Tribunal Criminal Tribunal for the Former Yugoslavia

Page 28568

 1                           Monday, 11 June 2012

 2                           [Rule 98 bis Hearing]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.02 a.m.

 6             JUDGE KWON:  Good morning, everyone.  We convene today to hear

 7     the accused's Rule 98 bis submission.  The Rule provides:

 8             "At the close of the Prosecutor's case, the Trial Chamber shall,

 9     by oral decision, and after hearing the oral submission of the parties,

10     enter a judgement of acquittal on any count if there's no evidence

11     capable of supporting a conviction."

12             The test to be applied is whether there's evidence upon which, if

13     accepted, a reasonable trier of fact could be satisfied beyond reasonable

14     doubt of the guilt of the accused.  The test is not whether a

15     Trial Chamber would, in fact, convict beyond reasonable doubt, but rather

16     whether it could do so.  Therefore, Mr. Karadzic, please bear in mind the

17     following two points.

18             First, as you may already know well, at this stage of the case

19     the Trial Chamber is not to evaluate the credibility of witnesses or the

20     strength and weaknesses of contradictory or different evidence.

21             Second, the rule falls to be applied to each of the 11 counts in

22     the indictment, not requiring the Chamber to be satisfied that there's

23     evidence supporting each of the individual charges making up the counts

24     of the indictment.

25             Having said that, Mr. Karadzic, I give you the floor for your


Page 28569

 1     submission.

 2             Yes, Mr. Robinson.

 3             MR. ROBINSON:  Yes, thank you, Mr. President.  Mr. President,

 4     this morning we're going to divide the work between myself and

 5     Dr. Karadzic.  There are two counts in which our arguments are

 6     predominantly legal in nature and those are Counts 1 and 11.  So I will

 7     be making the submission on our team's behalf for Count 1 at the

 8     beginning, and then at the end after Dr. Karadzic has addressed Counts 2

 9     through 10 I will return and deal with Count 11.  So at this time

10     Dr. Karadzic hereby moves for a judgement of acquittal pursuant to

11     Rule 98 bis of the Rules of Procedure and Evidence on each of the

12     11 counts in which he's charged.

13             Turning to Count 1, the guts of Count 1 can be found in

14     paragraph 38 of the indictment, and that charges that in some

15     municipalities - and there are seven listed in the bottom of that

16     paragraph - between 31 March and 31 December 1992 the campaign of

17     persecutions alleged in the indictment included or escalated to include

18     conduct that manifested an intent to destroy in part the national,

19     ethnical, and/or religious groups of Bosnian Muslims and/or

20     Bosnian Croats as such.

21             And this count is charged in violation of Article 4 of the ICTY

22     Statute.

23             That Statute defines genocide as being any of the following acts

24     committed with the intent to destroy, in whole or in part, a national,

25     ethnical, racial, or religious group as such.  And those acts include


Page 28570

 1     killings causing serious bodily or mental harm and deliberately

 2     inflicting conditions of life calculated to bring about the destruction

 3     of the group.

 4             It's been said that genocide is the crime of crimes.  The intent

 5     to destroy the group makes genocide an exceptionally grave crime and

 6     distinguishes it from other serious crimes, such as persecution, where

 7     the perpetrator selects his victims because of their membership in a

 8     specific community but does not necessarily seek to destroy the community

 9     as such.  And so genocide is not simply the sum of killings on the one

10     hand, the actus reus, and expressions such as the Muslims should

11     disappear on the other hand, that being part of mens rea, but instead

12     genocide is a confluence of those acts and intent so that the killings

13     can be said to be committed not only because of hatred or revenge but

14     with the special intent to actually destroy the group or a significant

15     part thereof.

16             And our position as to Count 1 is simply that there was no

17     genocide in the municipalities in Bosnia in 1992, and therefore there is

18     no evidence upon which the Trial Chamber could conclude that Dr. Karadzic

19     is guilty of genocide as charged in Count 1.  You don't have to take our

20     word for it.  The International Court of Justice has held that there was

21     no genocide in the municipalities in Bosnia in 1992.  Ruling in the

22     lawsuit by Bosnia against Serbia and Montenegro, the International Court

23     of Justice held that the court is not convinced that the massive killings

24     of members of the protected group were committed with the specific intent

25     on the part of the perpetrators to destroy, in whole or in part, the


Page 28571

 1     group as such.  This decision was made 15 years after these events, and

 2     in the interim five years from 2007 until today, 2012, the Prosecutor has

 3     presented no new evidence that would call into question this result.  In

 4     fact, the evidence in this case affirmatively indicates that there was no

 5     genocide in the municipalities.

 6             Exhibit D2250 is a chart that was produced by the Prosecution's

 7     expert Ewa Tabeau, and it shows that in all of Bosnia 2.6 per cent of the

 8     Muslims were killed.  This includes soldiers who died in battle and

 9     includes three and a half years of the war, not just 1992.  It includes

10     the 1995 killings in Srebrenica, which are reflected in the total for

11     Bratunac municipality.  So it's likely that the actual number of

12     civilians who were killed as a result of war crimes is well under

13     2 per cent of the population.  That's no genocide.  Almost 60 per cent of

14     the Jews in Europe were killed during the Holocaust and about 70 per cent

15     of the Tutsis were killed during the Rwandan genocide.

16             Now, the key to understanding the jurisprudence about the

17     genocide in municipalities is simply that displacement does not equal

18     destruction.  And we can go back to the Genocide Convention itself.

19     There was an amendment offered ironically by Syria which would have made

20     displacement an act of genocide, and that amendment was voted down 29 to

21     5, ironically Yugoslavia voting in favour of the amendment.  And so it

22     evidences a clear intention on behalf of the drafters of the

23     Genocide Convention that acts of displacement as opposed to destruction

24     do not constitute genocide.

25             In the Eichmann case in Israel in 1961, Eichmann was acquitted of


Page 28572

 1     genocide for acts which took place before 1941 because the court found

 2     that up until that time the Germans were intent on displacing and

 3     expelling the Jews, but after the invasion -- the attack by the

 4     Soviet Union in 1941 their programme changed and they became intent on

 5     destruction and killing and not allowing displacement.  And therefore,

 6     Eichmann was convicted of genocide only for those acts which were

 7     directed as destroying the group and not displacing it.

 8             Let's look at the jurisprudence of genocide at the ICTY in the

 9     municipalities.

10             The first case involved Goran Jelesic, a guard at the Luka camp

11     in Brcko municipality, a person who was said to have called himself the

12     Serb Adolf.  The Trial Chamber in his case held that there was no

13     evidence of a plan to destroy the Muslims in Brcko or elsewhere, and that

14     Jelesic killed arbitrarily.  The Appeals Chamber disagreed.  They said

15     that the existence of a plan was not required, that displays of

16     randomness cited by the Trial Chamber did not negate genocidal intent,

17     but they declined to reverse the Trial Chamber, finding that it was not

18     in the interests of justice that Jelesic be tried for genocide and his

19     acquittal stood.  And I mentioned that Brcko is not among the seven

20     municipalities in which genocide is charged in this case.

21             The next occasion in which this Tribunal has examined the issue

22     of genocide in the municipalities was the case of Dusko Sikirica, a case

23     of three guards at the Keraterm camp in the Prijedor area, and in that

24     case the judgement for -- motion for judgement of acquittal was granted

25     by the Trial Chamber, and those killings included the infamous room 3


Page 28573

 1     massacre at Keraterm and they found that that was not with the intent to

 2     destroy the group as such.

 3             The Trial Chamber said in the Sikirica case that while the

 4     Prosecution has adduced evidence which might suggest that the

 5     Bosnian Serb authorities' general political doctrine gave rise to a

 6     campaign of persecution against the non-Serb population in Prijedor,

 7     there is no evidence that this doctrine sought to promote genocide.

 8             The Sikirica case also dealt with two ways in which genocide

 9     could be committed, targeting a substantial number of people or targeting

10     a selective number of individuals who comprised the leadership.  And in

11     that case had indicated that the targeting of a selective number of

12     persons who by reasons of their special qualities of leadership within

13     the group as a whole are of such importance that their victimisation

14     would impact on the survival of the group as such, and they went on to

15     find that there was no targeting of the leadership in such a way at

16     Keraterm camp and that there was no evidence that the killing or

17     disappearance of the people in those camp was based upon the special

18     leadership or targeting of the special leadership, such as to destroy the

19     group.

20             And the same is true here.  If you look at some of the major

21     events in the Prosecution's case here, you can see why they were not

22     committed with the intent to destroy the group.  If you look at the

23     Koricanske Stijene event, thousands of Muslims were transported towards

24     Muslim territory when near the place Koricanske Stijene the -- there was

25     a selection made of a few hundred of them or less than a few hundred of


Page 28574

 1     them, and that selection was based upon criteria or whether they fit into

 2     category 1, 2, or 3.  Category 1 being combatants, people who had

 3     participated in the war according to them, those persons were taken off

 4     of the buses and killed.  And the remaining thousands were taken to the

 5     Muslim territory.  If there was an intent to destroy, then of course the

 6     object would have been to kill all of the Muslims or as many of them as

 7     they could.  And if there was an effort to target the leadership, then

 8     the criteria for selection of those who were killed would have been based

 9     on those who were leaders in the community rather than those who were

10     combatants and who could come back to fight again against the

11     Bosnian Serbs.

12             If you look at the system of prisoner exchanges, it flies in the

13     face of genocide.  Thousands of Bosnian Muslims were exchanged, were

14     released during the course of 1992.  Do you know how many Tutsis were

15     exchanged for Hutus in Rwanda?  Zero.  Again, showing that there was no

16     genocide in the municipalities in 1992.

17             The next case in which the Tribunal dealt with the genocide in

18     the municipalities was that of Milomir Stakic, the president of the

19     Crisis Staff in Prijedor municipality.  He was acquitted of genocide.

20     The Trial Chamber said the Serbs had the means to commit genocide if they

21     so intended.  Had the aim been to kill all Muslims, the structures were

22     in place for this to be accomplished.  The Trial Chamber notes that while

23     approximately 23.000 people were registered as having passed through

24     Trnopolje camp, the total number of killings in Prijedor municipality

25     probably did not exceed 3.000.  The Trial Chamber in Stakic was not


Page 28575

 1     satisfied that anyone had the special intent to destroy the Muslims or

 2     Croats as a group and they specifically discussed the strategic goals,

 3     which is Exhibit P781 in this case and found that they called for

 4     separation and not destruction.

 5             The Court concluded that there was insufficient evidence in this

 6     case to prove that a genocidal campaign was being planned at a higher

 7     level.  Now, here's what the International Court of Justice said about

 8     the strategic goals.  The applicant's argument does not come to terms

 9     with the fact that an essential motive of much of the Bosnian Serb

10     leadership to create a larger Serb state by war or conquest if necessary

11     did not necessarily require the destruction of the Bosnian Muslims and

12     other communities, but their expulsion.  The 1992 objectives,

13     particularly the first one, were capable of being achieved by the

14     displacement of the population and by territory being acquired.

15             The Appeals Chamber in Stakic affirmed the acquittal for genocide

16     and rejected the Prosecution's appeal.  It found that the evidence could

17     reasonably be seen as consistent with the conclusion that the

18     Trial Chamber drew that the appellant merely intended to displace but not

19     destroy the Muslim group.  And it pointed to some evidence to the

20     contrary, such as Stakic's statement that Bosnian Muslims who did not

21     take part in hostilities would be permitted to return to Prijedor after

22     the war.

23             And we have similar evidence in this case, including

24     Dr. Karadzic's order of the 13th of June, 1992, Exhibit D101, in which he

25     annulled any documents that had been signed by Muslims or Croats


Page 28576

 1     relinquishing their property before leaving municipality.

 2             Now, the next case in which the Tribunal dealt with genocide in

 3     the municipalities was the Milosevic case, and in the Rule 98 bis motion

 4     for judgement of acquittal, the Trial Chamber found that there was

 5     evidence from which genocide in the municipalities could be inferred.  As

 6     we know, that case never proceeded to a final judgement because of the

 7     death of President Milosevic.  The decision took place in June of 2004

 8     preceding the Appeals Chamber's decision in Stakic and also the

 9     International Court of Justice judgement in 2007.  Even in Stakic and

10     Brdjanin and Krajisnik, which I'm about to discuss, the Rule 98 bis

11     motions were denied only to find an acquittal at the end of the case.

12     All of those rulings took place before the decisions of the

13     International Court of Justice, which firmly established that no genocide

14     took place in the municipalities and did so on a lower burden of proof of

15     the preponderance of the evidence rather than whether there is evidence

16     capable of proof beyond a reasonable doubt.

17             And so you may be asking yourself why you should grant a motion

18     for acquittal at this stage on Count 1 rather than waiting until the end

19     of the case and deciding on the final judgement.  And the answer is that,

20     first of all, you have the decision now of the

21     International Court of Justice, but most importantly part of the right to

22     a fair trial that Rule 98 bis is designed to guarantee to the accused is

23     the protection from having to defend himself from overcharging or charges

24     which are not warranted in light of the evidence and the jurisprudence;

25     and to allow an accused to focus the resources, scarce as they are, to


Page 28577

 1     him and compared to the Prosecution on crimes for which there is actually

 2     evidence which could sustain a conviction.

 3             You know, I am paid 75 euros an hour for my work here.  If I

 4     spend one hour on genocide in the Defence case, just one hour, that --

 5     those resources can be used to feed two children in Africa for a month.

 6     And so it's incumbent upon the Trial Chamber, in our submission, to

 7     address the issue at this stage and to determine really whether in light

 8     of all this jurisprudence and the evidence that you've heard the case for

 9     genocide in the municipalities should go forward.

10             I turn now to the decision in the Brdjanin case.  As you know

11     Radoslav Brdjanin was the president of the Autonomous Region of Krajina,

12     the highest regional figure within Bosnia, and in his case the

13     Trial Chamber also acquitted him of genocide in the municipalities.  It

14     found that there was -- from the summer of 1992, the Bosnian Serb forces

15     controlled the territory of the ARK, as shown by the fact they were

16     capable of mustering the logistical resources to forcibly displace tens

17     of thousands of Bosnian Muslims and Bosnian Croats, resources which, had

18     such been the intent, could have been employed in the destructions of all

19     the Bosnian Muslims and Bosnian Croats of the ARK.

20             The Trial Chamber in the Brdjanin case examined much of the same

21     evidence that you've heard in this case, the killings at

22     Koricanske Stijene, killings and treatment of prisoners at Omarska,

23     Keraterm, Trnopolje, and acts in the municipalities of Prijedor,

24     Sanski Most, and Kljuc, which are charged as some of the seven

25     municipalities in which genocide is alleged to have occurred.  And in the


Page 28578

 1     Brdjanin case the Trial Chamber heard many of the same utterances that

 2     you've heard, intercepts, public speeches, and they noted that some of

 3     the accused's utterances are openly nasty, hateful, intolerable,

 4     repulsive, and disgraceful, but whilst these utterances strongly suggest

 5     the accused's discriminatory intent; however, they do not allow for the

 6     conclusion that the accused harboured the intent to destroy the

 7     Bosnian Muslims and Bosnian Croats of the ARK.

 8             In the Brdjanin case they also talked about the notion of

 9     escalation to genocide, which is also charged in our indictment.  And

10     they found no evidence of escalation to genocide in the ARK, and that's

11     at paragraph 982, and there was also no evidence of escalation to

12     genocide in this case.

13             The last case in which genocide was dealt with in the

14     municipalities at this Tribunal involves the prosecution of

15     Momcilo Krajisnik, who was the president of the Assembly and a closest

16     associate of Dr. Karadzic.  And he was charged with genocide on a

17     national level.  The Trial Chamber found no intention to destroy the

18     group.  They said:  The Chamber does not find that any of these acts were

19     committed with the intent to destroy the Bosnian Muslim or Bosnian Croat

20     ethnic group as such.  And those acts include virtually all of the acts

21     that are charged in this case, including the killings at Karakaj

22     technical school in Zvornik and the Susica camp in Vlasenica.  They

23     contain the same utterances and documents Variant A and B, the six

24     strategic goals, Dr. Karadzic's October 1991 speech before the Assembly,

25     and the same intercepted conversations.


Page 28579

 1             So all of this jurisprudence leads inescapably to the conclusion

 2     that no genocide in the municipalities in Bosnia took place in 1992.

 3             And I would point out that genocide, as charged in this

 4     indictment, is not an inchoate crime.  He is not charged with incitement

 5     to genocide or conspiracy to commit genocide.  So it has to be

 6     established that a genocide actually took place in order for there to be

 7     evidence upon which you could convict Dr. Karadzic of Count 1.  And I

 8     point out that the genocide in Count 1 does not include the killings in

 9     Srebrenica, which are the subject of Count 2.  The Prosecution has not

10     brought anything new in this trial that would cause you to question

11     whether you ought to depart from this overwhelming weight of the

12     jurisprudence.  Despite having millions of documents in its possession,

13     entire collections of Bosnian Serb military and political entities,

14     intercepted conversations, minutes of secret meetings, there is simply no

15     evidence that genocide was committed in the municipalities in Bosnia in

16     1992.

17             Now, last week at the United Nations Security Council,

18     Prosecutor Brammertz criticised the president of Serbia for denying the

19     genocide in Srebrenica.  He said that recent comments made by the newly

20     elected president of Serbia who denied that genocide occurred in

21     Srebrenica in July 1995 are not acceptable and contravene the legal and

22     factual findings of the ICTY and the International Court of Justice.  And

23     likewise, the Prosecution's continuing efforts to claim that genocide

24     occurred in the municipalities in Bosnia in 1992 contravenes the legal

25     and factual findings of the ICTY and the International Court of Justice.


Page 28580

 1     The Prosecutor went on to say that such rhetoric is a backwards step,

 2     aggravates the victims' suffering and jeopardises the fragile process of

 3     reconciliation in the former Yugoslavia.  And likewise, the Prosecution's

 4     claims that genocide occurred in the municipalities in Bosnia in 1992, in

 5     light of all the jurisprudence, does no service to this Court or to the

 6     people of the former Yugoslavia.

 7             There's no doubt that the suffering during the war in Bosnia was

 8     immense and that many crimes were committed.  But there's no evidence

 9     upon which the Trial Chamber could conclude that there was an intention

10     to destroy the Bosnian Muslims or Bosnian Croats in the municipalities in

11     1992, and therefore Dr. Karadzic is entitled to a judgement of acquittal

12     on Count 1 of the indictment.  I will now turn the proceedings over to

13     Dr. Karadzic for a discussion of the remaining Counts 2 through 10.

14     Thank you.

15             JUDGE KWON:  Thank you, Mr. Robinson.

16             Yes, Mr. Karadzic.

17             THE ACCUSED: [Interpretation] Thank you --

18             JUDGE KWON:  Just a second.

19             Yes, the French translation has been just concluded.

20             Yes, Mr. Karadzic.

21             THE ACCUSED: [Interpretation] Thank you.  Good morning,

22     Your Excellencies.  Good morning to all.

23             I would like to touch upon each and every count, but within the

24     framework of Rule 98 bis.  First of all, I would like to pay tribute to

25     our learned colleagues from the Prosecution because they made a huge


Page 28581

 1     effort to make some kind of an indictment out of nothing.  What I'm going

 2     to say does not have to do with their incapability or their negligence,

 3     but simply the fact that there wasn't material to make this indictment

 4     look better.  The entire indictment is based upon a few things that were

 5     stated but not proven.  That is why I'm going to deal with them first

 6     because they are the basis of the entire indictment, practically all the

 7     counts.

 8             So the entire indictment against me is founded on my alleged

 9     intent or that we Serbs intended to get rid of Bosnian Muslims and Croats

10     from the territories that they -- where they had a right to live.  The

11     Prosecution did not prove the basic part of this allegation; namely, that

12     we lastingly wanted to remove Bosnian Muslims and Croats from these

13     territories because the Prosecution was also aware of the fact that

14     temporary removal - or whatever word we use in this context - of

15     jeopardised civilians in this area is something that is both desirable

16     and indispensable on the basis of our law of self-defence and self

17     protection.  So these civilians had to be removed from combat areas.

18             We expected Count 1 to go on for longer so we did not complete

19     our technical preparations, but anyway we saw this law here and we saw

20     that this linguistic confusion that is due to imprecise translations in

21     terms of what expert moves, shift, move, et cetera.  All of that

22     contributed to a misunderstanding of what had been done by certain

23     commands or certain civilian leadership in certain municipalities.

24             JUDGE KWON:  Mr. Karadzic, if you need a short break, the Chamber

25     is minded to take a five-minute break for your preparation if necessary.


Page 28582

 1             THE ACCUSED: [Interpretation] Thank you.  That would be good.

 2     Thank you.

 3             JUDGE KWON:  The Chamber will rise for five minutes.

 4                           --- Break taken at 9.36 a.m.

 5                           --- On resuming at 9.46 a.m.

 6             JUDGE KWON:  Yes, please continue.  I note that your presentation

 7     material can be viewed through e-court.

 8             THE ACCUSED: [Interpretation] Thank you.  I'm not sure that it's

 9     going to be brilliant, but we'll try to make do as my explanations go

10     along.

11             In some stage we should have reached agreement on what was

12     envisaged by our legislation.  Our Law on All People's Defence prescribes

13     the following.  Like in other countries, if there is a natural disaster,

14     if there is a hurricane on the US coast, there has to be evacuation.  And

15     the same goes for the Law on National Defence in our country.  No one

16     says there that they are not going to go back.  That goes without saying.

17     Also, no document issued by the state authorities or the political

18     authorities of Republika Srpska did not deny the right of persons who

19     fled from combat areas to return.  On the contrary, from the 11th of

20     April, 1992, until the end of September 1992, we signed five or six

21     agreements that define how the population would be evacuated, removed,

22     how this would be done in a lawful, regulated manner, accompanied by the

23     police, and of course the right to return was included.  The birthday of

24     this alleged intention to remove permanently - I repeat this word,

25     permanently - was never proven, no proper attempt was even made to do


Page 28583

 1     that, and the Prosecution claims that this happened in October 1991.  We

 2     saw here that all of 1991 was beset by political struggles in which the

 3     Serb side in Bosnia-Herzegovina had a rather conservative position as

 4     they tried to preserve Yugoslavia as a whole and Bosnia and Herzegovina

 5     as a whole within Yugoslavia.  It's not the Serbs that are the first to

 6     mention separation and division; it was Mr. Izetbegovic.  Then in 1991 we

 7     accepted two of the main proposals of the largest Muslim parties:

 8     Izetbegovic's for an independent Bosnia transformed into three republics;

 9     and Zulfikarpasic's, that we give up on regionalisation and three

10     republics but that we stay in Yugoslavia.

11             So even the interpretation of my sentences that were mutilated

12     could not prove this, that we wanted to remove them and that we wanted to

13     remove them permanently.  What was particularly not proven was that we

14     denied their right to return.  There's another thing that the Prosecution

15     believed that went without saying but they did not prove it.  The

16     Prosecution views the following as a fundamental precondition for

17     implementing Serb strategic objectives, that is, war and violence.

18     However, that is not correct and that was not proven.  On the contrary,

19     what was proven was that Serb objectives were recognised by the

20     international community, Serb fears were taken into account, Serb fears

21     of a unitary Bosnia-Herzegovina, and that considerably before the war

22     there were bilateral, trilateral political talks in which the

23     European Community took part as well, and they proposed a concept of

24     Bosnia that would resemble a Balkan Switzerland; that is to say,

25     consisting of several entities.  This Serb objective was recognised


Page 28584

 1     before the war and throughout 1992 until the beginning of 1993.  There

 2     were discussions and agreements and the Serb side acted bona fide in all

 3     of this.  It was obvious that these objectives could be attained without

 4     going to war.

 5             We have admitted into evidence documents from February and March

 6     from the Assembly of the Serb People in Bosnia-Herzegovina.  It is shown

 7     unequivocally there that Bosnia-Herzegovina would be multiethnic.

 8     Unequivocally we see that Bosniaks and Croats would take part in

 9     political life proportionately, as would be the case with the Serbs in

10     the Muslim and Croat units.  So our aspirations and our objectives were

11     recognised in all the plans before the war, during the war, and after the

12     war, all the way up to Dayton; that is to say, this was not proven, that

13     we thought that a precondition for this was going to war.

14             Also, it is not logical because the Serb community in

15     Bosnia-Herzegovina is the largest.  It had not prepared for war at all.

16     It relied on the protection of the Yugoslav state and the

17     Yugoslav People's Army.  And, finally, witnesses here, primarily

18     Robert Donia, said that they knew that I was against war.  Also, we saw

19     that on the 8th of March, 1992, Mr. Vance informed Mr. Genscher - and

20     that is not under seal, that is a public document - this sentence,

21     Dr. Karadzic wishes to avoid war at all costs.

22             The Prosecution did not prove that crimes to otherwise happen in

23     all civil wars happened in our civil war because there was a joint

24     criminal enterprise.  The Prosecution failed to prove that this was an

25     overarching joint criminal enterprise, by virtue of the fact that they


Page 28585

 1     can indicate some things that happened only in a few out of over 60

 2     municipalities in Republika Srpska.  Dr. Mujadzic, a Prosecution witness,

 3     confirmed here that in places where Muslims had less than 50 per cent,

 4     20 or 30 per cent, they did not have any problems.  And the page

 5     reference is from 20.000 and further on, 20.500, 600, 700, 650 to 720,

 6     Dr. Mujadzic confirmed that I was against war, that I wanted to avoid

 7     war, that he wanted to avoid war, and that that would have been a good

 8     thing.  And he confirmed that terrible things happened in the valley of

 9     the Sana River that was strategically important both for the

10     Yugoslav People's Army, later on the Army of Republika Srpska, and for

11     the Muslim army, clearly showing that their strategic objective was to

12     take at least the left bank of the Sana River and annex all of that to

13     the Cazin Krajina.

14             So these are things that were clearly proven here, and on the

15     other hand there is no evidence to the contrary that would confirm that

16     this joint criminal enterprise was set up, that I took part in its

17     establishment.  On the contrary, up until the very last day, until the

18     1st of April, the entire Serb community in Bosnia-Herzegovina, its entire

19     political being was involved in establishing organs of authority in the

20     new organisation of Bosnia-Herzegovina.  The Prosecution states that

21     these organs were established with a view to attaining these objectives;

22     however, these organs were envisaged by the Lisbon Agreement as well and

23     any other agreement.  And their accelerated establishment was aimed at

24     preventing chaos, not creating chaos.

25             The Prosecution did not even take into account an adjudicated


Page 28586

 1     fact from another trial in this Tribunal, and that Trial Chamber came to

 2     the conclusion that until 1992 I took into account the interests of the

 3     Croats and Muslims until the 14th of February, 1992, that is.  In

 4     paragraph 907 there is a reference to my speech.  I am going to read

 5     that.  Paragraph 907 of the trial judgement in the Krajisnik case, that's

 6     the reference, actually.  It says:

 7             [In English] "It is up to each individual to do his part of the

 8     job.  We shall also talk about that today, but I have to say that we must

 9     be wise, unified, dedicated in order to take the last drop of power in

10     our hands, in a humane way of course, carry it out in a humane way, a

11     just way towards both Muslims and Croats who live there, that is

12     particularly important, that there would be no fleeing from our areas."

13             [Interpretation] And in paragraph 908, it states:

14             [In English] "At each stage in early 1992, respect for the

15     interests of other peoples was still being expressed by Karadzic, as

16     separation and homogenization were not yet the declared aim of the

17     nascent leadership."

18             [Interpretation] If that is so, then it was the duty of the

19     Prosecution to set a new date when this alleged intent came into the

20     forefront that I am being charged with.

21             One would see that on the 11th of April I signed an agreement

22     with the UNHCR.  On the 22nd of April I issued a platform suggesting that

23     territories taken by force be not recognised and that peace be secured as

24     soon as possible, as well as the return of all.

25             On the 3rd of May we have seen here and we have the source from


Page 28587

 1     the newspaper, my press conference where in response to a question of

 2     whether there will be displacement, I said that we do not foresee or

 3     recommend displacement of the population but reciprocal protection of

 4     minority rights.  And this applied throughout 1992 when I fought that all

 5     the Muslim and Croats be protected, that they have their representatives.

 6     And when I was elected I sought the Assembly to elect the prosecutors.

 7     So there will not be a new birthday for this alleged intent on my part,

 8     because that alleged intent did not actually exist on my part or on my

 9     side.

10             Now I would like to deal with the Count 2, which is genocide as

11     it relates to Srebrenica.

12             Already in paragraph 1 of the indictment the Prosecution states

13     something that they have not proved because they did not present any

14     evidence that I, together with others, planned, instigated, ordered,

15     and/or aided and abetted genocide in Srebrenica.  Quite the contrary.

16     There is evidence in case that there was no intent for the

17     Army of Republika Srpska to enter Srebrenica, but they actually did that

18     after the town was abandoned by the 28th Division and by the population.

19     We can even see here statements by insiders and others who were familiar

20     with these events and we even have statements by the perpetrators, those

21     who killed prisoners of war, that they did not know anyone who had the

22     intent of destroying the Muslims in Srebrenica and neither did they have

23     that intent.

24             Now, the Prosecution remains by its assertion, unsubstantiated by

25     anything, that I either planned or intended to, and even if I did not


Page 28588

 1     perhaps intend to, perhaps alternatively I could have and should have

 2     foreseen that some of the members of the joint criminal intent could have

 3     committed genocide if our particular conduct or fighting did continue.

 4     The question of military action around Srebrenica was a military matter

 5     and it was very justified because it was insupportable to tolerate

 6     continuous attacks from Srebrenica.  The question of entering Srebrenica

 7     became relevant on the night between the 9th and the 10th of July.  We

 8     saw here that I was informed that they can enter and that I did agree to

 9     that and did order for them to act in the most humane way possible.

10     Thus, there was no intent even to enter Srebrenica and never mind plans,

11     according to the Prosecution, that these plans were created during the

12     days of the attack.  So there is awareness that there were no plans

13     before the attack, but allegedly during the attack this decision appeared

14     to be made.  They did not present any evidence as to who made the

15     decision on the genocide and the killing in general.  When?  At which

16     point in time?

17             On the -- well, we will come back to the question of killing, but

18     on the matter of the alleged forcible displacement or deportation of the

19     population from Srebrenica, it has been proved beyond any doubt here that

20     the Serbian army did not have any combat contacts in Srebrenica and its

21     vicinity and it did not have any combat contact with the 28th Division

22     and did not have any contact with the population before this contact

23     occurred in Potocari where the population, at the instigation of their

24     own authorities, went to seek shelter.

25             The Prosecution during the presentation of their case put in a


Page 28589

 1     lot of effort, fighting for every hour and every minute, in order to

 2     prove that Mladic or the Serbian side planned or were prepared to

 3     evacuate the civilian population before that population actually

 4     expressed its own will about that.  It is more than obvious that no

 5     deportation was planned.  It was shown that the evacuation of the

 6     population was something that was favoured by the local authorities in

 7     Srebrenica and the central authorities this Sarajevo, and that the

 8     central authorities in Sarajevo sought intervention via the

 9     United Nations for the Serbian side to permit the evacuation.

10             The United Nations conveyed that request through General Nicolai

11     and Colonel Karremans to Mladic, but Mladic did not grant this even then

12     until representatives of the Muslim population themselves came and stated

13     exactly what it is that they wished.  Thus, the Prosecution did invest a

14     lot of effort in this and I think that they should be recognised for

15     these efforts to prove that there was some actions around the evacuation

16     that were done some 10 or more hours before the 10th of July.  But

17     already in the evening of the 11th of July, it was clear what the Muslim

18     side wanted.  On July 12th no preparatory actions were carried out other

19     than just information as to where vehicles could be obtained from.

20             After that we can also see that the evacuation of the population

21     was underway in the direction in which they wished to go and it is not

22     said anywhere or there is no action indicating that they would not return

23     and that they would not come back to their town again.  It is very clear

24     from a document of mine of the 11th of July, where I appoint the civilian

25     representatives and ordered the formation of the organs of authority,


Page 28590

 1     that this refers only to the Serbian municipality of Srebrenica.  And we

 2     can all remember that the forming of ethnically defined municipalities

 3     was one of the topics before the war broke out and after the war broke

 4     out, so that each community could feel safe.  They were able to form

 5     their own authorities, have their own positions and manage the affairs of

 6     their own community completely independent from other ethnic communities

 7     and pursuant to their common laws.  No one knew nor could anyone have

 8     foreseen, since as there is no evidence that I have done something

 9     actively, I am being charged with not foreseeing what would happen.  Who

10     could have foreseen that the 28th Division was going to leave the enclave

11     much earlier than they needed to because they had more manpower than the

12     Serbian army did?  Who could have foreseen that the entire population

13     would leave their homes?  No one could have foreseen that.  And it was

14     not possible to plan, it was not possible to foresee the conduct of the

15     commander, such as Oric and others who had their own concept and ideas

16     about how to involve the Serbs in Srebrenica, get them to come in.

17             Now, let us look at how witnesses described these matters

18     relating to the evacuation.  Let us look at Witness Kingori's testimony

19     that he told General Mladic that he would obtain vehicles for the

20     evacuation.  We can see here the testimony of Nikolic about how they

21     arrived, soldiers of the United Nations arrived, asking that the

22     evacuation be speeded up.  This is from the testimony of Witness Rutten

23     before the Dutch parliamentary inquiry.  We also saw evidence that the

24     Dutch defence ministry was also in favour of the evacuation being carried

25     out.  None of the Serbs or the foreigners considered this to be a


Page 28591

 1     permanent thing and there was no indication that this would be a

 2     permanent thing.

 3             This is KDZ084.  We will recall that he testified that on the

 4     13th up until the early evening everything seemed quiet and it was

 5     assumed that there would be an exchange of prisoners and that nothing

 6     happened until the incident in Kravica.  The Prosecution invested

 7     considerable efforts to prove that the killing in the Cerska Valley

 8     happened before the Kravica incident.  However, this did not succeed

 9     because Prosecution witnesses confirmed here that the incidents in Cerska

10     did not occur on the 13th but on the 17th or later because the people who

11     were exhumed there were seen alive on the 17th.

12             Prosecution Witness prominent investigator confirmed that in

13     places where there was a greater military or police presence, such as in

14     Potocari, there was no killing, while in the town where old people and

15     reserves were maintaining law and order, there were killings, personal

16     vendettas, calling people out from specific villages.  Thus, wherever

17     state authorities were present, there were no crimes.

18             In the same way, the organs that we were speedily forming

19     throughout 1992, for which the Prosecution claims were formed in order

20     for us to achieve our criminal objectives actually clearly indicates that

21     the greater the organised degree of the authorities, the smaller

22     percentage of crimes and insecurity was recorded.  And it's the other way

23     around, where the present -- the presence of the state was possible in

24     such an awful situation.  Things could have been much worse.

25             I'm afraid, Your Excellencies, that the Muslim propaganda about


Page 28592

 1     the events, the causes, the consequences, the corps, the number of

 2     victims was something that influenced the Prosecution.  They completely

 3     took in the propaganda of Muslim extremists who were distorting things,

 4     not only as to the causes and the consequences but also in regard to

 5     precise data about the number of victims.

 6             Regardless of that, even if deportations did occur, the

 7     Prosecution did not present any proof about my knowledge, never mind

 8     about my possible participation or contribution.  The Defence holds that

 9     the Prosecution, in the presentation of their case, presented evidence

10     that there was no prior plan but that it was a matter of fulfilling the

11     wishes of the Muslim population, the Muslim government, and the

12     international bodies, including the Dutch government to a certain extent.

13     But there was no evidence about my knowledge and even less about my

14     active participation in any of the acts that I'm being charged with in

15     relation to the evacuation, or rather - as it is said in the

16     indictment - forcible displacement.

17             Looking at it more broadly, the Prosecution ascribes to me the

18     responsibility of having, in March 1992, formed the intent to capture

19     Srebrenica and to commit crimes there; again, within the framework of a

20     comprehensive joint criminal enterprise with a purpose of permanent

21     removal, et cetera, et cetera.  The Prosecution is probably relying on

22     directive number 7.  Without going into who and how created directive

23     number 7 at the moment, without even going into the fact that directive

24     number 7 is not an executive document and that it was followed by

25     directive number 7.1, which does not contain any elements that would be


Page 28593

 1     indicative of a criminal act, we have succeeded during the Prosecution

 2     case to prove that directive number 7 resulted in none of the

 3     consequences that are ascribed to it.  The humanitarian aid did not cease

 4     and the Prosecution witness testified here that she uses children as a

 5     criterion of the situation in an area and she saw a lot of children in

 6     the streets of Srebrenica, which meant there was no shelling, that the

 7     children were well nourished and healthy, which meant to her that there

 8     was sufficient medicine and food.

 9             And we have seen that convoys ceaselessly travelled and convoys

10     were even approved for the 11th of July, arriving on the 13th.  On that

11     point, we have the testimony of General Obradovic who says that was

12     intended for the civilian population and it did not matter how the

13     fighting would end, in whose favour.  However, the Prosecution probably

14     neglected the fact that in 1993 I stopped our army at the boundaries of

15     the enclave and forbade investigations.  General Milovanovic spoke about

16     that.  I forbade investigations, lest personal elements interfere with

17     this because people had been killing each other for centuries before that

18     and the Serbs were the main victims until April 1993.  So in April 1993 I

19     forbade Serbs from entering Srebrenica and I forbade any investigations

20     that might lead to incidents.

21             As regards killings, first of all, the Prosecution has failed to

22     show a single document that would indicate anybody's intention to carry

23     out unlawful murders, anyone's intention to kill prisoners of war.  In no

24     aspect did the Prosecution show that there had been killings of civilians

25     or that there had been intent to kill civilians.  However, as regards the


Page 28594

 1     killing of prisoners of war, the Prosecution has not proven that anything

 2     happened before the Kravica incident.  Concerning the Kravica incident we

 3     have seen that it occurred because one of the prisoners in a relaxed

 4     atmosphere, which the guards supported, snatched a weapon on board a bus,

 5     started shooting, and created chaos.  We have also seen and heard that a

 6     certain number of Muslim soldiers falsely surrendered and then activated

 7     a bomb making a suicide bombing.  That also contributed to the chaotic

 8     course of events.

 9             The repenting perpetrators who admitted to the killings of

10     prisoners of war confirmed that the thought never crossed their minds of

11     exterminating Muslims as a group.  They confirmed that an unidentified

12     lieutenant-colonel complained that they were dangerous, unpredictable,

13     and impossible to control, and Erdemovic testified here that he had not

14     discuss it with anyone except after crossing into Serbia where he

15     discussed it with the former deputy commander, Kremenovic and he was

16     unable to discuss it with anyone who could have told it to his superior

17     commander.  And that phenomenon, the next level, the immediate superior

18     was not able to know many of these things.  We will see that Pelemis

19     himself did not know because Erdemovic did not dare to speak to anyone

20     who was able to inform the commanders.  We have equally seen and heard

21     that silence reigned everywhere.  Everyone kept their mouths shut about

22     the events that happened on the 14th and later, and the question arises:

23     How could the president of the republic who had his hands full all day,

24     every day, possibly know something that was not known even to the people

25     in the chain of command, in the very area where the events occurred?


Page 28595

 1             Your Excellencies, is this a good time for a break?

 2             JUDGE KWON:  Yes.

 3                           [Trial Chamber confers]

 4             JUDGE MORRISON:  Dr. Karadzic, we'll take a break now but I'm

 5     asked to remind you of two things.

 6             First of all, to stick very closely to the requirements of the

 7     actual purpose of these proceedings.  It's not a final submission.  You

 8     should be submitting and not commenting about the matters which are

 9     capable of mounting to proof, and not whether or not they in fact amount

10     to proof.  That's a distinction which is very important at this stage of

11     the proceedings.

12             You must be careful also to distinguish between comment, which

13     you have been doing on a widespread basis, although we have let you

14     continue, and a submission.  You will have seen the difference between

15     comment and submission when you observed the way that Mr. Robinson

16     addressed the Court in respect of the matters that he dealt with.  He

17     didn't make a single comment; he made submissions.  And it would be very

18     useful for us, and indeed for yourself, if you could follow his

19     professional example.

20             JUDGE KWON:  We'll take a break for half an hour and resume at

21     11.00.

22                           --- Recess taken at 10.29 a.m.

23                           --- On resuming at 11.02 a.m.

24             JUDGE KWON:  Yes, please continue, Mr. Karadzic.

25             THE ACCUSED: [Interpretation] The issue of the events in


Page 28596

 1     Srebrenica which is dealt with in Count 2, genocide, as well as in counts

 2     that deal with municipality by municipality, I should like to remind you,

 3     since it has not been proven that there had been plans or intent and

 4     especially that there had been any knowledge on my part, let us look at

 5     all the things the witnesses have said about it.  We have all the

 6     intercepts, all the documents, the testimony of people who spent the

 7     critical days with me, the days when the events in Srebrenica happened,

 8     and there is not a shred of evidence that I was even informed, let alone

 9     aware of the killings or deportations.  But since we are dealing with

10     Count 2 now, there were no plans, no knowledge, no reports about that,

11     nor was the Prosecution able to present a single piece of evidence.  On

12     the contrary, we see that even international witnesses have shown that it

13     was not proven.  In fact, they have shown exactly the opposite.  It has

14     also been proven that there had been opportunistic killings driven by

15     personal motivations such as revenge, and the indictment also features

16     military targets and other operations as parts of the joint criminal

17     enterprise.  All this cannot be repeated all the time, but it is repeated

18     in the indictment.

19             My responsibility for the events in Srebrenica has been -- has

20     not been proven in any way.  It is my assertion that it was not genocide

21     and it is up to the Prosecution to prove what actually happened.  Who

22     killed POWs and for what reasons?  What matters is that the Prosecution

23     has not established one of the most important facts; namely, the number

24     of victims.  The number is part of the game which is making the people

25     there miserable and is creating a fertile ground for future hostilities.


Page 28597

 1     The Prosecution has not proven the number that is being played around

 2     with in the public domain.  And there are no elements based on which the

 3     Trial Chamber could bring a conviction against me, and I believe there

 4     are no elements for proving genocide.

 5             As for Count 3, persecutions, the Prosecution did not choose

 6     between direct, individual responsibility, or guilt by association.

 7     Beginning with paragraph 14, items 3 through 6, the Prosecution claims

 8     that I supported and participated in the establishment and maintaining

 9     political and government organs and of the VRS, the TO, the MUP and

10     Bosnian Serb paramilitary forces and volunteer units.  They keep using

11     the term "Bosnian Serb forces."  This is another term that brings only

12     confusion because Bosnian Serbs does not specify which forces were guilty

13     of persecutions and arrests.  The Prosecution calls everyone Bosnian Serb

14     forces.  For instance, the paramilitary formations in Bijeljina, Brcko,

15     and Zvornik, for whose disbandment and arrest I engaged our own

16     specialised brigade and requested even more specialised policemen and

17     experienced fighters from Serbia.  They call them also Bosnian Serb

18     forces, although it is clear that Serb forces actually arrested them.

19             As I've mentioned before, the Prosecution has also failed to

20     prove that organs were established with the purpose that the Prosecution

21     ascribes to them.  The authorities were formed because it was our right

22     according to international covenants on human rights.  Every people has

23     the right to self-organised, to foster its culture and identity and

24     preserve its resources and assets.  In the breakup of Yugoslavia, the

25     Serbs made a minimal number of steps and the Prosecution has not proven


Page 28598

 1     that the authorities did exist.  Now had been established with the

 2     intents that they claim they had.

 3             The Prosecution has failed to prove regarding persecution in

 4     various municipalities and everything that is covered by paragraphs, that

 5     is items 3 through 6, that there was a pattern of behaviour in Serb

 6     municipalities.  There was no pattern, first of all, because in many

 7     municipalities nothing happened whatsoever; secondly, because the events

 8     in certain municipalities took place at different times.  In some

 9     municipalities events started happening as late as two months after the

10     war started and it was not up to the Serb side.  Instead, it was both

11     Muslims and Serbs in many municipalities that maintained peace for many

12     months until an intervention occurred by central authorities in Sarajevo

13     to start the fighting.

14             The Prosecution did not prove any motivation or interest.  The

15     weaker Serb community in Bosnia holding, or rather, being stretched over

16     200 [as interpreted] kilometres of front line, what interest would they

17     have in opening new front lines behind their lines?  That would have been

18     totally unreasonable.  No motivation for that could be proved.  I said

19     2.000 kilometres of front line, not 2 00.

20             And when there were no troops behind our lines, because all of

21     them were on the front line, why would we have started any new fighting

22     with our compatriots of Muslim ethnicity?  The Prosecution did not prove

23     that any incident in municipalities happened at our initiative and in the

24     absence of fighting.  On the contrary, the witnesses have confirmed that

25     in municipalities such as Sanski Most the evacuation of civilians in --


Page 28599

 1     from combat areas such as Hrustovo, a witness confirmed that it was the

 2     Muslims who started shooting and there was fighting.  The population was

 3     evacuated within the same municipality into a mixed Muslim-Serb village

 4     where there was no fighting, where everybody lived peacefully at the

 5     time, the mosque was not destroyed, this simply didn't happen.  We see it

 6     on the screen now, a passage from the testimony.  Yes.  Here is a passage

 7     from the testimony of Dr. Mujadzic who confirms that in areas with a

 8     lower percentage of Muslims there were no problems.  And he enumerates a

 9     large number of municipalities, 17 municipalities only in Krajina where

10     there had been no problems.  There was no pattern.  To prove that there

11     was one, the Prosecution would have to prove why measures were taken that

12     were not of systemic nature.

13             The first step that allegedly marks the beginning of a chain of

14     criminal acts ascribed to me and other members of the JCE, the

15     Prosecution points to so-called take-overs in municipalities.  And in

16     paragraph 105 of the pre-trial brief they specify immediately before the

17     take-over of power, dismissals, discrimination, and other similar acts

18     started.  However, from my speech at the Assembly on the 25th of January,

19     1992, it is clearly obvious that I said we have legitimate and lawful

20     authority over 70 per cent of the territory.  And if you wanted to

21     introduce a new kind of government you cannot introduce it there.  The

22     Prosecution has not proven that there was any take-over.  Power was taken

23     in some places because a lot of ex-communists remained in power after the

24     new elections and it was necessary to introduce power after the

25     elections.  I claim that the same authorities were in place from 1992 to


Page 28600

 1     1996 and there was no take-over.

 2             If we remember that the offer made was to have each ethnic

 3     community create its own municipalities with their own municipal organs

 4     of government, it is quite clear that this did not have anything to do

 5     with dismissals.  The year was 1990.  So the government was the same from

 6     1990 until 1996.  The elections were held in 1990.  So everyone could

 7     have their own municipality, and it was therefore only natural that

 8     Muslim policemen would join the Muslim police station, but then they

 9     could also stay on, on the condition that they accepted Republika Srpska.

10             We saw here Stojan Zupljanin's speech made on the 13th of May in

11     Banja Luka.  Since Banja Luka had not created ethnic municipalities, he

12     said in that speech that almost all Muslims and Croats stayed on at the

13     Banja Luka centre of the police and 50.000 inhabitants of Banja Luka

14     applauded that.  Now, where is intent there?  Where is there any kind of

15     intention of dismissing Muslims where there is a single municipality?

16     That was not proven, that they had been dismissed.  What was proven was

17     that some did not want to acknowledge the authority of Republika Srpska,

18     they did not want to take the solemn oath, they did not even want to go

19     to the police station, but it has not been proven that they were

20     dismissed an ethnic grounds.

21             As far as persecution is concerned in Counts 3 to 6 there is a

22     reference to detentions.  However, the Prosecution did not prove that

23     people were detained on the basis of their ethnic or religious

24     affiliation.  On the contrary, we see that detention had to do with

25     investigation centres.  A triage was carried out at these centres in


Page 28601

 1     terms of finding the persons who were suspected of having taken part in

 2     armed rebellion or, on the other hand, there were people who were

 3     mistakenly arrested, Serbs and Muslims were arrested by mistake.  And

 4     such persons were released very quickly.  Investigation centres were

 5     proclaimed camps in this indictment, like Keraterm, et cetera.

 6             Fifty-nine per cent of the people who were brought to these

 7     locations were released because they did not abide by the curfew, that's

 8     why they were arrested.  But 59 per cent were released.  It was

 9     established that 41 per cent had taken part in combat and committed

10     crimes, therefore they were in prison.  Of course in a situation where

11     chaos prevailed and when there was a lack of communication with the

12     central authorities, there were prisons, or rather, detention centres

13     that had been established without the government knowing about this.

14             We heard Prime Minister Djeric here describing the extent of the

15     difficulty he had - he and the government - in terms of influencing what

16     was happening on the ground because they did not have communication, they

17     did not have access.  However, even in these centres -- well, witnesses

18     gave evidence to the contrary here, namely, that it was individuals that

19     committed misdeeds.  It was not organised and also these individuals did

20     such things only when their immediate superiors were absent.  For

21     example, in Vogosca everybody was trying to conceal this from

22     Branko Vlaco.  No one dared say that they had done something.

23             Then in Hadzici, Witness Music testified to the following:  As

24     soon as the hooligans got away, the guards took them out, they took them

25     to a different room, not the one that had been affected by some yellow


Page 28602

 1     gas.

 2             Then in Omarska Muslim witnesses testified here to the following:

 3     Certain psychopaths among the guards mistreated detainees as soon as the

 4     investigators would leave.  So this did not happen in front of the

 5     investigators.  Also, a witness testified on page 19859 that they did not

 6     beat detainees before the commanders, their immediate superiors.

 7             So what happens in a civil war is what happens when brethren

 8     fight because Serbs consider Muslims to be their brothers.  It has to be

 9     proven that that is part of the system and that the government and state

10     stand behind that; that was not proven by the Prosecution.  There is this

11     absurd allegation in the indictment to the effect that I failed to notify

12     government organs about misdeeds that were occurring in the field.

13     However, what was proven here is that the president does not have

14     investigation agencies of his own, that he is not capable of carrying out

15     investigations, that it works the other way around, it is the state

16     authorities, the government authorities, that should provide information

17     to the president.  It's not the other way around.  How can the president

18     know what is happening on the ground?  I mean, when the government

19     authorities are carrying out their work properly, then the president is

20     not supposed to interfere.  However, it has been proven here that I

21     intervened or interfered only when it was necessary for me to intervene,

22     namely, not to have persons released from custody and to speed up

23     investigations.  Many witnesses testified here stating that I did not

24     meddle in the judiciary.  I just asked for the judiciary to act in an

25     expeditious manner, and also I did not want persons who had committed


Page 28603

 1     serious crimes to be set free.  There are no finger-prints of mine on any

 2     misdeeds.  Wherever I interfered, either following the intervention of

 3     international representatives or in any other way, this interference was

 4     on behalf of humanity, humaneness, lessening the suffering of all

 5     civilians irrespective of their ethnic background.

 6             So the Prosecution has not provided evidence on the basis of

 7     which the Trial Chamber could reach a decision amounting to a conviction

 8     with regard to Counts 3 to 6.  Speaking of detentions, the Prosecution

 9     says that there was forced labour and so on.  However, on page 19744 - I

10     don't think that these were protected witnesses - they confirmed that

11     work was voluntarily, not only at Manjaca but also at Batkovic, for

12     instance.  They could hardly wait in Batkovic to have an opportunity to

13     work.  For three months they would receive better food, they would bring

14     food and alcohol to their colleagues, so it was not proven that this work

15     or labour went outside the framework that is envisaged by law.  And as a

16     matter of fact, there even wasn't enough room for all of those who wanted

17     to work to actually get this kind of work.

18             As regards persecution, on page 19121, a witness testified

19     stating that there were several obstacles on the path leading to freedom.

20     Some people said that even 15 different certificates had to be handed in.

21     Then also they testified to the effect that persons had to be bribed so

22     that they could leave.  Also that transport had to be paid for and the

23     buses had to be awaited.

24             Now, it is not only that many Serbs, Croats, and Muslims left

25     before the war and during the first year of the war, but many changed


Page 28604

 1     their place of residence after the war.  We saw the evidence adduced here

 2     by Ewa Tabeau, namely that between 1995 and 1997 there was a significant

 3     change in the ethnic picture because when people saw what kind of

 4     solution had been agreed upon, they decided to go to the entity in which

 5     their ethnic community was a majority.  There was not a single place

 6     where there weren't Muslims and Croats, I mean there wasn't a single

 7     place in Republika Srpska where there weren't any Muslims and Croats.  We

 8     saw the figures here.  The Prosecution did not prove what kind of a

 9     difference there was between the Muslims and Croats who stayed on living

10     there in peace throughout this period and, on the other hand, Croats who

11     left Republika Srpska in different ways.  There was no forcible

12     deportation.  The Prosecution did not prove any such thing.

13             I have to say for the sake of the truth that like in many other

14     cases language issues lead to the confusion.  When somebody says that

15     they were forced to leave and when we ask who it was that forced them,

16     then we do not find a subject involved.  Persons were compelled or forced

17     to leave due to the situation, due to the conditions that prevailed.

18     When you cannot identify who it was that forced them to leave, then it is

19     developments as such that forced persons to leave.

20             Now that we're dealing with detention facilities and persecution,

21     we remember Eset Muracevic here who confirmed that out of 400 Muslims

22     nine ended up in Kontiki, himself included, and he admitted that he

23     smuggled weapons, or rather, that he was arming his community and

24     carrying out preparations to fight.  How can that be called persecution?

25     I am completely leaving aside the fact that there is not a shred of


Page 28605

 1     evidence linking me to any of this and that that is the job of the

 2     president of the republic in any conceivable way.  How can the president

 3     of the republic look into each and every corner and intervene?  Least of

 4     all was there -- there was no evidence adduced to the effect that I

 5     intervened for the purpose of persecution.  The Prosecution also says

 6     that I failed to take action in this kind and that I did not make efforts

 7     to have prosecution take place.  First of all, the president only has the

 8     regular organs of the police and the judiciary, no organs of his own.

 9     The contrary has not been proven.  I acted upon each and every credible

10     information that I received about misdeeds that were committed.  We heard

11     Colm Doyle that he informed me on the 16th of August, 1992, about

12     misdeeds that had been done, and on the 19th when I returned to Pale I

13     made a decision annulling all of this.  I even took action on the basis

14     of information that was not all that credible, but still it was the

15     Muslim propagandists that were fooling the international community in

16     this way.  And, therefore, I clashed with the army and the police because

17     I was exerting pressure on them, telling them not to do something that

18     they hadn't done in the first place.

19             So the Prosecution did not prove any kind of concealment, not

20     only on by part, they didn't prove that the police had concealed

21     anything.  We have seen a multitude of documents here.  Each and every

22     crime was documented, therefore it cannot be concealed because it would

23     be dealt with at some point in time.  If the perpetrator is known or

24     accessible, these crimes were brought before a court even during the war

25     itself.  We heard people here from the judiciary who said that I did not


Page 28606

 1     intervene on behalf of the perpetrators; rather, I intervened in the

 2     opposite way.

 3             As for Counts 4, 5, and 6, that is to say extermination, murder,

 4     the Prosecution says different things here but they did not really prove

 5     that I had planned the extermination and murder of Muslims in various

 6     municipalities and then in Srebrenica and in Sarajevo.  Because of a lack

 7     of evidence, the Prosecution is trying to gloss over the fact that there

 8     is no evidence to that and they keep saying that I must have contributed

 9     to this because there was a civil war going on.  But they did not

10     actually adduce any evidence.  No mens rea on my part in terms of

11     planning, aiding, abetting, instigating, committing murders,

12     extermination, et cetera, not a shred of evidence.  And then, as an

13     alternative, they say that I knew or had reason to know that

14     exterminations and murders would happen or had already happened and were

15     committed by my subordinates.  And they say that I took risks and that I

16     continued to work on the accomplishment of these objectives in spite of

17     that risk.

18             We saw here that the Serb side did not need a war.  The Serb side

19     did not want to have a government that they did not accept imposed in its

20     territory.  It was absolutely unnecessary to resort to violence in order

21     to attain the Serb strategic objectives.  And, finally, it wasn't the

22     Serbs who declared war on the Muslims; it was the Muslims who declared

23     war on the Serbs.  That was on the 20th of June, effectively from the

24     22nd of June.  Serbia and Montenegro and Serbs in the Serb autonomous

25     regions are declared the enemy.


Page 28607

 1             There is evidence showing that I spent all of 1992 trying to

 2     convince Izetbegovic that he should withdraw this and that we should have

 3     peace and seek a political solution.  And now the Prosecution is saying

 4     that I should have told the Serbs, All right, all these things happening

 5     to you, let them happen, don't defend yourselves, because during your

 6     defence someone may commit a crime.  But they would not have listened to

 7     me.  It's not that I would have advised them to do that, but there are no

 8     instruments to prevent people from defending themselves.  People who have

 9     experience from a war that had happened 50 years before that.  The

10     Prosecution still says in the indictment that I was the one who was

11     trying to intimidate the Serbs, but these are open wounds.  This is

12     within living memory.  There are people who are still alive and who were

13     wounded and harmed in different ways in the Second World War, and no one

14     needs to intimidate them.

15             The Prosecution did not show that we wanted to impose our

16     authority in any Muslim community, either in our own municipalities where

17     Muslims were or in other areas.  It's quite clear that the Muslims wanted

18     to impose their authority on the Serbs.  The Croats were free to express

19     their own will, but the Muslims did that.  There was evidence here that

20     the Serbian community had nothing against Muslims and Islam, but we

21     wanted them to remain and live in Yugoslavia.  And evidence that it was

22     not a matter of Muslims and Islam is the good co-operation with a number

23     of people from the Muslim community who were not of an Islamic [as

24     interpreted] or Muslim orientation.

25             As for the establishment of the municipalities wherever there


Page 28608

 1     were conditions for that, this absolutely destroys the foundations for

 2     the assertions that we wanted to throw out Muslims and Croats from the

 3     territory of Republika Srpska.  It should have been "fundamentalist"

 4     orientation instead of "Islamic" orientation.  There's an error in the

 5     transcript.

 6             How was it possible to drive somebody out if you had a Muslim

 7     municipality of Bratunac and a Serb municipality of Bratunac?  The very

 8     fact that the Serbs said that everyone should organise in their places of

 9     residence absolutely disqualifies any allegations about eventual

10     intentions that Republika Srpska should be ethnically pure.

11             Items or Counts 4, 5, and 6 have not been proved in any aspect.

12     The Prosecution did not show that there was a systemic approach to the

13     question of minorities in Republika Srpska from which these crimes would

14     then result.  Each municipality was specific and it had its own moment

15     when peace turned into chaos, its own individual cause for that.  There

16     was no question of a decision by any state organ and there was no

17     question of any initiative or order from any other place other than the

18     fact that the circumstances in each municipality dictated what would

19     happen.

20             The Prosecution did not show that there was a pattern for the

21     joint criminal enterprise to remove Muslims and Croats through killing.

22     Prosecution witnesses confirmed that it was possible to live in

23     Republika Srpska and that people were living in all settlements of

24     Republika Srpska from the beginning until the end of the war and that

25     this did not depend on the Serbian authorities.


Page 28609

 1             It was clearly proved that the disruption of the life of Muslim

 2     and Croat citizens could have happened by the immediate superior of any

 3     authority.  Witnesses also confirmed here that the crucial fact was

 4     whether there was some fighting or not in a said municipality.  Where

 5     there was no fighting the citizens were safe.  The Prosecution did not

 6     show otherwise.

 7             As for deportations, Count 7 and 8, deportations, inhumane acts,

 8     these counts were also not proved in the sense that these things happened

 9     not with the initiative and will of the leadership but also with the

10     knowledge and tacit approval of the state organs.  Quite to the contrary,

11     everywhere where authorities were established, such things were

12     prevented, investigated, and punished or documented in order to be

13     punished later.  This is, once again, a question when we're talking about

14     the crime of killing, the number of casualties, the numbers, and the

15     Prosecution did not prove who did the killing and who were the victims.

16     President of the republic or any state organ is unable to accept the fact

17     that some Serbs killed some Muslims.  Possibly yes, but this cannot be

18     held to be the responsibility of the state organs or the bearers of state

19     posts.

20             We also saw that in Sanski Most the police investigated 30

21     incidents, and these were 30 incidents of violations against Croats and

22     Muslims.  None of them were left uninvestigated.  And as Judge Draganovic

23     said, prosecutions were possible on the basis of the investigations by

24     the Serb authorities.

25             I would now like to refer to Counts 9 and 10.  The Prosecution


Page 28610

 1     gave up, abandoned, their assertions that the reasons for our acts in the

 2     Sarajevo area were the same as everywhere else:  The removal of Muslims

 3     and Croats from the territories to -- which we claimed for ourselves.

 4     The Prosecution is aware and they did take into account that we did not

 5     dispose or intend to capture territories that were in the sector of

 6     Sarajevo, which is quite a considerable area, and where the majority

 7     population was Muslim.  Quite the contrary.  During the presentation of

 8     their case, the Prosecution proved that we did not claim nor undertake

 9     any offensives for the objective of capturing areas of Sarajevo except in

10     one case for military reasons because we could not tolerate attacks from

11     this area, Otes, anymore.

12             A Muslim officer who testified here confirmed that the line of

13     the front was more or less steady throughout the whole period and that

14     the internal line of separation at the start of the war was 42 kilometres

15     long and at the end of the war it was 64 kilometres long, which means

16     that the Muslim side liberated or captured a part of the town and

17     expanded this zone.  Because by the very nature of the inner ring, had we

18     advanced the confrontation line would have been shortened.  This ring

19     would have narrowed and the line of confrontation would have been

20     shorter.  The Muslims managed to extend the line of confrontation in the

21     town from 42 to 64 kilometres, amounting to 22 kilometres of the front.

22     It was not proven that it was our interest to conduct fighting in

23     Sarajevo and it was not proven that we even initiated it.  Even at the

24     time when the Yugoslav People's Army was inert, people in neighbourhoods,

25     in local communities set up a line of separation, literally defending


Page 28611

 1     their hearts.  And except for this advance by the Muslim forces, this

 2     line remained steady more or less until the end of the war.

 3             We heard here from Prosecution witnesses, from representatives of

 4     the United Nations forces, that it was the military policy of the Serbian

 5     side in Sarajevo containment, containment of the large 1st Corps of the

 6     Bosnia-Herzegovina army.  17.000 Serbian soldiers, locals who lived

 7     there, they did not come from anywhere else, were protecting their

 8     neighbourhoods and containing 80.000 Muslim soldiers, preventing them

 9     from overrunning the Serbian part of Sarajevo and going to fight in other

10     parts of Bosnia and Herzegovina.  There was no siege even though the --

11     if it had been there it would have been legitimate.  But there was no

12     siege.  Everybody was sieging everybody else, but the Serb locals became

13     the Serbian army in defending their homes and their neighbourhoods.

14             And now if we're not seeking and not intending to capture parts

15     of Sarajevo and drive out Muslims and Croats, how - as is being ascribed

16     to us for the rest of Bosnia and Herzegovina - what would then have been

17     the motive for us to terrorise Sarajevo?  At that time there were between

18     50- to 70.000 Serbs living in Sarajevo who were not allowed to leave and

19     who in racial terms are not any different from Serbs of the Muslim faith

20     but are the same.  It is being put forward now that we terrorised them by

21     sniper fire.  No incident in that sense was proved here beyond a

22     reasonable doubt.  We heard here that there were snipers who shot bursts

23     of fire --

24             JUDGE BAIRD:  [Microphone not activated]... at this point we are

25     not really concerned with proof beyond a reasonable doubt, not at this


Page 28612

 1     point.  Thank you.

 2             THE ACCUSED: [Interpretation] Thank you.  Well, it hasn't been

 3     proved at all.  No incident has been proved.  How can a sniper produce

 4     automatic fire?  As in a case where one bullet shot a person in the tram

 5     and it was not visible.  We heard some absolute gems as a result of

 6     investigations, where the source of -- we saw, for example, where

 7     directions are shifted by 90 degrees in order to prove that it was the

 8     Serbs who committed something.  No incident actually was proved as having

 9     been committed by the Serb side.

10             In conditions when Sarajevo was very militarised, something that

11     was proved here, and where the military infrastructure and the military

12     elements were intermingled with the civilians, something that

13     General Dzambasovic confirmed here, that they did not have enough space

14     to move away from their civilians.  In conditions where the expenditure

15     of large-calibre ammunition was equal or even greater on the Muslim side,

16     the indictment still sticks to the position which it did not manage to

17     prove that the Serbs fired more than the Muslims did or that the Serbs

18     would fire first without any provocation or without any context of

19     defence.  The Prosecution did not manage to prove that this was

20     unilateral fire.  They did not manage to prove that the Serbian side

21     fired indiscriminately.  The Prosecution did not show or proffer evidence

22     that the return fire from the Serbian side was indiscriminate.

23             Not only was the Muslim military infrastructure all over the

24     place, but also there was the fact of mobile mortars.  So there was no

25     evidence that the Serbian side fired indiscriminately and without any


Page 28613

 1     military cause.  Of course the question of ammunition expenditure showed

 2     that, for example, the Muslim forces fired a large number of shells, only

 3     a part of which targeted or hit Serbian territory.  The Prosecution did

 4     not then manage to show where these other shells fell and they did not

 5     differentiate between what was Serb shelling and what was a Muslim

 6     shelling.  We have seen here quite failed investigation, even

 7     grotesque-sounding investigations, where the trajectory was not

 8     established horizontally or vertically, but one would just come to the

 9     window and look at Serb positions and say, Yes, that's where the fire

10     came from.  This was something that was completely unproved.

11             The Prosecution did not manage to tell who committed the crimes

12     even in the case of Serbs.  They did not manage to identify exactly which

13     Serbs possibly fired.  The Prosecution refers to Sarajevo forces as the

14     perpetrators of various crimes.  Which Sarajevo forces?  There were 5- or

15     6.000 Serbian soldiers involved with Sarajevo and some 10.000 who were

16     involved in the Central Bosnia front in the town.  The front was 40

17     kilometres broad.  In the town itself there were 40- to 60.000 Muslim

18     soldiers at any given time.  These were also Sarajevo forces.

19             The Prosecution did not manage to prove that the Serbs carried

20     out military unjustified actions in the Sarajevo sector and did not

21     manage to prove that Sarajevo was a civilian zone nor did they manage to

22     prove that the civilians were the target of any given military action by

23     the Serb side.  Quite the contrary.  It was shown that the town was full

24     of trenches, that the line of separation of the Serbs and the Muslims was

25     40 kilometres long, sometimes just a few metres apart.  And what came out


Page 28614

 1     was quite opposite from the assertions of the Prosecution, and that is

 2     that there were Muslim sniper nests and also the international

 3     representatives were convinced that the Muslim side also fired on its own

 4     people.  In conditions where we have mobile artillery heavy weaponry and

 5     mortars, in conditions where we have indications, well-grounded

 6     indications that there was fire on their own people, the Prosecution is

 7     then obliged to precisely prove that something that was fired was fired

 8     from the Serbian side and that it was fired with the intention alleged in

 9     the indictment.  We did not, however, see such proof.

10             International representatives here testified for the Prosecution

11     and confirmed that the Muslim tactics in the Sarajevo area was to show

12     the worst possible situation, and they did everything they could to

13     secure international military intervention.  In conditions of this

14     confirmed tactics, the worst, the better, the Prosecution did not manage

15     to show who did what and with which motive.  They did not manage to prove

16     that and they did not manage to isolate exactly what it was that the

17     Serbian side did.  The shooting that we saw in the Sarajevo sector was

18     mutual.  Had the Serb side been firing at the city and at civilian

19     facilities indiscriminately, you would have ruins that would be worse

20     than those in Dresden or Mostar.  We saw aerial footage of such results.

21     Compared to such destruction, Sarajevo was not even scratched.

22             I kindly ask for your indulgence for a moment.

23             Excellencies, as for the position on humanitarian issues, the

24     Prosecution did not manage to prove that I had a negative attitude

25     towards civilian matters or the welfare of civilians of any ethnicity.  I


Page 28615

 1     did not interfere in these matters unless this intervention was asked of

 2     me.  When I was asked to do so and evidence was shown here that my

 3     intervention was always on behalf and for the benefit of the flow of

 4     humanitarian aid in order to ease the position of civilians.  Each

 5     intervention was always of that kind.

 6             Not only did I issue a lot of general-type documents in order to

 7     prevent suffering, not only did I intervene frequently, perhaps even

 8     without justification with my own army, scolding them and attacking them

 9     frequently without justification, I also reacted to any report from

10     international factors that they noticed that something was being held up

11     somewhere, that aid was not arriving.  I would always intervene.

12     Wherever I left any traces, all of these traces would be in order to

13     support humanitarian aspects and for the benefit of civilians.

14             Gentlemen, we saw Sarajevo.  Any drop of water that Sarajevo

15     received, except for a small spring, came from the Serbian side.

16     Whenever we had water, they also had water.  The Prosecution did not

17     prove that we sabotaged the civilian life in Sarajevo.  The Prosecution

18     did not prove that it was our interest to have fighting in Sarajevo,

19     quite the opposite.  There was evidence that we often proposed that

20     militarisation of Sarajevo and placing Sarajevo under UN

21     administration -- the other side would not accept that.  But we have

22     quite convincing proof that the international factors confirmed this as

23     being our position.

24             Everything that was received for the civilians came through

25     Serbian territory.  A witness from a humanitarian organisation confirmed


Page 28616

 1     here that there was an average of 700 transporters and trucks every day

 2     on the roads of Bosnia and Herzegovina.  Except for a narrow area going

 3     along the sea, all these transports went through the territory of

 4     Republika Srpska.

 5             The proportion of hindered inspected and intercepted convoys due

 6     to some irregularity is negligible compared to the total number of

 7     convoys that arrived.  It has been shown and proven that my position was

 8     that we should not wage war using electricity, water, gas and food.  It

 9     has been shown that the Serb side was forthcoming and provided its

10     compatriots in the Muslim part of Sarajevo with aid without any

11     discrimination.  Look at the testimony of General, I believe,

12     Milovanovic.  He said he used my name to facilitate the passage of

13     convoys and the observance of his own orders.  If he had any problems

14     with the army who protested why the Muslims were getting food when they

15     had none, he would drop my name and that helped convoys pass through.

16     Thousands of flights landed at Sarajevo airport.  We controlled that

17     airport; it was on Serbian land.  We controlled it and we made it

18     possible to use that airport to provide Sarajevo with humanitarian aid,

19     although of course they were able to introduce whole units and war

20     equipment through the tunnel, they also used humanitarian convoys for

21     that.

22             But the fact is everything that was not air-lifted to facilitate

23     the civilian life in Sarajevo came through the Serbian territory 365 days

24     a year.  And the Prosecution simply cannot prove that the Serbian

25     side - and especially me - hindered humanitarian efforts or that I


Page 28617

 1     contributed in any way to the suffering of civilians.  On the contrary,

 2     all the evidence shows that I did all I could to ease their situation.

 3             Of course there remains the fact that it was very difficult to

 4     command and control a popular army consisting of soldiers who are local

 5     residents.  Here's a passage of one testimony:

 6             "No, I haven't seen any directives straight from the higher

 7     level."

 8             General Razek confirms there were difficulties in command and

 9     control and that it was not difficult to keep things under control on the

10     ground.  General Razek confirmed that this was a civil war where not only

11     armies fired at each other but civilians against civilians, farmers

12     against farmers.  And now we see that the developments in Syria are very

13     much like the events in Bosnia.  We hear that from American generals.

14     They say that one village is fighting another.

15             And how could the Prosecution have been even expected to prove

16     the responsibility of the central authorities of the republic under

17     circumstances where there were no professional armies, where everybody

18     had their own army.  On the contrary, it was proven that in places where

19     the state has a presence, where the Serbian forces were really present,

20     the crime rate was the lowest.

21             The Court's indulgence.

22                           [Defence counsel confer]

23             THE ACCUSED: [Interpretation] We wanted to show to you a lot more

24     than we are able to within this limited time, but we are convinced that

25     being a professional Trial Chamber rather than a jury you realise


Page 28618

 1     yourself how many things, how many allegations by the Prosecution, remain

 2     unproven and how many things are proven to the contrary, in fact.

 3             There is a kind of virtual bridge that the Prosecution is trying

 4     to use to link some war events to me, presenting them as a product of my

 5     criminal intentions, like that we wanted to create a homogenous and

 6     ethnically pure Serbian republic.  That has not been proven.  And if that

 7     has not been proven, the whole indictment should collapse.  It has not

 8     been proven that our intentions were illegitimate, there is no evidence

 9     that our intentions could only have been realised through war and

10     violence.

11             Our objectives were possible to achieve politically.  They were

12     recognised by the international community and they were sanctioned,

13     codified in all the treaties and agreements, and finally formulated in

14     the Dayton Accords and that will remain so for all times.  They are

15     simply grounded in our rights.  If a war was detrimental and unneeded by

16     anyone, those were the Serbs.  But the Prosecution didn't even bother to

17     try to prove this, the existence of this narrow bridge.  The Prosecution

18     failed to lay a foundation for the indictment let alone prove its

19     allegations in it.

20             I will not use up any more of your time, and I will kindly ask

21     Mr. Robinson to present our position on Count 16 --

22             THE INTERPRETER:  11, interpreter's correction.

23             MR. ROBINSON:  Mr. President, I'm going to take about 20 minutes,

24     so I think we can continue and finish before lunch, but I do have some

25     copies for the interpreters of our slides that I'm going to use during


Page 28619

 1     this part of the presentation.  I hadn't had a chance to distribute it

 2     earlier, so if that could be done.

 3             JUDGE KWON:  Thank you.

 4             MR. ROBINSON:  While we go from Count 1 where there was a

 5     plethora of jurisprudence to Count 11 where there's basically no

 6     jurisprudence on the issue of whether the detention of UN personnel

 7     constituted a hostage-taking.

 8             So we look at Count 11 and Count 11 simply charges hostage-taking

 9     in violation of Article 3 of the ICTY Statute.  Article 3 of the ICTY

10     Statute encompasses conduct that is prohibited By Common Article 3 of the

11     Geneva Conventions.  And finally, when we get to Common Article 3, it

12     indicates that:

13             "Each party to the conflict shall be bound to apply as a minimum

14     the following provisions:  First, that persons taking no active part in

15     the hostilities, including members of armed forces who have laid down

16     their arms and those placed hors de combat by sickness, wounds,

17     detention, or any other cause shall in all circumstances be treated

18     humanely."

19             And among the acts that are prohibited by Common Article 3 are

20     the taking of hostages.  The elements of hostage taking can be found in

21     the ICC elements of crimes because they've never specifically been

22     enumerated in ICTY jurisprudence and we believe that basically these

23     elements would be the same with maybe some slight issue about one.

24             The first three elements are that the perpetrator seized,

25     detained, or otherwise held hostage one or more persons; that the


Page 28620

 1     perpetrator threatened to kill, injure, or continue to detain such person

 2     or persons; and that the perpetrator intended to compel a third party to

 3     refrain or act in an explicit condition for the safety or release of such

 4     person or persons.  These three elements aren't really the focus of my

 5     submission in this case.  It's the fourth and fifth elements where we

 6     think that there are matters of importance.  The fourth element is that

 7     at the time the person or persons were protected under one or more of the

 8     Geneva Conventions; and fifth, that the perpetrator was aware of the

 9     factual circumstances that provided that protected status.

10             And so, the issue in our case as we see it is:  Were the UN

11     personnel who were detained persons taking no active part in the

12     hostilities, such as to render them protected persons under

13     Common Article 3?  And so it depends -- the answer to this question

14     depends on whether the UN was engaged as combatants at the time their

15     personnel were detained.  And you recall the facts of the hostage-taking

16     incident, which were essentially that General Rupert Smith had warned the

17     Bosnian Serbs that unless they returned certain heavy weapons to the

18     exclusion zone around Sarajevo, he would authorise NATO to commence

19     air-strikes.  And when the Bosnian Serbs did not return all of the heavy

20     weapons to the exclusion zone, he authorised an air-strike on a separate

21     target; that is, the ammunition depot and Pale.  And that ammunition

22     depot was hit by NATO air-strikes on the afternoon of the

23     25th of May, 1995, and on the morning of the 26th of May, 1995, and

24     following those air-strikes, personnel of the United Nations who were in

25     Serb-controlled territory were detained.


Page 28621

 1             So those are the facts, and the question is:  What was the status

 2     of those persons at the time they were detained?

 3             We believe that that's answered by a Convention on the Safety of

 4     United Nations and Associated Personnel that has been come into force and

 5     was promulgated through the United Nations at the beginning of 1995 and

 6     came into force sometime later, after this incident took place.

 7             And it provides for the protection of United Nations personnel in

 8     combat areas and in areas where they're serving as peacekeepers, but it

 9     indicates that this convention shall not apply to a United Nations

10     operation authorised by the Security Council as an enforcement action

11     under Chapter VII of the Charter of the United Nations, and there is no

12     doubt that what was authorised in Bosnia was an enforcement action under

13     Chapter VII.  All the UN resolutions are replete with references to

14     Chapter VII.  And then it goes on to say:

15             "In which any of the personnel are engaged as combatants against

16     organised armed forces and to which the law of international armed

17     conflict applies."

18             Now, in the ICC they dealt with a situation where an accused was

19     charged with an attack on peacekeepers, not hostage-taking, but a

20     different violation.  And that happened in Darfur and in that case, the

21     Abu Garda case, the Pre-Trial Chamber hearing the confirmation of charges

22     decided that there was a distinction between peacekeeping operations

23     which only use self-defence and so-called peace-enforcement missions

24     authorised under Chapter VII which have a mandate or are authorised to

25     use force beyond self-defence in order to achieve their objective.  And


Page 28622

 1     that's what we had in Bosnia, where Colonel Rupert Smith or

 2     General Rupert Smith was authorised to call in air-strikes, not in

 3     self-defence but to "enforce the mandate of the United Nations."

 4             And in the ICC the Chamber said that personnel involved in

 5     peacekeeping operations enjoy protection from attacks unless and for such

 6     time as they take a direct part in hostilities or in combat-related

 7     activities.  And the majority finds that that protection does not cease

 8     if such persons only use armed force in the exercise of their right to

 9     self-defence, which is what took place in Sudan.

10             But in our case, General Rupert Smith acknowledged that the

11     bombing of the Pale ammunition depot was not in self-defence.  You'll

12     find that on page 11873 of the transcript, and he agreed that the

13     personnel carrying out the air-strikes were combatants.  You'll find that

14     at page 11880 of the transcripts.  We also have evidence of the positive

15     impact that air-strike had on the war effort of the Muslims and the UN

16     reported that in Exhibit D1176 at page 61 --

17             THE ACCUSED:  Just a moment, there's no Serb translation.

18             MR. ROBINSON:  Thank you.

19             Now --

20             JUDGE KWON:  Just a second.

21             I think it has now been completed.

22             THE ACCUSED:  Yeah.  You have been -- you stopped to the issue of

23     the benefits for the Muslims.

24             JUDGE KWON:  Yes, please continue.

25             MR. ROBINSON:  Okay.  Thank you.


Page 28623

 1             General Smith made the distinction that NATO was a combatant but

 2     the UN was not, and that's legally incorrect.

 3             Judge Christopher Greenwood in an article he wrote before he

 4     became a judge at the International Court of Justice said that:

 5             "Even if it could be argued that only the NATO air-strikes and

 6     not the ground operations of UNPROFOR itself reached the level of an

 7     armed conflict, that would not be sufficient to prevent Article 2(2),"

 8     and he's referring to the convention on the safety of UN personnel that I

 9     showed you earlier, "from removing the protection of the safety

10     convention from UNPROFOR personnel, since Article 2(2) applies to the

11     entirety of a United Nations operation if any of the personnel involved

12     operate as combatants against organised armed forces in circumstances to

13     which the law of international armed conflict applies."

14             The International Law Commission has a document called The

15     Articles of Responsibility of International Organisations, and at

16     Article 16(2) of that document it provides that an organisation is

17     responsible if it authorises or recommends another international

18     organisation to commit an act.

19             And here General Smith testified that the NATO air-strikes were

20     at his request.  You will find that at page 11494 of the transcript and

21     in his book which is in evidence as Exhibit D1109 at page 354 he said

22     that the UN went from confrontation to conflict with the Bosnian Serbs

23     when he ordered those air-strikes.  It's also well-established that all

24     active-duty members of an armed force are considered combatants,

25     regardless of their actual duties.  And General Smith testified that all


Page 28624

 1     of the UN personnel who were detained were on active duty.  And you can

 2     see here references to the ICRC, the Red Cross, in which they have

 3     provided that all active-duty personnel of a belligerent are considered

 4     to be persons taking direct part in hostilities.

 5             Now, what about the question of whether these UN personnel could

 6     be considered hors de combat as a result of their detention?  So, for

 7     example, you heard the facts from Captain Patrick Rechner who testified

 8     that he and other members of the UN military observers were at their home

 9     or at their office home in Pale when members of the Serb forces came in,

10     detained them, and threatened to kill them if the air-strikes weren't

11     stopped.

12             And the question is whether or not by virtue of that detention

13     they became -- went from combatants to protected persons.  The answer, we

14     submit, is no.  Because otherwise the crime could not be committed, the

15     crime of hostage-taking, could simply not be committed against anyone

16     other than a protected person if everyone who was detained as part of the

17     hostage-taking automatically has their status transferred from combatant

18     to a person hors de combat, and that would make those elements, that the

19     person has to be a protected person and that the accused or the

20     perpetrator has to know about that status, to be completely redundant

21     under the Statute.

22             In addition, the crime of hostage-taking according to some ICTY

23     jurisprudence occurs at the time of detention.  In the Blaskic and Kordic

24     case, the Trial Chambers held that the Prosecution must establish that at

25     the time of the supposed detention the allegedly censurable act was


Page 28625

 1     perpetrated in order to obtain a concession or gain an advantage.

 2             Now, these cases arose out of a very different factual

 3     circumstance than the one we have here.  In that case there were already

 4     about 2.000 prisoners that were under the Croats' control.  Those were

 5     either civilians or combatants who had been held for quite a long time.

 6     So those who were combatants were, in fact, hors de combat by the time

 7     that the threat was made.

 8             But in this case, the evidence is that the detention was directly

 9     linked to the threat and for the purpose of asking that the air-strikes

10     stop.  And therefore, it cannot be said that those UN personnel who were

11     detained were hors de combat at the time of detention.

12             Therefore, the element that requires that the victim of

13     hostage-taking be a protected person under the Geneva Convention has not

14     been established.

15             In addition, the element that the perpetrator be aware of the

16     factual circumstances that established that protective status is also not

17     satisfied.  The record is replete with consistent statements by

18     Dr. Karadzic that the UN personnel had been detained as prisoners of war

19     before, during, and after the hostage crisis.  While the subsequent use

20     of prisoners as human shields may well have constituted a crime, that

21     crime is not charged in this indictment.  Therefore, because there is no

22     evidence upon which the Trial Chamber could conclude that each of the

23     essential elements of Count 11 have been established, it should enter a

24     judgement of acquittal for the charge of hostage-taking.

25             Mr. President and members of the Trial Chamber, we thank you for


Page 28626

 1     your attention to our submissions today.  I'd like to also thank many of

 2     the legal interns whose research contributed to our submissions, and that

 3     concludes our motion.  Thank you.

 4             JUDGE KWON:  Thank you, Mr. Robinson and Mr. Karadzic.

 5             We'll hear Prosecution's response on Wednesday at 9.00.  Before

 6     we adjourn for today there are a couple of matters I'd like to deal with

 7     at this moment.

 8             On the 26th of April, 2012, the Chamber ordered that the accused

 9     serve on the Prosecution and the Chamber copies of the reports of the

10     expert witnesses he intends to call no later than 27th of August, 2012.

11     On 29th of May, 2012, the accused filed a motion for extension of time

12     relating to expert report of Professor Kosta Cavoski.  In that motion the

13     accused requests an extension of time until 31st of December, 2012, in

14     which to file the expert report of Professor Cavoski.  On the 30th of

15     May, 2012, the Prosecution informed the Chamber and the accused by e-mail

16     that it will not file a response and takes no position as to the

17     requested extension of time.  The Chamber has decided to grant the motion

18     and orders that the accused file his expert report of Professor Cavoski

19     no later than 31st of December, 2012.

20             For the next matter could the Chamber move into private session

21     briefly.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)


Page 28627

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5                           [Open session]

 6             JUDGE KWON:  Unless there's any other matters to raise, the

 7     hearing is now adjourned for today.

 8                           --- Whereupon the hearing adjourned at 12.27 p.m.,

 9                           to be reconvened on Wednesday, the 13th day of

10                           June, 2012, at 9.00 a.m.

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