predictions were confirmed.

3 They reported that the expected BiH offensive in the area has begun, a

4 major Muslim push is being made down the Bila valley. We believe, Your

5 Honours, that the evidence leaves little to no doubt that the operation

6 undertaken by the ARBiH on 8 June 1993 was, in fact, a planned affair.

7 Paragraph 194, Your Honours, of the Defence final brief. They

8 state in the last sentence: "In terms of the command and control over

9 the parts of the 306 MB that set off from Mehurici, it was clear that

10 Commander Sipic was unable to exercise any control as he was blocked

11 Krpeljici.

12 Your Honours, we believe this is a particularly important issue

13 because the Prosecution has argued at paragraph 56 to 58 of its final

14 brief that on 8 June 1993, the 306th Mountain Brigade carried out the

15 order which is set out in Exhibit 258 and that they did so in conjunction

16 with the Mujahedin combatants --

17 THE INTERPRETER: Could the speaker please slow down for

18 interpretation.

19 MR. MENON: I apologise for that, Your Honour, I will speak

20 slowly.

21 As I was saying, Exhibit 258, we have argued, contains an order

22 which the 306th Mountain Brigade carried out in conjunction with the

23 Mujahedin combatants from the Poljanice camp. This order had been issued

24 to Esed Sipic, the 306th Brigade commander, by Alagic, the OG Bosanski

25 Krajina commander. We see that, in Exhibit 258, the document speaks of

Page 8779

1 connection with Sipic being interrupted. It goes on to state: "We do

2 not have information if already on his way and how far he has come."

3 We know, Your Honours, from Exhibit 284, that by the 6th of

4 June 1993, Alagic and Sipic did, in fact, have contact. We see from

5 Exhibit 284 that they both attended the meetings spoken of in that

6 document. We believe, Your Honours, that this supports our argument

7 that, in fact, the order in Exhibit 258 was carried out on 8 June 1993.

8 Paragraph 204 of the Defence final brief, Your Honours, where the

9 Defence claim that there is no proof beyond a reasonable doubt that

10 Mujahedin were involved in the Maline attack or they were observed in the

11 village.

12 We see in front of us Exhibit 99, which was marked by witness

13 Saban Alic. Mr. Alic was a member of the Mudjahedin from Poljanice on

14 the 8th of June, 1993. He testified that a breakthrough group from the

15 camp launched the attack. Saban Alic was in a combat group that followed

16 the breakthrough group. In doing so, Saban Alic's group moved from point

17 3, which is marked as Simulje, to point 4, which corresponds with Borje.

18 In doing so, he passed via point 5. We see that the path taken by the

19 Mujahedin would have placed them in the area of Gornje Maline on the 8th

20 of June, 1993.

21 We see in front of us, Your Honours, Exhibit 132, which was

22 marked by Zdravko Pranjes. He was an HVO soldier that was manning the

23 line that was set up around Gornje Maline prior to the ARBiH attack on

24 the 8th of June, 1993. He drew that line on Exhibit 132, and that is

25 represented by the red line that Your Honours on the screen in front of

Page 8780

1 you. The arrows on the screen represent the movement of the Mujahedin

2 that day based on the evidence of Saban Alic. We see from this exhibit,

3 Your Honours, that the Mujahedin clearly attacked the HVO line around

4 Maline on the 8th of June, 1993, and that this, in fact, corroborates the

5 testimony given by witnesses who saw Mujahedin fighters in the village of

6 Gornje Maline on the 8th of June, 1993, following the Bosnian Croat

7 surrender of that village.

8 At paragraph 204 of the Defence final brief, the Defence take

9 issue with the testimony given by Witness Zeljko Pulseja. The Defence

10 claim that the Prosecutor asked a series of leading questions, which

11 resulted in the witness describing two men with beards with dark skin and

12 a third with black curly hair. The Defence are referring to observations

13 that Mr. Pulseja made in Gornje Maline following the Bosnian Croat

14 surrender of that village.

15 Your Honours, we would submit that none of the questions asked of

16 Mr. Pulseja were leading in any respect. The Defence cite to questions

17 at pages 1029 to 1031 of the transcript. Rather than reading -- the

18 questions are actually listed on the screen. I won't read them all out,

19 but I would simple put it on the record that we do not consider any of

20 those questions to be leading. And we ask that the Trial Chamber

21 carefully exam those questions and carefully assess the Defence's

22 argument on the basis of the questions that were asked.

23 Paragraph 207 of the Defence final brief, Your Honours. Here,

24 the Defence refer to Saban Alic's testimony to claim that there were no

25 arrangements made with the ARBiH to participate in combat in the Bila

Page 8781

1 valley. They quote Mr. Alic as saying: "I was a spontaneous thing and I

2 simply joined in."

3 Your Honours we would submit that Saban Alic was not in a

4 position to know whether the Mujahedin had made arrangements to

5 participate in combat with the ARBiH. Saban Alic joined the Mujahedin on

6 1 June 1993, a week prior to the operation. Furthermore, the evidence

7 given by Saban Alic shows that he was merely a foot soldier within the

8 ranks of the Mujahedin.

9 We would submit that the appropriate witness to refer to on this

10 point would be Witness Ali Hamad. Mr. Hamad served in the Mujahedin unit

11 in Karaula from September 1992 until approximately November 1992. The

12 unit that he was in -- the unit that he was in eventually left Karaula

13 and moved to Bijelo Bucje. And while that unit was in Bijelo Bucje, Ali

14 Hamad served as a deputy commander, and for approximately the first six

15 months of 1993 as the commander.

16 When asked at page 29 of the 7 September 2007 transcript, "As the

17 deputy commander after that unit, can you tell the Trial Chamber how

18 combat operations were planned and organised," he indicated that:

19 "First, the senior officers of BiH arm would meet with commander in

20 Mehurici. After that, I would receive orders from the Mujahedin command

21 that I need to collaborate with the Bosniak units and take part in the

22 attacks which they had proposed."

23 We would submit that from his evidence, it is clear that the

24 combat objectives were set by the ARBiH and communicated to Mujahedin

25 fighters through the Mujahedin command. It is also apparent from Ali

Page 8782

1 Hamad's testimony that Wahiddin, the Mujahedin military chief, would have

2 allowed the Mujahedin to engage in combat without the authorisation of

3 the ARBiH.

4 In this respect, Ali Hamad testified, at pages 38 to 39 of the

5 7 September 2007 transcript, that: "I had to cooperate with the B and H

6 army. We could not attack any location without asking them."

7 Your Honours, we would submit that the only reasonable

8 information inference to be drawn from this evidence is that the

9 priorities for the combat undertaken by the Mujahedin in the Bila valley

10 were communicated to the Mujahedin command by ARBiH commanders within the

11 3rd Corps. We would submit that it could not have been merely a random

12 incident, as the Defence would have the Trial Chamber believe, that the

13 Mujahedin from Poljanice engaged in combat from 8 June 1993.

14 Paragraph 208 of the Defence final brief. Here, the Defence

15 refer to Witness Sinan Begovic. And they state that he said that members

16 of -- of the 306th Mountain Brigade, who were fighting in June, did not

17 have clear information -- did not have any clear information about the

18 involvement, if any, of the Mujahedin from Poljanice on -- in combat

19 activities.

20 The Defence here referred to combat activities on the 8th of

21 June, 1993. We would submit that it is very clear from the evidence that

22 Sinan Begovic did, in fact, know that the Mujahedin participated in the 8

23 June 1993 combat operation.

24 When asked, at page 402 of the 11 July 2007 transcript, whether

25 there were rumours that the Mujahedin were there or whether they were

Page 8783

1 actually there, he testified that there were. That is unequivocal. They

2 were in action.

3 Furthermore, in line with the testimony given by Poljanice

4 Mujahedin members Saban Alic and Hasib Alic, Sinan Begovic indicated that

5 the Mujahedin moved from Simulje, point 3 on Exhibit 64, to point 2 on

6 Exhibit 64, Borje.

7 JUDGE LATTANZI: [Interpretation] Mr. Menon, I need to follow in

8 French. The interpreters are asking you, once again, to slow down just a

9 bit, otherwise they cannot interpret accurately. Thank you.

10 MR. MENON: I apologise for that, Your Honour. I will endeavour

11 to speak much more slowly.

12 As I was saying, Begovic confirmed that the Mujahedin moved from

13 point 3 to point 2, from Simulje to Borje. His unit moved parallel to

14 the Mujahedin. They moved from Suhi Dol to Percin. And just for

15 clarification, at that time, Begovic was a member of the 306th Mountain

16 Brigade. We would submit that this exhibit can only show coordination, a

17 high degree of coordination, between 306th Mountain Brigade and the

18 Mujahedin from Poljanice. It is clear that they were coordinating their

19 activities on that day.

20 JUDGE MOLOTO: Slow down, slow down.

21 MR. MENON: I'm sorry, Your Honour.

22 Paragraph 118 of the Defence final brief. Here, the Defence

23 recount an episode during the Bila valley operation that took place at

24 the Guca Gora church, and they do so to support the position that the

25 Mujahedin were not under Mehmed Alagic's control. The incident itself

Page 8784

1 was characterized by an attempt of a Mujahedin fighter to blow up the

2 Guca Gora church over the objections of Mehmed Alagic.

3 Contrary to what the Defence claim, we would submit that this

4 episode is, in fact, an example of Mujahedin compliance with ARBiH

5 instruction. We see from witness Ali Hamad's testimony, at page 117 of

6 the 8 September 2007 transcript, that he clearly indicated that the chief

7 of the Mujahedins accepted Alagic's order not to blow up the church in

8 Guca Gora.

9 Paragraph 228 of the Defence final brief. Here, the Defence

10 assert that the Prosecution alleges that the Mujahedin came out of the

11 Poljanice camp. The evidence does not show this at all.

12 I would refer Your Honours to paragraphs 215 to 217 of the

13 Prosecution's final brief, which set out the relevant facts that clearly

14 show that the perpetrators of the crimes in Bikosi emerge from the area

15 where the Poljanice camp was located, and that they then proceeded to

16 separate the victims from those who were taken to the Mehurici school.

17 Paragraph 230 of the Defence final brief, Your Honours. Here,

18 the Defence refer to other groups, other Mujahedin groups, that it claims

19 may have perpetrated the crimes in Bikosi. In this sense, the Defence

20 specifically refer to Abu Hamza's group, the Zenica Gerila, and Abu

21 Zebeir's group. We know, Your Honours, that the perpetrators were

22 foreigners and Bosniaks, and that the Poljanice Mujahedin had both

23 amongst its ranks. This is not in dispute.

24 If we could go into private session, Your Honours.

25 JUDGE MOLOTO: May the Chamber please move into private session.

Page 8785

1 [Private session]

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 [Open session]

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

21 MR. MENON: As I was saying, though the Defence claim, at

22 paragraph 89 of their brief, that Abu Hamza's group was comprised of

23 Bosnian and foreigners, the testimony to which they cite at that

24 paragraph actually refers to the group at Poljanice and not Abu Hamza's

25 group. The testimony to which they cite is specifically from Witness

Page 8786

1 Aiman Awad's testimony.

2 We would submit, again, that there is no evidence to suggest that

3 Abu Hamza's group including locals amongst its ranks.

4 Furthermore, Your Honours, it is it apparent from Asim Delalic's

5 testimony that the 306th Brigade was aware that the perpetrators of the

6 crimes in Bikosi were Mujahedin from the Poljanice camp. Specifically

7 when asked, at pages 1710 to 1711, "Did you manage to establish the fate

8 of these 20 to 25 missing," he answered: "The perpetrators were the

9 Mujahedin." He then went on to claim that, "by virtue of the fact that I

10 could not continue investigating, because in that period of time no one

11 could enter the Mujahedin camp."

12 From the question and answer exchange that we see on the screen

13 in front of us, we know that Delalic was speaking of the Poljanice

14 Mujahed because of the reference to the Mujahedin camp in Mehurici.

15 We can trust the knowledge that existed within the 306th Mountain

16 Brigade because the evidence shows that members of that brigade were, in

17 fact, able to distinguish between different Mujahedin groups. Two

18 examples, Your Honours, are relevant to this point.

19 And, actually, Your Honours, I see that it is 10.15. Perhaps it

20 is a good time to take a break now.

21 JUDGE MOLOTO: If it is convenient to you.

22 MR. MENON: Yes.

23 JUDGE MOLOTO: We'll take a break now and come back at quarter to

24 11.00.

25 --- Recess taken at 10.17 a.m.

Page 8787

1 --- On resuming at 10.45 a.m.

2 JUDGE MOLOTO: Yes, Mr. Menon.

3 MR. MENON: Thank you, Your Honour.

4 I believe, when I left off, I was speaking of the ability of the

5 306th Mountain Brigade to distinguish between different Mujahedin groups,

6 and there are two examples which we consider to be particularly relevant

7 to this point.

8 The first example relates to the Gerila. And at page 7308 of 11

9 March 2008 transcript, in relation to a theft committed in Guca Gora on

10 the 8th of June, 1993, Halim Husic hesitated that: "Our policemen who

11 were securing the monastery had already established that they were member

12 of the Gerila from Zenica.

13 We would submit that this shows that the military police of the

14 306th Mountain Brigade were able to establish the identity of this

15 particular group and this particular and, therefore, able to distinguish

16 between different Mujahedin groups.

17 Abu Hamza's group, the second example. In relation to an

18 incident of arson at Guca Gora church, Husic testified, at page 7306 to

19 7307 of the 11 March 2008 transcript, that the security service tried to

20 investigate these events, and the young men who were charged with

21 guarding these houses informed the police that the perpetrators was a

22 group called Abu Hamza. Again, this shows that the 306th Mountain

23 Brigade was able to distinguish between different Mujahedin groups.

24 If we could please move into private session, Your Honour.

25 JUDGE MOLOTO: May the Chamber please move into private session.

Page 8788

1 [Private session]

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 8789

1 [Open session]

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

3 JUDGE MOLOTO: Thank you so much.

4 MR. MENON: Now one of the documents that reached the Main Staff

5 in Sarajevo in the summer of 1993 after Delic's appointment as the

6 Main Staff commander. We begin with Exhibit 179, which is a report from

7 the 3rd Corps commander, Enver Hadzihasanovic, which was sent to the --

8 to Rasim Delic and Sefer Halilovic. It's dated 13 June 1993. It is not

9 in dispute that this particular document reached Rasim Delic, and we know

10 from that paragraphs 303 and 304 of the Defence final brief.

11 Again, if we could move into private session, Your Honours.

12 JUDGE MOLOTO: May the Chamber please move into private session.

13 [Private session]

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 8790

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 [Open session]

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

9 JUDGE MOLOTO: Thank you so much.

10 Yes, Mr. Menon.

11 MR. MENON: Exhibit 277, a 3rd Corps combat report, dated the

12 9th of August, 1993, which contains information relating to the El Jihad

13 unit. We know that Exhibit 277 reached Rasim Delic because he reported

14 information in that document to Alija Izetbegovic, and specifically the

15 information relating to the El Jihad unit. He reported that information

16 to Alija Izetbegovic on the 10th of August, 1993, and we see from that

17 Exhibit 278.

18 And, finally, Your Honours --

19 [Trial Chamber confers]

20 JUDGE HARHOFF: Mr. Menon, I just wanted to check if there is

21 identity between El Jihad and El Mujahid Detachment.

22 MR. MENON: Your Honours, I believe the evidence shows that prior

23 to the formation of the El Mujahedin Detachment, it was commonly referred

24 as the El Jihad unit amongst its own membership and within reports of the

25 ARBiH. That is the state of the evidence on that point. Obviously, when

Page 8791

1 it was formed, it was known as the El Mujahid Detachment, and I would

2 refer Your Honours actually at this point to the formation video. I

3 don't have the precise exhibit number, but it was tendered through Aiman

4 Awad, where during the formation of the El Mujahid Detachment they had

5 actually had a banner that said El Jihad, Brigada El Jihad.

6 We have in front of us, Your Honours, Exhibit 272, which is the

7 proposal to form the El Mujahid Detachment, dated the 12th of August,

8 1993, and it is not in dispute that Exhibit 272 reached Rasim Delic. We

9 know that, obviously, because his handwriting appears on this document,

10 as confirmed by witness Murat Softic, and the Defence have conceded that

11 point at paragraph 314 of their brief.

12 My point simply, Your Honours, is that if Exhibits 179, 168, 173,

13 174, 277, and 272 were available to Rasim Delic, each having had to go

14 through Sefer Halilovic, the chief of the Main Staff, there can be no

15 reasonable explanation as to why Exhibits 170 and 171 would not have been

16 available to Rasim Delic as well. The only reasonable explanation, in

17 our view, is that exhibits 170 and 171 were, in fact, available to Rasim

18 Delic.

19 At the paragraph 301 of the Defence final brief, they state that:

20 "Because of Croat propaganda spread throughout Croatia and BiH, ARBiH

21 commands including the Main Staff and the international community had no

22 trust in information coming from Croat sources in Bosnia -- excuse me, in

23 Central Bosnia." This would be appear to be an attempt on the part of

24 the Defence to justify the accused's failure to act on the information

25 that was contained in Exhibits 170 and 171.

Page 8792

1 The Trial Chamber in the Hadzihasanovic and Kubura case, at

2 paragraph 1223 of their judgement, found that the source and content of

3 information are to be considered in assessing whether a particular piece

4 of information will satisfy the mens rea requirement under Article 7(3)

5 of the Statute.

6 May we move into private session, Your Honour.

7 JUDGE MOLOTO: Private session.

8 [Private session]

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 8793

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

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

13 JUDGE MOLOTO: Thank you very much.

14 You may proceed now, Mr. Menon.

15 MR. MENON: When President Izetbegovic wrote to Rasim Delic, he

16 already had the information at his disposal from PW-3 as far as crimes

17 committed in Bikosi. Now, at that point, he was -- Rasim Delic was

18 obliged to carry out an investigation.

19 Now, I understand that Your Honours' question relates to the

20 information that Rasim Delic subsequently received as a result of that

21 investigation. Is that correct?

22 Well, we would submit that under the case law identified in

23 Hadzihasanovic and Kubura case, it would still have been incumbent upon

24 Rasim Delic to have examined the information that was presented to him

25 from Witness PW-3, because Witness PW-3 was a reliable source and

Page 8794

1 information coming from him was trustworthy. He was still obligated to

2 inquiry into that information, to see whether or not it was justified,

3 whether or not there was a plausible bases for it. The investigation

4 that he conducted did not relieve him of that obligation. That would be

5 our position, Your Honours.

6 JUDGE MOLOTO: Let me be clear that I understand you.

7 PW-3 reported to Rasim Delic the same incident that Izetbegovic

8 reported to Rasim Delic. Okay. I understand that PW-3 reported it much

9 earlier than Izetbegovic did.

10 The gravamen of my question is, barring the fact that the

11 investigation, as a result of the report from Izetbegovic, was conducted

12 much later, does the fact that Rasim Delic did institute some kind of

13 investigation and got a report, which may, on the face of it, might have

14 been seen to answer even the queries raised by PW-3, does the Prosecution

15 say that he was still enjoined to make further investigations over and

16 above the investigation that he made as a result of Izetbegovic's letter?

17 MR. MENON: Yes, yes, Your Honour, we do.

18 JUDGE MOLOTO: And on what basis does the Prosecution say so.

19 MR. MENON: Well, we would submit, first of all, that the factual

20 circumstances relating to the investigation that Delic carried out in

21 October 1993 suggest it could have not been a real investigation. It was

22 completed in a mere four days. That is the firs point.

23 Secondly, PW-was adamant as far as the accuracy and reliability

24 of his information. We would submit that Rasim Delic could not have

25 simply ignored PW-3's appeals to him. Where a commander has conflicting

Page 8795

1 information from reliable sources, the commander is obligated, in our

2 view - and we believe that we're supported by the jurisprudence - to

3 resolve these conflicts. In this case, Rasim Delic did not resolve this

4 conflict, as it relate to the information that he received from

5 Witness PW-3.

6 JUDGE MOLOTO: Let's be on the same wave length. My recollection

7 is that the information from Izetbegovic did not conflict with the

8 information from PW-3. It is the result of the investigation as a result

9 of the instructions from Izetbegovic that came up with the result that

10 differs with allegations by both Izetbegovic and PW-3.

11 MR. MENON: Exactly. And that is the point that I'm trying to

12 make. Because of the conflict in the information that Delic subsequently

13 received from the 3rd Corps, because of the nature of that conflict as it

14 related to the information that he had previously received from

15 Witness PW-3, we would submit that he was still obligated to inquire into

16 the information that he received from PW-3. He could not simply have

17 ignored that information.

18 JUDGE MOLOTO: Yes. Now, what I'm saying to you is: What he did

19 receive from the 3rd Corps was not information, was not a report of an

20 incident, it was the results of an investigation. In other words, the

21 3rd Corps was saying to him, "We've heard the allegations by Izetbegovic,

22 we have heard the allegations by PW-3, we have conducted an

23 investigation, and we have found out that, in fact, those allegations

24 were unfounded because we find our investigations reveal that these

25 people died in combat."

Page 8796

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 JUDGE MOLOTO: Could we have that redacted.

10 [Trial Chamber and registrar confer]

11 JUDGE MOLOTO: Thank you very much.

12 You may proceed.

13 MR. MENON: We would submit that because of the nature of that

14 conflict between the information that he received from PW-3, not on just

15 one occasion, on multiple occasions, that Rasim Delic was obligated as a

16 responsible commander to inquire with PW-3 as to the veracity of his

17 information.

18 Your Honour, now I wanted to simply address question number 3

19 that Your Honours had put to the parties, and question 3 was: "On what

20 exact based does the Prosecution allege the Mujahedin from the Poljanice

21 camp were subordinated to Rasim Delic on 8 June 1993? "

22 We would submit, Your Honours, that on 8 June 1993, when Rasim

23 Delic became the Main Staff commander, the Poljanice Mujahedin were a

24 de facto unit of the 3rd Corps; and, thus, they were indirectly

25 subordinated to Rasim Delic through his authority over the 3rd Corps

Page 8797

1 commander. That would be our answer to that question.

2 JUDGE MOLOTO: But what are the factors that indicate the

3 de facto subordination of this group to the ARBiH?

4 MR. MENON: Well, Your Honours, I would refer you to the numerous

5 instances of joint combat in which the Poljanice Mujahedin engaged in

6 from the time of their arrival in the RBiH. We know that when they

7 arrived, they were first integrated into the Travnik Muslim Forces. And

8 following the formation of the 7th Muslim Mountain Brigade, they engaged

9 in joint combat operations with that unit in Bijelo Bucje.

10 They then engaged in joint combat operation in December 1992, to

11 lift the -- to lift the blockade of Sarajevo. And throughout 1993,

12 throughout the first six months of 1993, they continued to engaged in

13 joint combat with the 7th Muslim Mountain Brigade.

14 We know, from the evidence given by witness Ali Hamad, that in

15 terms of the objectives that were set for them, during those joint combat

16 operations, those objectives emanated from the ARBiH, and we saw that in

17 respect of the 8 June 1993 operation as well. And we would submit that

18 where the ARBiH is setting the combat priorities for the Mujahedin that

19 that is a sufficient indication of subordination.

20 That would be your argument in that suspect, Your Honour.

21 JUDGE MOLOTO: Thank you. Judge Lattanzi has a question.

22 JUDGE LATTANZI: [Interpretation] Mr. Menon, what factor,

23 additional factor, can you give us to talk about a joint operation? How

24 can you explain the de facto subordination? Can you give us some more

25 examples of de facto subordination of joint operations?

Page 8798

1 MR. MENON: Well, Your Honours, it really a question of, in terms

2 of combat, first, who sets the priorities? And in this case, we would

3 submit that the ARBiH set the priorities for the Mujahedin from

4 Poljanice. Then there is the question of whether there was reporting

5 before, during, and after; and we believe that in this case there was

6 certainly reporting, and we have Ali Hamad's testimony to support that

7 point. He specifically referred to reporting prior to, during, and after

8 combat operations with Mehmed Alagic, who is the OG Bosanski Krajina

9 commander.

10 And, certainly, we would submit that that indicates that the

11 Mujahedin were very much within the control of the ARBiH. Their

12 movements were reported, and the ARBiH knew what actions they were

13 taking. There was little that was done that was outside of the scope of

14 what the ARBiH intended for the Mujahedin.

15 And we would also submit, Your Honours, that on the 8th of

16 June 1993, the Poljanice Mujahedin, the evidence shows, was a very small

17 unit, and it is simply implausible to expect that they would haven been

18 able to engage in these combat without coordinating their activities with

19 neighbouring units, and without receiving instructions as to what to do

20 from superior ABiH authorities. We would add that as a further

21 illustration of the fact that they were, in fact, de facto subordinated

22 or de facto within the compensation of the 3rd Corps.

23 JUDGE MOLOTO: Are you able to give numbers? You say they were a

24 small group.

25 MR. MENON: Actually no, Your Honour. I believe that evidence

Page 8799

1 shows that it was approximately 40 to 50 fighters within that -- within

2 the unit at that time; but, regrettably, I don't have a specific number

3 or reference to provide to Your Honours.

4 Your Honours, may have I a moment to consult my colleagues.

5 JUDGE MOLOTO: You may.

6 [Prosecution counsel confer]

7 MR. MENON: Your Honours, now I would turn the floor over to my

8 colleague Mr. Wood, who will be presenting on the July 1995 crime base.

9 JUDGE MOLOTO: Thank you, Mr. Menon.

10 Mr. Wood.

11 MR. WOOD: Good morning, Your Honours.

12 JUDGE MOLOTO: Good morning, Mr. Wood.

13 MR. WOOD: General Delic makes a number of assertions regarding

14 the events in Livada and the Kamenica camp in July /August 1995. Most of

15 these, as Your Honours are aware, are adequately addressed in the

16 Prosecution's final brief and need not be rehashed here. Others are so

17 lacking in merit that they are unworthy, in the limit the time available

18 here, of a detailed response from the Prosecution, and I refer

19 specifically to the assertion set forth in paragraphs 418 to 423 of the

20 Defence closing brief, that Gojko Vujic is a POW who is somehow

21 responsible for his own death in the Kamenica camp, for cursing in his

22 agony near a man with a gun. I do, however, want to take a few moments

23 to answer the assertions regarding the murders of Predrag Knezevic and

24 Momir Mitrovic. These are charged in paragraph 33 of the amended

25 indictment, which you see on the screen in front of you.

Page 8800

1 General Delic makes a number of assertions about these murders;

2 specifically, he says: There is no evidence to establish that the corpse

3 and head of Predrag Knezevic was exhumed at Bozici. There is no

4 conclusive evidence of where the men were who killed. There is no proof

5 that the men were hors de combat when they were killed or that they were

6 not killed in combat. There is no evidence as to who killed the men or

7 the circumstances rounding their deaths, and there is no evidence as to

8 the mens rea of the unknown perpetrators.

9 Let's start with the that first Defence assertion first; that is,

10 the body of Predrag Knezevic was not exhumed at Bozici.

11 Now, the evidence, Your Honour, says otherwise. We know that the

12 body of Predrag Knezevic, as well as that of Momir Mitrovic, was exhumed

13 at Bozici. We know this from two exhibits, Exhibit 1174 and Exhibit 644.

14 Let's start with Exhibit 1174. This exhibit contains the report

15 of an exhumation that was conducted on 16 May 2006 in the locality of

16 Mount Ozren, Bozici. One of the bodies recovered there was given a

17 number, DNK-BL-878. After that body was exhumed, samples were taken and

18 sent to the ICMP, which is the International Commission For Missing

19 Persons, for DNA analysis. They produced a report using - if we could go

20 to the next - that same number, as we can see on this slide, Your

21 Honours.

22 Now, here, we see a close-up of Exhibit 644, at least the top

23 half of that, which is a DNA report. From this report, we can see that

24 the IC MP tested a sample from BL-878. The ICMP tested this sample

25 against family members of Predrag Knezevic, who provided DNA samples of

Page 8801

1 their own. ICMP scientists found that BL-878 are the mortal remains of

2 Predrag Knezevic. So we can see, Your Honours, that Predrag Knezevic

3 was, in fact, exhumed at Bozici.

4 We can follow the same evidence to see that Momir Mitrovic was

5 also exhumed at Bozici. First, we see a report of exhumation, also in

6 Exhibit 1174. We can see that this body was also exhumed at Bozici also

7 on 16th May 2006. We can also see from a later page in the same report,

8 that the body was assigned the number DNK-BL-877. Let's remember that

9 number. Similarly, the ICMP scientists tested this sample, ran those

10 results through its database and found that BL-877 is Momir Mitrovic. We

11 can see from the evidence, Your Honours, that these two men, Predrag

12 Knezevic and Momir Mitrovic, were exhumed at Bozici in 2006.

13 Now, obviously, Momir Mitrovic and Predrag Knezevic are not here

14 to tell us what happened it them on 21 July 1995, but these reports of

15 their exhumations tell us a great deal about the circumstances

16 surrounding their deaths. These reports also refute many of

17 General Delic's further assertions.

18 Now, what do these reports tell us? First of all, they tell us

19 that these men were bound when they were killed. Now, this is from the

20 exhumation report for Mitrovic. And we can see in the highlighted

21 portion, during the exhumation, a green rope tied with nooses around the

22 hands was found on the body; and, here, we see a picture of the nooses

23 from the actual exhumation report, which is entered into evidence, Your

24 Honours. As to Knezevic, the report notes, as you can see on the screen

25 in front of you, that during exhumation, thin electrical cables tide with

Page 8802

1 nooses around hands and legs were found on the body. And, here, we see a

2 photograph of that wire, which is also from the exhumation. Now, as to

3 Knezevic, this can also be seen from another photo in his exhumation

4 file, which is again at Exhibit 1174.

5 Now I want to draw your attention particularly to the left side

6 of this photo. You can see on the screen in front of you there's the

7 box.

8 If we can just click.

9 You can see, Your Honours, how these cables were found tied

10 around the limbs of Knezevic. The fact that these men were bound when

11 they died tells us that they were plainly hors de combat, that they were

12 killed after they had been detained and not in combat.

13 We can also see from the reports of exhumations, Your Honours,

14 that one of the bones in the neck of Mitrovic was smoothly split with a

15 sharp object. And, here we, see a picture of that vertebrae. You see

16 the two halves of it, and the arrows indicate how they were cut. This is

17 consistence with the testimony of the witnesses to this crime, who

18 describe seeing the heads of these two men in the village of Livada, on

19 21 July 1995, and we will hear more about them in a moment.

20 Finally, these reports also provide clues about where the men

21 were killed. As I explained, these bodies were found in Bozici, which is

22 less than two kilometres from Livada. Here, we see a cutout from the

23 exhumation report, indicating the mark where the people who conducted the

24 exhumation indicated where the bodies were found.

25 Now the Prosecution has taken Map 15 from the Court binder and

Page 8803

1 rendered it in three dimensions. We can see it moving on the screen

2 there, to show the topography between the two villages and their close

3 proximity.

4 Now additional evidence also tells us that these men were killed

5 in Livada, specifically the testimony of Dr. Branko Sikanic and Velibor

6 Trivicevic.

7 First, Dr. Sikanic. In his report, Dr. Sikanic notes that

8 sometime during the evening before dusk, two heads of Serb soldiers were

9 brought, and there was fresh blood dripping from the heads. Now,

10 Dr. Sikanic, of course, is a medical doctor, which we know from his

11 statement.

12 Now, this testimony is consistent with what Velibor Trivicevic,

13 who is also trained as a medic, said in his live testimony before the

14 Tribunal. He told the Trial Chamber on 4 October 2007, at transcript

15 3673: "I was crystal clear in my statement. The heads that were brought

16 into that room were still gushing blood all over the ground, all over our

17 legs." Now, this is an important detail Trivicevic told the Trial

18 Chamber because it shows that the men had to have been killed very close

19 to the house in which Trivicevic and Dr. Sikanic were being held.

20 He continued: "This had been done somewhere along the front

21 line, and it had taken them 15 to 20 minutes to get me there from the

22 front line. If they had arrived all the way from the front line, I don't

23 know how much blood would have still been left in those heads to gush

24 forth like that."

25 A few moments later in his testimony, Trivicevic reiterated what

Page 8804

1 he said, telling the Trial Chamber: "The fair thing to say would be

2 this: I'm certain that they had not been killed at the front line and

3 then brought over. As I said, there was blood dripping from those

4 severed heads, and those heads had obviously been freshly severed."

5 From this -- from this evidence, the Trial Chamber can infer that

6 the men were killed in close proximity to the house in Livada, sometime

7 near dusk, as Dr. Sikanic said, on 21 July 1995. This factor is

8 important in answering General Delic's remaining assertions regarding

9 these men, the identity of the killers and their intent.

10 As I have explained for Your Honours, the evidence shows that

11 Mitrovic and Knezevic were bound when they were killed, and we know from

12 the witnesses and from the forensic evidence that they had been beheaded.

13 The testimony also shows that, at the time of the beheading,

14 there was a commotion in front of the house. Velibor Trivicevic

15 explained this: "You could hear shouting and noise in front of the

16 house. I didn't what was happening, with shouts of "Allah-u-ekber." One

17 of the Mujahedin, who was guarding us, ran out of the room; and, very

18 quickly, he came back to the room where we were, carrying in his arms the

19 cut-off head of a person who I knew before. His name was Momir

20 Mitrovic."

21 You put the facts together, Your Honours, and a picture emerges

22 of the execution of two Bound POWs. The Trial Chamber can infer from

23 these facts that the men were killed by decapitation, which is, by

24 definition, a very deliberate act.

25 As to the identity of the killers, the Trial Chamber can infer

Page 8805

1 from the evidence that members of the El Mujahid Detachment, ARBiH

2 soldiers as alleged in the amended indictment, were the perpetrators of

3 these killings.

4 First, we know that these murders were committed in Livada at

5 dusk on 21 July 1995. Now what does the evidence tell us about the

6 situation in Livada on that day? It tells, Your Honours, us that Livada

7 was an ARBiH village. We know, for example, from Exhibit 449 that the

8 35th Division ARBiH had an IKM, or a forward command post, in Livada; and

9 this, of course, is dated 16 July 1995.

10 We also know from ARBiH documents that the EMD, the El Mujahid

11 Detachment, had members in Livada at that time. As the Trial Chamber

12 might recall, the exhibit here, Exhibit 553, deals with, among others,

13 Sikanic and Trivicevic, dated 22 July. It shows that the interviews with

14 certain men, "Chetnik soldiers," it says, was carried out with the

15 permission of El Mujahid members.

16 Finally, the manner of the deaths of these men tells us something

17 about their killers. The practice of beheading is a behaviour that is

18 consistent with the El Mujahid Detachment, as the evidence shows. For

19 example, as we heard earlier from today's presentation, from Exhibit 665,

20 the Trial Chamber heard evidence that members of the El Mujahid

21 Detachment had "liquidated a number of Chetniks, slaughtered two and

22 carried their heads down the Krivaja river. And as noted earlier, this

23 is June 1995, roughly a month before the beheadings there Livada.

24 Also, of course, the Trial Chamber has heard evidence that a

25 member of the El Mujahid Detachment killed and beheaded Gojko Vujic in

Page 8806

1 the Kamenica camp just three days later on 24 July 1995.

2 Now, certainly the evidence shows there were other people in

3 Livada on 21 July 1995, including women who beat the POW with a sticks,

4 and a boy who kicked Krstan Marinkovic in the face, breaking his nose.

5 You have heard testimony about that, Your Honours.

6 Though this violence certainly constitutes cruel treatment, it

7 does not come close in intensity for violence required for a beheading;

8 rather, beheading is an act more consistent with a member of the

9 El Mujahid Detachment than with any other people present in Livada on

10 that day.

11 From this evidence, Your Honours, we can see from that the

12 Defence is wrong to assert that there is no evidence to establish that

13 the corpse and head of Predrag Knezevic was exhumed at Bozici. We can

14 see that the Defence is wrong to assert that there is no conclusive

15 evidence of where the men were killed. We can see that the Defence is

16 wrong to assert that there is no proof that the men were hors de combat

17 when they were killed, or that they were not killed in combat. We can

18 see that the Defence is wrong to assert that there is no evidence as to

19 who killed the men or the circumstances surrounding their deaths. And

20 the Defence is wrong to assert that there is no evidence as to the mens

21 the mens rea of the unknown perpetrators.

22 Rather, Your Honours, the evidence leads to only one reasonable

23 inference: Predrag Knezevic and Momir Mitrovic were murdered by ARBiH

24 soldiers, members of the El Mujahid Detachment on 21 July 1995; that the

25 men were detained when they were killed; and that their killers acted

Page 8807

1 with intent to cause their deaths.

2 That concludes my presentation, Your Honours, and I will pass the

3 microphone to my colleague, Ms. Sartorio.

4 JUDGE MOLOTO: Thank you very much, Mr. Wood.

5 Madam Sartorio.

6 MS. SARTORIO: Thank you, Mr. President, and Your Honours.

7 My presentation this morning will address the points raised in

8 the Defence brief that pertain to the crimes alleged in Counts 1, 2, and

9 4, specifically the cruel treatment and/or murder of two groups of VRS

10 prisoners of wars and the cruel treatment of three civilian women at the

11 hands of the El Mujahid Detachment in September of 1995.

12 As this Chamber is aware, the events leading up to those crimes

13 began on the 11th of September, 1995, with the capture of a large group

14 of VRS soldiers and Serb civilians who had been fleeing as a result of a

15 major military offensive launched by the ARBiH against Serb forces, the

16 previous day, in the Ozren-Vozuca region.

17 JUDGE MOLOTO: Madam Sartorio, will you please go a little slower

18 than that.

19 MS. SARTORIO: Yes, sir.

20 JUDGE MOLOTO: Thank you very much.

21 MS. SARTORIO: In response to Your Honours' question number 1,

22 who were the perpetrators of the alleged killings of Milenko Stanic and

23 Zivinko Todorovic, the prosecution submits that the perpetrators were

24 members of the El Mujahid Detachment, which was operation in joint combat

25 with units of the ARBiH in and around the Kesten area at the time of the

Page 8808

1 capture.

2 The combination of the testimony of the three women describing

3 the mixture of regular ARBiH soldiers and "Mujahedin in the group," the

4 combat orders and maps showing the joint combat, and the El Mujahid

5 Detachment being a key unit in the operation and being present in the

6 area on the 11th of September, all of which will be covered in more

7 detail by my colleague Mr. Neuner, and the events that followed the

8 capture, which I will be covering in some detail, all of this evidence

9 together, with the lack of any credible evidence disputing that it was

10 the El Mujahid Detachment, leads to only one reasonable inference that

11 can be drawn, and that is that the El Mujahid Detachment were present

12 during the capture and killed those two persons.

13 The Prosecution further submits, however, that if the Chamber

14 were to find otherwise with respect to the identity of the perpetrators

15 who killed Milenko Stanic and Zivinko Todorovic, this finding would not

16 affect the Prosecution's case with regard to the two groups of POWs, the

17 51 and the ten, and the three women who were taken from the hall in

18 Kesten by the El Mujahid Detachment to their camp in Kamenica and

19 subjected to cruel treatment and some of them murdered.

20 What is important is the identity of the group that seized the

21 prisoners from Kesten. And the Prosecution submits that this evidence,

22 the evidence shows beyond a reasonable doubt, that it was the El Mujahid

23 Detachment that took those prisoners and women from the hall in Kesten.

24 I will now proceed with the presentation on the points raised in

25 the Defence brief with regard to the September crime base.

Page 8809

1 By reading of the Defence brief indicates that they raise -- they

2 dispute four points. Defence states the EMD did not take over the

3 prisoners from the 5th Battalion at Kesten; the Defence states that the

4 EMD did not take control of the three women; Defence asserts that neither

5 the women nor the VRS soldiers, the 51, were taken to the Kamenica camp;

6 the Defence asserts that the women were held by an unknown group for the

7 first two days of their detention; and, finally, the Defence asserts that

8 the identity of remains of bodies found in the Kamenica grave has not

9 been proven.

10 As I will discuss the evidence, each of the assertions, it will

11 become clear that each of these assertions have no basis in fact.

12 The first assertion, in paragraph 5577 of the Defence brief,

13 Defence states that no other witness testified as to the death of Zivinko

14 Todorovic. So the Prosecution has failed to prove that somebody of that

15 identity was killed.

16 This assertion is not correct.

17 As Your Honours will recall, Mr. Krcmar testified that he had

18 spent the last several years at the RS office for missing persons, an

19 organisation whose goal it was to find these persons as a result of these

20 operations, and that he spent several years doing that. This slide shows

21 the witness, Mr. Krcmar, testified about Exhibit 652. This is the card

22 of the missing person issued by his office. The name of the person is

23 Zivinko Todorovic, as you can see from the card.

24 The next slide is the excerpt of the testimony of Mr. Krcmar,

25 where he says this is the report of the identification of mortal remains

Page 8810

1 for Zivinko Todorovic. And we can see the signatures of the members of

2 the family and persons competent for the identification, all their

3 signatures.

4 Now this is B/C/S, but the next slide has the English version.

5 And this is the first page, and the second page has the name, Zivinko

6 Todorovic. And as will be discussed later, this is the final document in

7 the procedural stage of identifying victims. But if that isn't enough to

8 prove that the Defence is wrong in asserting that no other witness has

9 testified about the death of Zivinko Todorovic, I'd like to show you the

10 next slide in closed session, please.

11 JUDGE MOLOTO: May the Chamber move into private session.

12 [Private session]

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 8811

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 [Open session]

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

11 JUDGE MOLOTO: Thank you so much.

12 Yes, Madam Sartorio.

13 MS. SARTORIO: Next, at paragraph 588, the Defence asserts that

14 the Prosecution has failed to prove on the evidence that the persons

15 seizing the 52 POWs were members of the EMD.

16 As Your Honours have heard the testimony, and as we explained in

17 detail in our final trial brief: "The Prosecution has proved beyond a

18 reasonable doubt that the VRS soldiers, along with a few women and

19 children, surrendered in groups in the upper part of Kesten near a creek,

20 to the 2nd Company of the 5th Battalion of the 328th Mountain Brigade.

21 One such group of Serbs was captured in the forests in the afternoon of

22 11 September 1995 by ARBiH soldiers, including the EMD, and they were led

23 to Kesten."

24 Exhibit 466, which I will show you in full in the next two

25 slides, the commander of the 35th Division confirmed that he issued an

Page 8812

1 order to the EMD at midnight on the 10th of September, instructing that

2 part of the forces of the EMD be kept for intervention in the sector of

3 Kesten village. The EMD were in Kesten village on the 11th of September.

4 This is the front page of that order, and the next slide is the

5 quotation from the order as I just read.

6 Now, another key document that rebuts the Defence assertion that

7 the EMD did not take the POW is the regular daily combat report of the

8 328th Brigade, dated 13 September 1995.

9 This report says: "On 11 September 1995, two companies of the

10 5th Battalion of the 328th Brigade captured 61 hostiles and three Serbian

11 women in the Kesten village sector. Members of the El Mujahid unit took

12 charge of all the captives except two, while the two were turned over to

13 the 328th Brigade military police."

14 Now, you've heard from witnesses, especially Mr. Karahasanovic,

15 that he couldn't confirm -- this slide is the B/C/S version of the

16 document.

17 Mr. Karahasanovic would not commit that this was the same group

18 of POWs, but I would suggest that that is preposterous. This group talks

19 about 61 hostiles - and we'll look at the list in a bit - three women,

20 and then the release of two, which, as you recall, were two minorities

21 that were released. There is simply too much coincidently to have this

22 to be not the same group. The report could not be any clearer that it

23 was the EMD who took over those prisoners at Kesten.

24 The next three slides are under seal, Your Honour.

25 JUDGE MOLOTO: May the Chamber please move into private session.

Page 8813

1 [Private session]

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 8814

1 (redacted)

2 (redacted)

3 [Open session]

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

5 JUDGE MOLOTO: Thank you so much.

6 Yes, Madam Sartorio.

7 MS. SARTORIO: Now paragraph 76 of his statement is very

8 significant, and it says: "When we returned to Kesten, a vehicle, Lada

9 Niva, approached us, which was some kind of ambulance car for the

10 4th Manoevre Battalion. The driver was asking me for the location with

11 the two killed soldiers. The driver of the Lada gave a message that the

12 1st Battalion of the 328th Brigade was to go towards Marica Vis. I gave

13 more soldiers to that forest. Sogolj and I went back to Kesten. At that

14 time, we saw a jeep driving through the village of Kesten coming towards

15 us. The jeep was passing by us, and in the jeep there was sitting seven

16 or eight Arabs. Fifty metres, the car drove on a mine, and three or four

17 of the Arabs got killed and three got injured."

18 I don't have to read the rest of it. The significant part is the

19 jeep with the Arabs driving in Kesten.

20 The next slide, which is going to relate to this, is

21 Mr. Karahasanovic's statement which was admitted as Exhibit 1355; and, as

22 know, he also testified. What are significant are two paragraphs in his

23 18 September 1996 statement, which was Exhibit 1354, and he says: "On

24 this day, we all together had 62 prisoners. However, the two children

25 should not be counted as prisoners, although they are included in the 62.

Page 8815

1 Also, four POW taken by Arabs and the two killed should not be counted

2 here."

3 Now, the next paragraph is perhaps the more significant of these

4 two: "When I was there at the hall in Kesten, a unit which was called

5 El Mujahid came. This was a unit consisted of foreigners, and they are

6 the same unit I spoke about previously in Livada, Kamenica, at the 13 km.

7 where they had a camp. "13 km." means thirteen kilometres from

8 Zavidovici along the river Gostovici. As the unit entered the hall in

9 Kesten, the Serb soldiers were lined along the wall as I took their

10 names.

11 The El Mujahid started yelling, and I talked to one of them who

12 spoke Bosnian. He told us to leave the building. I replied to him to

13 these were soldiers who had given themselves in to us, and they were our

14 responsibility. He then shouted, "Get out or we will kill you." He then

15 said, "These are our prisoners. We liberated this territory. You do not

16 have anything to do with this." The person then said, "Because of them.

17 Our brothers got killed."

18 Mr. Karahasanovic goes on to say: "I assume this referred to a

19 happening the same day, one hour earlier, when one of the cars of the

20 El Mujahid went on a mine and several of them were killed. We had

21 already heard about this story."

22 I think Your Honours can read the rest.

23 So it is clear, Your Honours, from the statements that

24 Mr. Karahasanovic can only be talking about the EMD. This is the only

25 reasonable inference that can be drawn from this statement. He describes

Page 8816

1 in great detail the camp, the 13th kilometre. The only unit that had

2 access and used that camp were the EMD.

3 But let's stay with the evidence provided by Mr. Karahasanovic

4 for a minute.

5 Go back one, please. Okay.

6 The Defence, in paragraph 587, says the Prosecution attempted to

7 attack Mr. Karahasanovic's credibility, referring to two previous written

8 statements; however, he explained the pressure of the OTP investigator

9 had used in taking the statements. The Defence goes on to say: "The

10 Trial Chamber should not attach any weight to the term used in

11 Karahasanovic's witness statements in considering the issue of the

12 identity of the Arabs."

13 Now, I ask you: Is that a credible assertion? The Chamber has

14 to ask itself: Is it credible that Mr. Karahasanovic was pressured by an

15 OTP investigator to say certain words, or that certain words were changed

16 and he was forced to sign his statement. The Prosecution submits that

17 this is not reasonable.

18 In his statements, Exhibit 1354, the term "El Mujahedin units" is

19 used in paragraphs 25 and 26; the term "El Mujahedin" without the units,

20 is mentioned at paragraph 27; the term "El Mujahid" is used in

21 paragraph 51, four times; the term "El Mujahid Detachment" is used in

22 paragraph 56; and the word "Arabs" is used in paragraphs 40, four times,

23 and in paragraphs 47 and 49.

24 Now the question is: If words were being put into the mouth of

25 Mr. Karahasanovic, or he was being pressured or his statement was being

Page 8817

1 changed, then all of these terms would be changed to read "El Mujahid

2 Detachment." But it wasn't. The words were not changed. These were the

3 words that Mr. Karahasanovic used with the investigator, and it is clear

4 from his statements when he was talking about the El Mujahid Detachment,

5 the EMD.

6 In paragraph 57 of this statement, he says: "I have nothing I

7 want to add to this statement, have no complaints about the way this

8 statement is taken."

9 Is it time? A few more minutes?

10 But if this isn't enough, we go to the next slide.

11 Back, please. Okay. Thank you.

12 Mr. Karahasanovic states later, in a later statement, Exhibit

13 1355, in paragraph 51, which is the long paragraph I just read: "I wish

14 it to be stated that the soldiers who came to the Kesten -- to the centre

15 in Kesten were Arabs. In accordance with what I know, I think the Arabs

16 were in the El Mujahid unit since this was the only unit in our zone of

17 responsibility that had Arabs. Every time the El Mujahid unit is

18 mentioned, that is related to our intelligence on the Arabs belonging to

19 this unit. They were the only ones wearing headbands with Arabic

20 inscriptions."

21 Now the EMD, by this statement, it is it perfectly clear that the

22 EMD was the only unit in his zone of responsibility that had Arabs, plain

23 and simply. The Chamber should also consider this, as assistant

24 commander for security for the 5th Battalion, if there was another group

25 of Arabs operating in his zone of responsibility, he would have known

Page 8818

1 that. That is just common sense. When he gave his statements and used

2 the word "El Mujahid" and other similar words, he was referring only to

3 the El Mujahid Detachment.

4 And one last slide.

5 To end this point that this was the only unit and could have been

6 the only unit and was the only unit that took those prisoners,

7 Mr. Karahasanovic was asked: "Are you aware of the capture of any other

8 prisoners and three Serbian women that day by anyone in the

9 5th Battalion? That's a yes or no, sir."

10 His answer was: "Not in the 5th Battalion."

11 "Okay. Are you aware of the capture of prisoners by any other

12 battalion on that day.

13 And the answer is: "No."

14 So it is simply not credible that there was any other unit in the

15 Kesten hall on that day.

16 Take a break?

17 JUDGE MOLOTO: If it is convenient for you.

18 We'll take a break and come back at half past 12.00.

19 Court adjourned.

20 --- Recess taken at 12.01 p.m.

21 --- On resuming at 12.30 p.m.

22 JUDGE MOLOTO: Yes, Madam Sartorio.

23 MS. SARTORIO: Thank you, Your Honours.

24 Before I go on, I have to make one correction. I made a

25 correction yesterday, but apparently it didn't show up on slide 6, which

Page 8819

1 was Exhibit 652. It was with regard to the identification of Zivinko

2 Todorovic. The slide that you saw a few moments ago was for Sabo

3 Todorovic, and now have you on the screen, Zivinko.

4 Okay. That's fine.

5 I just wanted to make that correction.

6 Do you understand? Thank you.

7 Slide 28.

8 Now, as Your Honours heard quite a bit about, there was Exhibit

9 646, which was the list of prisoners names made by Mr. Karahasanovic.

10 And I just want to spend -- just make a couple of comments about that,

11 which is the numbers. As you know, there have been different numbers,

12 and the Prosecution would suggest that they are similar and there's

13 explanations for the differences.

14 But if you could see, number 51 on this page; and then if you

15 count the 4 and 3 and 2 and the 2, that equals 62. Well, that equals 62,

16 and the 328th Brigade report says 61 and the report by the El Mujahid

17 Detachment, in Exhibit 669, uses the number 60. So there's a reasonable

18 explanation as to why the numbers are different, but it is one and the

19 same group, is our submission, one and the same group of POWs.

20 Just a word --

21 JUDGE MOLOTO: Would you like to give us the reasonable

22 explanation?

23 MS. SARTORIO: Well, the reasonable explanation is that, perhaps,

24 when the reports were made without looking at the list, the numbers 60,

25 61, and 62 are quite similar. And if information is being relayed

Page 8820

1 verbally or through different channels, I mean, it isn't a significant

2 change and there was no other large group of prisoners taken on that day.

3 JUDGE MOLOTO: Thank you.


5 Just a word about circumstantial evidence, because we believe

6 that the trip to Kamenica and the killing, the murders, and the cruel

7 treatment of the POWs and the women is, of course, all based mainly on

8 circumstantial evidence. And the circumstantial case consists of

9 evidence of a number of different circumstances which, taken in

10 combination, point to the guilt of the accused, because they would

11 usually exist in combination only because the accused did what is alleged

12 against him. That's all you need to read at that point.

13 That's the case here, Your Honour. All of the evidence, all of

14 the pieces put together, can only lead to the one conclusions, and that

15 was in this case the POWs and women were taken to the EMD camp in

16 Kamenica.

17 We start out with the women leaving the hall, and Witness

18 Omerasevic said that, after he left the hall, he saw -- he turned

19 Mujahedin and the POWs about 50 metres on the right side of the road in a

20 field in Krcevine. When he drove through Krcevine, he saw two trucks and

21 a jeep.

22 Now each of the women have told their story about how they were

23 led out of the hall in Kesten and taken to an unspecified location

24 nearby, where each told them how they were threatened by Mujahedin, as

25 they called them, and the soldiers of the ARBiH who protected them.

Page 8821

1 The statements given by these witnesses, of course, have

2 differences, Your Honours, but it is the differences that make them

3 totally believable. If they were all the same, then that would be the

4 case that the stories were contrived. But because there are these

5 differences, the evidence is stronger that there is only one reasonable

6 inference, and we will go into some of the evidence in a minute, to show

7 that they were taken to Kesten with the two trucks of POWs.

8 The next 20 slides are under seal.

9 May we go into closed session.

10 JUDGE MOLOTO: May the Chamber please move into private session.

11 [Private session]

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 8822











11 Pages 8822-8833 redacted. Private session.















Page 8834

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 [Open session]

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

16 MS. SARTORIO: Slide 76 and 77 show the record of identification

17 for Savo Todorovic. That's one of the six bodies.

18 Next page, please. There. And now rather than show you all of

19 them, I've summarized them for you. Attached to the 92 ter statement of

20 Mr. Krcmar are the records of identification of mortal remains for all

21 six of those bodies, and those are the page numbers that you find the

22 records of those remains.

23 So, therefore, again, the Defence is wrong.

24 Now Defence has attempted to create doubt about the identity of

25 these bodies exhumed at the grave near Kamenica by relying on a document

Page 8835

1 that has been refuted by the same entity that wrote the original

2 document. In light of the letter, from Mr. Spaic, which is -- here is

3 the letter, and then if you go to the next slide, I have highlighted

4 critical part of the letter. He completely explains that when they wrote

5 on that initial list that those bodies had been exhumed, that that was

6 not correct.

7 And the next one is the same. "In our opinion, the

8 misunderstanding occurred in relation between a mistaken comprehension of

9 terms, 'missing persons' and 'exhumed persons'."

10 Now, this is a perfectly logical explanation and the Prosecution

11 finds it inconceivable that the Defence continues to rely on a letter to

12 try to cast doubt about the identity of these bodies where this letter

13 has been completely refuted by the author of the letter.

14 Couple of more points, Your Honour. Defence says -- challenges a

15 photograph in which Mr. Krcmar testified about the persons in the

16 photograph. The Defence says that Krcmar claimed that the two men

17 depicted were Dragan Lukic and Marko Maric. However, if regard is had to

18 the Karahasanovic list, it can be seen that the two men that Krcmar

19 claims to have recognised are not named as persons who were taken from

20 Kesten.

21 Well, again, we have to say the Defence is wrong on that.

22 Mr. Krcmar says: "On this list these two persons'" -- he said: "On the

23 list I compiled, they appear under 5 and 46."

24 Well, let's look at number 5. Number 5 is Lukic Dragutin.

25 Dragutin has got the same date of birth and place of birth. You can see

Page 8836

1 next to his name, number 5, you can see the missing card. Dragan and

2 Dragutin are the same persons, Your Honour.

3 With regard to Mr. Marko Maric, which, again, is the subject of

4 question number 2 from Your Honours, Mr. Krcmar testified that number 46

5 on the list, which I will show you in a minutes, says Marko Maricic

6 Mr. Krcmar said: "However, his name if Maric Marko," Maric being the

7 last name, and his father's name is Marko as well.

8 So number 46 on the list is Mirko Maricic -- excuse me, Marko

9 Maric, not Mirko Maricic.

10 And if you look at the date and place of birth for Marko Maric on

11 the left side of the screen, it matches the entry for number 46.

12 JUDGE HARHOFF: Ms. Sartorio, I'm unsure of whether the entry on

13 the right side of the screen matches the place of birth.

14 MS. SARTORIO: Well, I should clarify that, Your Honour.

15 It was unclear, and I think the testimony showed --

16 Mr. Karahasanovic asked where they were from, where they were from, and

17 when the witnesses answered, it could be from, they were from recently or

18 they were born there.

19 But Mr. Krcmar that there was known in his database by the name

20 of Mirko Maricic, and it is his conclusion, based on his records, that

21 the person is Marko Maric.

22 With that note, I will turn over the presentation.

23 JUDGE HARHOFF: Thank you.

24 JUDGE MOLOTO: Thank you, Madam Sartorio.

25 Mr. Neuner.

Page 8837

1 MR. NEUNER: Good afternoon, Your Honours.

2 JUDGE MOLOTO: Good afternoon, Mr. Neuner.

3 MR. NEUNER: Let me, first of all, state that I'm aware about the

4 time, and I will try my best to finish within the time allotted to the

5 Prosecution. I hope I don't need to go over. I have tried to reduce the

6 presentation as much as possible, so let me just start right away with

7 the questions which were asked, questions 5 and 8, as Mr. Mundis said,

8 should be addressed by myself.

9 Question 8 was: "Which additional criteria can be found in the

10 evidence of the present case that should lead this Trial Chamber to infer

11 effective control of the ARBiH over the EMD?"

12 Your Honours, I will address effective control over the EMD.

13 And, first of all, I can say that the Prosecution has proposed certain

14 indicia already in paragraph 46, and I don't want to say in addition to

15 them, but I would just, in an effort to answer Your Honours' question,

16 try to propose maybe additional questions as sought by Your Honours.

17 First of all, we would say it is remarkable that throughout its

18 existence the EMD stayed within the AOR of the 3rd Corps. If it, as the

19 Defence claims, would be just in a relationship of horizontal -- or in

20 horizontal relationship to the 3rd Corps, why did the EMD, throughout its

21 existence, near leave the AOR of the 3rd Corps?

22 It engaged in combat on the battlefields of the 3rd Corps, and as

23 Your Honours have heard, there is one instance at the Sarajevo

24 battlefield in December 1992 where the Mujahedin from Poljanice had left,

25 indeed, the AOR of the 3rd Corps to carry out a combat operation near

Page 8838

1 Sarajevo, but our position is the very fact that the EMD always remained

2 within the 3rd Corps indicates, in fact, that it accepted to be

3 subordinated to that corps.

4 A second point is - Your Honours have heard this, this morning,

5 already - that the EMD always sought permission or authorisation before

6 an attack. Witnesses such as Mr. Aiman have stated so. They never

7 fought unauthorised.

8 We have pled the third point already. Partially the pullout of

9 wounded of the EMD during joint combat shows also a high sophistication

10 of labour. A certain part of the troops get killed at the front line in

11 the first echelon with the second echelon being busy pulling out the

12 wounded.

13 Thirdly, the training, which was also mentioned by the

14 Prosecution in its final trial brief, where was it carried out? You have

15 heard, Your Honours, that it was carried out at the ninth kilometre where

16 the 4th Manoevre Battalion was stationed and it was carried out in Ozren

17 where the 5th ManBat of the ARBiH was having its headquarter.

18 So where is the training conducted? It is conducted in

19 installations assigned by the ARBiH to its units. It is not conducted

20 somewhere else in the forest, in a hidden place, where we cannot define

21 who owns the property. It is conducted on the compound of previously

22 assigned installations.

23 Another indicator, Your Honours, is -- and Mr. Zilkic testified

24 about this. There is also one order in evidence. Mr. Zilkic assigns for

25 his 5th Battalion of the 328th Brigade officers who should go with

Page 8839

1 5th Battalion troops while these troops are subordinated to the

2 El Mujahedin Detachment. It is not they are just given away. Let the

3 EMD decide independently on its own what is to be done. It is, rather,

4 that officer go with them, and they have also a kind of task to look what

5 5th Battalion 328th Brigade soldiers are doing while being engaged with

6 the El Mujahedin Detachment.

7 Moving on to the next question, question 5, Your Honours asked

8 for the Defence's position that Rasim Delic can only be held responsible

9 under Article 7(3) if he directly commanded the unit.

10 JUDGE MOLOTO: Can you go slowly? I think Judge Lattanzi wants

11 to say something.

12 Yes, Judge.

13 JUDGE LATTANZI: [Interpretation] Regarding the first factor, or

14 criterion, we're talking about the AOR of the 3 K where the EMD would

15 take place in combat operations, I do not understand how can this be an

16 indicator allowing us to understand the effective control rather than a

17 coordination between the army and the detachment.

18 Could you please go back on that point, please. Thank you.

19 MR. NEUNER: Your Honours, we would submit that if, assume the

20 EMD was very independent, it could have switched the AOR -- independent

21 of the army, or independent of the 3rd Corps, it could have switched from

22 the 3rd Corps AOR to the 7th Corps, fight more on the Travnik side of the

23 battlefield, for example, move then, as has happened, with the Mujahedin

24 from Poljanice in 1992, December, would then move to the Sarajevo

25 battlefield and thereby, through each movement, across corps boundaries,

Page 8840

1 wait, being controlled by one particular corps.

2 And this, indeed, has not happened.

3 JUDGE LATTANZI: [Interpretation] Thank you.

4 MR. NEUNER: On question number 5, returning to that question, we

5 would reserve our position waiting for the Defence, because Your Honours

6 addressed primarily the Defence, and if the case may be, respond to

7 whatever the Defence will submit to Your Honours.

8 I would now focus on five rebuttal points relating to the command

9 and control section of the Defence, and the first one is whether the EMD

10 reported to the ARBiH. And you can see here in paragraph 912 that the

11 Defence says: "The EMD did not submit military reports to its alleged

12 superior commands, the 35th Division or 3rd Corps ..."

13 We would say, if we talk about written reports, we do not

14 necessarily agree; but our focus is there were a significant number of

15 oral reports, and I'm going to cover these oral reports in a minute.

16 So the reporting about military matters we are talking about is

17 in fact an oral -- is an oral reporting which occurred frequently. And

18 we have developed a system for Your Honours that, first, we have meetings

19 on the highest 3rd Corps level, where instructions are given, transfer to

20 certain AORs and so forth, so the EMD shows up at the 3rd Corps and gets

21 a new mission, a new objective, transfer to another battlefield.

22 The second point then would be on a lower level we have, again,

23 the oral reporting or the meetings, the EMD being summoned, so after the

24 3rd Corps has defined the mission of the EMD, you have the OG or division

25 carrying out subsequent meetings, and along the way, receiving also oral

Page 8841

1 briefings. And, as Your Honours may see, before, during, and after

2 combat.

3 I start in the very early days, in 1993. We have here Mr. Hamad,

4 stating, and it is highlighted that: In the first six months of 1993,

5 this was the question, he met several times, Alagic he is talking about:

6 "Sometimes he visited us in Bijelo Bucje on the eve of the attack." So

7 before the attack. "When we were planning an attack."

8 Next sentence: "Sometimes I would meet him in Travnik," so

9 obviously not directly during combat, "and sometimes I would have a

10 meeting with Mr. Alagic during the attack."

11 He continues: "When we take over positions from the VRS or the

12 HVO, then he would come to talk to me and to learn from me what had been

13 done," is it is after the attack.

14 This is transcript page 31, 7th of September, 2007.

15 This is now a slide relating to Operation Manevar in autumn 1994.

16 And it isn't stated -- I believe it is Aiman talking on the 8th of

17 February, 2008, page 73, he mentions the systems of meetings. "The first

18 meeting was a separate meeting at the corps," the highest level, as I

19 said. And then he goes on: "Then there was an encounter at the division

20 command, at Fadil Hasanagic's. "After that, there was one when we

21 informed them." So somebody is reporting. "However, there were two

22 meetings more. The last meeting was when all the commanders of other

23 units were summoned who insisted on their readiness to execute the

24 attack."

25 Moving on to Proljece 1, May 1995. Hasanagic testified to Your

Page 8842

1 Honours on page 3278 and 3279 on the 28th of September, 2007, "Talking

2 about Mr. Maali, he was introduced to me as Emir of the unit."

3 When?

4 "When he delivered," meaning Maali, delivered the plan on the

5 15th of May."

6 Your Honours will recall on the 27th of May, the combat started

7 for Proljece 1. This is the plan, Exhibit 439, Your Honours have seen.

8 Hasanagic testified; he made handwritten remarks on it.

9 So what happens before Proljece 1? Again, Awad: "There were at

10 least two meetings before the attack was carried out. The first meeting

11 was at the 3rd Corps command, the second meeting in Zavidovici.

12 "At the last meeting, it was decided when the attack would be

13 launched. The particular date and hour was fixed of the attack. It may

14 have been about two days before the attack ..."

15 Then, during Proljece 1, what is Mr. Awad testifying. "If one of

16 the participants in the attack were to send a message or if something had

17 to be passed on in Bosnian, I would do that, or if somebody was speaking

18 in Bosnian, I would interpret to the commander and pass on the orders.

19 If it was necessary to establish connection with division command or

20 their communication centre to ask for an artillery support ...," another

21 indicator in the Prosecution's point of view, "then I would do so, using

22 the Motorola that was linked to the division command."


24 This is 9th of February, page 8789.

25 What do we have after Proljece 1? Again, Mr. Awad: "Once these

Page 8843

1 three features were taken - that's the question - did the detachment

2 report?"

3 "Yes," Mr. Awad says, "in the evening a meeting was held at the

4 division command." And he goes on: "Then we reported about how many

5 casualties we had, how many killed and wounded, what else was needed in

6 order to contain the success."

7 I'm moving on to the next operation, Proljece 2, and here is a

8 meeting before that operation.

9 Again, Mr. Awad, 9th February, page 94, explained to Your

10 Honours. He is refers to Mahmuljin: "We were told to change our

11 direction of reconnaissance."

12 So there was definitely a meeting with the corps commander; and

13 later, for sure, there was one with the division command.

14 The question was: "When was it happening?"

15 Mr. Awad testified to Your Honours: "Definitely in late June,

16 when the meeting was held."

17 I'm moving to early July, 6 July 1995, now, Exhibit 602. It goes

18 to Kakanj, and Your Honours can see what is reported about the 6th of

19 July: "During the day, an officer team of the detachment visited the

20 35th Division in order to coordinate the tasks received for the upcoming

21 combat activities."

22 Tasks are received.

23 Then during Proljece, Mr. Hasanagic - I have skipped this now -

24 has also reported that for Proljece 2 the time before, the time of the

25 operation was agreed to at the meeting. I'm talking about during

Page 8844

1 Proljece 2.

2 Again, Mr. Awad, 9th of February, 101 and 102 of the transcript:

3 "So the question is: After the operation on 21 July, was there a

4 meeting?"

5 The answer is: "That was the same day or the next day, I can't

6 say. There was a meeting and then the report would be submitted about

7 the success of the operation."

8 With reporting here.

9 Your Honours have heard evidence how many times the issue of POWs

10 had been dealt with in the July operation. I have just listed, on the

11 left-hand side, three meetings relating to POWs; 22nd July in Livada,

12 Fadil Imamovic testified to Your Honours, Exhibit 553; I believe on or

13 after 24 July, Mr. Mrkajlovic and Mr. Hajderhodzic went to Livada.

14 And Your Honours have seen here Exhibit 859 displayed on the

15 right hand, and what does it say? "In the interview with captured

16 aggressors soldiers, the 35th Division SVB learned the following

17 information," and Your Honours have seen it is a lengthy description of

18 what the interview had achieved or obtained for results than the 22nd of

19 July 1995, document Exhibit 553.

20 I'm moving to Farz. Meetings before Farz. Awad told Your

21 Honours that: "The detachment commander Muatez was there, and I was

22 present, Sakib Mahmuljin was there. We had already started preparations

23 and were doing reconnaissance in the area." What was the meeting about?

24 Mr. Awad told you: We were given this part of the area, Paljenik. Page

25 106 and 7 on the 9th of February 2008.

Page 8845

1 What happened hours before Farz? We are talking at 9.00 in the

2 evening, entry 7, on the 9th of September: The commander of the

3 El Mujahedin, Aiman, had a meeting with the 3rd Corps commander at

4 Luka -- excuse me, IKM 1, hours before the attack."

5 What happens on day one of Farz -- I apologise. Maybe I start

6 with this.

7 This is the map a little bit modified by us in the sense that we

8 have with a red box indicated the AOR of attack for the El Mujahedin

9 Detachment. And, Your Honours, to show how jointly coordinated the

10 combat was carried out, you see the El Mujahedin Detachment has

11 neighbours, the 328th Mountain Brigade and the 329 Mountain Brigade: The

12 328 Mountain Brigade being upwards in the north, 329th being on the

13 southern part.

14 Here, Your Honours, can see roughly in Svinjasnica, the start,

15 towards Paljenik and towards Stug. Please remember these two places.

16 This is exhibit 76 on the right-hand side drawn by Senad Begovic. We

17 have just recaptured for Your Honours's attention the way with these red

18 arrows.

19 And this is reported on day one of the operation, 10th of

20 September, six times Mr. -- the EMD -- a member of the EMD is reporting.

21 I think it is Awad. Begin of combat five to six.

22 After 25 minutes the first report -- and this is the first two

23 and a half/three hours, Your Honours. Paljenik seized at 0634, the

24 second message from the EMD. You have just seen it on the map. Then

25 0800 hours, the EMD requested that Stog facility be shelled. This is

Page 8846

1 what the Prosecution says: The EMD couldn't do it alone, it needed

2 artillery support.

3 And after Stog had been shelled, the sixth message we are talking

4 about at 0837, they are in Stog. They have reached it. And this is what

5 Mr. Hasanagic told Your Honours. Another meeting on that day, no longer

6 phone or other communication, it is direct encounter.

7 On the road, which is marked here - I think it is Exhibits 472

8 and 470 - Your Honours see where the arrow draws that is a direction of

9 drive of Mr. Hasanagic and Stog, which was you have just seen shelled

10 after 8.00 in the morning. The meeting is before Stog, Your Honours.

11 The meeting in the evening of day one at Panorama. Your Honours

12 have heard so much about it. I will just say something from Mr. Zilkic,

13 who had attended along with the EMD members. What does Mr. Zilkic say to

14 Your Honours? What was the topic of discussion, was the question.

15 Primarily on the subsequent tasks, tomorrow's tasks. We're talking about

16 11 of September, Your Honours. The meetings on the 10th in the evening.

17 What were the tasks that were discussed concerning 11

18 September 1995?

19 Continuation of offensive activities.

20 Mr. Zilkic goes on. Further advancement towards [indiscernible]

21 feature. Your Honours have heard about this. We have displayed it on a

22 map. The red boxes is the first combat we just talked about from roughly

23 Svinjasnica via Paljenik to Stog. The meeting takes place at the end of

24 first combat in the evening.

25 The second one is Kesten [indiscernible] EMD acts as an

Page 8847

1 intervention unit. The third one is the green one. The three green - I

2 will discuss it in a moment with Your Honours - is the combat towards

3 Koruga [phoen] discussed on that meeting.

4 Panorama.

5 Number 4 is also on the 11th of September. It is all in our

6 final trial brief, Your Honours. It is Radulovo Brdo. And number 5 is

7 almost not depicted on this map. The combat has moved north We are five

8 days behind, around the 16th of September.

9 The first one, Ms Sartorio has already introduced you to that

10 combat. I don't mention it. The order was issued at midnight

11 10 September following meeting at IKM Panorama. As mentioned by

12 Mr. Zilkic, a moment ago, the combat towards Koruga, takes -- or is

13 ordered at 11.30 on the 11th of September. The prisoners in Kesten are

14 not yet arrested or about to get arrested. And where is the EMD starting

15 from? Djurica Vis. I don't want to say a stone-head [sic] away from

16 Kesten, but not far away, towards north-west Koruga.

17 The EMD complies with the order, Your Honours.

18 The forced combat activity, Radulovo Brdo, ordered at 1730 that

19 day, 11 September, and carried out in the Prosecution's point of view,

20 the 5th. Okay.

21 Then after these four subsequent combat operations, we're talking

22 about 48 hours, Your Honours, we have is this meeting. You have heard

23 about it. You see the participants: Number, 3 Abu Maali; number 3,

24 Mr. Mahmuljin, as direct subordinate of Mr. Delic. Exhibit 1212.

25 Let's move to the next.

Page 8848

1 Who is the sitting on the other said of that table? Mr. Husic

2 helped us. Number 3 is Bakir Alispahic who had, as minister of the

3 interior, authorised Vranduk. Now he is sitting at the table together

4 with the subject or the object of his activity. Vranduk, a joint

5 operation against the El Mujahedin Detachment. Two months or three

6 months after May, we are seeing a participant to this meeting.

7 Number one, you hardly see it. It is above the head of the first

8 person on the left-hand side. We see Mr. Ekrem Alihodzic, the former

9 assistant commander for military security, who was at the time when

10 Vranduk was implemented the acting or the assistant commander for

11 military security. You see the 3rd Corps side of Operation Vranduk

12 sitting at the same table with the persons on the other side.

13 The fifth joint combat activity, I skip for now. It is mentioned

14 in our final trial brief. It's important, because I only want to deal

15 with meetings at this point in time, that the commander of the 3rd Corps

16 handed down at IKM Natron further tasks.

17 I have to apologise here because I don't find a quote. It must

18 have escaped me. I believe it was Mr. Zilkic. Your Honours, we could

19 provide the exact reference.

20 I want to dwell for the last 15 minutes on the second point.

21 Delic remained informed on combat and security.

22 Starting with 804 of the Defence final brief, Your Honours see

23 that the last sentence is important. The operation centre of the General

24 Staff which was previously existed -- which previously existed in

25 Sarajevo ceased to work after Kakanj was open, is the Defence's

Page 8849

1 allegation.

2 Your Honours, we say that the operation centre in Sarajevo

3 functioned parallel to KM Kakanj. Mr. Delic was not cut off.

4 There is an order from the 27th of December 1994, Exhibit 371,

5 which says: Summary combat reports from the ARBiH staff will be

6 delivered via the operative centre on duty in Sarajevo.

7 If, as the Defence claims, the operation centre in Sarajevo would

8 have stopped functioning, what is the purpose of this order in late

9 1994/early 1995?

10 Obviously, this order is issued on the basis there is an

11 operation centre. And Your Honours have seen these reports, the summary

12 reports. I cannot list them all: Exhibit 537, 1406, 1289, Exhibit 406.

13 I have only selected those relating to Proljece 2 and Farz.

14 Who are the addressees? Please look for a moment on the

15 right-hand side a very distinguished circle, and number two is the

16 commander of the army, Your Honour.

17 In any case, the Defence pleads, in paragraph 512, the mere fact

18 that a document was addressed to Delic doesn't mean that he saw it.

19 We say, Your Honours, reports on the situation in the ARBiH

20 theatre of war - I have just shown awe couple of examples - were received

21 as well as bulletins from Kakanj. And I will try to explain.

22 The recipients of the bulletins - I'm switching to the Security

23 Administration documents Your Honours, for example, Exhibit 376 - Your

24 Honours see, again, a very distinguished circle. The president, the

25 supreme staff commander, and it says "deputy prime minister" but it is an

Page 8850

1 unrevised version. It is probably the prime minister. We are talking

2 about the core people. We are not about random documents being sent to

3 several corps and brigade. This is a distinguished circle, in our

4 opinion.

5 And the Defence is referring to Mr. Berbic who, according to the

6 Defence's view, paragraph 512, clearly stated that: During the absence

7 of Delic km. Kakanj, they were received by the Chief of Staff,

8 suggesting Hadzihasanovic. We say, Your Honours, Mr. Berbic's testimony

9 is not completely irrelevant, but let's treat it or let's deal with it to

10 the time-period about which Mr. Berbic is competent at that talk about.

11 And we have checked Exhibit 377. It is a compilation of some 100

12 bulletins -- or not bulletins, cover letters attached to bulletins going

13 to Kakanj. When is Mr. Berbic's name showing up? The first time, as you

14 see here, on the 27th September 1995. Farz is still ongoing, but the

15 crime base about which we are talking in this trial is over, in the sense

16 that the killings have occurred, Your Honours.

17 Mr. Berbic, who was sometimes the addressee, became the addressee

18 late in the day, as the Prosecution submits, when so to speak Farz was

19 almost over.

20 So the crucial bulletins, the notice bulletins we are talking

21 about the Prosecution submits were submitted earlier. And if Your

22 Honours look at the instructions in the cover letters, I think there is

23 no doubt: You are required to forward the bulletin to the General Staff

24 commander, army, General Rasim Delic, for his information.

25 Can there be any doubt?

Page 8851

1 We believe that instruction is precise.

2 The Celibici Appeals judgement referred by Mr. Mundis this

3 morning says: Relevant information only needs to have been provided or

4 available to the superior. It is not required that he actually

5 acquainted himself.

6 What does Mr. Vuckovic who is involved in the dispatching

7 procedure and production procedure tell Your Honours? The readers were

8 the top officials of Bosnia Herzegovina. It is not addressed to anybody.

9 And Mr. Softic told Your Honours. He is the chef de cabinet who

10 is should know how crucial documents are dispatched: The operations

11 centre in Kakanj was also subordinated to the Chief of Staff, if that's

12 what you're thinking. And the Chief of Staff communicated with the

13 commander. If let's just assume, theoretically, a bulletin would have

14 ended up in the hands of Mr. Hadzihasanovic, the chef de cabinet says the

15 Chief of Staff, as would be of course expected, is communicating with

16 Commander Delic.

17 The next question is: Was there a system in place for

18 information to be reported to General Delic through the command post in

19 Kakanj?

20 The chef de cabinet tells Your Honours, yes, there was a system.

21 It doesn't mean it ended up in Kakanj in a dead end. This is pages 1895,

22 1896, 29th of August 2007.

23 Third point: Delic knew that the EMD was operating on the Vozuca

24 battlefield when he ordered - that's the July Proljece 2 operation - or

25 approved that Farz combat.

Page 8852

1 The Defence starts off by denying none of the evidence in this

2 case confirms, in paragraph 473, that Delic even knew about the

3 participation of the detachment during combat activities in July.

4 Flat denial, Your Honours. We say Delic knew about EMD presence

5 at the Ozren-Vozuca battlefield when he ordered to launch combat on all

6 fronts. Your Honours have heard that order from the 16th of July.

7 Let's start with the bulletin. Exhibit 963, talking about the

8 El Mujahedin Detachment. What does is say in the relevant paragraph?

9 "It is also already known to the public that the members of this

10 detachment in the village of Curici, in Zavidovici municipality,

11 completely destroyed an Orthodox cemetery. Your Honours have heard it.

12 If you look at cutout of the court binder, you see Curici on the

13 upper left-hand corner is opposite Paljenik. We have heard a lot about

14 the strategic importance of that feature. By April 1995, information

15 provided to Mr. Delic. That same bulletin has a handwriting, Your

16 Honours.

17 And PW-13, on 6653, on the 6th of December 2007, told Your

18 Honours: "Do you recognise the handwriting?"

19 "Yes, this is General Delic's handwriting."

20 So it was received and seen.

21 Then we have -- you see the signature. It is exhibit 599.

22 Delic's approval of the ordinary July coordination plans of the General

23 Staff, issuing the tasks for the next month. And I have three such

24 listed up. And you see, in section 15, Roman XV, realisation of the plan

25 of offensive combat in the zone of responsibility of the 3rd Corps.

Page 8853

1 Who is responsible? 3rd Corp and 35th Division.

2 Then on the 4th of July, before the 16th of July order --

3 I note the time, Your Honour. I still have a few slides left. I

4 endeavour my best.

5 4th of July, Exhibit 735. What is the information provided?

6 3rd Corps reports EMD tried to use their joint training with soldiers of

7 the 328th Mountain Brigade to win them over.

8 Who is mediating? The commander of the 35th Division and the EMD

9 held a meeting.

10 Your Honours, training with the 328th Mountain Brigade,

11 35th Division. It doesn't say the El Mujahedin Detachment is, in fact,

12 carrying out combat on the 4th of July, but military person might infer

13 why trainings occur.

14 On the 10th of July, bulletin Exhibit 736. SVB of the 3rd Corps

15 reports that members of the EMD frequently visit soldiers of adjacent

16 units, not any units, adjacent units. Who again? The 328th Mountain

17 Brigade. What are the soldiers of the EMD doing? When they go to the

18 Ozren and Vozuca front, they visit.

19 Exhibit 736. Six days before the order, launch combat on all

20 fronts, is being issued.

21 Your Honours, this order is in front of you, Exhibit 496.

22 Two days later, 3rd Corps reports back to Kakanj, pursuant to

23 your order - Your Honours have just seen it - from 16th of July. Two

24 others are listed here: On carrying out active combat on the entire

25 front in the basic area of the 3rd Corps, it says units of the

Page 8854

1 35th Division and, number one, in coordinate action with the EMD, carried

2 out the necessary preparations. We expect the beginning of attack.

3 It went to Kakanj, not to Mr. Delic at this point in time.

4 19th of July, a bulletin, a day later going to Mr. Delic,

5 Exhibit 738. What is mentioned about the EMD? Six members of this unit

6 stopped a group of girls. It's is not a war crime. We're talking about

7 ordinary crime, but the location is interesting.

8 They took -- it also talks about a road, Savci Krivaja. Your

9 Honours know where that road is. On the 16th and the July this incident

10 occurred.

11 What are they doing, EMD? They took the members of the army

12 towards Paljenik, one of the best fortified feature of the VRS in the

13 area. We believe it sends a signal, Your Honours, about the presence.

14 Three days after, an order for attack has been issued.

15 22nd of July, Your Honours know that bulletin. We just see it is

16 after the fact the combat has started. Exhibit 582.

17 What is reported? The 328th Mountain Brigade in the Vozuca -- I

18 apologise. In the area of responsibility of the 328th Mountain Brigade,

19 in the Vozuca battlefield, it says. It talks about joint units of the

20 35th Division broke through the enemy lines in the planned directions,

21 and on that occasion liberated and villages are mentioned.

22 The last sentence is important for Your Honours. What can be

23 infer from the last sentence? In this action, 18 of our soldiers got

24 killed, of our soldiers, 15 of which were members of the EMD.

25 Isn't that an indication that six days after the 16th of

Page 8855

1 July order at least one unit has lost 15 soldiers of the EMD, in that

2 area, 328th Mountain Brigade?

3 I want to move on.

4 I am aware of the time, Your Honour. Please just cut me off.

5 JUDGE MOLOTO: Would you like to finish tomorrow.

6 MR. NEUNER: I understood that this should not be possible, if I

7 heard this morning's instructions correctly, and it was greed to that the

8 time was three hours for the Prosecution .

9 JUDGE MOLOTO: Yeah. But we have the 11th reserved precisely for

10 this kind of eventually where we may need more time. And judging by

11 Madam Vidovic's body language, she doesn't mind. Did I interpret your

12 body language correctly Madam?

13 MS. VIDOVIC: [Interpretation] Your Honour, not quite correctly,

14 but I do understand that you would like to proceed in this manner. And

15 if Mr. Neuner wants to conclude tomorrow, that's not a problem.

16 JUDGE MOLOTO: Thank you, Madam Vidovic.

17 How much more do you still have to do, sir.

18 MR. NEUNER: I apologise a little bit because I have

19 substantially regrouped the whole morning in order to reduce it. I'm a

20 little bit confused.

21 I think I'm more than two thirds through, Your Honours.

22 JUDGE MOLOTO: You still have a third to go.

23 MR. NEUNER: I apologise.

24 JUDGE MOLOTO: In that --

25 MR. NEUNER: I was given another time-frame.

Page 8856

1 JUDGE MOLOTO: In that event --

2 MR. NEUNER: I can reduce it further.

3 JUDGE MOLOTO: -- please try to it that overnight and finish off

4 tomorrow morning.

5 MR. NEUNER: Thank you, Your Honours.

6 JUDGE MOLOTO: You're welcome.

7 The Chamber will adjourn to tomorrow morning in the same

8 courtroom.

9 Court adjourned.

10 --- Whereupon the hearing adjourned at 1.51 p.m.,

11 to be reconvened on Tuesday, the 10th day of June,

12 2008, at 9.00 a.m.