1 Friday, 29 June 2001

2 [Defence Closing Statement]

3 [Open session]

4 --- Upon commencing at 9.30 a.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] Good morning, ladies and

7 gentlemen; good morning to the technical booth, the interpreters, the

8 registry staff; good morning to the counsel for the Prosecution and the

9 Defence. Good morning, General Krstic. So we're going to continue the

10 closing arguments of the Defence, and I give the floor to Mr. Petrusic.

11 MR. PETRUSIC: [Interpretation] Good morning, Mr. President, Your

12 Honours, my distinguished colleagues. The Defence will today address the

13 question of the capture of Muslims along the road from Konjevic Polje to

14 Nova Kasaba and from Nova Kasaba to Bratunac.

15 It has already been stated that the capturing was done by forces

16 that were not within the chain of command of the Drina Corps. They were

17 detachments of the special brigade of MUP and the 65th Protective

18 Regiment, or rather, the battalion of the military police of the 65th

19 Protective Regiment. This military police battalion was under the direct

20 command of the Main Staff.

21 It is the submission of the Defence that that unit, during the

22 operation, and even later, was never resubordinated to the Drina Corps

23 command. In support of this submission, the Defence relies on Exhibit 76,

24 dated the 5th of July, 1995, namely, during the Krivaja 95 operation, an

25 order was issued for active combat operations. And at the same time,

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1 Major General Krstic, the Chief of Staff of the Drina Corps, informed the

2 Main Staff of the army of Republika Srpska in the form of a report saying

3 that due to combat operations which are due to begin towards Srebrenica,

4 and to avoid the forces of the Bosnian Muslims hitting the Drina Corps

5 from the rear, he is appealing to the Main Staff to ensure active combat

6 operations by the 65th Protection Regiment, that is, in the Zepa enclave.

7 He is referring to the infantry battalion of the 65th Protective

8 Regiment.

9 Therefore, had the 65th Protective Regiment, of which a battalion

10 was in Zepa, had it been subordinated to the Drina Corps, General Krstic

11 would not be addressing the Main Staff, because he cannot give them

12 orders; he can only make a suggestion to the Main Staff and a request for

13 the Main Staff to issue orders to that unit. Therefore, the Drina Corps

14 cannot issue it any orders. Had there been a decision, either an oral or

15 a written one, whereby this unit of the Main Staff of the 65th Protective

16 Regiment had been subordinated to the Drina Corps at the time, General

17 Krstic would not be addressing the Main Staff but would issue an order

18 directly. From a later example, it can be seen that General Zivanovic

19 issued an order, but only to units of the 1st and 5th Podrinje Brigades,

20 but not at all to the 65th Protective Regiment to which only the Main

21 Staff can issue orders.

22 There is no material evidence or testimony to prove that the

23 police or, rather, the 65th Protective Regiment, the special -- I'm sorry,

24 the special MUP Brigade, was resubordinated to the Drina Corps, and in our

25 submission, the Prosecution has failed to prove that.

1 Pursuing a logical course of thought, had these units been

2 resubordinated to the Drina Corps, there would be a greater probability

3 that this would apply to the 65th Protective Regiment, which is a military

4 unit, rather than the special MUP Brigade. However, it is the submission

5 of the Defence that this Exhibit 76 clearly shows that the 65th Protective

6 Regiment was not resubordinated to the Drina Corps.

7 The identity of units which carried out the executions cannot be

8 established, and it is our submission that among those perpetrators there

9 are no units of the Drina Corps. An exception is the 10th Sabotage

10 Detachment, which is also a unit of the Main Staff. The Defence will seek

11 to prove that there is no doubt that this was a unit of the Main Staff,

12 that it is under the command of the Main Staff and outside the control of

13 the Drina Corps.

14 It is true that during the Krivaja operation, upon the entry into

15 Srebrenica on the 11th of July, the commander of that unit was identified

16 in Srebrenica, that is, Mr. Pelemis. According to Erdemovic's testimony,

17 the members of his unit arrived in Srebrenica around the 10th of July.

18 The very fact that they were present in the area and at that location does

19 not prove the Prosecution's submission that they were subordinated to the

20 Drina Corps. Had they been resubordinated to the Drina Corps, in our

21 submission, in the order for combat operations, they would have been given

22 some sort of assignment. They would have been informed about the

23 implementation of the operation as the other units which took part in the

24 attack were informed in the order for -- in the preparatory order.

25 Witness DB was explicit in his testimony in saying that he, who

1 was in charge of the communications centre in the forward command post, in

2 his system of communications did not have this unit. It was not a part of

3 his system of communications. The Defence has no reason to doubt the

4 truthfulness of that testimony, and in view of the fact that this was a

5 unit of the Main Staff, on the basis of the evidence produced, it cannot

6 be ascertained that it was subordinated to the Drina Corps.

7 It is true that Mr. Butler in his report said that this detachment

8 came to the assistance of units of the Drina Corps, in the opinion of

9 Mr. Butler. If those units arrived on the 10th of July, the developments

10 of the -- on the battlefields on the 10th of July do not support

11 Mr. Butler's thesis that these units came to their assistance. This was a

12 unit of some 30 men. Srebrenica was about to fall already at that time.

13 It was a virtually abandoned, deserted city, so we see no reasonable

14 explanation for the command of the Drina Corps to call that unit to

15 provide any kind of assistance, nor to involve it in any kind of military

16 activities. Therefore, the assistance of the 10th Sabotage Detachment was

17 absolutely not necessary for the forces that were engaged in combat.

18 It is also evident from Mr. Erdemovic's testimony that that unit

19 did take part in the executions that occurred at Pilica, but before I move

20 on to that topic, let me say that all the capturing of prisoners were

21 carried out under the control of MUP and the 65th Protective Regiment of

22 the police battalion, as I have already stated.

23 If those units did carry out the capturing of prisoners, and they

24 certainly did, they did so on the basis of orders from the Main Staff.

25 Document 03-41629 dated the 13th of July, 1995, OTP Exhibit 462, in the

1 preamble we see that General Zivanovic says, "On the basis of orders of

2 the Main Staff," and then he goes on to mention the movement of Muslim

3 forces, and he orders, among other things, that Muslims should be captured

4 and disarmed. This order is -- has been literally copied from an order

5 received from the Main Staff, and that order is addressed to all

6 subordinated units and the forward command post for their information.

7 Therefore, the actual act of imprisonment, if it did take place,

8 and it did because we do have prisoners at the football stadium in Nova

9 Kasaba, the submission of the Defence that the act in itself was

10 legitimate, that it is necessary to carry out screening, especially as a

11 list appeared, and this has been discussed at length, a list of suspected

12 perpetrators of criminal acts in the area of the safe -- in the safe

13 areas, and this list was in the hands of the command of the army of

14 Republika Srpska. Everything else and the handover of prisoners to the

15 Main Staff, and it is quite evident that is what happened at the stadium

16 at Nova Kasaba because witnesses have told us that, among others, General

17 Mladic was there, so the act in itself, in the submission of the Defence,

18 is legitimate, whereas everything that followed, of course, cannot under

19 any circumstances be in conformity with any kind of military doctrine, nor

20 can it have any kind of legitimacy.

21 Speaking about the 10th Sabotage Detachment, an individual that we

22 have to mention is Colonel Beara. The 10th Sabotage Detachment, as I have

23 said, was subordinated to the Main Staff. Colonel Ljubo Beara was the

24 chief of the security administration of the Main Staff of the army of

25 Republika Srpska. The security administration and its members are guided

1 by the rules that were in force in the army of Republika Srpska, and which

2 I have discussed -- which I discussed yesterday in my arguments.

3 I should like to note that it's clear from those rules that the

4 security organs are not subordinated, nor are they obliged to report to

5 their original commands, but, rather, they follow the security hierarchy

6 so that lower-level security commands report to higher-level security

7 commands.

8 However, a fact of significance is the following: Colonel Ljubo

9 Beara was mentioned for the first time on the 12th of July in Nova Kasaba

10 when he allowed the detained members of UNPROFOR, who was detained by the

11 chief of the police battalion of the 65th Protective Regiment, Zoran

12 Malinic, on the 12th of July, saying that those UNPROFOR members may not

13 continue along their way without permission given by his boss. And then

14 Colonel Beara appears, who gives this permission, and then the UNPROFOR

15 members continue along their way. Therefore, in the submission of the

16 Defence, it was already clear then that he was the person who was deciding

17 on the freedom of movement within the area of responsibility of the Drina

18 Corps.

19 A noteworthy characteristic of that encounter, noted by

20 testimonies, is that Colonel Beara left in an Opel Rekord vehicle. This

21 Opel vehicle will appear again, from the 14th of July until the 26th of

22 July, as the vehicle moving along the roads from Zvornik, Orahovac,

23 Rocevici, Kozluk, Pilica, Cerska, that is, locations where the executions

24 took place.

25 Colonel Beara was seen issuing orders to the command of the 10th

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1 Sabotage Detachment on the 16th of July in Karakaj, that is, the base of

2 the Zvornik Brigade. Mr. Erdemovic [Realtime transcript read in error

3 "Ademovic"] testified to that. For the sake of truth, it should be noted

4 that Erdemovic did not recognise, nor did he say that it was Colonel

5 Beara, but he describes him as a Lieutenant Colonel, without identifying

6 him by name, but he gives a detailed description of him. General Krstic,

7 in his testimony, knowing what Colonel Beara looked like, made it

8 abundantly clear that a person of such physical characteristics, the

9 description given by Mr. Erdemovic can only fit Colonel Ljubo Beara.

10 So, together with members of the 10th Sabotage Detachment, he left

11 in an Opel Rekord vehicle for Pilica, and in this Exhibit 571 we see this

12 movement. We see that the car covered this distance.

13 That the security organs were in charge of this whole operation,

14 if we can call it that, or rather, the crimes that occurred in the area of

15 responsibility of the Zvornik Brigade, is borne out by the presence --

16 JUDGE RODRIGUES: [Interpretation] Excuse me, Mr. Petrusic, for

17 interrupting you, but Mr. Fourmy is drawing my attention to the fact that

18 the transcript, on page 7, line 7, mentions a name Ademovic. I think the

19 name was Erdemovic.

20 MR. PETRUSIC: [Interpretation] Yes. Maybe a general correction is

21 required, because the only, in fact, name I mentioned in that context

22 throughout is Erdemovic.

23 JUDGE RODRIGUES: [Interpretation] Yes. Thank you very much.

24 We'll make the correction. Please continue.

25 MR. PETRUSIC: [Interpretation] It is quite certain that Colonel

1 Beara could not have received an order from the Drina Corps. His orders

2 could have only come from a higher-level command. But it is also quite

3 certain, in view of the hierarchy in the security chain of command of the

4 army of Republika Srpska, that Ljubo Beara could have given orders to

5 Lieutenant Colonel Popovic to take part in all these activities.

6 In his testimony, when defining which members of the army arrived

7 at Pilica on the 16th of July, Mr. Erdemovic mentions some people from

8 Bratunac. Though he was asked several times in several questions, he

9 never said that they were members of the Bratunac Brigade. Exhibits OTP

10 173, 174, and 175, these are photographs which were shown to Mr.

11 Erdemovic. He identified one of them as a man from Bratunac. That man

12 from Bratunac - and this is something that the parties could stipulate on

13 - was a member of the Panthers unit. I have no knowledge whether it is a

14 military or paramilitary unit, but it was certainly not a part of the

15 structure of the Drina Corps, and such a unit was based and located in

16 Bijeljina, and the town of Bijeljina is the area of responsibility of the

17 Eastern Bosnian Corps.

18 Mr. President, after the 17th of July, by which time all the

19 executions had been carried out, and after General Krstic had learnt about

20 the executions towards the end of August, the Prosecution is charging

21 General Krstic of taking no steps to discover and punish, identify and

22 punish, the perpetrators of those acts. General Krstic, in his testimony,

23 in the submission of the Defence, provided convincing reasons why he

24 failed to do so. The Defence considers those convincing reasons to stand,

25 because I think that it is not even worth mentioning what would have

1 happened to him and his family if anyone had plucked up the courage to

2 refer to what had happened at all these locations where the executions

3 took place.

4 Mr. President, Your Honours, that would bring to an end my part of

5 the closing arguments; and with your permission, my colleague Mr. Visnjic

6 will take over and continue the presentation of our closing arguments.

7 Thank you.

8 MR. VISNJIC: [Interpretation] Good morning, Your Honours and my

9 colleagues of the Prosecution.

10 Points 1 and 2 of the amended indictment charge General Radislav

11 Krstic with genocide and complicity in genocide. These offences require

12 proof that the acts were committed with the intent to destroy, in whole or

13 in part, a national, ethnical, racial, or religious group as such. In

14 respect of these charges, the Defence will show that the evidence provided

15 by the Prosecution itself indicates the fact that General Krstic is not

16 guilty. Even if the Trial Chamber resolves all the disputed facts against

17 General Krstic, it must acquit him of these two charges.

18 The Prosecution simply never proved, nor could they have proved,

19 that the killings at Srebrenica were done with the special intent to

20 destroy, in whole or in part, the Bosnian Muslims as a group.

21 Defining the group is critical to determining whether there was an

22 intention to destroy a substantial part of that group. The more

23 generalised the definition of a group, the more the number of victims

24 becomes a less substantial part of the group. And vice versa; the more

25 narrowly the group is defined, the more likely it is that the number of

1 persons affected will be considered a substantial part of that group.

2 In the present case, the amended indictment defines the group as

3 being the Bosnian Muslim people. Therefore, this Court must determine if

4 the killings at Srebrenica were committed with the intent to destroy a

5 substantial part of the Bosnian Muslim people.

6 In the Jelesic case, the Court also noted that genocide might be

7 perpetrated in a limited geographic zone. This is undoubtedly true since

8 killings with the intent to destroy a protected group must begin somewhere

9 rather than being carried out simultaneously against all members of the

10 group in question. However, this attitude does not -- with this attitude,

11 one cannot create an artificial group by limiting its scope to a set

12 geographic area. For example, in this particular case, the group cannot

13 be defined as the Srebrenica Muslims or the Potocari Muslims or even the

14 Pilica Cultural Centre Muslims, because these are not distinct national,

15 ethnic, racial, or religious groups.

16 While the killing of Bosnian Muslims in Srebrenica, Potocari, or

17 the Pilica Cultural Centre can be qualified as genocide if those acts were

18 committed with the intent of destroying the Bosnian Muslims as such, in

19 whole or in part, an act of this kind cannot be considered genocide if the

20 intent was to destroy, for example, the Muslims in Potocari or for

21 territorial reasons or military expedience. Therefore, while in the

22 Jelisic case the Court ascertained that genocide could be perpetrated in a

23 limited geographical zone, this opinion does not authorise the definition

24 of the protected group with reference to artificial geographical

25 limitations based upon where the acts in question actually took place.

1 The Prosecutor correctly defined the group as the Bosnian Muslims

2 in the amended indictment. This issue must be resolved in this case

3 within the framework of the dilemmas of whether the killings at Srebrenica

4 were committed as part of an overall intent to destroy a substantial part

5 of the Bosnian Muslims as an ethnic group. However, the Prosecution now

6 changes his definition in his final brief. What he is doing now is he is

7 referring to them as the Bosnian Muslims of Srebrenica. The reason he is

8 doing so is for the number of people that were killed to be able to be

9 qualified as a significant portion of the group. What the Prosecutor

10 wishes to tell us is that the 7.500 killed people is a significant part of

11 a population of 40.000 Srebrenica Muslims. But if the group has been

12 defined as Bosnian Muslims, then it is questionable whether the number of

13 7.500, even if that number were to be taken to be correct, represents a

14 significant portion of a group of people numbering 1.400.000 people.

15 Later on in the final argument, and bearing in mind the position

16 of the Defence on this issue presented in the Defence final brief, the

17 Prosecution defines the group as Bosnian Muslims of Eastern Bosnia.

18 Nowhere in the indictment or during the presentation of evidence did the

19 Prosecutor define the concept of Eastern Bosnia within a framework with

20 which, at least geographically, we would be able to identify a group.

21 On the other hand, let me recall -- remind the Trial Chamber that

22 our learned colleagues of the Prosecution, together with their experts and

23 investigators, with great precision deliberated about geographical

24 concepts of the safe zone of Srebrenica, the urban area of Srebrenica, the

25 area of responsibility of the Drina Corps, the area of the responsibility

1 of all the other corps on the territory of Bosnia-Herzegovina.

2 One of the misconceptions to which an imprecise geographic

3 definition of a group and a determination of a group can lead us is

4 precisely the question of whether Eastern Bosnia is the territory of the

5 area of responsibility of the Eastern Bosnia Corps; whether Eastern Bosnia

6 is the entire area east of Sarajevo; whether the territories running along

7 the Drina river, are they in the composition of the -- are they within the

8 Eastern Bosnia territory; or again, is Bijeljina and the territory in the

9 area of responsibility of the Eastern Bosnian corps within Eastern Bosnia

10 itself; and whether Zepa and Gorazde fall within the composition of what

11 we mean by Eastern Bosnia.

12 If it was the intention of the Prosecutor from the very beginning

13 to accuse General Krstic of having the intent, in whole or in part, to

14 destroy the Muslims of Eastern Bosnia, then the Prosecutor could have, via

15 his experts such as Butler and Dannatt and by his investigators, through

16 the documents they had in their possession and geographical maps, to

17 support this theory, either through testimony or by some other way.

18 Instead of this, it is left to the Trial Chamber to speculate and to

19 wonder what the army of Republika Srpska had as the potential group that

20 it allegedly, according to the Prosecution, wished to destroy.

21 The burden of proof on the part of the Prosecution -- it is their

22 burden of proof to show in the course of the trial and not to do so in a

23 closing argument. Therefore, the Trial Chamber should not allow the

24 Prosecutor to change his indictment in the closing argument and final

25 brief.

1 The Rules and Statute imply that the accused must be informed of

2 all counts that he is being charged with. General Krstic was charged the

3 whole time of having the intent to destroy a part of the Bosnian Muslims

4 as a group. The Prosecutor, therefore, must be capable of proving the

5 charge -- counts and charges of the indictment, and not to change and

6 alter his definition of the group in his final brief and, indeed, in his

7 final argument.

8 Genocide has been defined as an intent to destroy a group in whole

9 or in part. A fair interpretation of the indictment would be that General

10 Krstic allegedly had the intent to destroy a part of the Bosnian Muslims

11 through his activities in Srebrenica. The Muslims of Srebrenica are not a

12 separate ethnic group, nor are the Muslims of Eastern Bosnia, that what

13 they are is a part of the peoples -- a part of the nation of Bosnian

14 Muslims.

15 The Prosecutor has endeavoured to define the group as the

16 Srebrenica Muslims or the Muslims from Eastern Bosnia, and thereby has

17 narrowed the concept down, saying that the portion that had been intended

18 to be destroyed were males, men. The Prosecutor furthermore goes on to

19 say that as practically all the men were killed, this is equal and means

20 and results in the complete destruction of the group. This is not the

21 proper way to interpret the definitions and provisions on genocide, and it

22 is even contrary to the actual charges laid out in the indictment.

23 You can always arrive at the virtual destruction of a group if you

24 narrow the group down enough. For example, an army enters into a town and

25 sets fire to all the houses in one particular street. The consequences as

1 a result of this is the death of the occupied people. You can always

2 define Muslims as Muslims from Street B that was burnt down, and then go

3 on to say that, in that way, a whole group was destroyed.

4 It is clear that this game with numbers was not what the creators

5 of the convention on genocide had in their minds and meant when, incited

6 by the Holocaust, they created the definitions on genocide and determined

7 the concept of group as national, racial, or religious groups.

8 If the killing of one family is the beginning of a plan for the

9 destruction of a whole ethnic group, then this killing should be

10 persecuted legitimately as a genocide act. However, on the other side,

11 for the killing of a large number of people, let us take the example of

12 the 100.000 Japanese in Hiroshima. We can also state that is not

13 genocide, either, in view of the fact that it was not the intention of

14 destroying the entire Japanese people.

15 Therefore, the Defence considers that the Prosecutor ought not to

16 use this play of figures, should not play around with figures to sidestep

17 his obligation to prove that the killings were committed with the intent

18 of destroying the Bosnian Muslims as an ethnic group, an obligation which

19 the Prosecution cannot fulfil and has not proved.

20 The desire to condemn the crimes committed in Srebrenica is, of

21 course, a great desire, a strong one. However, genocide is willy-nilly a

22 legal term, with a legal definition which is narrower than it is when it

23 is used in politics or in political usage. According to that definition,

24 the killings must be committed with the precise intent to destroy a whole

25 group as an entity. It is the submission of the Defence that this was

1 simply not the case in Srebrenica and that General Krstic, therefore, must

2 not be found guilty of genocide or complicity in genocide, as charged in

3 counts 1 and 2 of the amended indictment.

4 A review of the facts, as well as a comparison of this case with

5 others involving genocide, demonstrates that killings in Srebrenica,

6 however wrong and unjustified they were, do not constitute genocide. Had

7 the army of Republika Srpska intended to commit the crime of genocide and

8 had the intent to destroy the Bosnian Muslims as an ethnic group, they

9 would have killed the 20.000 or more women and children who were under

10 their custody at Potocari. This is the hallmark of all the genocides in

11 modern history, including the Nazis and the crimes committed in Rwanda.

12 Instead, the Prosecution's own evidence has shown that the Bosnian Serb

13 army provided transportation for the women and children into Muslim

14 territory. Although there were isolated instances and cases of violence,

15 no hostility was directed at the women and children by the command of the

16 Bosnian Serb army.

17 In Kayishema and Ruzindena, those two cases, by contrast, where

18 the ICTR Trial Chamber found that there was intent to destroy the Tutsi

19 group, the Court said the following: Not only were the Tutsis killed in

20 tremendous numbers, but they were killed regardless of gender or age. Men

21 and women, old and young, were killed without mercy. Children were

22 massacred before their parents' eyes, women raped in front of their

23 families. No Tutsi was spared, neither the weak nor the pregnant.

24 Similarly, in the Akayesu case, the Trial Chamber found that the

25 killing of Tutsis did not spare women, children, or newborn babes. Even

1 Hutu women who were pregnant by Tutsi men were killed, so that no Tutsi

2 could survive.

3 The fact that the Bosnian Serb army went to great trouble and

4 expense to round up buses throughout the country and transport the women

5 and children to a place of safety rather than killing them while they were

6 in their custody, or even letting them starve to death in Potocari,

7 demonstrates that there was no intent to destroy the Bosnian Muslims as an

8 ethnic group.

9 In the Jelisic case, they said that killing and genocide can be on

10 a massive scale or can be selective. The Prosecutor maintains that the

11 killing of men, that the selection of men for killing, that by doing so,

12 the army of Republika Srpska was engaged in selective genocide, because

13 without the men, the community would be destroyed. This is an absurd

14 argument. First and foremost, had the army of Republika Srpska had the

15 intent to destroy the Bosnian Muslims, it would be far simpler for them to

16 have killed the women and children in Potocari rather than chasing after

17 the men in the woods. If all the women had been killed, there would be no

18 reproduction and the community would cease to exist.

19 On the other hand, according to the allegations of the

20 Prosecution, if the decision for this was made on the 11th, in the

21 evening, then at that precise time the army of Republika Srpska could have

22 had an insight solely into the fact that in Potocari there was a very

23 small number of men. They did not know where the others were, nor how

24 many of them there were, whether they were armed or not, where they were

25 going, the direction they were moving to, and there were too many

1 questions if a decision pursuant to the plan that the Prosecutor has put

2 forward to us wanted to be implemented, was going to be implemented.

3 In answer to a question posed by Judge Wald, my learned colleague

4 of the Prosecution, Mr. Harmon, answered that the secure transport of

5 women and children was a cover-up for the planned execution of the

6 menfolk. That, quite simply, is not logical, does not stand the test of

7 logic. If that were so, as Mr. Harmon alleged, and the Republika Srpska

8 army was concerned about the humanitarian crisis which the whole entire

9 world community was informed of, the humanitarian crisis that had already

10 been reported to the world community, then the army had already entered

11 into a problem with the world community; they would have had a problem

12 with them. If they were already having trouble with the world community,

13 why, then, did they not massacre the whole reproductive population, which

14 was completely powerless and under their power? And it is also a fact

15 that this was -- and this was borne out by many Prosecution witnesses

16 themselves - there were no attempts at hiding the killings. The women saw

17 many bodies in Potocari. They saw many bodies along the road. They

18 passed by.

19 If it is true that the decision was made, as in the submission of

20 the Prosecution, as the way they had presented it, what prevented the army

21 of Republika Srpska from killing all the men on the battlefield along the

22 road, along the route that, any way, in a column, as the Prosecution

23 witnesses themselves said, they presented a legitimate target, in view of

24 the fact that the column was armed and that active combat operations were

25 underway? Why - and once again, this is what the Prosecution

1 alleges - had the plan been made on that 11th of July, in the evening, why

2 would they decide to kill all the men when, let me state again, they did

3 not know how many of them there were, what weapons they had, what

4 direction they were moving in, and so on and so forth, and ultimately what

5 their fate would be?

6 There is no proof that the men were killed as part of a strategy

7 to destroy the Muslims of Srebrenica. They were killed either because

8 they refused to surrender, as they were ordered to do by General Mladic,

9 or because they were potential fighters who, for General Mladic, presented

10 a military risk. Each of these possibilities - regardless of any of these

11 possibilities, killings are terrible war crimes, but they have nothing to

12 do with the intent to destroy the Muslims as a group through patricide.

13 At the time of the takeover of Srebrenica, there was a group of

14 Muslims who were being treated for the wounds that they had received. In

15 keeping with the testimony by the Prosecution military expert, Mr. Butler,

16 these people were in fact properly treated and evacuated under proper

17 medical supervision. Witness H also testified that he was personally

18 transported with the other sick and wounded and reunited with his family.

19 If indeed it was the intent to destroy the Bosnian Muslims as an

20 ethnic group by killing the men, these men would have had to have been

21 killed as well. The fact that these men were spared, and not only spared,

22 but given proper medical treatment, demonstrates that the killings were

23 limited to those who were actual or potential military combatants and that

24 the intent was not to destroy the Bosnian Muslims as an ethnic group but

25 to eliminate those who could continue to fight in the war with the Serbs.

1 As the Prosecution expert witness, Mr. Butler, said, the people who did

2 not qualify as military combatants were not part of the plan.

3 The attack on Srebrenica was accompanied by an attack on the

4 nearby safe area of Zepa. Under the command of General Krstic, the

5 Bosnian Serb army had the same opportunity to kill civilians and prisoners

6 of war in Zepa as they had in Srebrenica. This did not happen. According

7 to the United Nations report issued in 1998, the civilians in Zepa were

8 unharmed and Muslim men of military age were allowed to evacuate the

9 area.

10 Also, evidence from intercepted conversations introduced by the

11 Defence showed that General Krstic had personally ordered that the

12 civilian population was to be treated properly, and that everyone was to

13 behave in a civilised manner. That is Exhibit 167 and 168.

14 If the intention of the Bosnian Serb army in the Srebrenica

15 killings was to destroy the Bosnian Muslims as an ethnic group, why would

16 virtually all of the Bosnian Muslim citizens in Zepa, including some who

17 had fled from Srebrenica to Zepa, have been spared the same fate in the

18 same period? According to one of the more probable theories on the

19 territory of Eastern Bosnia, Zepa is also a part of Eastern Bosnia. Does

20 that mean that the fact that the events of Srebrenica were not repeated in

21 Zepa [as interpreted]?

22 If we wish to support the theory of the Prosecution on genocidal

23 intent, should we then define the group as the Muslims from Eastern Bosnia

24 but only those who were located in the territory of Srebrenica? This is

25 just one of the problems that we must address because of this attempt

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1 artificially to narrow down the group.

2 By contrast, the killings in Rwanda found to constitute genocide

3 by the Rwanda Tribunal took place throughout the country and during the

4 same time period. The fact that the killings in this case were restricted

5 to potential military combatants and that they occurred only in the

6 Srebrenica area belies genocidal intent and appears to be more of a

7 military decision to eliminate the threat posed to a vastly outnumbered

8 army, or to take retribution for refusal to surrender weapons as demanded

9 by General Mladic.

10 Your Honours, on the 15th and 16th of July, 1995, during the time

11 that Muslim prisoners were being executed, a general truce was declared on

12 the front between the Bosnian Serb army and the army of

13 Bosnia-Herzegovina. Thanks to this truce, the column from Srebrenica

14 managed to pass through the lines held by the Bosnian Serb army. If the

15 intention was to destroy the Bosnian Muslims as a group, there would be no

16 reason to allow members of the column to reach Muslim territory and their

17 freedom. And pursuing the logic of the Prosecution, one could also look

18 at it the other way: Precisely because -- precisely for that reason, the

19 army of Republika Srpska would not have allowed 3.000 men to pass through

20 their lines because 3.000 men and the women that survived is sufficient to

21 ensure the reproduction of the group. Had their destruction been

22 intended, that would not have been allowed.

23 Thanks to the documents found after the end of the war, this Trial

24 Chamber has full insight into the activities of the army of Republika

25 Srpska. Richard Butler's report on the internal documents shows that the

1 intention of the army and the government in the summer of 1995 was not to

2 destroy the Bosnian Muslims as an ethnic group, but to organise defence

3 with the intention of retaining the territory captured during the

4 four-year war.

5 As testified by Prosecution witnesses Major General Richard

6 Dannatt and Richard Butler, the operation against Srebrenica was not

7 intended to destroy the Bosnian Muslims, but to reduce the enclave to its

8 urban boundaries so as to minimise the army's manpower needs in the area

9 and to create conditions that would persuade the United Nations to forego

10 its safe area concept and evacuate the population.

11 The directive of the 8th of March issued by the Supreme Commander

12 Radovan Karadzic, according to the Prosecution, designated Srebrenica as

13 an objective. That objective was the complete physical separation of

14 Srebrenica from Zepa. While the directive called for the creation of an

15 unbearable situation of total insecurity with no hope of further survival

16 for inhabitants of Srebrenica and Zepa, it is clear from the context of

17 this statement that the objective was not to eliminate the enclave by

18 pressure from outside its boundaries -- or, rather, that the objective was

19 the elimination of the enclave by pressure from outside its boundaries

20 rather than the murder of civilians within Srebrenica.

21 The Trial Chamber has also had access to the military plans that

22 sought to carry out this directive. It is clear that the plans did not

23 even contemplate the capture of Srebrenica, let alone the destruction of

24 Bosnian Muslims as an ethnic group. Therefore, unlike the Nazis' final

25 solution or the planned massacre of the Tutsis in Rwanda, there was no

1 plan to destroy the Bosnian Muslims as an ethnic group.

2 Based upon the testimony of the Prosecution's own experts, that

3 is, Major General Dannatt, the killing which took place appears to have

4 been a late decision taken either out of vengeance or, as another expert

5 stated, Richard Butler, as punishment for failing to surrender as General

6 Mladic had ordered, or as a response to the numerical threat posed by the

7 column and the prisoners to the outnumbered Bosnian Serb army.

8 The intention to destroy an ethnic group does not originate

9 spontaneously as an instant reaction to the group members. It is a

10 profound, calculated plan that, as a general rule, is built up through

11 lasting and systematic hatred or intolerance towards members of the group.

12 Therefore, the act of genocide is generally preceded by a campaign,

13 propaganda against the group, intended to create a psychological

14 atmosphere that favours the commitment of genocide. While genocidal acts

15 are committed by individuals, genocide as such is not an individual act of

16 man but the expression of a planned and coordinated action where the

17 individual appears as only one of the links in the long chain of a

18 well-thought-out plan to commit genocide.

19 There is no proof of the existence of such a plan in this case.

20 Instead, even General Halilovic, one of the leaders of the army of

21 Bosnia-Herzegovina, in answer to a question by Judge Wald why he believed

22 the executions took place cited the Bosnian Serb government's goals of

23 gaining territory which was between the two Serbian states. None of the

24 five witnesses which this Trial Chamber had occasion to hear - Mr. Butler,

25 Major Dannatt, General Radinovic, General Halilovic, or General

1 Hadzihasanovic - could attribute the killings to any plan to destroy the

2 Bosnian Muslims as a group.

3 Even if we were to accept that the events occurred in the way

4 claimed by the Prosecution in his submissions in paragraphs from 424 to

5 427, the activities to obstruct humanitarian aid, the plan in directive 7

6 for the elimination of Bosnian Muslims from the area, the shelling of

7 Srebrenica to force the population to abandon the town, the deportation of

8 the population from Potocari, are all acts directed towards the Muslims

9 leaving Srebrenica and not towards their destruction as an ethnic group.

10 Allow me to say once again that that was wrong, but it was not genocide.

11 In addition to access to confidential written documents of the

12 army of Republika Srpska, the Trial Chamber has had insight into the

13 results of intercepted oral communications among officers and soldiers of

14 the Bosnian Serb army. Though the Defence disputes the accuracy and

15 reliability of this evidence, it is significant to point out that nowhere

16 in any of the hundred or so intercepted conversations before, during, and

17 after the Srebrenica operation is there a single indication that the

18 killings were motivated by the intent to destroy the Bosnian Muslims as a

19 group.

20 For example, on the 13th of July, 1995, a person named Zile, and

21 the Prosecution believes that was General Zivanovic, requires that a list

22 of war criminals be made urgently. On the 16th of July, 1995, Cerovic and

23 Colonel Beara discuss the fact that the triage, the separation, has to be

24 done of the prisoners, the screening of the prisoners. These statements

25 show the intention to spare some people from the fate of the others.

1 The intercepted conversations, if accepted by the Trial Chamber as

2 evidence, are, therefore, a two-edged sword. They provide evidence of the

3 involvement of individuals in the Bosnian Serb armed forces in the

4 killings, but also provide exculpatory evidence for genocide. In candid

5 and private conversations among officers and soldiers of the army of

6 Republika Srpska, there is no indication of an intention to destroy the

7 Bosnian Muslims as a group, nor can such inferences be reasonably made.

8 This is in stark contrast with the established cases of genocide.

9 Public statements of the Third Reich calling for the extermination of the

10 Jews was legion in Nazi Germany. In the Rwanda cases, the perpetrators of

11 the killings likewise overtly stated their intentions. In Akayesu,

12 statements were made that the Tutsis had to be killed so that, some day,

13 Hutu children would not know what a Tutsi looked like. In Kayishema and

14 Ruzindena, the statements of the accused at the time of the killing, such

15 as not to spare babies, clearly demonstrated their intent to destroy the

16 Tutsis as a group.

17 While inflammatory public statements were made by all sides during

18 the course of the four-year war in Bosnia, the unguarded, private

19 conversations among those carrying out the Srebrenica killings would have

20 provided key evidence that the perpetrators intended the destruction, in

21 whole or in part, of the Bosnian Muslims as an ethnic group. The fact

22 that no such statement exists confirms the fact that the Srebrenica

23 killings were not the product of genocidal intent.

24 Mr. President, I would be free to suggest a break just now, if I

25 might use the break to check some things with the technical booth, and I

1 think that more or less fits into our regular timetable.

2 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Visnjic. We will

3 accept your suggestion and have a half-hour break now.

4 --- Recess taken at 10.47 a.m.

5 --- On resuming at 11.20 a.m.

6 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Visnjic, please

7 continue.

8 MR. VISNJIC: [Interpretation] Thank you, Mr. President.

9 In continuation of my presentation, Your Honours, the Defence will

10 address once again the question of propaganda as presented by the

11 Prosecution in his final brief and closing arguments, the propaganda

12 engaged in by the government and army of Republika Srpska. This is yet

13 another instance of misinterpretation of facts to fulfil the legal

14 framework for genocide.

15 In Rwanda, for instance, there was large-scale propaganda calling

16 on the Hutu people to finally settle accounts with the Tutsis in order to

17 kill them and extinguish them as a nation. The so-called propaganda which

18 the Prosecution is now referring to contains no call on the population or

19 the military to commit genocide. Only because General Krstic and others

20 used the word genocide in the context when mention is made of genocide

21 against the Serbs is nowhere near the instigation of individuals to

22 destroy the Muslims as an ethnic group.

23 Without entering into the historical aspect of the justified or

24 unjustified use of the word genocide, in all truth, it seems to us as if

25 the Prosecutor, in his computer, was looking for the word genocide and

1 then used all the statements in which that word appears, even when those

2 documents and statements referred to genocide against the Serbs. And then

3 those statements are misinterpreted as being inflammatory and instigating

4 genocide against the Muslims. These statements have nothing to do with

5 any such thing. Pursuing this logic, any public statement in connection

6 with genocide that may have been committed against the Muslims could be

7 interpreted as a statement calling for genocide against the Serbs.

8 The Prosecutor is endeavouring to attribute a different meaning to

9 the facts to fulfil the legal requirements for genocide. I doubt that you

10 could find a single war in which the soldiers do not use ugly and

11 insulting language when describing the enemy, such as, for instance, the

12 term Krauts used in the Second World War or Gooks in Vietnam. In this

13 connection, perhaps the best example is the fact that all the previous

14 statements disclosed to us by the Prosecution and which were given to the

15 BH police or the State Commission for the Investigation of War Crimes in

16 the course of 1995 and even 1996, refer to the Serbs as Chetniks. Also,

17 numerous military documents of the army of Bosnia and Herzegovina that

18 were entered into evidence use the same terms.

19 In a wartime context, these terms have nothing to do with the

20 intention or not of destroying an ethnic group as such through killings;

21 otherwise, any killing of civilians could be called genocide.

22 On the other hand, we have witnessed a statement from directive

23 number 8 -- I'm sorry, number 7, dated the 8th of March, 1995, a

24 statement addressed by General Mladic both to representatives of the

25 civilian population of Srebrenica as well as other statements that he made

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1 when touring the town. Without having any pretentions of interpreting

2 what General Mladic actually had in mind, the Defence would like Your

3 Honours, to show you, at least briefly, that this style of address is not

4 the exclusive right of General Mladic.

5 Could the technical booth please show us a video clip.

6 [Videotape played]

7 MR. VISNJIC: [Interpretation] Your Honour, in a wartime context,

8 words uttered in the statements of General Mladic and in directive number

9 7 do not contain any evidence as to the killings being made with the

10 intention of destroying an ethnic group.

11 In addition to access to confidential documents and intercepts

12 between the members of the army of Republika Srpska, the Office of the

13 Prosecutor has been able to obtain information from persons within the

14 Republika Srpska who had indirect or direct links to the events in

15 Srebrenica. None of this information indicated that the killings were

16 committed with the intent to destroy the Bosnian Muslims as an ethnical

17 group.

18 The most prominent of these persons is Drazen Erdemovic. He

19 personally carried out killings of Muslim prisoners at the Branjevo

20 military farm. He never gave any indication of any kind of intent on his

21 part or on the part of his commanders or associates, confederates, to

22 destroy the Bosnian Muslims as an ethnic group. In fact, he was expressly

23 ordered not to fire at civilians when entering Srebrenica, and that can be

24 found on page 3083 of the transcript.

25 Your Honours, Drazen Erdemovic was a member of the special unit

1 for special purposes and assignments, which was under the direct command

2 of the Main Staff and precisely linked to the security line. If somebody

3 could have been entrusted with the secret of a genocidal plan, then that

4 would have been precisely the members of that particular unit who were

5 executing the killings. In the course of the war in Bosnia, they were

6 engaged in numerous secret, clandestine special assignments. It was a

7 group of people in which the greatest trust had been placed, and there was

8 no reason for any information to be hidden from that group. Had there

9 been a plan to destroy the Bosnian Muslims as a group, Erdemovic would

10 quite probably have known about it and he would probably have told the

11 Prosecutor about that, and the Trial Chamber as well, given his extensive

12 and long cooperation with the OTP.

13 Similarly, it appears from the Prosecutor's cross-examination of

14 General Krstic and other Defence witnesses that several officers of the

15 army of Republika Srpska gave statements to the Office of the Prosecutor.

16 Your Honours, in the course of this trial, you were acquainted with the

17 problems that the Defence faced with respect to bringing in

18 witnesses - you knew how hard that was for us - and many public

19 statements, articles, about a very large number of officers of the army of

20 Republika Srpska who were called by the Prosecution for interviews. Some

21 of those lists were even published in the media.

22 On the other hand, the Prosecution itself made statements that it

23 was satisfied with the level of cooperation that it had had with the

24 government of Republika Srpska and the Ministry of Defence of Republika

25 Srpska with respect to these separate and special statements. Had there

1 been any evidence -- evidenced by any of those statements that the

2 killings in Srebrenica had been committed with the intent of destroying

3 the Bosnian Muslims as a group, the Prosecution would have quite certainly

4 presented them to us.

5 In the present case, the Trial Chamber, without precedent, had an

6 insight into the deliberations, communications, and orders of those who

7 participated in the events in Srebrenica. Had the killings been done with

8 the intent to destroy the Bosnian Muslims, the Office of the Prosecutor

9 would have set aside any one of those pieces of evidence and presented

10 them to this Trial Chamber. There is no such evidence, for one very

11 simple reason: There was no genocidal intent.

12 If the Trial Chamber were to arrive at the conclusion that,

13 unfortunately, beyond all reasonable doubt, that the killings in

14 Srebrenica were carried out with the intent to destroy, in whole or in

15 part, the Bosnian Muslims as an ethnical group, the Prosecution must also

16 go on to determine whether General Krstic personally had the required mens

17 rea.

18 Mr. President, Your Honours, the Prosecution says -- tells us that

19 General Krstic was personally responsible for the crimes. For this type

20 of responsibility, for this form of liability to attach to General Krstic,

21 the Prosecution would have to prove that General Krstic participated in

22 the Srebrenica killings by planning, instigating, ordering, committing, or

23 aiding and abetting the planning, preparation, or execution of the crime

24 of genocide, and that at the time he did so, he personally had the intent

25 to destroy the ethnic group of the Bosnian Muslims as such.

1 The lack of evidence and proof of General Krstic's participation

2 in the Srebrenica killings is addressed by us in our final submission,

3 final trial brief, and in what Mr. Petrusic has already said, so I do not

4 want to repeat that. However, even if the Court were to conclude that

5 General Krstic did participate in one way or another, there is absolutely

6 no proof that he personally had the intent to destroy the Bosnian Muslims

7 as an ethnic group. There is not a single intercepted telephone

8 conversation, written document, or piece of testimonial evidence that

9 demonstrates that General Krstic personally sought the destruction of the

10 Bosnian Muslims as an ethnic group. On the contrary, in the most

11 contradictory testimony, it is stated that throughout his military career

12 during the war in Bosnia, he showed no inclination to eliminate the

13 Bosnian Muslims.

14 Your Honours, for example, we have the witnesses of -- the

15 evidence of witnesses DC, DA, and Zeljko Borovcanin. For example, Witness

16 DC testified that, for instance, if a Muslim were to be captured, there

17 were cases that -- where they wanted to kill that captured Muslim, and not

18 just to kill him but to somehow take their revenge on him for what they

19 had experienced. But General Krstic was always opposed to that, and this

20 was something that was pronounced. He attached the greatest importance to

21 this, saying that prisoners of war must not be harmed in any way,

22 regardless of whether they be a soldier or civilian, a man or a woman. He

23 was against the torching of buildings, against destruction per se. He was

24 a rare officer who behaved fully in accordance with international

25 conventions, the respect for human rights, and a correct and proper

1 attitude, despite everything that war entails.

2 In one of the intercepts at the beginning of the Srebrenica

3 operation, General Krstic instructed a subordinate to take care that, "Not

4 a hair of their heads is harmed," referring to the Muslim population, and

5 that is Exhibit 446. When he commanded the operation undertaken by the

6 army of Republika Srpska in Zepa several days later, virtually all the

7 Muslim civilians and military personnel were spared following -- pursuant

8 to his emphatic orders.

9 Witness DA testified that General Krstic was consistently

10 concerned with the safety of civilians. This, Your Honours, is not the

11 conduct of an officer who has the intention to destroy the Muslims as an

12 ethnic group.

13 Because there is no evidence or proof that General Krstic

14 personally intended to destroy, in whole or in part, the Bosnian Muslims

15 as an ethnic group, he cannot be found to have any individual

16 responsibility for genocide. In an effort to personally involve him in

17 the crimes, the Prosecutor, for the most part, is distorting the facts and

18 making erroneous conclusions, all with the aim of linking up the

19 executions with General Krstic himself and to link him up, General Krstic

20 up, with genocidal intent.

21 There is absolutely no proof whatsoever that General Krstic

22 participated in the planning for holding and separating the men in

23 Potocari, for taking part in the plan to capture and kill the people from

24 the column which was making a breakthrough, supervised the taking of

25 prisoners and the execution of Muslim prisoners and issuing orders to --

1 for this process to be continued, receive reports about the killings from

2 his subordinates, and ordered the members of the Bratunac Brigade to

3 implement the execution of Muslims at Branjevo Farm and the cultural

4 centre in Pilica. Furthermore, the fact that these acts were carried out

5 by others in the army of Republika Srpska in no way demonstrates that they

6 were committed with the intent of destroying the Bosnian Muslims as a

7 group, an ethnic group.

8 With respect to command responsibility for which General Krstic is

9 held accountable, the Prosecution wanted to prove that one of his

10 subordinates killed individual Bosnian Muslims with the intent of

11 destroying the Bosnian Muslims as an ethnic group, and that General Krstic

12 knew of his subordinate's genocidal intent when he failed to prevent the

13 genocide. In fact, the issue of General Krstic's role as commander over

14 the Drina Corps at the relevant times is discussed in the final trial

15 brief of the Defence and the closing arguments given by my colleague,

16 Mr. Petrusic. General Krstic admitted that he later learned of the

17 Srebrenica killings and attempted, but did not succeed, in punishing the

18 perpetrators. However, there is absolutely no evidence that he was aware

19 that the killings had been committed with the intent to destroy the

20 Bosnian Muslims as an ethnic group. No manifestations of this kind of

21 intent were represented to him in the form of any written orders, reports,

22 or any other kind of communication. Nor is there any evidence from the

23 numerous intercepted conversations which would draw -- bring General

24 Krstic's attention to the fact that these killings were carried out with

25 genocidal intent.

1 Because there is no evidence and proof that General Krstic was

2 aware of the genocidal intent of the perpetrators in Srebrenica, he cannot

3 be held accountable as a superior or commander for failure to prevent or

4 punish genocide.

5 In order to ascertain whether General Krstic is guilty of the

6 crime of complicity, the Prosecution must prove that he knew the persons

7 committing the executions at Srebrenica intended to destroy the Bosnian

8 Muslims as an ethnic group and that, with that knowledge, he assisted the

9 perpetrators in a substantial -- to a substantial degree. It is not

10 necessary for complicity that the Prosecution proves that General Krstic

11 himself shared that genocidal intent.

12 This theory of liability is similar to superior responsibility but

13 includes and involves proof of affirmative acts to assist the perpetrators

14 rather than simply the fact that he was aware of the acts. In both cases,

15 proof is necessary that General Krstic knew that the principal

16 perpetrators acted with genocidal intent. That is what is required.

17 As we have already explained, there is no evidence from which we

18 can conclude that General Krstic had such knowledge, was in possession of

19 such knowledge. In general terms, the Bosnian Serbs and officers of the

20 army of Republika Srpska learnt of these killings much later, and this is

21 evidenced by the testimony of [redacted]

22 [redacted]

23 [redacted]

24 conclude, we may conclude, that the killings were the actions of a small

25 group of individuals in a short space of time and that they were not part

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1 of the general plan of the army of Republika Srpska.

2 Although the Prosecutor argues that there were media reports

3 throughout the world shortly after the events had taken place, it must be

4 considered -- we must take into consideration that those who were at the

5 head of the Zepa operation in the Drina Corps did not have access to the

6 media, precisely because of the operation that was underway at the time.

7 Even if they had known about the killings or had helped the killers in any

8 substantial way, there is no evidence or proof that they knew the killings

9 had been perpetrated with the intent to destroy the Bosnian Muslims as a

10 group.

11 Because of this complete lack of proof regarding knowledge of the

12 genocidal intent of the perpetrators, General Krstic cannot be found

13 guilty of complicity in genocide, as charged in count 2 of the

14 indictment.

15 Your Honours, the consequences of the killings of 7.500 people on

16 those who survived are undoubtedly terrible, but these consequences and

17 results are the same, regardless whether the killings were committed with

18 the intent to take over a certain territory or as punishment or to set an

19 example to what would happen to those who failed to surrender their arms,

20 to prevent people from participating in future fighting, future battles,

21 or with a genocidal intent to destroy an ethnic group. These consequences

22 do not contribute to deciding and determining what the true intent of the

23 killing was.

24 The Prosecutor will be in a position to state that the group was

25 completely destroyed only by defining that particular group as the

1 narrowest possible group, and thereby saying, for example, the Srebrenica

2 Muslims, and then, by force of argument, to change the definition and to

3 use the term "the Muslims of Eastern Bosnia." Looking at the group as it

4 was defined in the indictment, the term "Bosnian Muslims," the degree to

5 which the group was actually destroyed is such that nothing can link it up

6 to true genocide, concepts of genocide as they existed in Nazi Germany,

7 Rwanda, or genocide over the Armenians. There is not a scrap of proof and

8 evidence to show that the perpetrators of the killings looked at the

9 traditional patriarchal structure of the Muslims of Eastern Bosnia when

10 they implemented their executions.

11 When we look at the intercepted conversations, the written orders,

12 and the communication that went on between the perpetrators and the

13 victims, there is not a trace of proof that the perpetrators in fact

14 intended the killings to be part of a general intent to destroy the

15 Muslims as a group.

16 The killings at Srebrenica were horrible, but they were not

17 genocide as defined in the genocide convention in Article 4 of this

18 Tribunal's Statute. Quite simply, there is no proof and evidence upon

19 which this Trial Chamber could conclude beyond all reasonable doubt that

20 the killings were carried out with the intent to destroy, in whole or in

21 part, the Bosnian Muslims as an ethnic group.

22 It will take courage to so rule. It would be politically safer

23 and expedient for the Trial Chamber to add the term "genocide" to the

24 opprobrium heaped upon those responsible for what happened at Srebrenica.

25 But this institution is a court of law, not a political organ. It must

1 apply the law dispassionately, without regard to personal considerations

2 or public opinion.

3 Our history is replete with examples of institutions being

4 strengthened by courageous decisions that were unpopular at the time they

5 were made. If the world is to have confidence in international tribunals,

6 and as a means of holding persons accountable who were responsible and

7 thus deterring future crimes, it must be assured that such tribunals do

8 indeed follow the proof and evidence and are not swayed by public

9 sentiment.

10 Acknowledging the truth about Srebrenica is a must and

11 indispensable to all sides. Part of that truth is that despite the pain,

12 despite the suffering, despite the loss caused by the perpetrators of the

13 killings at Srebrenica, those acts were not done with the intent to

14 destroy, in whole or in part, the Bosnian Muslims as a group. The truth

15 is that General Radislav Krstic is not guilty of genocide or complicity in

16 genocide.

17 In conclusion, the Prosecution's final brief and closing argument

18 is an attempt to find genocidal intent where it does not exist. Had it

19 truly existed, had the intent truly existed that the Bosnian Muslims be

20 destroyed as an ethnic group, the Prosecutor would have had to have been

21 capable of answering the following questions easily:

22 Why weren't the women and children killed in Potocari, as was done

23 with the Jewish, Armenian, and Tutsi women and children? Why were not the

24 Bosnian Muslim males killed in Zepa? Why were the wounded men not

25 killed? Why was a path opened for men from the column to pass to free

1 territory, territory under the control of the army of Bosnia-Herzegovina?

2 Why were the killings in Srebrenica an isolated and case apart in the

3 course of the four-year war in Bosnia? Why did Drazen Erdemovic not know

4 of this intent to destroy the Muslims and why did he not possess that same

5 intent? Why at least not one of the numerous officers of the army

6 of -- and all soldiers of the army of Republika Srpska, and policemen of

7 the Republika Srpska which were interviewed and questioned by the

8 Prosecution, did not confirm evidence of the existence of genocidal intent

9 to destroy the Muslims of Eastern Bosnia? Why did not the Prosecutor find

10 a single document or order to show that the goals of the army of Republika

11 Srpska in July 1995 was to destroy the Bosnian Muslims as a group? Why

12 did not the intercepted conversations reveal that that goal -- it was the

13 goal of the Bosnian Serb army to destroy the Muslims, Bosnian Muslims, as

14 an ethnic group?

15 There can be no satisfactory answers to these questions because

16 the truth is that the killings in Srebrenica, even shameful as they were

17 and which required punishment, were not committed with the intent to

18 destroy the Bosnian Muslims.

19 The Trial Chamber has three possibilities to determine what was

20 the intention of those who were responsible for the killings in

21 Srebrenica. Your Honours, we have prepared a table to assist you to make

22 your determinations. The Srebrenica killings were, according to the

23 submissions of the Prosecution, carried out for the selective killing of

24 men, with the intention of destroying, in whole or in part, the Bosnian

25 Muslims, as stated in the indictment; then the Bosnian Muslims of

1 Srebrenica, as stated in the final brief of the Prosecution; or the

2 Bosnian Muslims from Eastern Bosnia in and around the Srebrenica enclave,

3 as stated in the closing arguments, to destroy them as an ethnic group.

4 That is one possible theory.

5 A second one, according to the testimony of expert witnesses of

6 the Prosecution, was a late decision taken out of vengeance.

7 A third possibility: As punishment for refusing to surrender

8 their weapons as General Mladic had ordered, or as a response to the

9 numerical threat posed by the column and the prisoners to the outnumbered

10 Bosnian Serb army.

11 Your Honours, in these closing arguments, we have endeavoured to

12 demonstrate that the possibility suggested by the Prosecution is simply

13 erroneous. It is not logical, if you have the intent to destroy an ethnic

14 group, to do so searching the woods for men, while at the same time you're

15 escorting the women to safety.

16 There is also absolutely no evidence that General Krstic had this

17 idea in mind, nor that he had any intention to destroy the Muslims as an

18 ethnic group. It would appear to be far more reasonable to conclude that

19 the killings were in retaliation for failure to observe Mladic's demand

20 for the surrender of weapons, or the consequence of a malicious -- of the

21 worst possible solution, that to remove the potential danger which a large

22 number of prisoners represented for the army and the civilian population.

23 The Prosecution's theory is based on an alleged plan that was

24 allegedly compiled on the 11th in the evening. On the other hand, the

25 evidence of the OTP itself, among which from paragraph 5/19 of

1 Mr. Butler's report, OTP Exhibit 403, reference is made to a list of war

2 criminals compiled by the Bratunac Brigade on the 12th of July, 1995.

3 The Prosecution's entire theory is based on the fact that ID

4 documents and other documents of the men in Srebrenica were destroyed.

5 The date when these documents were seized and destroyed has still not been

6 established with certainty. It certainly occurred on the 13th, but for

7 the 12th, there is no reliable evidence.

8 On the other hand, on the 12th, according to the Prosecution's

9 submission, the Zvornik Brigade, and according to their evidence -- I'm

10 sorry, it is the Bratunac Brigade that made a list of more than 200 names

11 of potential war criminals. Now, why would that list have been compiled

12 if already on the 11th in the evening a decision had been taken on what

13 would befall those men?

14 On the other hand, on the 12th, we have no evidence of any mass

15 executions. There are isolated opportunistic killings in Potocari and

16 certain reports about the column. The first report of the large-scale

17 surrender of prisoners and their capture was dated on the 12th, but it was

18 sent to the command on the 13th at 0100 hours. That is the report of

19 Officer Vukotic.

20 So on the 11th and the 12th, there is no evidence -- there was no

21 evidence of the actus reus of genocide.

22 Your Honours, this also shows that the second and third

23 possibilities shown on this table are far more probable, based on the

24 evidence of the Prosecution even, far more probable than the first

25 possibility suggested by the Prosecution.

1 The question facing this Trial Chamber, however, is not to choose

2 one of these three reasonable possibilities. The burden of proof is on

3 the Prosecution to prove, not only that its theory is absolutely correct,

4 but that it is the only reasonable one. If any of the other possibilities

5 should appear to you to be equally reasonable, then you must have

6 reasonable doubt and find General Krstic not guilty of genocide and

7 complicity in genocide.

8 Should you find General Krstic guilty, you have to be convinced

9 beyond any reasonable doubt that the killings in Srebrenica were committed

10 with the intent to destroy the patriarchal base of the Muslims of Eastern

11 Bosnia as an ethnic group and that that was General Krstic's intent.

12 It has been stated that this trial is the quest for truth. The

13 truth as to what happened in Srebrenica in July 1995 has, indeed, come to

14 the surface during the course of the 16 months of this trial. The truth

15 is that many Bosnian Muslims were killed in Srebrenica. It is true that

16 these killings were unjustified, illegal, and immoral. But it is equally

17 true that those killings were not committed with the intention to destroy

18 the Bosnian Muslims as an ethnic group, in whole or in part.

19 If this Trial Chamber is to be true to the facts, true to the rule

20 of law, and true to history, it will determine that General Krstic is not

21 guilty of genocide or complicity in genocide.

22 Thank you, Your Honours. My colleague, Mr. Petrusic, will now

23 have a few closing sentences.

24 MR. PETRUSIC: [Interpretation] Your Honours, we have come to the

25 very end of these proceedings, to the very end of our closing arguments.

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1 The presentation of closing arguments in this trial against

2 General Krstic, a career officer of the army of Republika Srpska, and what

3 kind of an officer he was while serving in that army, we have heard

4 testimony from Defence witnesses. There is ample evidence in those

5 testimonies of his professionalism, of his attitude towards the enemy, of

6 his conduct towards war prisoners, regardless whether they may be Croats

7 or Muslims. There are numerous examples of this honourable attitude of

8 his, even when he was allowing both groups to pass through territory under

9 his control.

10 The Prosecution is telling us that General Krstic is trying to

11 disassociate himself from all these events and to shift the blame to

12 someone else.

13 JUDGE RODRIGUES: [Interpretation] Mr. Petrusic, excuse me for

14 interrupting you, is this noise bothering you or can you continue?

15 MR. PETRUSIC: [Interpretation] I can continue, Mr. President.

16 JUDGE RODRIGUES: [Interpretation] And anyway, I see that Madam

17 Registrar is trying to do something to deal with this noise. I think

18 there is some repair work being done on the roof. So I'm sorry for

19 interrupting you, Mr. Petrusic.

20 MR. PETRUSIC: [Interpretation] As I was saying, my learned

21 colleague Mr. Harmon says that General Krstic wants to disassociate

22 himself from these events by shifting the blame to others. The intention

23 of the Defence throughout this 15-month long period has not been to shift

24 the blame to anyone else. The intention of the Defence was to observe a

25 principle above all other principles that is observed in all legal systems

1 and jurisdictions, that is the principle of truth and to establish what

2 actually happened in Srebrenica and who played what role in those tragic

3 events.

4 The trial of General Krstic, Your Honours, has taken up a great

5 deal of time and, I take the liberty to say, all available resources, and

6 maybe beyond that, of this honourable Trial Chamber.

7 The Defence hopes that the final brief of the Defence and the

8 closing arguments of the Defence, as well as the evidence that is entered

9 in the record, that have been admitted into evidence, will be carefully

10 and thoroughly reviewed by the Trial Chamber, and we have absolute trust

11 in the Trial Chamber that they will, indeed, do so. And pursuing the same

12 logic, the Defence is convinced that the Trial Chamber will come to the

13 conclusion that the Prosecution has failed to prove the responsibility of

14 General Krstic and bring a ruling in conformity with that.

15 The Defence proposes that General Krstic be acquitted of all

16 counts in the indictment.

17 Mr. President, Your Honours, the Defence rests its case.

18 JUDGE RODRIGUES: [Interpretation] Thank you very much,

19 Mr. Petrusic. I wish also to thank the Defence and your assistance given

20 to the Chamber in its deliberations. I thank you and all the members of

21 your team.

22 I now give the floor to Judge Fouad Riad. No.

23 Madam Judge Wald?

24 JUDGE WALD: I do have a very few questions. Mr. Petrusic, I have

25 two for you. The first is, what explanation you would give us, based on

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1 the record, based on the record, and this relates to the time at which

2 General Krstic took over command, what explanation you would give us for

3 the fact that after the 14th, General Zivanovic did not appear to be

4 giving orders and, in fact, told some people, "It's not up to me now, it

5 should go someplace else. I'm packing my backpack"? He seems generally

6 to have faded out of the picture insofar as we can tell from the

7 intercepts. I just wondered if you had any explanation, based on the

8 record, for that.

9 MR. PETRUSIC: [Interpretation] Your Honour Judge Wald, your

10 question, if I may make that conclusion, refers to the intercepted

11 conversation that General Zivanovic had in the morning at 9.56 hours with

12 Colonel Ljubo Beara. It is correct that in that intercepted conversation

13 General Zivanovic said, "I am going to assume a new duty. There will be a

14 new day and new duties, and I'm packing my bags." But in an intercepted

15 conversation that the Defence interpreted for this Trial Chamber yesterday

16 - I may be wrong whether it is 555 or 556 - we will see that the time of

17 that conversation is 2050 hours, and in fact both conversations were

18 conducted after General Zivanovic's conversation with Ljubo Beara.

19 This leads the Defence to conclude, and bearing in mind the

20 content of the intercept of the 14th after 2000 hours, because in that

21 conversation a certain major is addressing General Zivanovic and saying

22 that he's waiting for him on his orders. The very word "order" provides

23 the Defence with a basis to claim that General Zivanovic on the 14th and

24 after 2100 was still there at the command post and continuing to issue

25 orders.

1 The explanation given by General Zivanovic to Colonel Beara,

2 talking about a new day that is coming, this is interpreted by the Defence

3 as rhetorics, but it certainly is indicative of his function as a person

4 issuing orders on the basis of these documents I have referred to.

5 JUDGE WALD: Thank you. I have one more question for you,

6 Mr. Petrusic. That is, you talked about the duality of command of a

7 security officer within the corps, that he was responsible both to his own

8 commander and up the line to the assistant commander on the Main Staff for

9 security purposes who might give him orders, give the security officer in

10 the Drina Corps orders that perhaps the commander would not, would not be

11 aware of.

12 My question to you is, based on your knowledge of the regulations

13 and the testimony that's occurred in the case, do you think that if a

14 commander of the corps found out that his assistant for security had in

15 fact been drawn into service and was using Drina Corps assets to perform a

16 function under the orders of the assistant commander on the Main Staff for

17 security that the commander of the corps felt that they were wrong or they

18 were illegal or something, would the commander of the corps have the

19 authority to override the commander in the Main Staff of the security just

20 insofar as the use of his own security assistant and corps assets were

21 concerned? In other words, if there's a dual command, who wins at the

22 end, if there is a conflict?

23 MR. PETRUSIC: [Interpretation] Your Honour Judge Wald, considering

24 the structure of the Drina Corps and the structure of the Main Staff, and

25 this dualism between the security organs, and the regular chain of command

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1 of the troops and the corps, the Corps Commander, in your example, if he

2 knows that the security organ is using resources for illegal purposes, he

3 could just convey his suggestion against that use to his Superior Command,

4 and that is the Main Staff - so that would be again to the person who

5 issued that order - for illegal use of those resources.

6 JUDGE WALD: Okay. Thank you. That's all I have for you. I have

7 two questions for Mr. Visnjic. Thank you.

8 Mr. Visnjic, on the definitional side of genocide, you have

9 alluded to the fact that we all know that the genocide Article itself says

10 that the necessary intent is to destroy, in whole or in part, a protected

11 group. Okay. Would it not be consonant with that definition if somebody

12 decided, some creator of a genocidal scheme, decided to destroy a part of

13 the wider group? Say the wider group was, as you urge, all Bosnian

14 Muslims, and say that the primary perpetrator of a genocidal scheme

15 decided that he would destroy a part of the Bosnian Muslims, say the part

16 that's in Srebrenica or some other city. He's only going to destroy that

17 part. He doesn't have an intent to destroy all the Bosnian Muslims, but

18 he thinks that by destroying that part, it's going to intimidate further,

19 other objectives as to the rest, as to the rest of the Bosnian Muslims.

20 He only has to kill that one part to make his point vis-a-vis the others.

21 Do you not think that that would be sufficient to satisfy the statutory

22 requirement for genocidal intent, or do you think that it wouldn't be

23 substantial enough?

24 MR. VISNJIC: [Interpretation] Your Honour, if I have understood

25 you correctly, my answer would be that it would be possible for him to

1 destroy a part of a group to show something to others. Now, the question

2 is what his intention is to show to others and whether his intent is to

3 destroy the whole group.

4 Maybe we could use an example. In the policies of ethnic

5 cleansing, killings occur, but they are part of the policy of ethnic

6 cleansing, not part of a policy of destruction of the group. Maybe I did

7 not understand you quite.

8 JUDGE WALD: I think you've given me an answer, but let me pursue

9 one more example, and that would be: Suppose that a General wanted to

10 conquer a particular area and he wanted the people in the villages which

11 were held by the opposite side to surrender their arms, to give up to

12 him. In one instance, he says, "As to this town here, I'm going to --"

13 This is a hypothetical, but "As to this town here, I'm going to destroy

14 the people. I'm going to consciously destroy that community. That's

15 going to show the people in similar communities that they better watch

16 out, and I don't intend to destroy them necessarily, because they will

17 surrender their arms and I'll win out the territory. So my only intent is

18 to destroy that one town in order to further an objective of conquering by

19 normal means the rest of the area." I just want to know if you would say

20 yes or no to that being genocide.

21 MR. VISNJIC: [Interpretation] No. I would say no, but if I may, I

22 would elaborate. My personal opinion is that that would not be genocide.

23 But even if we were to say that that was genocide, then things would not

24 happen as they happened in the examples I have given. There would not be

25 those omissions - allowing the wounded, the women and children to

1 leave - at the time that potential decision was taken, and then I think

2 that plan would have to be far more clearly expressed for the others to

3 understand the threat. It wouldn't be a secret plan; it would be a public

4 plan to send out a warning to others. But as your question was a

5 theoretical one, perhaps there's no need to go further into any details.

6 JUDGE WALD: My last question to you: You gave us a table and you

7 mentioned three possible intents that we could find that might explain why

8 the people that perpetrated the plan on the killings would have done so.

9 The second was vengeance, and I think the third, at least part of the

10 third, was in retaliation for failure to surrender the arms. I don't have

11 it in front of me. But my basic question is: Isn't it possible that if

12 somebody, in the course of pursuing a military objective, decides, perhaps

13 out of vengeance -- somebody is furious at the other side for not having

14 surrendered their arms, for not having given up, so they say, "I'm so full

15 of fury, I'm so mad at those people, I want to kill them all, and I'm

16 going to kill them all. It's vengeance, I admit it's vengeance, but I'm

17 going to kill them all because of their refusal to surrender to me." If

18 the group he was talking about killing all is a bona fide group under the

19 genocide Statute, and if his intent is to kill them, whether in whole or

20 in part, why isn't that genocide, even though it's taken out of vengeance

21 and vengeance is the motive, still the intent? Why isn't the intent there

22 to kill the group, part of the group, so that it would qualify, despite

23 the fact it doesn't come from ethnic hatred, to begin with?

24 MR. VISNJIC: [Interpretation] Your Honour Judge Wald, I could

25 agree that the motive is not a requirement for genocide, but out of the

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1 possible options that we have suggested, I would be more prone to say it

2 was a combination of the second and third possibilities. Why? Because if

3 a decision had been taken to kill them all, why, then, would a part

4 immediately be spared of that fate and another part executed? Why would

5 then that other part be transported, at the cost of great effort, from one

6 place where they were captured, to a second location, and then to a third,

7 and from there onwards?

8 I think that perhaps a combination - partly vengeance; and

9 secondly, potential military threat - would give a clearer idea as to what

10 might have happened in this particular case. Whether the revenge could be

11 so controlled as to focus only on military-aged men, that's a question,

12 Judge Wald, that I don't believe is possible. If it is revenge, it is

13 uncontrolled, it is instantaneous, terribly aggressive, but there's no

14 possibility of controlling it to a target group, and especially it is not

15 indicative of the intent that the Prosecution would have us believe, that

16 it was through the killing of men that the targeted group was to be

17 destroyed. Revenge does not contain those elements of control, as the

18 Prosecution has submitted that the army of Republika Srpska did this

19 systematically and in a planned manner.

20 JUDGE WALD: Thank you. That's all I have.

21 JUDGE RODRIGUES: [Interpretation] Thank you, Madam Judge Wald. I

22 too have two questions for Mr. Petrusic, please.

23 According to the evidence presented before this Chamber, could you

24 make a comparison between the role of General Zivanovic and that of

25 General Krstic in the Krivaja operation, and also the same two people in

1 relation to the Zepa operation.

2 MR. PETRUSIC: [Interpretation] Mr. President, what is the common

3 denominator in my answer? General Krstic, in both cases, in Srebrenica

4 and Zepa, he was at the forward command post, so he was somebody who was

5 in charge of the operation. Let us leave aside for the moment what

6 happened on the 10th and 11th and what was done by General Mladic, for the

7 moment. So from the forward command post, from both forward command

8 posts, he was the author and armiger of the control and command, in

9 conformity with the decision taken by his commander, General Zivanovic.

10 General Zivanovic, in both operations - let us leave aside his arrival at

11 the forward command post at Srebrenica on the 10th, 11th, and 12th - he

12 was at the command post in Vlasenica. In both cases, General Krstic had

13 him as his superior officer. He was his superior officer. In both cases,

14 General Krstic is in the company of his staff officers, and the command

15 and the assistant commanders were either at the Vlasenica command post or

16 on assignment, which they could have received only from their own

17 commanders. That could be the characteristics of both military operations

18 if I were to compare them.

19 JUDGE RODRIGUES: [Interpretation] Another question, Mr. Petrusic,

20 along the same lines of a comparison: How do you see General Zivanovic

21 and General Krstic, that is, their presence at the meetings at the Fontana

22 Hotel?

23 MR. PETRUSIC: [Interpretation] Mr. President, with your

24 permission - and what I say will contain an answer to your question - all

25 the other participants, whether they were General Zivanovic, General

1 Krstic, representatives of the civilian authorities, other officers, were

2 just -- were mere observers at that meeting. None of them took an active

3 role. They didn't speak, or anything like that, at those meetings. For

4 the sake of truth, at the first meeting that was held in the Fontana

5 Hotel, we see General Zivanovic towards the very end having a drink with

6 the participants in the meeting. So let me repeat: All the participants

7 in the meeting have the same position with respect to what was happening,

8 and that applies to both General Zivanovic and General Krstic, that is, in

9 relation to General Mladic.

10 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Petrusic. If I am not

11 wrong, I believe that General Zivanovic participated at the meeting of the

12 11th, and General Krstic was a participant at two meetings on the 12th.

13 In the evidence presented, do you see any reason to explain why General

14 Zivanovic did not participate in all the meetings, did not attend all the

15 meetings, or why General Krstic did not attend all the meetings? In other

16 words, I think that the persons present at the meetings, except for the

17 representatives of the Muslims change [as interpreted], and the

18 only -- do not change. The only person that is changing is the change

19 between General Krstic and General Zivanovic; am I right?

20 MR. PETRUSIC: [Interpretation] General Zivanovic was present at

21 the first meeting that took place about half past 8.00 in the evening; and

22 on the 11th in the evening, at the second meeting. And at the third

23 meeting, on the 12th in the morning, he was not present. If we examine

24 the topic of discussion at the first meeting, and that is ensuring of

25 means of transport as the topic, and if we link that to the order of the

1 following day, of the 12th of July, issued by General Zivanovic, to ensure

2 means of transport, I explain that that is the reason for his absence on

3 the 12th; that is, after that meeting, he went to provide and ensure those

4 means of transport.

5 What is the reason for General Krstic's presence at the meetings

6 on the 11th in the evening at 2300 hours and on the 12th in the morning at

7 1000 hours? Before the meeting at 11.00 in the evening, there was a

8 meeting of members of the Serb army at which General Mladic issued an

9 order to General Krstic to engage the necessary units for Zepa. Having

10 received that order, General Krstic has no rational reason for going to

11 the command post at Vlasenica. The units that were to participate in that

12 operation were there at that location in that area, so far closer to

13 Bratunac where the meeting was being held than Vlasenica where the command

14 post is.

15 As such an operation requires adequate preparations and his own

16 staff officers were there, the only staff officer who assists in the

17 drafting of an order is Colonel Vicic, so he, too, was there; not at the

18 meeting, but present in Bratunac. And that is what I consider to be the

19 reason for General Krstic's attendance at the meetings on the 11th and the

20 12th as part of the preparations for the operation.

21 JUDGE RODRIGUES: [Interpretation] Very well, thank you,

22 Mr. Petrusic. Thank you very much. I have no further questions.

23 So I wish to thank both parties for their contributions once

24 again. And since we have completed the closing arguments, all that

25 remains for me to say is to close the proceedings and the Chamber will

1 withdraw to deliberate.

2 You know that an important moment in the work of the Chamber is

3 the rendering of a judgement. The Chamber will do everything in its power

4 to try to deliver its judgement towards the end of July. And when I say

5 that we will try, I am saying that this is not a commitment, it is an

6 objective on our part.

7 This Chamber in this case has always had that objective in mind.

8 We are setting that objective now. Of course, there are frequent upsets

9 in the organisation which may prevent us, but in any event, we will spare

10 absolutely no effort to achieve that goal.

11 Having said that, the hearing is adjourned, and we will meet again

12 on a date that will be announced subsequently.

13 --- Whereupon the hearing adjourned at 12.43 p.m.

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