1 Tuesday, 21 November 2000

2 [Open session]

3 [Defence Closing Arguments]

4 [The accused entered court]

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

6 JUDGE MUMBA: The registrar please call the case.

7 THE REGISTRAR: [Interpretation] Case IT-96-23-T, IT-96-23/1-T, the

8 Prosecutor against Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic.

9 JUDGE MUMBA: Closing arguments continuing with the Defence.

10 Mr. Prodanovic, please go ahead.

11 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour.

12 One of the more important issues on which the Prosecution and the

13 Defence have not reached an agreement is the nature of temporary or

14 provisional collection centres. The Prosecution believes that these

15 centres were detention centres, whereas the Defence believes that these

16 were collection centres and that this has been proven by the evidence

17 presented during the proceedings.

18 One of the first facilities about which the Prosecution claims

19 that they were detention centres is the blue-collar neighbourhood of Buk

20 Bijela where children and women and two elderly men from the Mjesaja

21 village were brought. It is necessary to analyse what had happened on

22 that day when about 30 women and children and two elderly men were brought

23 from the Mjesaja village to Buk Bijela.

24 It should be pointed out immediately, and this will be elaborated

25 further, that all the events which have been discussed before this Trial

1 Chamber involved only those women from Mjesaja and several women who were

2 accommodated as refugees in Kalinovik. This is important to note because

3 as we said, fighting went on in the town of Foca itself and in other

4 places on the territory of the Foca municipality. Nowhere during the

5 operations or after them has there been any sexual abuse, and even if

6 there has, it happened in only one or two cases which can by no means be

7 considered comprehensive and planned in advance. It is therefore odd that

8 for the entire duration of the war, the alleged rapes occurred only

9 against the women from the village of Mjesaja.

10 On the 3rd of July, 1992, an armed conflict occurred between

11 Serbian armed forces and armed Muslims from the Mjesaja village with the

12 hamlet of Trosanj. There were only several armed men fit for military

13 service in the village who in the beginning responded to the fire of the

14 armed Serbs while others were in their positions on Mount Zelengora. It

15 is from there that sabotage actions were carried out in the broader area,

16 booby traps and anti-tank mines and other fragmentation explosives were

17 laid.

18 Serb forces wished to provide security on the territory they were

19 controlling to prevent further sabotage actions, and the laying of mines

20 and explosives as well as the secure control over the water sources which

21 served as water supply to the town of Foca, and there were indications

22 that these water sources could be poisoned, so the military action which

23 was carried out that morning by the Serb forces was legitimate in terms of

24 military law.

25 Women and children from that area were transferred, because of the

1 danger of further armed conflict, to Foca with a brief stay in the

2 blue-collar neighbourhood of Buk Bijela only in order to secure transport

3 for them to Foca.

4 As we arrive at the sports hall of Partizan -- sorry, in Foca they

5 were accommodated in a secondary school in the Aladza neighbourhood

6 because there was no other facility better suited for their accommodation,

7 and this one had a school kitchen. Therefore, it was a facility with

8 amenities for cooking with several toilets and lavatories.

9 The claim of the Prosecution that the workers neighbourhood of Buk

10 Bijela was a detention centre has not been proven by any means. None of

11 their witnesses did not mention that they had been detained there; only

12 several of them claimed that they were taken out of the group and kept

13 there for a certain time, which will be analysed in particular when we

14 arrive at these events.

15 All the Prosecution witnesses, starting with DB, to Witness

16 FWS-87 - we shall now enumerate them further - claimed that they could

17 move around freely in the building of the secondary school, that they were

18 visited by medical staff, and that there were no guards which were posted

19 there to restrict their movement, but only guards who secured the building

20 itself because the military operations were still going on in the

21 immediate vicinity of the town.

22 Evidence of the Defence has been presented to this effect,

23 especially the testimony of Gordan Mastilo and Witness DJ, who confirmed

24 that Serbian refugees were accommodated in the same secondary school,

25 refugees from the area of the Jabuka village after the attack on Jabuka by

1 Muslims and the massacre they committed in that village against unarmed

2 Serbian civilians.

3 Witness DJ - and this is page of the transcript 5334, lines 2 and

4 3 - said, "And afterwards we were brought to Foca to the secondary school

5 as refugees." Later asked by Defence counsel, "Do you know the location

6 of the refugees from Jabuka?" Witness Gordan Mastilo answered, "They were

7 transported to Foca to the secondary school where they remained." And

8 that is page 5145 of the transcript, line 17, 18, and 22, 24.

9 It is therefore abundantly clear that the same secondary school,

10 only a day earlier, housed Muslim refugees who were far -- whose number

11 was far smaller from the refugees from the Jabuka village, and that is why

12 Muslim refugees were transferred to the sports hall Partizan to make room

13 for the Serbian refugees from Jabuka.

14 Evidence presented by the Defence has shown that the secondary

15 school was no detention centre but simply a facility which could

16 accommodate a larger number of refugees at the same time, and that there

17 existed no humiliating or degrading conditions in that collection centre.

18 It has also shown that Serbian refugees were accommodated in the same

19 facility under the same conditions, whereas Muslims were transferred to a

20 different building for the simple reason that the Serbian refugees could

21 not be placed there together with them because they were far more numerous

22 than the Muslims.

23 Thus we arrive to the sports hall of Partizan, and it has been

24 agreed in the final review of admitted facts between the Defence and the

25 Prosecution that this was a provisional centre for women and children,

1 with one difference: The Defence maintains that it was a collection

2 centre, whereas the Prosecution maintains that it was a detention centre.

3 In the final review of admitted facts, it was not mentioned there

4 would be anything contested concerning the workers' neighbourhood of Buk

5 Bijela or the secondary school, which seems to be another proof that

6 apparently the Prosecution too believes that these facilities could not

7 have been detention centres, and the Defence has proven they were not.

8 And this will be elaborated in the further analysis.

9 Thus the Defence and the Prosecution disagree about the nature of

10 the sports hall of Partizan.

11 The Defence believes that the Prosecution has not proven that the

12 primary school in Kalinovik was a detention centre because, according to a

13 document presented by the Defence and marked for identification D115, a

14 Crisis Staff was set up in Kalinovik at the time for receiving Serbian

15 refugees. At the time nobody knew that Muslim refugees would appear from

16 other municipalities in Kalinovik.

17 The Prosecution witnesses FWS-191, FWS-92 [as interpreted] and

18 others confirmed that they had left their apartments on the territory of

19 Gacko and set out towards Muslim armed forces and Mount Zelengora,

20 reaching the settlement of Ulog, where Serbs gave them food and

21 accommodated them temporarily in classrooms. But since it was a smaller

22 village school without amenities for normal life, they were transferred to

23 the primary school in Kalinovik, which is more modern, has more space,

24 toilets, and facilities for cooking. At least two witnesses confirmed

25 that they had been informed that if they did not want to stay there, they

1 could go wherever they liked, that some had indeed left, and they also

2 confirmed that they had the opportunity to move around freely, to go to

3 procure food and other necessities.

4 Witnesses FWS-192 and FWS-205 confirmed that women from the

5 primary school of Kalinovik would go as far as the village of Jelasca,

6 which is about three or four kilometres away from Kalinovik. These

7 statements of the witnesses, of Prosecution witnesses, completely confirm

8 that this building too was not a detention centre but a simple collection

9 centre. The simple fact is that at that time there was no possibility to

10 accommodate such a large number of people under better conditions, and

11 these better living conditions or better food were not available even to

12 the inhabitants of Kalinovik, who were also without water, without

13 electricity, because even before all these events it was one of the

14 poorest municipalities in the former Bosnia-Herzegovina.

15 From the moment when the refugees from Mjesaja, 70 to 75 of them,

16 were transferred in order to make room for Serbian refugees from Jabuka

17 and other villages that had been attacked by Muslims, in July to the

18 secondary school and to the sports hall of Partizan in Foca, there was no

19 building better suited for the accommodation of such a large number of

20 people who were waiting to be transferred at their own request to Foca.

21 The claims of the Prosecution that the conditions in the Partizan Sports

22 Hall were cruel, which would follow from the statements and testimonies of

23 Prosecution witnesses, simply does not correspond to the truth. Of

24 course, these conditions cannot be considered good, but they were no worse

25 than those under which Serbian refugees in the secondary school lived.

1 Defence witnesses confirmed that the food was brought to the

2 secondary school and to Partizan for Serb and Muslim refugees from the

3 same kitchen, which means that no distinction was made between Serbian and

4 Muslim refugees. Both had equal conditions for maintaining hygiene and

5 the same number of toilets because wartime circumstances did not allow to

6 improve those conditions for one group or for the other. At that time,

7 even the inhabitants of Foca lacked food and water and electricity because

8 supply to the city was made very difficult due to the fact that all the

9 main thoroughfares were controlled by Muslims, and Defence witnesses

10 confirmed this loud and clear precisely during cross-examination by the

11 Prosecution.

12 Prosecution witnesses confirmed that they had the freedom to move

13 around through the building and in the courtyard of the Partizan Sports

14 Hall, that some of them went also to town; and some of them also confirmed

15 that they simply didn't know where to go and what to do, so they spent

16 their time in the collection centre itself waiting to be transferred to a

17 different territory at their own request.

18 Prosecution witnesses confirmed that there had been guards, but

19 they were not able to explain whether those guards were there to guard

20 them or they were posted in that place in order to secure the rear of the

21 police force from an elevation. They confirmed that they had never been

22 abused by the guards, and in some cases, the guards held them.

23 Several Prosecution witnesses confirmed that during their stay in

24 the sports hall, they had free contacts with a neighbour who brought them

25 coffee, went to shops with them, took them home to let them choose

1 clothes. And all of them agreed that this neighbour, Vida Markovic, whom

2 the Defence was regrettably unable to bring here due to her illness,

3 communicated with them freely which, in turn, means that the Partizan

4 Sports Hall was not a detention centre because it is common knowledge that

5 outsiders cannot enter detention centres.

6 And finally, the Defence should like to point out the statement of

7 the Prosecution witness Mohamed Nogo who, when asked by the Prosecutor on

8 the 10th of February, 2000, "What is the difference between a collection

9 centre and a detention centre," answered, "In a collection centre people

10 can move around inside a building, whereas in a detention centre there is

11 a strictly controlled daily timetable with compulsory activities such as

12 lights-out time." Although I believe this reply was given in relation to

13 military facilities, it can certainly apply and must apply to civilian

14 facilities as well, that is, to facilities which are controlled by the

15 competent authorities and not by the military authorities.

16 As all Prosecution witnesses confirmed that they had freedom of

17 movement inside the courtyard, that they could go to town, it is clear

18 that the Partizan Sports Hall was by no means a detention unit, and even

19 the fact that there were bars on the windows does not change this because

20 these bars had existed for 15 years, and they were installed to protect

21 windows from possible damage during sports games in the courtyard where

22 the building is.

23 The Defence wishes to point out that the nature of a facility,

24 that is, whether it is a detention centre or has another purpose such as a

25 collection centre for collective accommodation, must be determined based

1 on these objective factors to which we have pointed out -- which we have

2 pointed out, and not on the basis of the subjective perception of people

3 who are in such a collective accommodation. Thus, the claim of Witness

4 FWS48 who answered the Defence counsel's question whether Partizan was a

5 prison, answered that it was not a prison but a sports hall, but the women

6 who were there perceived it as a prison, is her subjective perception and

7 is, as such, irrelevant because the Defence believes that the nature, the

8 character of a facility can be determined and evaluated only on the basis

9 of objective criteria to which we have pointed out and which were absent

10 in Partizan.

11 As for other allegations in counts 1.1 to 1.11 in the indictment

12 against Kunarac and Kovac, and counts 1.1 to 1.4 in the amended indictment

13 against the accused Zoran Vukovic, we will further analyse this when we

14 come to the actual facts related to the description of the actions stated

15 in the indictment.

16 Lacking objective elements which make a building a detention unit,

17 such as complete isolation with strictly restricted movement and a

18 prescribed code of behaviour and with the possibility to go out freely,

19 the subjective perception of this witness cannot be proof enough that

20 Partizan hall was a detention centre, so the Defence believes that the

21 Prosecution has not proven this nature of the Partizan Sports Hall.

22 Therefore, the Defence is of the opinion that there had been no detention

23 centres for civilians, women, and elderly persons on the territory of the

24 Foca municipality which will be pertinent for the proper application of

25 legal definitions regarding existence or absence of certain criminal

1 actions of which the accused are charged.

2 During the final review of admissions between the Prosecution and

3 the Defence which were also analysed in the brief and which the Defence

4 will not mention today, one of the issues was also the armed conflict in

5 Foca, its nature and its relationship with the acts of the accused. This

6 has been discussed by the Defence in Section J of its written final brief,

7 and we will say a few words about it here.

8 As for the nature of the conflict, the Defence and the Prosecution

9 have agreed that it was a conflict between ethnic groups, and the Defence

10 wishes to point out an event which occurred in the Mjesaja village on the

11 3rd of July, 1992, as part of this conflict and not as an attack on

12 civilian population.

13 Women and children from the village of Mjesaja together with two

14 elderly men were transferred because of danger of further fighting in that

15 area, because it was in the interests of Serbian forces to stop sabotage

16 actions of the Muslim armed forces in the broader area and in the main

17 roads, Foca-Tjentiste, Foca-Scepan Polje, and it was their desire to take

18 control of and secure the region, the area around the water sources;

19 whereas, Muslims wanted to also take control of these areas in order to

20 come even closer to the city and tighten the circle against Foca. Thus,

21 the accused Dragoljub Kunarac, the accused Radomir Kovac, and the accused

22 Zoran Vukovic did not participate making the decision to remove civilians

23 from the zone of armed -- from military operations around the village of

24 Mjesaja, and the Prosecutor has not proven beyond any reasonable doubt

25 their participation in that fighting for the village of Mjesaja and has

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1 especially not proven their participation in fighting around the city of

2 Foca itself.

3 Not one of the accused had any knowledge about the actions of the

4 other two, and as all the evidence has shown, the three of them did not

5 act in single intent or, as it is referred sometimes to in international

6 law, in common enterprise. None of them had any knowledge that during the

7 military operations on the territory of Foca, any criminal acts occurred,

8 and especially not rapes.

9 The Prosecutor has not presented a single piece of evidence

10 proving that there had been any planned actions during the armed conflict

11 which would not be permitted and which would be subject to prosecution or

12 involved criminal liability. Therefore, the Prosecutor has not proven

13 that any of the accused had any knowledge of the existence of any plan for

14 committing rapes, and especially did not prove that rapes were committed

15 as part of a tactic to make members of another ethnic group, that is

16 Muslims, abandon a certain territory, in this specific case the

17 municipality of Foca, or that they participated in the execution of this

18 plan. Thus, both actus reas or mens rea are lacking.

19 Even if we allowed that with respect to all of the accused there

20 was an element of actus reas related to their active participation in

21 military operations and in the system of repression, we can certainly not

22 allow that there is -- that there exists mens rea on the part of any of

23 the accused because none of the accused had any knowledge of the existence

24 of a plan for repression against civilian population.

25 This plan did not exist, and even if it did, none of them knew

1 about it, nor had there been any intention on their part to execute a

2 common plan for rapes, torture, and similar repressive measures. Thus the

3 participation of the accused in the armed conflict can by no means be

4 linked or related to the events that followed the fighting for the Mjesaja

5 village.

6 None of the accused had any knowledge that anything would happen

7 or that anything had happened on the territory of another municipality,

8 and especially not on the territory of the Gacko municipality. None of

9 the accused had any knowledge that the civilians who had left Gacko and

10 set out towards Mount Zelengora, where Muslim armed forces were stationed,

11 were accommodated in the primary school in Kalinovik after having been

12 given food and accommodation by Serbs on the way in the settlement of

13 Ulog. None of the accused had any knowledge of what was happening with

14 civilians in the primary school in Kalinovik or with the small number of

15 those who were removed from the primary school, and especially they had no

16 knowledge that could be reasoned to link their actions with their

17 participation in the armed conflict.

18 Thus the Defence believes that the Prosecutor has not presented a

19 single piece of evidence which would prove beyond a reasonable doubt that

20 the actions of the accused, which are qualified as crimes of rapes,

21 torture, enslavement, and outrages upon personal dignity, would be related

22 to the armed conflict.

23 This relationship between the actions and the alleged crimes, even

24 if they had been committed, must be proven beyond any reasonable doubt,

25 and the Prosecutor has not done that. It is not enough to establish that

1 a certain event or a crime has taken place during the armed conflict to

2 show that this crime is related to the armed conflict. On the contrary,

3 it is necessary to prove this linkage between the actions and crimes and

4 the armed conflict itself, and the Prosecutor has not done this with

5 respect to any of the accused.

6 Therefore, the Defence finds that between the actions of the

7 accused, even if the Court should find that they had committed these

8 actions as charged in the indictment, and the armed conflict itself, no

9 link has been proven, which also makes the possibility of criminal

10 liability before this Court questionable.

11 This part of my statement has been pronounced on behalf of my

12 colleagues Kolesar and Jovanovic as well, and I will speak in the

13 following part in my own name and on behalf of the accused Kunarac.

14 Before I start with the analysis of the state of facts, the

15 Defence will only remind you that the Trial Chamber, with its decision of

16 the 3rd of July, 2000, as requested by the Defence, acquitted the accused

17 Kunarac of the Count 13 of the indictment.

18 Pursuant to Rule 67(A)(ii), the Defence notified the Prosecution,

19 and later on the Trial Chamber, that the Defence of the accused Dragoljub

20 Kunarac intended to rely on the defence of alibi for certain days for

21 parts of the indictment, and the Defence presented to the Prosecution a

22 list of witnesses who would confirm the alibi of the accused Kunarac on

23 time.

24 The Prosecution requested to interview the alibi witnesses before

25 they appeared in Court. The Defence made it possible for the Prosecution

1 to interview the witnesses Gordan Mastilo, DJ, Vaso Blagojevic, Radosav

2 Djurovic and DP. Before the trial, the Prosecution interviewed these

3 witnesses in Sarajevo and took their written statements.

4 The accused Dragoljub Kunarac, therefore, relies on an alibi

5 defence for part of the indictment for certain days on which the

6 indictment states that certain criminal offences were committed by him.

7 However, he claims that at that time he was not in those places and offers

8 evidence that he was in other places at those times, outside the places

9 where the criminal offences allegedly took place.

10 In view of the fact that an alibi is a statement to the effect

11 that the accused was in a different place at the time the criminal offence

12 was committed, it was not only the five above-mentioned witnesses who

13 testified to this but also other witnesses who were heard during the

14 trial, such as Mirko Przulj, Radivoje Pavlovic, and Witness DE, and in a

15 certain manner of speaking, also the Prosecution witnesses Osman Subasic,

16 Husein Alic, and Muhamed Nogo.

17 For an alibi to be verified with certainty, the following should

18 be established: the true place and time on which the criminal offence was

19 committed, the place where the accused was at the time when the criminal

20 offence was committed. Therefore, the goal of an alibi is to challenge

21 claims that the accused was on the spot where the criminal offence was

22 committed at the time that the criminal offence was committed.

23 The accused has put forward an alibi defence for the following

24 periods of time:

25 From the 7th of July [Realtime transcript read in error "from the

1 time of July"] to the 21st of July, 1992, when he denies his presence at

2 any of the actions that were committed at that time, in any place in Foca,

3 because, according to him, at that time he was carrying out his wartime

4 assignments in the area of Cerova Ravan and in the fighting taking place

5 around the Cerova Ravan elevation.

6 From the 23rd of July to the 26th of July, 1992, when he denies

7 his presence in any place where criminal offences were committed at that

8 time, because, according to him, he was carrying out wartime assignments

9 in the area of the village of Jabuka during the offensive by the Muslim

10 forces and the killings of civilians.

11 From the 27th of July to the 1st of August, 1992, according to his

12 own testimony, which was confirmed by evidence presented by the

13 Prosecution, when he denies his presence in any other place where criminal

14 offences allegedly took place, because from the 27th of July to the 29th

15 of July he was on the ground in the area of the village of Dragocava,

16 where he was carrying out reconnaissance and observation tasks and

17 spending the nights in the area of the village.

18 From the 29th of July to the 31st of July, 1992, he was in the

19 area of the village of Preljuca, above Okoliste, because there was an

20 attack on Preljuca.

21 On the 31st of July he was ordered to go to the Rogoj zone, where

22 from that date onward he carried out observation and continuously spent

23 his time in the area of the Rogoj Pass until the 2nd of August, 1992, in

24 the evening, when Rogoj was taken by the Serbian forces.

25 On the 2nd of August, 1992, he denies his presence in Foca on that

1 day before 22 hours --

2 JUDGE MUMBA: Yes, Ms. Lopicic.

3 MS. LOPICIC: On my laptop, on page 14, row 24, it says, "from the

4 time of July to the 21st of July." Mr. Prodanovic, as I heard, said,

5 "from the 7th of July to the 21st of July," so it needs -- it's missing

6 "7th of July." Row 24, page 14.

7 JUDGE MUMBA: Yes. It will be corrected.

8 MS. LOPICIC: Thank you, Your Honours.

9 JUDGE MUMBA: Thank you.

10 MR. PRODANOVIC: [Interpretation] Since, according to him, at that

11 time he took part in the fighting around the Rogoj Pass and arrived in

12 Velecevo and Foca only at about 22 hours.

13 In the period from the 3rd of August, at about 17 hours, until the

14 8th of August, 1992, in the morning hours, he denies his presence in any

15 place where criminal offences may have been committed, because in that

16 period he says that he was in the area of Kalinovik and the Rogoj Pass.

17 According to the indictment, the period from the 7th of July to

18 the 21st of July, 1992 covers the alleged actions of the accused Kunarac

19 under items 5.2, 5.3, 5.5, 6.1, 6.2, and 8.1.

20 The Defence, in its objection to the indictment, stated that it

21 considers inadmissible the fact that the indictment does not state the

22 exact place and time on which the criminal offences were committed. The

23 objection of the Defence was rejected with the explanation that the

24 indictment contains sufficient details and that when a date or about a

25 date is mentioned, the accused can prepare his defence.

1 However, the accused Kunarac, for the period for which he relies

2 on an alibi defence, also put forward evidence that in the periods of time

3 when the alleged offences took place, from the 7th of July to the 21st of

4 July, 1992; the 23rd of July to the 26th of July, 1992; the 2nd of August,

5 1992, in the period from the 3rd of August in the afternoon to the morning

6 hours of the 8th of August, 1992, this is incorrect, and this will be

7 shown by the further analysis of the evidence put forward by the Defence

8 and the Prosecution.

9 The accused Kunarac in his testimony confirmed that from the 7th

10 of July, 1992 to the 21st of July, 1992, he was carrying out tasks given

11 to him by his superior command which attached him to certain military

12 units in the area of the Cerova Ravan elevation.

13 From the period from the 7th of July, 1992 to the 21st of July,

14 1992, the Serbian armed forces decided to try to take the important and

15 dominant Cerova Ravan elevation, which before that period had been held by

16 the Muslim armed forces. The written order issued by Colonel Marko Kovac,

17 presented by the Prosecution as evidence, proves the participation of the

18 accused Dragoljub Kunarac in these actions which lasted from the 7th of

19 July to the 21st of July, 1992. The Prosecution witness Osman Subasic

20 confirmed in his testimony that they had information that the accused

21 Kunarac also took part in these operations and that the conflict lasted

22 until the 21st of July, 1992.

23 This witness expressly confirmed the presence of a bulldozer which

24 worked on repairing a road damaged by a flood due to the heavy rain that

25 fell on the 7th of July, the day that the operation started. This

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1 witness, to be sure, did not confirm in his original testimony that there

2 was precipitation, but when the Defence pointed to the official reports of

3 the hydrometeorological service, the weather forecasting service, in which

4 it was stated that in the first half of July there was heavy

5 precipitation, and that on the 7th of July, as the accused Kunarac

6 testified, there were floods which badly damaged the forest road so that

7 this road was cut off and it was not possible to go in the direction of

8 Foca, then the witness Subasic allowed for that possibility.

9 Bearing in mind the statement of the accused Kunarac that from the

10 very first day of the operation when he went to reconnoitre they were cut

11 off because of the damage to the road, and that it was only later that a

12 bulldozer arrived which started repairing the dirt road by removing the

13 debris that had been brought there by the flood as confirmed by the

14 witness Subasic, the Defence finds that this part of the defence of the

15 accused Kunarac has been fully confirmed.

16 In his testimony, the accused Kunarac stated that apart from

17 reconnoitring enemy positions which he did every day, because these were

18 well-fortified positions of the Muslim forces, he also undertook the task

19 of distributing food every day, and the food could be brought only up to

20 the place where the beginning of the damaged road was because that was the

21 point that could be reached by truck, and from that point onward food was

22 distributed by hand. It was carried on foot up to a place where Kunarac

23 could come in a passenger vehicle of Polonez make, and from there he would

24 distribute the food along the Serbian line, of the Serbian forces. The

25 truck that brought in food would immediately go back, and the accused

1 Kunarac would distribute the food supplies along the line held by the

2 Serbian forces.

3 In his testimony, the accused Kunarac also stated that from the

4 place where he loaded food into the Polonez make vehicle that he drove

5 along the line, there was a part where he had to go through an open space

6 where he was exposed to fire from the Muslim forces from artillery

7 weapons. The Defence witness Vaso Blagojevic fully confirmed the

8 testimony of the accused Kunarac and his presence on the ground during the

9 fighting for the Cerova Ravan elevation from the 7th of July to the 21st

10 of July, 1992, throughout the operation, because the accused Kunarac had

11 been attached to the Josanica Company which was part of the 5th Battalion,

12 and the witness Vaso Blagojevic was also in that company.

13 In view of the fact that Blagojevic was in the same company during

14 this operation with the accused Kunarac; and in view of the fact that he

15 confirmed the presence of the accused Kunarac throughout the operation,

16 which lasted from the 7th of July to the 21st of July, 1992; and in view

17 of the fact that he confirmed the fact, also confirmed by the Prosecution

18 Witness Mr. Subasic, that a bulldozer arrived to repair the road; and in

19 view of the fact that this witness confirmed that only the accused Kunarac

20 was brave enough to distribute food along the demarcation line and to

21 expose himself to open enemy fire, the Defence finds that the alibi of the

22 accused Kunarac throughout the period from the 7th of July to the 21st of

23 July, 1992, has been confirmed because the accused Kunarac did not leave

24 the unit to which he was attached; and had he left it for a longer or

25 shorter period of time, the witness Vaso Blagojevic would have known this,

1 but he confirmed that the accused was present all the time, including the

2 nights when he slept under the same improvised tent as the witness.

3 The witness Blagojevic confirmed the statement of the accused

4 Kunarac that on the 18th of July, 1992, the bulldozer succeeded in

5 clearing the road, thus establishing a communication with the road leading

6 to Foca; and that after, that the bulldozer went to repair the road toward

7 the position where a self-propelled vehicle was to be positioned to fire

8 on Muslim positions, and that this was done so that on the 21st of July,

9 1992, an attack was started on Muslim forces along the demarcation line,

10 and on that day, Cerova Ravan was taken. Soldier Goran Miljacic was

11 wounded in this operation, and at that time he was in the same group as

12 the accused Kunarac with the task of reconnoitring. And the accused

13 Kunarac transported Goran Miljacic from the place where he was wounded up

14 to a place where he could be put in a vehicle, and then he went toward

15 Foca with him.

16 This has also been proved by Defence Exhibit D78 which is a letter

17 of release from the Foca hospital for the wounded Goran Miljacic. This

18 event is also fully confirmed by the testimony of Vaso Blagojevic,

19 confirming the fact that the accused Kunarac left for Foca only in the

20 evening hours of the 21st of July, 1992, after the Cerova Ravan elevation

21 had been taken.

22 In relation to the alibi offered for the period from the 23rd of

23 July to the 26th of July, 1992, the accused Kunarac in his testimony

24 stated that after the end of the operation on Cerova Ravan, having come

25 home after taking Goran Miljacic who was wounded to hospital, he spent the

1 22nd of July, 1992, in Foca. He used that day to rest. And on the 23rd

2 of July, 1992, in the morning, there was a general alert, so he went to in

3 front of the former JNA headquarters in the centre of Foca where he

4 received information of a Muslim attack on the village of Jabuka which

5 consists of several hamlets where the Muslims perpetrated a massacre over

6 the civilian population. From there, he set out by car to the village of

7 Previla [Realtime transcript read in error "Pljevlja"]. That the accused

8 Dragoljub Kunarac was present on that morning after the general alert was

9 sounded was also confirmed by Defence witness DD.

10 Having arrived in the village of Previla, the accused went on foot

11 toward the hamlets where the Muslims had mounted an attack, and together

12 with several soldiers who were in his group, he was designated to carry

13 out the task of pulling out the wounded, reconnoitring, and stopping the

14 attack.

15 He encountered some local villagers from whom he received

16 information that many civilians had been killed and that the Muslims had

17 burned and destroyed all the houses in the hamlets of the village of

18 Jabuka. It was established that some 15 hamlets which bear the common

19 name of Jabuka -- or rather, a part of that local commune, and which are

20 inhabited exclusively by Serbs, were attacked, and that all the civilians

21 who did not succeed in leaving their houses and avoiding the attack were

22 killed in brutal and cruel ways, many of them burned alive.

23 According to the testimony of the accused Kunarac who in that

24 operation was attached to the command of the 2nd Battalion together with

25 some of the able-bodied local civilians, he set out to disable the

1 Muslims, or rather, to prevent their further advance and to find any

2 wounded or dead Serbs whose bodies were collected on that day in the area

3 of the Muslim attack.

4 During his testimony, the accused explained that this was terrain

5 which was passable only with a great difficulty, with high, high bushes

6 and trees, so that a search of the terrain after the Muslim attack was

7 stopped and after the Muslims withdrew, because at the proposal of the

8 accused Kunarac, the Serbian armed forces arrived at Podstijena. The

9 search was difficult and in order for the entire terrain to be searched in

10 the hamlets where houses were still burning --

11 MS. LOPICIC: [Interpretation] On page 21 of my laptop, row 1, it

12 says the village of "Pljevlja," it should be Previla. It's another

13 village. Because Pljevlja is also a town in Federal Republic of

14 Yugoslavia; Previla is in Republika Srpska.

15 JUDGE MUMBA: Yes, the names are very similar. The corrections

16 will be made. Thank you.

17 MS. LOPICIC: [Interpretation] Thank you, Your Honours.

18 MR. PRODANOVIC: [Interpretation] They had to move carefully and

19 slowly, so that the whole operation lasted for a full three days, that is,

20 from the 23rd of July, 1992, in the morning until the 26th of July, 1992,

21 in the late evening hours.

22 The accused Kunarac in his testimony also described two events

23 which stuck in his memory when in one part of the terrain, a man was

24 wounded who had found the dead body of his son and who activated a mine

25 while dragging along the body of his son so that he was wounded in the

1 legs. He also described the death of the brother of Witness DJ who was

2 found only on the last day, that is, the 26th of July, 1992.

3 Defence witness Goran Mastilo confirmed the arrival of the accused

4 Kunarac on the 23rd of July, 1992, and confirmed that throughout these

5 three days, the accused Kunarac was on the ground and that he saw him

6 there. And when the Prosecution tried to discredit this witness by

7 putting questions and stating that this witness did not sleep in the same

8 place as the accused, this witness confirmed that on the first day they

9 were out together performing their assignment until late in the evening,

10 that it was summertime, that they were together until 22 hours, and that

11 he left the village of Podstijena at about 2400 hours where the accused

12 stayed to spend the night, and he went to the village, and they found each

13 other together again on the same task the following morning.

14 This witness confirmed that this is some 500 metres from his house

15 and that the accused Kunarac and some other people who were searching the

16 terrain stayed there and slept there. This witness confirmed expressly

17 that he was with the accused Kunarac throughout these three days, except

18 for the time from 24 hours until 6 hours in the morning -- in the night

19 between the 23rd and 24th of July, 1992.

20 Defence witness DJ also fully confirmed the testimony of Dragoljub

21 Kunarac, starting with the Muslim attack on the 23rd of July, 1992, and he

22 described how they were unable to offer adequate resistance, and that they

23 tried to move to the village of Previla where the position of the 2nd

24 Battalion was; and he also stated that he met the accused Kunarac on the

25 23rd of July, 1992, in the morning between 9 and 10 hours in the village

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1 of Podstijena, and that he was in the group with him -- or rather, that in

2 his group there were five or six soldiers wearing different clothes,

3 different sorts of clothes, and that they had come to help.

4 This witness also confirmed that the accused Kunarac was wearing a

5 leather jacket, and that there were various kinds of weapons there,

6 because there were also local villagers there, some of whom had hunting

7 rifles, and this is on page 5522 to 5523 of the record of the trial.

8 This witness also confirmed that in the period from the 23rd to

9 the 26th of July, 1992, they spent all this time searching the terrain in

10 the local commune of Jabuka which encompasses 15 hamlets which were

11 attacked, and that due to the configuration of the terrain, the search was

12 very slow. This witness confirmed that he spent the first night together

13 with Dragoljub Kunarac and several other people in Podstijena, thus

14 confirming the testimony of witness Gordon Mastilo, that the accused

15 Kunarac stayed and spent the night there, and that he saw him in the

16 morning.

17 This witness confirmed that the accused Dragoljub Kunarac spent

18 the night together with him also on the 24th of July, in the village of

19 Rosulje, and that on the 25th of July they searched the terrain the whole

20 day and that they were able to search about three to four hamlets a day.

21 This witness confirmed that they spent the night of 25th to 26th of July,

22 1992 at the hamlet of Podgradje and that on that occasion the accused

23 Kunarac slept in the same place as he in that hamlet.

24 This witness also stated that throughout this time he had the

25 accused Kunarac in view, both by day and by night, and he confirmed that

1 on the 26th of July, 1992 they found the dead body of his brother and that

2 they buried him in the evening; and that after that, since they had

3 finished the search of the 15 hamlets that they had been searching those

4 three days, they left to the village of Previla, and the accused Kunarac,

5 sometime about midnight, at about 24 hours, left for Foca, while he,

6 together with the other civilians who had escaped the massacre in Jabuka,

7 was taken to the secondary school in Foca, where his parents were

8 accommodated as refugees; and that immediately after that he left for

9 Serbia, where he went to his sister's; and that he returned to Foca in

10 October 1992 and that after this he again saw Kunarac; and that he knows

11 that throughout the war operations he had the task of reconnoitring, and

12 that on one occasion he was wounded and his elbow was blown off.

13 When the testimonies of the accused Kunarac and Witnesses DD,

14 Gordan Mastilo, and DJ are compared, it is evident that their testimonies

15 are identical, that they are complementary in relation to certain periods

16 of time when they were acting together.

17 The Defence finds that the alibi of the accused Kunarac has

18 therefore been proved for the period starting in the morning hours of the

19 23rd of July, 1992, until the late evening of the 26th of July, or, we

20 might say, the early morning hours of the 27th of July, 1992, when the

21 accused left for Foca.

22 For the period from the 27th of July, 1992 to the 1st of August,

23 1992, the accused Kunarac in his testimony gave a detailed description of

24 his movements. From the 27th to the 29th of July, he was performing a

25 reconnaissance and search of the terrain in the area of Dragocava, in the

1 direction of Godijevno and Slatina. He was there until the 29th of July,

2 when he moved to the area of Preljuca, because Preljuca was attacked that

3 morning.

4 Prosecution witness Osman Subasic confirmed the attack on Preljuca

5 of 29th of July, 1992, and he also confirmed the presence of the accused

6 Kunarac in the area, thus supporting the testimony of the accused Kunarac

7 and proving his alibi for that period.

8 The next period of time for which the Defence of the accused

9 Kunarac and the accused himself has offered an alibi through witnesses is

10 the 2nd of August, 1992, that is, all the 24 hours of the 2nd of August.

11 In his testimony, the accused Dragoljub Kunarac stated, and all

12 the evidence put forward by the Defence will confirm this, that he spent

13 the 2nd of August, 1992 at the Rogoj Pass, which the command intended to

14 be taken because on the previous day the Muslim forces had taken that pass

15 in a well-planned offensive. Because this was an important strategic

16 point and there was a danger that the Muslim forces could fortify

17 themselves well there and not only control the chief communications but

18 also the town of Foca itself, which would also lead to the danger of their

19 further advance, a decision was reached that that pass had to be taken

20 back at any cost. The local armed forces, which did not succeed in

21 stopping the Muslim attack on Rogoj the previous day, were sent help, and

22 the soldiers from the Foca Tactical Group were sent to help them.

23 After, the accused Kunarac, immediately after taking Rogoj from

24 the Muslims, had done reconnaissance and observation to establish what the

25 weak points were in the Muslim positions. On the 2nd of August, 1992, the

1 Serbian forces, using the information delivered by the accused Kunarac,

2 mounted a strong attack on the Rogoj Pass and took it back. The fighting

3 lasted all day until the late afternoon, when, between 17 and 18 hours,

4 the Muslim forces withdrew.

5 The soldiers of the Foca Tactical Group abandoned their combat

6 positions and gathered at the village of Dobro Polje in order to return to

7 Foca, and at about 19 hours the accused Kunarac arrived there, driving a

8 truck on which there was a three-barreled anti-aircraft gun.

9 According to the accused and according to all the Defence

10 witnesses, there was a small celebration when the accused Kunarac turned

11 up with the three-barreled anti-aircraft gun which had been taken, and

12 then a convoy was formed. Since there was reason to fear that the main

13 road leading from Dobro Polje toward Foca, which is the main Sarajevo-Foca

14 road, was mined, the convoy took the old road leading to Foca. The convoy

15 consisted of trucks and passenger vehicles. The old road leads partly in

16 the direction of Kalinovik and then branches off at some five kilometres

17 from Kalinovik in the direction of Foca.

18 This statement by the accused Kunarac is fully confirmed by

19 Defence witnesses DE, Radosav Djurovic, and also Prosecution witnesses

20 Husein Alic and Muhamed Nogo, who confirm that on that day, throughout the

21 day, the fighting for Rogoj went on, and that on that occasion the Serbs

22 took an anti-aircraft gun which was on a truck.

23 The Defence must point out that the Prosecution witnesses, whose

24 written statements given to the investigators of the Tribunal practically

25 completely confirmed the accused's defence, saying that the fighting for

1 Rogoj on the 2nd of August, 1992 lasted until the afternoon, when they

2 realised they were confirming the accused's alibi during

3 examination-in-chief, only changed the time when the fighting ended; that

4 is, since their claims in this part of the statement and testimony are

5 contradictory, it is clear that these witnesses cannot be believed

6 regarding the time when the fighting ended.

7 These witnesses cannot be believed in that part because their

8 attempts to alter the time when the fighting ended are opposed by the

9 unwavering statements of both the accused Kunarac and witnesses DE and

10 Radosav Djurovic, who claimed that the fighting for Rogoj lasted all day

11 on the 2nd of August, 1992, until the afternoon, that is, until 5.00 or

12 6.00 p.m., when the fighting ceased, because Muslims forces were pushed

13 back towards Trnovo, and at that time the defence line in Rogoj was

14 established, manned by members of the Kalinovik and Trnovo Brigades.

15 In his testimony on his further movements that day, the accused

16 Kunarac testified that the column set out towards Foca on the old road

17 leading to Kalinovik through the village of Jazici about 8.00 p.m., and

18 since this is a roundabout and macadam road, combined with the fact that

19 the truck carrying the three-barreled gun was damaged and drove slowly,

20 the column arrived in Foca at the command in Velecevo around 2200 hours,

21 where there was a small celebration and where the accused, reaching the

22 command, fired the cannon several times.

23 This part of the testimony of the accused Kunarac is completely

24 confirmed by Witness Radosav Djurovic, who was all the time in the column

25 which moved from Dobro Polje to Velecevo and who kept within his sight the

1 truck on which the accused Kunarac was at all times.

2 The claim of the accused and of Witness Radosav Djurovic that they

3 arrived in Velecevo on 2nd August 1992, around 2200 hours, is also

4 confirmed by Witness DD, who was on duty that night at the gates of the

5 command in Velecevo and who confirmed the arrival of the accused Kunarac

6 with the before-mentioned truck carrying the three-barreled gun,

7 describing, just as the other witnesses, that both on the truck and on the

8 cannon itself, there was lettering to the effect that that was a present

9 from the people of Saudi Arabia to the people of Bosnia-Herzegovina and

10 that the accused Kunarac fired from the cannon several times, after which

11 the truck drove into the parking lot within the compound.

12 Defence Witness DD further confirms, and this is page 5181 of the

13 transcript, the accused Kunarac's testimony to the effect that after

14 briefly staying in the command, around 2300/2330 hours, he left the

15 compound, driving a Lada Niva vehicle, set out towards Foca, and that

16 after half an hour, during which a strong explosion was heard, he came

17 back and asked for the commander. And when he was asked by the guards and

18 all those present what had happened, he explained that "some idiot blew up

19 the mosque."

20 Later this witness, and this is page 5182 of the transcript,

21 states that around 2400 hours he saw the accused Kunarac leaving towards

22 the entrance to the dormitory and explained that it was his conclusion

23 that the accused Kunarac had gone to turn in.

24 The claim that the accused Kunarac arrived on a truck that evening

25 around 2200 hours with an anti-aircraft cannon is also confirmed by

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1 another witness of the Defence, Radosav Djurovic, who confirmed that he

2 personally saw the accused that evening arriving around 2200 hours at the

3 compound of the command in Velecevo.

4 Another Defence witness, Radivoje Pavlovic, confirms that the

5 accused Kunarac, together with a column of vehicles on board a truck

6 carrying an anti-aircraft gun, arrived and entered the compound of the

7 command, where there was a celebration in which the accused was the centre

8 of attention and received congratulations for conquering this truck with

9 the cannon.

10 The accused Kunarac explains that he spent that night at the

11 command, and the following morning, that is, on the 3rd of August, 1992,

12 he went to breakfast, which fact is confirmed by Witness DD on page 5183

13 of the transcript, stating that he saw the accused Kunarac around 7.00 in

14 the morning at breakfast, together with more people who were having

15 breakfast, and those were people who had slept in the barracks of the

16 command, because practically only those who had spent the night were able

17 to have breakfast there. This witness testifies that he does not know

18 where and when Kunarac left after this, but he confirmed that one of his

19 colleagues had told him that Kunarac had taken a vehicle from him and

20 left.

21 Based on this analysis, the Defence claims that the alibi

22 presented for the accused Kunarac for the 2nd of August, 1992 has been

23 completely proven.

24 In his testimony, the accused said that after leaving the command

25 at Velecevo on 3rd of August, 1992, in the morning, he went towards his

1 home, met journalist Gordana Draskovic, who is mentioned also in

2 testimonies of Prosecution witnesses, and it was from her, while they were

3 having coffee that morning, that he found out for the first time about the

4 alleged rapes against some women; that he got from her several names of

5 women whom she had interviewed as a journalist; and after that he summoned

6 one soldier, who was a volunteer and who accompanied him most often on

7 reconnaissance missions, to go with him to Partizan.

8 There he invited those girls to have a conversation, and since

9 they denied that they had said anything like that about him or Zaga's

10 people, he took witnesses FWS-75 and DB to the house at 16 Osmana Djikica

11 Street in Aladza in order to have them see the volunteers who were

12 accommodated in that house.

13 The Defence did not present evidence to confirm this statement of

14 the accused, but this event, which is important and relevant to the

15 credibility of the statements of the accused himself and of the statements

16 of witnesses FWS-75 and DB and other Prosecution witnesses, will be dealt

17 with in the analysis of the counts of indictments where this event is

18 described.

19 When the Defence finishes analysing the evidence confirming the

20 alibi of the accused Kunarac, in this part of the closing argument the

21 Defence will only point out the existence of the so-called negative alibi

22 regarding the 2nd of August, 1992, as opposed to the claims of Prosecution

23 witnesses that it was the accused who drove the witnesses from the primary

24 school in Kalinovik to the petrol station in Kalinovik on the 2nd of

25 August, 1992, which witnesses were then transferred into a refrigerator

1 vehicle and then to a motel in Miljevina before being taken to Foca to the

2 house at 16 Osmana Djikica Street.

3 This negative alibi, that is, a statement that the accused was not

4 in Kalinovik on that day, the 2nd of August, 1992, is confirmed by Defence

5 witness Mirko Przulj, who had been issued with the said refrigerator

6 vehicle and who had seen near the town hall building, around 2.00 on the

7 2nd of August, 1992, two strangers, whom he was later able to recognise as

8 different from the accused Kunarac, who pushed him away and took away his

9 vehicle. That the accused Kunarac was not in Kalinovik on that day also

10 follows from the positive alibi described under item K.C9, which we will

11 elaborate on.

12 Since the Defence presented also an alibi for the period from the

13 3rd of August, 1992 to the 8th of August, 1992 to confirm the testimony of

14 the accused Kunarac to the effect that from the Osmana Djikica house in

15 the early afternoon, he took witnesses DB, FWS-75, and another two

16 witnesses to Miljevina because he had received information that Gordana

17 Draskovic was in a motel in Miljevina, namely, the person who had told him

18 that morning about some rapes, and his intention was to discuss and

19 clarify these claims which he had heard on that day for the first time and

20 which were to the effect that he had raped somebody or that his people

21 raped somebody, because he neither raped, nor he had any people of his

22 own, nor he had ever heard before that anybody had raped anybody.

23 After he arrived at the motel and while he was asking for Gordana

24 who was not there at the time, he was summoned by the commander by radio

25 transmitter and informed that Muslim forces had retaken Rogoj Pass, and

1 that he was needed urgently to go to Kalinovik and try to stabilise the

2 situation, as well as to determine the intentions of enemy force: Were

3 they going to advance further, or were they only fortifying their

4 positions on Rogoj?

5 According to the testimony of the accused Kunarac, he asked the

6 commander to give him three or four men who had stayed in Foca to better

7 equip the anti-aircraft canon which had been conquered the previous day.

8 Whereas he would meet them in Miljevina. Indeed, the commander arrived in

9 a vehicle with the required men, and the vehicle was driven by Defence

10 witness Radivoje Pavlovic.

11 After a brief discussion with the commander, the commander

12 instructed his driver, Radivoje Pavlovic, to take the accused Kunarac and

13 the said soldiers who had arrived with him to Kalinovik, which was indeed

14 done, and around 1700 hours arrived at the brigade command in Kalinovik

15 where the accused Kunarac was briefed and set out into the field, whereas

16 witness Radivoje Pavlovic returned in his car to Miljevina to take the

17 commander.

18 This testimony of the accused Kunarac is completely confirmed not

19 only by witness Radivoje Pavlovic, but also by witness Mirko Przulj who

20 met Kunarac on that occasion at the command and then was able to ascertain

21 that the two men who he had seen the previous day in Kalinovik in his

22 refrigerator truck and whose faces he had remembered, were completely

23 different people from the accused Kunarac. And thus, he was able to claim

24 based on his acquaintance with Kunarac on the 3rd of August, 1992, that

25 the accused Kunarac was not in the refrigerator vehicle in Kalinovk on the

1 2nd of August, 1992.

2 Defence witness Radivoje Pavlovic who brought the commander and

3 another two or three soldiers to Miljevina and then later in the afternoon

4 drove the accused Kunarac with the same soldiers to Kalinovk, and that

5 is -- those are pages 5.250 and 5.291 of the transcript, completely

6 confirms the testimony of the accused Kunarac to the effect that on the

7 3rd of August in 1992 in the afternoon, he was in Miljevina, and that

8 later after receiving an urgent assignment due to the fall of Rogoj, was

9 taken to Kalinovik where he was briefed again and went out into the field,

10 whereas further analysis and evidence will prove that he was in the field

11 without any interruptions until the 8th August 1992 in the morning, which

12 would mean that from the 3rd of August, 1992, in the afternoon, he had no

13 more contact whatsoever with the witnesses who he had driven to Miljevina

14 on the 3rd of August, 1992, in the afternoon, or with any other witnesses,

15 and especially not those who had been brought from the primary school in

16 Kalinovik on the 2nd of August, 1992.

17 The accused Kunarac testified that from the 3rd of August, the 7

18 of August -- to the 7th August 1992, he was in the field carrying out

19 assignments given him and several other soldiers by the Command to carry

20 out observation and reconnaissance in the broader region of Rogoj, which

21 was a very complex assignment because it was necessary to determine the

22 positions of enemy soldiers on a very large stretch of territory in order

23 to establish whether they intended to advance further towards Kalinovik,

24 and on to Foca, and if so, in which direction, whether simultaneously

25 towards Kalinovik and Foca or they were simply fortifying their positions

1 in the said area dominated by the Rogoj elevation.

2 He needed four days for that assignment, and in his own

3 conviction, he did carry it out, gathering enough information by the

4 evening of 7th of August, 1992, when he arrived to the area of Dobro Polje

5 where he had support -- from which he had support in executing this

6 assignment from the local population, both in the capacity of guides and

7 as people who supplied him with food. From there, he went to Kalinovik

8 where he spent the night, and then on the 8th of August, 1992, in the

9 morning, he left Foca.

10 Defence witness DE fully confirms this defence of the accused.

11 Thus, on page 5.231 of the transcript he confirms that on the 3rd of

12 August, 1992, in the evening, he saw the accused Kunarac arriving from the

13 direction of Kalinovik, and encouraging the group which had self-organised

14 after Rogoj had been retaken by Muslims, and was keeping the positions

15 above the village of Dobro Polje. He goes on to confirm that the accused

16 Kunarac never asked anything of them except to be escorted and given safe

17 passage to the closest point held by the Muslim forces.

18 Further on, on page 5.232 of the transcript, he confirms that some

19 fighters came to bring food -- to take food which they had given him.

20 I see, Your Honours, that it is already 11.00. Perhaps this is a

21 good time to have a break.

22 JUDGE MUMBA: Yes, we shall have a break and resume at 1130 hours.

23 --- Recess taken at 11.00 a.m.

24 --- On resuming at 11.33 a.m.

25 JUDGE MUMBA: Yes, Mr. Prodanovic, please proceed.

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1 MR. PRODANOVIC: [Interpretation] As I said, he confirms that some

2 fighters came to take food which they had given them which confirms that

3 Zaga, with several soldiers with whom he had arrived, was in the field the

4 whole time.

5 On page 5233 of the transcript, this witness confirms that the

6 next time he saw the accused Kunarac was on the 7th of August, 1992, in

7 the evening when Kunarac came to their positions. That was around 2000

8 hours, and he then told them that he had determined enemy positions in

9 full. And on page 5234 of the transcript, he confirms that on the same

10 evening, Kunarac left with a group of soldiers in the direction of

11 Kalinovik.

12 Therefore, the Defence witness DE fully confirms the testimony of

13 the accused Kunarac to the effect that from the 3rd of August, 1992, in

14 the evening until the 7th of August, 1992, in the evening, he was in the

15 field in the broader area of Rogoj, and the Defence finds that his alibi

16 has been confirmed for the period from the 3rd of August in the afternoon

17 to the 8th of August, 1992, in the morning, when he came back to Foca

18 after spending the night of the 7th of August, 1992, in Kalinovik.

19 The analysis of testimonies of the accused Kunarac and Defence

20 witnesses, as we briefly pointed out in the Section K of the closing

21 argument, the whereabouts of the accused Dragoljub Kunarac have been

22 proven beyond doubt for the period from the 7th of August, 1992, until the

23 21st of August, 1992; then from 23rd of July --

24 THE INTERPRETER: I'm sorry, correction.

25 MR. PRODANOVIC: From the 7th of July, 1992, to the 21st of July,

1 1992; from the 23rd of July, 1992, to the 26th of July, 1992; from the

2 27th of July, 1992, to the 1st of August, 1992; and the day and the night

3 of the 2nd of August, 1992; as well as for the period from the 3rd of

4 August, 1992, to the 8th of August, 1992, which proves his alibi

5 completely for the said periods. And evidence has shown his whereabouts

6 on other days which the Defence deems not relevant for establishing

7 certain events or the guilt of the accused Dragoljub Kunarac.

8 Having analysed the analysis -- having analysed the evidence

9 confirming the alibi of the accused Dragoljub Kunarac, we will also

10 analyse the evidence presented by the Prosecution regarding actions

11 described in every count of the indictment, and we'll use comparison to

12 point out the inconsistencies in these testimonies and evidence by

13 comparing Prosecution evidence mutually and reminding of the relevant

14 evidence presented by the Defence.

15 Under item 5.2, as we have said earlier in this closing argument,

16 it is claimed that the accused took FWS-87 at least two times between the

17 13th of July, 1992, and the 1st of August, 1992, into his headquarters at

18 16 Osmana Djikica Street, and that both times two Montenegrin soldiers

19 under the command of the accused raped her. Thus, the actions described

20 under paragraph 5.2 are actions of which the accused is charged in terms

21 of his responsibilities under Article 7(3) of the Statute of the

22 International Tribunal, that is, command responsibility.

23 Since command responsibility is dealt with separately in this

24 closing argument, we will only say here Dragoljub Kunarac had -- was not a

25 commander of any military unit, nor did he have soldiers under his command

1 as is claimed in main allegations under paragraph 1.10 and in the count of

2 the indictment 3.1, superior command. Thus, the Prosecution has not

3 presented a single piece of evidence that the house at 16 Osmana Djikica

4 Street was the headquarters of the accused Kunarac because the accused

5 Kunarac did not have any headquarters, nor has the Prosecution proven that

6 any soldier was under the command of the accused Kunarac because the

7 accused Kunarac, as we have repeated several times, had no command, either

8 formal or actual, over any unit.

9 Prosecution witness FWS-87, in several of her statements, and

10 specifically in the first statement she gave on the 19th and 20th January,

11 1996 to the investigators of the Prosecution office and which has been

12 introduced as Defence Exhibit D32, claims that she was taken out three

13 times together with Witness FWS-75 to the house next to Aladza, which

14 would be the house at 16 Osmana Djikica Street, and that they were taken

15 out by the accused Kunarac, who did not rape her the first two times but

16 did rape her the third time.

17 In the statement she also gave to the investigators of the

18 Prosecution office on the 4th and 5th of May, 1998, and which has been

19 introduced as the Defence Exhibit D33, this witness cannot remember how

20 many times she was taken to the house in the Aladza neighbourhood, and

21 despite the fact that the accused Kunarac was by then arrested and she was

22 certain to have seen him in the media, she describes him as a person with

23 curly hair and wearing a headband. The accused Kunarac does not have

24 curly hair.

25 Since Witness FWS-87 claims in her statement that she was taken

1 out for the most part together with Witness FWS-75, we should look at the

2 statements and testimony of Witness FWS-75.

3 In her statement of the 15th and 18th of November, 1995, which was

4 introduced as Defence Exhibit D24, this witness maintains that she was

5 removed for the first time in mid-July, together with DB, that she was

6 taken out by the accused Kunarac, who raped DB.

7 In another statement, dated the 6th of March, 1998, which was

8 introduced as Defence Exhibit D23, Witness FWS-75 also says that the

9 accused Kunarac took her, together with Gaga, to the house in the Aladza

10 neighbourhood, repeating that the accused Kunarac never raped her

11 personally, and she also claims that Witness DB said that the accused

12 Kunarac did not rape her on that occasion but only talked to her.

13 In her testimony before the Court, Witness DB also speaks about

14 being taken out, together with Witness FWS-75, by the accused Kunarac and

15 Gaga, and in this testimony she does not mention the presence of Witness

16 FWS-87. She states that she was taken to that house only once more,

17 together with Witnesses FWS-75 and FWS-87, on the night when the mosque

18 was blown up.

19 Therefore, neither Witness FWS-75 nor Witness DB confirm the

20 statement of Witness FWS-87 that she was taken twice to the house near

21 Aladza and that Witness FWS-87 was raped by two soldiers she didn't know.

22 When we look at all this through the prism of the description of

23 the accused Kunarac given by Witness FWS-87, which does not correspond to

24 the truth, and if we add to this the fact that the Defence has proven the

25 alibi of the accused Kunarac for the period from the 7th of July to the

1 21st of July, 1992, as has been described in section K.C6 of the closing

2 argument, because the accused spent all his time between the 7th and the

3 21st of July, 1992 in the area of the Cerova Ravan elevation, then the

4 Defence opines that the Prosecution has not proven the allegations

5 contained in the indictment under paragraph 5.2, which would constitute

6 crimes described under item 1, torture, which constitutes a crime against

7 humanity, punishable under Article 5(f) of the Statute of the

8 International Tribunal; under paragraph 2, rape, which constitutes a crime

9 against humanity, punishable under Article 5(g) of the Statute of the

10 International Tribunal; paragraph 3, rape, which constitutes violation of

11 the laws and customs of war, punishable under Article 3 of the Statute of

12 the International Tribunal and recognised by the Common Article 3(1)(a),

13 torture, of the Geneva Conventions; or paragraph 4, rape, which

14 constitutes violation of the laws and customs of war, punishable under

15 Article 3 of the Statute of the International Tribunal, of which crimes

16 described under Article 5.2 bis, the accused Kunarac should be acquitted.

17 As regards the actions under item 5.2, which would constitute the

18 said crimes, the accused Kunarac should be acquitted also because the

19 Prosecutor failed to prove the accused Kunarac's responsibility under

20 provisions of the Article 7(3) of the Statute of the International

21 Tribunal, that is, command responsibility.

22 According to the description of the actions under 5(3), the

23 accused Kunarac is charged with taking witnesses FWS-75 and DB several

24 times to his headquarters at 16 Osmana Djikica Street, whereas he took

25 Witnesses FWS-75 and DB for the first time on the 16th of July, 1992, or

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1 around that date, to a place where there were more soldiers, and that the

2 accused took DB into a separate room, where he raped her, while Witness

3 FWS-75 was gang-raped by at least 15 soldiers who abused her sexually in

4 all possible ways, such as vaginal and anal penetration and fellatio,

5 after which she was raped on other occasions, again by one to three

6 soldiers at a time.

7 It immediately meets the eye that here the Prosecutor is charging

8 the accused Kunarac with, so to speak, mixed responsibility, that is,

9 responsibility under both Articles 7(1) and 7(3) of the Statute. But in a

10 way that is inconsistent with the description of his actions in the other

11 counts, and that is completely contradictory to the testimonies of the

12 witnesses.

13 The Prosecutor alleges that the accused took out these witnesses

14 on several occasions, and only these witnesses, while Witness FWS-87

15 maintains that she was taken out with FWS-75. So there is a clear

16 difference in these testimonies, leaving aside the event which will be

17 analysed in connection with the event that allegedly took place on the 2nd

18 of August, 1992.

19 The Defence wishes to point out that Witness FWS-75, as we have

20 already said, clearly stated that she was taken to the house next to

21 Aladza at least three times, Exhibit D32 -- correction, that she was taken

22 three times. After that, she stated that she does not remember how many

23 times he took her to the Aladza settlement, Exhibit D33.

24 At the trial, Witness FWS-75 on page 1411 explained that she and

25 DB were taken out for the first time by the accused Kunarac, Gaga, and

1 Bane, the Montenegrin, and this was five or six days after they had

2 arrived in Partizan. In her statement, Exhibit D24, she maintains that

3 she spent 15 days in Partizan. She also maintains that she was taken to

4 the house in Aladza for the second time on the 2nd of August, 1992.

5 Therefore, she states that she was in that house on only two occasions

6 which differs from the description under 5.3 which states "several times";

7 and that on the 16th of July, 1992, she was first taken there with DB, on

8 which occasion the accused Kunarac was with DB in a separate room.

9 The Defence wishes to point out that this event is said to have

10 taken place on the 16th of July, 1992, or about that date, but we do not

11 know what "or about that date" means. The expression "or about that date"

12 can be stretched to such an extent that it does not permit us to check the

13 credibility of witnesses referring to a single event, because Witness

14 FWS-75 maintains that she spent 15 days in Partizan. She also maintains

15 that she was taken out of Partizan for the first time in mid-July when the

16 event which the Prosecution says happened on the 16th of July, or about

17 that date, took place.

18 These witnesses left Partizan, as they say, and we shall analyse

19 this later, on the 2nd of August, 1992, in the evening, which means that

20 they could have been brought to Partizan on the 18th of July, 1992. If

21 what FWS-75 says is true, that is, that she spent 15 days in Partizan,

22 this means that on the 16th of July, 1992, neither she nor DB could have

23 been taken out of Partizan because they were not in Partizan at that time.

24 Witness DB in her testimony before the Tribunal on the 26th day of

25 the trial stated that she was taken to the house in Aladza for the first

1 time several days before she was taken there for the second time, without

2 mentioning the date; but she mentions that the second occurrence took

3 place on the 2nd of August, 1992, because she connects this to a strong

4 detonation, which is undoubtedly the date when the Aladza mosque was blown

5 up. If this took place several days before the 2nd of August, 1992, then

6 it could not have been on the 16th of July, 1992, or about that date, as

7 the Prosecution maintains.

8 Therefore, bearing in mind the statement of Witness FWS-75 who

9 said that she had been in that house three times, and the statement of

10 Witness DB who says that she was there only two times, as well as the

11 statement of FWS-75 who said that Witness DB had told her the first time

12 that the accused Kunarac did not rape her, then the Defence contends that

13 this event which is described under 5.3 could only have been the event

14 which the Prosecution describes under 5.4. And according to the Defence

15 of the accused Kunarac and his admission which he made during the first

16 interview and which he adhered to, all the time on the 3rd of August,

17 1992, in the morning, which we shall discuss later, and therefore the

18 Defence finds that the Prosecution has not proved the events described

19 under 5.3 in relation to the individual responsibility of the accused

20 Kunarac, either under Article 7(1) of the Statute or under Article 7(3) of

21 the Statute, because there is grave doubt that these witnesses in their

22 statements misinterpreted a single event, one in the same event, placing

23 it at various time intervals.

24 The Defence contends that the credibility of the statements of

25 these witnesses should be checked, especially that of Witness FWS-75, who

1 claims that on the 16th of July, 1992, or about that day, a large number

2 of soldiers raped her in a single night, and the Prosecution states that

3 the number of soldiers was 15. This should be checked by a medical expert

4 because such a large number of forcible sexual relations within such a

5 short period of time, including anal penetration, would have had to leave

6 traces in the form of injuries in the anal region.

7 Therefore, the Defence finds that the description of actions under

8 Count 5.3 of the indictment does not prove that the accused committed the

9 criminal offences in Counts 1, 2, 3, and 4 as mentioned above.

10 The description of actions under 5.4 charges Kunarac with taking

11 Witnesses 50, 75, 87, and DB to the house in Osmana Djikica Street 16, and

12 that some women from the camp for women in Kalinovik were present there,

13 and that on that occasion, three soldiers raped 87, several soldiers raped

14 75 throughout the night, and one Montenegrin soldier raped 50 and

15 threatened to cut off her arms and legs and to take her to a church and

16 baptize her.

17 The Prosecutor does not state that on that day -- or rather, that

18 evening, the accused Kunarac personally raped any of the victims, and

19 according to the Defence, this charge would fall under the responsibility

20 of the accused under Article 7(3) of the Statute, unless the fact that the

21 accused Kunarac allegedly took these witnesses there is interpreted as

22 aiding and abetting the commission of a criminal offence, but this is not

23 mentioned in the indictment.

24 This event viewed through the testimonies of the above-mentioned

25 witnesses is certainly the least credible. The Defence wishes to point

1 out firstly that there was no camp in Kalinovik, especially not a camp for

2 women. The nature of the collection centre in the primary school in

3 Kalinovik has already been explained by the Defence.

4 The Defence wishes to raise the question of what women were

5 present in that house which were not identified by the Prosecution. Of

6 course, according to the evidence presented, the Defence can conclude that

7 these would be witnesses 186, 191, JG, 205, 201, and perhaps some others

8 who, according to the Prosecution, were present in the house on the 2nd of

9 August, 1992; and none of these women were raped on that occasion. The

10 only women who were raped were Witnesses 75, 87, and 50, which casts doubt

11 on the statements of the Prosecution that the rapes that allegedly took

12 place in the said places were committed in a planned and systematic and

13 all-encompassing manner; because if these women were all in one place, it

14 is strange that they were not all raped as was to be expected, but that

15 only three of them were raped as stated in the indictment. All the more

16 so as later on, events also described where other witnesses were also

17 raped, witnesses who were in the house in Osmana Djikica Street.

18 Analysing the testimonies of Witnesses 75, 87, 50, and DB, a doubt

19 also arises as to the way these events are described in the indictment

20 under 5.4. All the more so as Witness 191, whose testimony will be

21 analysed later on when dealing with the alleged actions in 10.1, 10.2, and

22 10.3, maintains that the accused Kunarac was in another place at the same

23 time; and Witness 186 spoke in a similar way.

24 Of course, this part of the indictment under 5(4) also does not

25 state the time when the accused Kunarac, on the 2nd of August, 1992, took

1 Witnesses 75, 87, 50, and DB from Partizan to Osmana Djikica Street, nor

2 does it describe the time when the accused Kunarac and three other

3 soldiers raped Witness 87.

4 It follows from the testimony of Witness 87 during the trial that

5 the accused Kunarac went to Partizan on several occasions and that he

6 never arrived there on his own, and that he took her personally from

7 Partizan on two occasions: On one occasion he took her to the house in

8 Aladza, and this was a day before she was to be taken to Miljevina; and

9 another occasion before this event, she was taken to a house near a bus

10 station, page number 1691 of the record.

11 From the statement that she gave to investigators of the Tribunal

12 on the 19th and 20th of January, 1996, Defence Exhibit D32, she said that

13 she had been taken to the house at Aladza three times and that she had

14 been taken there by the accused Kunarac, that on two occasions he did not

15 rape her, and that on the third occasion he did rape her.

16 In the same statement, this witness claims that the accused

17 Kunarac, a month after her stay -- when she had been in Partizan a month,

18 he and another man took her, Witnesses 50, 75, and DB to the house in

19 Aladza, and that after that she had been taken to Miljevina, and that

20 Witness 50 was also in the house. At the trial, she maintained that on

21 the day she was taken to the house in Aladza, before being taken to

22 Miljevina, that this was the last time she was in that house but that she

23 does not remember when and with whom she had been in that house before.

24 She maintains that on that occasion the accused Kunarac raped her when she

25 was in the house in Aladza for the last time.

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1 To the Prosecutor's question whether she remembered that the

2 accused Kunarac took her to other places also, this witness, on page 1695

3 of the transcript, maintained that he had taken her out. And to the

4 question whether he raped her on these occasions also, she responded that

5 she did not remember. Immediately after that, she stated that she

6 remembered that he took her out on several occasions but that she

7 remembers only two occasions in detail.

8 In her previous statements made to the investigators, this witness

9 did not say that she had been taken out on several occasions and to some

10 other places, but stated precisely that she had been taken to the house in

11 Aladza on three occasions. This witness also claims that the accused

12 Kunarac always came with other soldiers and that he did not come every

13 night but every third night, although she was not sure of this, and that

14 he usually collected several girls and took them with him.

15 When describing the accused Kunarac, page 1690 of the transcript,

16 she describes him as not very tall. She says that he was neither fat nor

17 thin, and she thought that he had dark-brown hair. She did not remember

18 any other identifying features.

19 Such statements by the witness, as is evident, are mutually

20 contradictory and confused, and cannot in themselves represent evidence

21 that the events took place in the manner she describes, all the more so as

22 she has evidently described the accused mistakenly, because it is obvious

23 that the accused Kunarac is, by all standards, a tall man.

24 Besides this, there are certainly other details which a woman who

25 had been raped at least twice by a person would have noticed and been able

1 to describe.

2 The Defence would like to draw attention to the fact that Witness

3 87, when asked whether she remembered that the accused Kunarac raped her

4 the last time she was in the house in Aladza, said that she did not

5 remember and that she remembered that it was a man named Goran. And to a

6 question from the Defence as to what was true, she responded, at page

7 1763, that she could not remember everything and that she made her first

8 statement in 1996, but that she did remember that on that night both Goran

9 and the accused Kunarac were in the house.

10 On page 1762 of the transcript, this witness, after describing how

11 Kunarac had taken her to the house in Aladza on three occasions, in the

12 first three lines on that page of the transcript, stated, "Kunarac never

13 took me to any other house apart from this one. He did not rape me on the

14 first two occasions but only on the third." These words are contradictory

15 to what she maintained on page 1691, where she stated, in lines 20 and 21,

16 "One of those occasions was in the house in Aladza, and the second time

17 he took me to a house near the bus station."

18 As the Prosecution is not charging the accused Kunarac of having

19 raped Witness 87 in the house near the bus station, this means that the

20 Prosecution does not believe this witness either, because if the

21 Prosecution did believe her, they would have charged him with this event

22 also, all the more so as this witness claims that the accused took this

23 witness, as she explains that she remembers precisely the two occasions

24 when she was taken to the house in Aladza and to this other house near the

25 bus station.

1 Since this witness is very confused and contradictory, as has been

2 stated, in our opinion, she is not credible.

3 Witness 75 claims that, together with Witnesses 87, 50, and DB,

4 she was taken by the accused Kunarac and Gaga to a house in Aladza, where

5 there were also three girls from Gacko, one of whom was 190 and a girl who

6 was pregnant, and that this was on the 2nd of August, 1992, at around 7.00

7 or 8.00 in the evening, when they were taken out and brought to this

8 house.

9 Describing this event further, Witness 75 maintains, when asked

10 whether she noticed any other girls being raped that night in the same

11 house, page 1428, that she saw Witness 87 in a car and that she was raped

12 in the car by Bane.

13 She further states that that night, while they were all in the

14 house, Bane took her to a car and raped her there. And when asked, "What

15 in fact did you see? Did you see that he raped her in the car or did you

16 just see him taking her to the car?" she responded, "No. I saw that she

17 was in the car with him, because Gaga told me to go downstairs. Going

18 down the stairs, I saw that 87 was in the car with Bane, and later I heard

19 that she had been raped in the car."

20 Further, she connects this with the explosion they heard in the

21 house, which means that this would have been at 20 minutes to midnight

22 that night, when the Aladza mosque was blown up.

23 Can one believe the witness who states that she saw Witness 87

24 being raped in the car and later she says that she did not see this but

25 only heard about it, but without saying who she had heard it from? This

1 quality of evidence before such an important judicial institution cannot

2 be accepted.

3 To the question of the Defence on page 1757 of the transcript,

4 Witness 87 maintained that she does not remember being in the car that

5 evening, and that she remembers that on that evening she was with the

6 accused Kunarac in a room, and then later on with Toljic in a workshop.

7 To all further questions of the Defence, she responded, "I don't

8 remember," which is also symptomatic, and it is obvious that her statement

9 is being manipulated. All the more so as Witness 75 maintains that the

10 accused Kunarac did not stay in the house that night after having brought

11 them there because to the question, "Did you see Zaga during the night

12 after he took you there," page 1430, line 24 of the transcript, there

13 followed a response on page 1431, line 1, "No." And in her further

14 description of the event, this witness does not mention the accused

15 Kunarac.

16 Witness 87 on page 1755 of the transcript also states that Witness

17 50 was taken from the house that night, and Witness 75 also states on page

18 1430 that this witness was taken from the house; but the difference is

19 that 87 states that Witness 50 was taken as soon as they arrived there,

20 while Witness 75 says that this was later after the explosion.

21 Witness 50 says that she was taken from Partizan on the 2nd of

22 August, 1992, with three witnesses to a house next to Aladza, page 1272 of

23 the transcript, and she states that the accused Kunarac raped her

24 upstairs. This witness maintains on page 1278 of the transcript that that

25 night after midnight, she alone was brought back to Partizan.

1 Witness 50 states that she was taken from Partizan on several

2 occasions, and that she was raped by three different men, and that on the

3 2nd of August, 1992, she was raped by a man who was 45 years old, Defence

4 Exhibit D17, while in her second statement to the investigators, Exhibit

5 D18, when shown a photo panel, she stated that she thought she had seen a

6 man under number seven, a photograph of the accused Kunarac, in the house

7 on the 2nd of August, 1992, but she was not sure that this man sexually

8 abused her.

9 Bearing in mind these contradictory statements, and especially the

10 statement of Witnesses 87 and 75 to the effect that the accused Kunarac

11 was not seen by them on the 2nd of August, 1992, after he brought them

12 there, and the same was stated by Witness DB on page 3813 of the

13 transcript who said that after the accused Kunarac brought them to Aladza

14 he went off somewhere, and they did not see him again that night, other

15 rather, that she saw him for only about 10 minutes before the explosion,

16 and then after that he left. Connecting these statements, we can see

17 significant differences among them, complete uncertainty, uncertain

18 recollection, and the Court cannot lend credibility to such witnesses, so

19 in our view the Prosecution has not proved that the accused committed the

20 crimes, that on the 2nd of August, 1992, he raped 87 in the evening as

21 described in Count 5.4 of the indictment.

22 To this it should be added that in Count 10.1 the accused Kunarac

23 is charged with having taken Witnesses 186, 191, and JG from the house on

24 Osmana Djikica Street to the house in Trnovace, and that on the 2nd of

25 August, 1992, on the day when they were taken away, the accused raped

1 Witness 191. Witness 191 in her earlier statement of the 22nd and 23rd of

2 September, 1998, stated that on the 2nd of August, 1992, the accused

3 Kunarac came to Kalinovik in the afternoon and took her and some other

4 girls to the house in Aladza; but she stated that on that evening in the

5 house in Aladza, that is, in the house in Osmana Djikica Street 16, the

6 only women were those who had been brought there from Kalinovik. She

7 further stated that after that, the accused took them to Trnovace, and

8 that there he had sexual relations with her.

9 Of course, we shall discuss this statement further when we analyse

10 the acts under 10.1, but we must mention here that it is not possible for

11 the accused to have been both in Foca, in Osmana Djikica Street, and in

12 Kalinovik, and in Trnovace all at the same time.

13 Drawing attention to the differences in the statement of Witness

14 191 and the other witnesses, where Witness 191 says that only they, the

15 witnesses from Kalinovik, were in the house in Osmana Djikica Street,

16 while the other witnesses say that they found them in the house, and

17 according to the indictment and their statements, all this took place on

18 the same day, the 2nd of August, 1992, when, according to the evidence put

19 forward by the Defence, the accused was taking part in the fighting at the

20 Rogoj Pass, and when he arrived in Foca in the command in Velecevo at

21 about 2200 hours where he spent the night.

22 Therefore, the Defence maintains that the Prosecution has not

23 proved that the accused committed the actions described under 5.4, thus

24 committing the criminal offences described in Counts 1, 2, 3, and 4.

25 In Count 5.5, there is a description of actions which with the

1 accused Kunarac is charged which could lead to his criminal responsibility

2 under Article 7(1) and 7(3) of the Statute. The accused, between the 13th

3 of July and the 2nd of August, 1992, is alleged to have taken on at least

4 two occasions Witness 95 to the house in Osmana Djikica Street 16, where

5 he had his headquarters. And on the first occasion he did this together

6 with another two women when he personally raped this witness, and after

7 that she was raped by three more soldiers. On the second occasion when he

8 brought her to the same house, he himself did not rape her, but she was

9 raped by two or three soldiers.

10 Analysing the statement of Witness 95, according to which the

11 accused allegedly committed the acts alleged in Count 5.5, it must be

12 pointed out at once that this witness described events differently every

13 time she made a statement.

14 First of all, the Defence wishes to point out that this witness

15 described the accused Kunarac whom she had not seen anywhere before being

16 in Partizan, as a man who was thin, with long hair, a beard, and a

17 moustache, and she said that he had a Montenegrin accent -- Prosecution

18 Exhibit 75, witness statement of Witness 95 from 1996. After this, when

19 she made the statement to the investigators on the 25th and 26th of April,

20 1998, Prosecution Exhibit 76 and Defence Exhibit 40, Witness 95 was unable

21 to describe the accused Kunarac, and yet she claims that he took her out

22 five or six times, but she does not know where he took her.

23 She claims that he raped her every time he took her out, and that

24 they always went on foot; and she claims that on two occasions she was

25 taken to a tailor's house, this being the house in Osmana Djikica Street

1 16.

2 During the trial, this witness, on page 2228 of the transcript,

3 explained her uncertainty in identification, and after that she stated

4 that she did not remember that the accused Kunarac took her out of

5 Partizan, or several of them, page 2237. And further on, she states that

6 she knows that he also raped her, or rather she maintains that she knew

7 that he also raped women, but does not say whether he raped her.

8 In relation to the date when the accused is alleged to have raped

9 women, it should be pointed out that this witness was unable to state a

10 date, so the Defence objection that the Prosecution is not stating dates

11 with sufficient precision still holds.

12 In this case, the events with Witness 95 took place between the

13 13th of July and the 2nd of August, 1992, which certainly is not correct.

14 As the witnesses from the school in Aladza could have been taken to

15 Partizan on the 18th of July, 1992, at the earliest, the date 13th of

16 July, 1992 cannot correspond to the truth. A date up to the 2nd of

17 August, 1992 also cannot be taken as the date when these events took

18 place, because during the trial, the witness, on page 2237, explained that

19 she was in the house in Aladza for the first time while the Aladza mosque

20 was still there, while she was not sure about this the second time. As

21 there is no doubt that the mosque was blown up in the evening of the 2nd

22 of August, it is quite certain that the Prosecution cannot be certain of

23 these dates, and neither can the Court.

24 This witness, in her statement to the investigators, mentioned

25 that she was taken out and that Witnesses 105 and 90 were present, and

1 that she heard Zaga's name from Witness 90. But we have not had an

2 opportunity of hearing Witness 90, and the credibility of this witness

3 cannot be checked through her testimony because she did not testify.

4 However, since this witness was unable to say who took her out

5 from Partizan to the house at Osmana Djikica, mentioning that it happened

6 twice and claiming that she walked both times, it is unlikely that she

7 would fail to remember who had taken her out of Partizan, because she

8 walked a long stretch twice, while all the other witnesses claimed they

9 were taken in vehicles, and this casts doubt on the words of this witness.

10 On page 2290 of the transcript, in response to a question of the

11 Defence counsel, Witness FWS-95 affirms that she had a better recollection

12 of the events at the time when she gave her statement to investigators of

13 the Prosecution office, confirming that also on page 2302 of the

14 transcript, lines 13 and 14.

15 In this first statement given to investigators, this witness

16 claims she had never been taken to a hotel but only to houses and

17 apartments, either from the secondary school or from Partizan, saying that

18 she was once taken, together with Witness FWS-48, into a burnt-down house,

19 whereas Witness FWS-48 claims she was taken -- she had been taken to

20 Zelengora Hotel, where she had found FWS-95.

21 As this witness, in her first statements, gave a completely

22 inaccurate description of the accused, and since she failed, on page 2325

23 of the transcript, to describe the house, the layout of the rooms, or the

24 place she was raped, it is obvious that this witness cannot be believed.

25 We should point out here that Witness FWS-105, in her statements

1 given to investigators of the Tribunal on the 9th, 10th, and 11th of

2 February, 1996, describes the accused Kunarac as a middle-aged man, thin,

3 blond, with a beard, and in view of the fact that Witness FWS-105, when

4 shown 12 photographs, despite the fact that she had such knowledge and

5 that she saw one of the perpetrators when he surrendered to the Tribunal

6 and recognised him as the accused Kunarac -- she, on that occasion,

7 pointed to photograph number 9, saying that she was not 100 per cent sure

8 because she had seen him only once, and that on that occasion he had a

9 moustache and a beard -- it can be clearly concluded from this that

10 neither Witness FWS-95 or Witness FWS-105 cannot be believed when they say

11 that they had contact with the accused Kunarac, because Kunarac never had

12 a beard or a moustache. On top of all this, this witness did not

13 recognise the photograph of the accused Kunarac on the ELMO.

14 Bearing in mind that the Defence, in our opinion, has proven the

15 alibi of the accused Kunarac for the period of 7th of July to the 21st of

16 July, 1992, and from the 23rd to the 26th of July, 1992, as well as for

17 the period from the 27th of July to the 1st of August, 1992, and the day

18 and the night of the 2nd of August, 1992, the Defence believes the

19 Prosecutor has failed to prove that the accused Kunarac can be held

20 responsible for actions under paragraph 5.5 and for crimes under items 1,

21 2, 3, and 4.

22 The indictment charges the accused Kunarac with taking away

23 Witness FWS-48 on the 13th of July, 1992, or around that date, together

24 with two other women, to Hotel Zelengora, where she was raped, with

25 vaginal penetration and fellatio, and by the accused Kunarac, Zoran

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1 Vukovic, and their local military commander. She claims that both told

2 her she would bear Serbian children.

3 The Defence immediately asks the question: On the basis of which

4 piece of evidence does the Prosecution claim that this event took place on

5 the 13th of July, 1992? The Defence maintains that not a single piece of

6 evidence presented by the Prosecution points to the fact that this

7 happened on that date, and even Witness FWS-48 does not claim this.

8 Why is it so important to determine the exact date? It is

9 important in order to establish the credibility of Witness FWS-48, which

10 the Defence contests in its entirety, because all her statements given in

11 relation to these events - and she gave several of them - are confused,

12 mutually contradictory, and in consistent with statements of other

13 witnesses.

14 Before we start analysing her statements in order to show that

15 nothing this witness said can be believed, the Defence wishes to point out

16 that the Trial Chamber, in their decision of the 3rd of July, 2000, found

17 that evidence was lacking that Zoran Vukovic raped Witness FWS-48 because

18 this witness failed to recognise, to identify the person she called Zoran

19 Vukovic as the accused Zoran Vukovic.

20 We emphasise this because all the incidents are related to the

21 removal of this witness from the sports hall of Partizan, starting with

22 the 13th of July, 1992. However, as we have said before, all witnesses

23 who had been accommodated in the secondary school of Aladza, as a

24 collection centre, after the events of the 3rd of July, 1992, when they

25 left the area where military operations were taking place, claimed that

1 they were accommodated in the secondary school for 15 days. It does not

2 follow from the statement of this witness that she had seen him in the

3 secondary school, but instead she heard from others that he had come

4 there. However, she also heard from Zehra Pekaz that the latter was raped

5 by Dragan Kunarac. However, none of the witnesses we heard had seen the

6 accused Kunarac in the secondary school, nor had heard about his visits,

7 and therefore the accused Kunarac could not have taken Witness FWS-48 from

8 Partizan on the 13th of July or around that date. And as we said, it does

9 not say in the description where the accused Kunarac took Witness FWS-48

10 from.

11 If we are talking about removal from the Partizan Sports Hall,

12 then this could not have happened on the 13th of July, 1992, because on

13 that day these witnesses were still in the secondary school, whereas the

14 accused Kunarac was in the area of Cerova Ravan until the 21st of July,

15 1992.

16 The Defence should also like to point out that it has remained

17 completely unclear who these -- those two women who were allegedly removed

18 on that occasion together with Witness FWS-48 to the Zelengora Hotel.

19 These women remained unidentified until the end of this trial.

20 Furthermore, not a single piece of evidence has been presented to show

21 that the accused Dragoljub Kunarac was in any way linked with the accused

22 Zoran Vukovic or with any "Zoran Vukovic," of whom there are over ten in

23 Foca, or to confirm the statement of this witness that she was raped by

24 the accused Kunarac and Zoran Vukovic in the Zelengora Hotel, and by all

25 means, not in these proceedings because the accused Zoran Vukovic in these

1 proceedings was acquitted of this particular charge.

2 Witness FWS-48 claims that in the Zelengora Hotel when she was

3 brought there, she had found Witnesses FWS-75, FWS-90, and FWS-95; and

4 Witness FWS-95, as we have already pointed out, denies in all her

5 statements that she had ever been taken to a hotel. And this is also

6 corroborated by Witness FWS-75. If these two witnesses deny their

7 presence in the Zelengora Hotel when the accused Kunarac allegedly brought

8 Witness 48 to this hotel and raped her, then we can by no means believe

9 Witness FWS-48, and it is obvious that she's making these events up.

10 Faced with her own claims from the interview she gave to the BBC

11 at this trial, she admitted to giving that interview, but in that

12 particular interview she never mentioned the accused Kunarac. Faced with

13 the facts stated in her own signed statements, in which she again fails to

14 mention the accused Kunarac, she denied that those were her signatures on

15 the statements, and the Defence then suggested that the signature be

16 verified by graphological experts in order to clarify the matter.

17 After this proposal, the Prosecution stipulated to the

18 authenticity of the signature of Witness FWS-48 on these statements. The

19 Prosecution must have done this because they are convinced themselves that

20 the witness had indeed signed those statements; otherwise, the statements

21 themselves would have been brought into question, together with the

22 credibility of this witness. However, by trying to deny the authenticity

23 of her own signature, and even laymen know that it was her signature, she

24 cast serious doubt on her own credibility, and the very substance of her

25 statements contradicts her own testimony at this trial, so it is

1 completely clear that this witness did not speak the truth and that she

2 made everything up.

3 Witness FWS-48 claims that she recognised the accused Kunarac also

4 when she saw him on television after his arrest, and if we compare this

5 with her own description given in her statement where she says that the

6 accused was 45 or 46 years old, of average weight, that he had a

7 Montenegrin accent, and that he was 177 or 175 centimetres tall, and if we

8 compare this description with the actual appearance of the accused Kunarac

9 at the time, which I hope is not contested, the fact that he is 32 years

10 old, that he does not have dark hair, that is he much taller, three years

11 younger than she, then it is clear that this witness, namely FWS-48, had

12 never any contact with the accused Kunarac as opposed to what she claims.

13 Under item 6.2, the accused Kunarac is charged with taking Witness

14 FWS-48 to another house in Donje Polje from a house close to the bus stop

15 to which she and Witness FWS-95 had been taken by DP6, and

16 since this involves the date of the 18th of July, 1992, we can assume that

17 this concerns the removal of this witness and Witness 95 from Partizan.

18 But here again, there is no mention of the time of night or day when this

19 was done.

20 JUDGE MUMBA: Yes, Ms. Lopicic.

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 JUDGE MUMBA: Yes.

1 JUDGE HUNT: That may be because the document from which he is

2 reading has the full name.

3 MS. LOPICIC: [Interpretation] I want for the transcript to be

4 corrected.

5 MR. PRODANOVIC: [Interpretation] Yes, Your Honour. I was quoting

6 the indictment, and that's why I made this mistake.

7 JUDGE HUNT: ... the indictment, Mr. Prodanovic, you're not

8 reading from the submissions that have already been filed. I don't know

9 really what use this is that we sit here and listen to something which

10 we've got to read.

11 My idea of a final address is that you deal with the further

12 arguments that have been put by the Prosecution in their addresses, and

13 you highlight any particular matter that you want us to look at in a

14 special way which may not be clear from the written submissions. But so

15 far, we have listened for now nearly three hours to you just reading what

16 you have already filed with, so far as I can see, no real elaboration on

17 it.

18 MR. PRODANOVIC: [Interpretation] Your Honour, we believe that this

19 is the best way to determine the credibility of witnesses. Some things

20 are added, some things are omitted, and we believe that this is the right

21 way to give this closing argument.

22 JUDGE HUNT: Do you say that you have been adding something to

23 what you have already put in writing?

24 MR. PRODANOVIC: [Interpretation] As you have noticed, I left out

25 some things at the beginning.

1 JUDGE HUNT: I did notice that. I thought at first that you were

2 going to take us at a slightly more speedy pace through these very

3 voluminous and, if I may say so, very helpful written submissions; but may

4 I suggest that you concentrate more on what you want to add to them rather

5 than simply reading them.

6 MR. PRODANOVIC: [Interpretation] Your Honour, I shall accept your

7 suggestions, and I will discontinue this analysis of witnesses as you

8 suggested.

9 JUDGE HUNT: I don't want you to discontinue anything that you

10 feel that we need to hear rather than simply read. I can assure you that

11 these written submissions will be read very carefully, but I don't know

12 whether I would myself go back to check against the transcript whether you

13 have added anything to it because you aren't making that very clear.

14 I haven't been following you word for word, but every now and

15 again when I check the written submissions, I can find out exactly where

16 you are, and I know exactly what you're going to say next. It seems to me

17 that won't help us very much. It's a matter for you Mr. Prodanovic, I

18 don't want to stop you, but it doesn't seem to help us very much to simply

19 listen to you reading out what you've already put in writing.

20 MR. PRODANOVIC: [Interpretation] Your Honour, I shall avail myself

21 of the time you have given me and analyse my points as I think I should

22 and use up the time allowed to the Defence.

23 I listened carefully to the closing argument of the Prosecution

24 yesterday, and they also repeated many things that have been already

25 filed.

1 JUDGE HUNT: Yes, they did, but they also added to it

2 considerably.

3 MR. PRODANOVIC: [Interpretation] I will do so myself, Your Honour.

4 JUDGE MUMBA: Thank you. The transcript is corrected on the use

5 of the pseudonym.

6 MR. PRODANOVIC: [Interpretation] Since the date of the 18th of

7 July, 1992, is in question, we can assume that what is involved is the

8 removal of this witness and Witness FWS-95 from the Partizan Sports Hall,

9 but it is not mentioned at what time of day or night that was done.

10 In her statement introduced as Defence Exhibit 78, this witness

11 claims she was taken by Dragoljub Kunarac in this house in Donje Polje,

12 page 2799 of the transcript, and when faced with the statement that

13 Witnesses FWS-90 and FWS-75 were with her, she confirmed that they, too,

14 were there; but when she was told that these witnesses had denied it,

15 namely Witness 75, Witness 48 said that she could not understand it, and

16 she couldn't fathom how they could say they had not been with her.

17 We should point out that this testimony and these charges,

18 allegations, have not been proven beyond any reasonable doubt, namely,

19 points 6.1 and 6.2.

20 In the actions described in paragraph 7.1, the accused -- charge

21 that the accused Kunarac around the 2nd of August, 1992, or around that

22 date, together with DP3, military commander of a Serb unit from

23 Miljevina in Foca, transferred witnesses 75 and 87 and another two women

24 from Partizan to Miljevina where they were locked up in an abandoned

25 Muslim house known as Karaman's House which housed DP3 and his

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1 soldiers. As this paragraph does not mention at all the actions qualified

2 in items 9 and 10, the Defence will not make an elaborate analysis of the

3 actions described under 7.1; but we will point out, bearing in mind our

4 arguments in Section K.C10 of our closing argument, that on the 3rd of

5 August, 1992, he took Witnesses 75 and DB and another woman, whose

6 identity he does not remember but he categorically claims it was not

7 Witness 87 because she was not in Partizan that morning at all, and he

8 went to have them meet the journalist who had told him that morning about

9 some rape. But he also said that DP3 was not with him. Therefore,

10 since the Defence has, in our opinion, proven the alibi of the accused

11 Kunarac for the 2nd of August, 1992, it is quite certain that on that day

12 he did not drive anybody to Miljevina.

13 Furthermore, none of these witnesses - FWS-75, FWS-87 - claim that

14 the accused Kunarac was accompanied by Pero Elez when he was taking them.

15 So the Defence must conclude that the allegations under paragraph 7.1 are

16 arbitrary and not proven to have happened as described.

17 Witness DB testified at the trial, responding to the question of

18 the Prosecutor following her description of events of the 2nd of August,

19 explaining that on the following morning she woke up, that her sister was

20 with her, Witness 87, and also Witness 75. And asked whether the accused

21 Kunarac later came to that house, she affirms, "Yes, later, at

22 lunchtime." And when asked, "Did you see Pero Elez in that house or in

23 front of that house?" she answers that she does not remember seeing Pero

24 Elez. When further asked what Zaga had done when he had arrived, she

25 says, "We were put into the car and taken to Miljevina." When she was

1 asked, "When you say 'we,' who?" She replies, "Witness FWS-75, 87, and

2 me." These are lines 12 and 13.

3 Thus, this witness does not mention Pero Elez. She mentions

4 instead that they were taken away by Zaga. And Witness 75

5 mentions - this is page 1432 of the transcript - in response to the

6 question, "Who was in the car, I mean girls and men?" she replies, "Of

7 men, there was only Zaga, who took us there. As for the girls, there was

8 myself, DB, FWS-87 and 190."

9 This witness mentions that on that morning - and that must have

10 been the 3rd of August, 1992 - there were a lot of soldiers and there was

11 Pero Elez, Zaga, and Gaga. This witness also mentions the encounter with

12 the journalist and that they were taken to Miljevina, where there were a

13 lot of soldiers.

14 Regarding this event, the Witness FWS-87, on page 1700 of the

15 transcript, says that she cannot be sure when she was taken to Miljevina.

16 But asked whether she remembers who took them there, replies that she

17 remembers Pero Elez and that there were another two men, but she does not

18 remember who they were.

19 Further asked whether they had told them why they were being taken

20 away, she answered, "No." And when asked who was taken away, she

21 answered, "Witness FWS-75, DB, and FWS-190," which means that this witness

22 does not mention the accused Kunarac as one of the soldiers who took them

23 to Miljevina.

24 On page 3352 of the transcript, Witness FWS-190 describes the

25 incident when they were taken to Miljevina and mentions that Pero Elez and

1 another man, namely, one of the Samardzic men, came for them and asked

2 them to get into the car. And when asked whether she saw Zaga on that

3 occasion, she answered, "No." Asked which girls Pero Elez took to the

4 car - that is line 19 - she answered, "Myself, the two sisters, FWS-87,

5 DB, and there was another girl with us." That is line 20 and 21. This

6 other girl should be Witness FWS-75.

7 As we can see, the witnesses claim that this happened on the day

8 after the incidents in Aladza at 16 Osmana Djikica house. If we accept

9 that DB told the truth when saying they had spent the night in that

10 house - and this is also corroborated by Witness FWS-87 - and if we take

11 into account furthermore that Witness FWS-190 was brought from Kalinovik

12 on the 2nd of August, in her own words, then it must have been the 3rd of

13 August, 1992.

14 Witnesses furthermore give different times when they were put into

15 the car and taken to Miljevina. Some say it was in the morning, some say

16 it was around noon. And then they -- some of them say that the accused

17 Kunarac was there, others say -- others deny his presence and claim

18 instead that Pero Elez and some other men had been there. Then the

19 Prosecution cannot resolve this dilemma by deciding that it was the

20 accused Kunarac and Pero Elez that took these girls to Miljevina.

21 The Prosecutor must choose whether to believe the accused Kunarac

22 and those girls who claim that he took them, he drove them away around

23 noon on the 3rd of August, 1992, or to believe other girls who claim that

24 Pero Elez had taken them away and that that happened in the morning.

25 However, the Defence only make this analysis to show the major

1 inconsistencies in the testimonies of these witnesses and to show that

2 because of these major differences, these witnesses cannot be believed or

3 their testimony be given more weight than the testimony of the accused

4 Kunarac himself.

5 The Defence does not clearly understand why the Prosecution

6 separated actions described under paragraph 7.1, since it does not

7 incriminate these actions in items 9 and 10, rape, according to Article

8 5(g) of the Statute and Article 3 of the Statute, from actions under 7.2,

9 where descriptions are given of rapes in September and October against

10 FWS-87.

11 Therefore, the Defence will move on to analyse the actions stated

12 in paragraph 7.2, which happened in Karaman's -- in the so-called

13 Karaman's House near Miljevina, where Witnesses FWS-75, 87, and others

14 found themselves, without the accused Kunarac knowing about it, because

15 Kunarac, who had reached Miljevina on the 3rd of August, wishing to have

16 them meet with the journalist, got an urgent assignment and departed and

17 had no further contact with these witnesses.

18 To conclude, in her statement, the Witness 87 does not mention

19 this incident at all. When the accused Kunarac decided to surrender to

20 the Tribunal and when he came here, he described in his interview his own

21 movements and he mentioned that on one occasion he had been in Karaman's

22 House and had seen Witness 87.

23 A month later --

24 JUDGE MUMBA: Counsel, it's time to break for lunch, and we'll

25 continue -- maybe you have one sentence to complete? We'll break for

1 lunch --

2 MR. PRODANOVIC: [Interpretation] I just wanted to say another two

3 sentences, not more.

4 JUDGE MUMBA: Yes. Go ahead. Just complete the two sentences.

5 MR. PRODANOVIC: [Interpretation] So Kunarac described his own

6 movements and mentioned Karaman's House.

7 A month later investigators invite Witness 87 and tell her that

8 Kunarac had said himself he had visited Karaman's House. And asked, "Did

9 he rape you?" the witness replies, "Yes." Had the accused Kunarac not

10 given the interview, he would not have been accused of this particular

11 crime, so that is what he gets for his cooperativness with the Tribunal.

12 JUDGE MUMBA: All right. We'll break off for lunch until 14.30

13 hours this afternoon.

14 --- Luncheon recess taken at 1.03 p.m.

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1 --- On resuming at 2.31 p.m.

2 JUDGE MUMBA: Before we continue with you, Mr. Prodanovic, the

3 Trial Chamber has been informed that the interpreters have a correction to

4 make at the beginning, which happened -- there was a mistake at the

5 beginning of your address yesterday in the interpretation. So I'll ask

6 them to go ahead, and we can all hear.

7 THE INTERPRETER: The interpreters wish to insert the following

8 correction in the transcript: About two minutes into Mr. Prodanovic's

9 closing argument in a sentence starting with, "The common position of the

10 Defence of all the three accused shall refer to the basic allegations in

11 the indictment to the factual descriptions on the nature of

12 individual," it should have said "collection centres" whereas we said

13 "detention centres." That's all. Thank you.

14 JUDGE MUMBA: Thank you. You've understood. That's correct,

15 Mr. Prodanovic? Yes, thank you, you may proceed.

16 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour.

17 Finally, as for para 7.1 of the indictment, I wish to point out

18 that the Defence believes that the actions quoted there have not been

19 proven and that the accused Kunarac should be acquitted of them.

20 As for actions described in item 8.1 of the indictment, I wish to

21 say that I stand by my written final brief where it says that Witness 87

22 had mistaken the identity of the accused because the -- all the more so

23 because the incident happened in July where -- for which period the

24 Defence has proven the alibi of the accused Kunarac.

25 Witness FWS-61 did not recognise the accused Kunarac on the

1 photograph put up on the panel or on the ELMO. It is simply impossible

2 for the accused in such a short period, and most of the actions took place

3 in mid-July, to have committed such a large number of crimes while being

4 all the time away on missions, combat missions; and the Prosecution does

5 not seem to contest his presence at Rogoj, Dragocava, Cerova Ravan,

6 Jabuka, and other places.

7 We believe the Prosecution has not proven the items 11 and 12 of

8 the indictment and the facts contained therein, and that he should be

9 acquitted of these charges.

10 Also, before speaking about this item, I said the accused should

11 be acquitted of charges contained in item 7.1. I omitted to mention also

12 item 7.2, and I discussed this just before the lunch break. I would

13 therefore wish to suggest that he be acquitted of charges under para 7.2

14 as well.

15 Since with the approval of the Trial Chamber the Prosecution

16 withdrew their indictment regarding paras 14, 16, and 17, the Defence

17 shall not analyse the actions contained in item 9.1 where it says that on

18 the 2nd of August, 1992, the accused Kunarac, together with DP3 and

19 several of their soldiers, took out Witnesses 101, 186, and 199, and

20 several other women from the primary school in Kalinovik and took them to

21 the headquarters at 16 Osmana Djikica Street. We will rather analyse this

22 together with actions quoted in paras 10.1, 10.2, and 10.3 under which

23 he's charged with rapes, enslavement, outrages upon personal dignity.

24 It has been said already that it is the position of the Defence

25 that the accused Kunarac's alibi has been proven for the periods from the

1 19th --

2 THE INTERPRETER: The interpreters missed the dates, but they have

3 been mentioned before.

4 MR. PRODANOVIC: [Interpretation] It has been proven that on the

5 2nd of August, 1992, the accused was not in Kalinovik and was therefore

6 unable to remove women and girls from the primary school in Kalinovik.

7 Bearing in mind not only the testimonies of Defence witnesses but

8 also the testimonies of Prosecution witnesses, and, for instance, Witness

9 205 mentions that on the 2nd of August, three soldiers came into a

10 classroom. She does not remember what they said on that occasion. They

11 were wearing camouflage uniforms with white insignia, and that they were

12 wearing caps, but this witness does not claim, I underline "does not

13 claim," that there was the accused Kunarac.

14 And on page 3336 of the transcript, the witness claims they were

15 taken around noon on the 2nd of August, 1992, and that among the soldiers

16 there was Ranko Radulovic, but she does not remember the identity of any

17 other soldiers.

18 This witness describes the event in the same way in the statement

19 she made to the investigators of the Prosecutors on the 7th and 8th of

20 June, 1998, when the accused had already been arrested, Defence Exhibits

21 D61 and D61A.

22 When these statements are seen together with the statements of

23 other Prosecution witnesses who describe events that took place at Osmana

24 Djikica Street 16 during the evening and night of the 2nd of August, 1992,

25 then it becomes clear that the accused Kunarac could not have been in two

1 different places at the same time, and therefore, on the 2nd of August,

2 1992, he could not have taken Witnesses 186, 191, and JG from the house at

3 Osmana Djikica Street 16, as described in paragraphs 10.1, and he couldn't

4 have taken them, together with Gaga and DP6, to the house of Halid Cedic

5 in Trnovace, where the accused allegedly raped Witness 191 on the same

6 night.

7 The question, therefore, arises of whether the accused Kunarac

8 participated in the taking away of witnesses from the house at Osmana

9 Djikica Street 16, allegedly on the 2nd of August, 1992, to Trnovace, to

10 the house of Halid Cedic, and later, whether the accused Kunarac raped

11 Witness 191 in that house on the same night and whether he continuously

12 raped her after that for at least two months, the same witness in the same

13 house as described in paragraphs 10.1 and 10.2.

14 As we have already said, the accused Kunarac could not have been

15 in Kalinovik and at Osmana Djikica Street 16 and in Trnovace on the 2nd of

16 August, 1992, because, according to the testimony of the witnesses, he was

17 supposed to be in three different places at the same time, which is

18 physically impossible.

19 In the part that deals with the alibi of the accused Kunarac, it

20 was pointed out that the accused Kunarac, as he himself said, took

21 Witnesses 75, 87, DB, and another girl to Miljevina on the 3rd of August,

22 1992, at about noon, and there they went to a motel, where they were

23 looking for a journalist, where the girls would be confronted with the

24 journalist, and there he was given an urgent task which he went to carry

25 out at once. And until he came back from Rogoj on the 8th of August,

1 1992, that is, until he came back from the burial of Krnojelac, who was

2 killed on the 9th of August, 1992, he had no knowledge of these events.

3 And then he went to Trnovace with DP6 and there saw Witness 191.

4 Taking into consideration the description of events in paragraphs

5 10.1, 10.2, and 10.3, the Defence will start in its analysis from the

6 testimony of Witness 186.

7 During her examination by the Prosecution at the trial, Witness

8 186 explained her statement which she gave to the Bosnian authorities on

9 the 26th of November, 1993, Exhibit 212 and 212A, on page 2963 of the

10 transcript, and she explained that it was correct that she said that on

11 the next day, from the day when she was exchanged, she and Witness 191

12 were taken to the village of Trnovace by the present husband of Witness

13 191, and DP6, and that in the house in Trnovace she lived with DP6, while

14 Witness 191 lived with the soldier who later became her husband.

15 When asked by the Prosecutor why she said that and why she had not

16 mentioned the accused Kunarac at all in that statement, she explained that

17 she was embarrassed and felt uncomfortable talking about this in front of

18 three men, and that she did not know where she was. To the question of

19 the Defence in relation to her statement and the other statement which she

20 gave to the State Commission for the Establishment of War Crimes on the

21 14th of December, 1993, Prosecution Exhibit 213 and 213A, she also stated

22 that she felt too embarrassed when giving a statement in front of three

23 men, but she also said that everything was correct in those statements

24 except when she said that they had not been raped. She also confirmed

25 that her memory when she made the first statements was fresher.

1 The Defence wishes to raise the question -- the Defence asks why

2 the naive explanation of this witness should be accepted when she says

3 that she felt uncomfortable making a statement in front of three men about

4 what had happened to her in Trnovace, or in general, when that was the

5 reason for the interview, for her to explain to them what had happened.

6 It is also unacceptable when she explained that she did not know where she

7 was because she had already been exchanged, which means that she was in

8 the hands of representatives of her people, as she says, and the Defence

9 considers that this witness is manipulating her statements, as she was led

10 to talk about certain matters.

11 Since in the first statement which she gave before the authorities

12 in November 1993 -- she said that she and 191 had lived with DP6 and the

13 future husband of 191 of their own free will -- she probably later changed

14 her statement, and the Defence maintains that the statement was changed so

15 that she and Witness 191 would not be blamed for living with Serbs at that

16 time, because 191 later married a Serb and had children with him.

17 It is symptomatic that this witness on page 3015 of the

18 transcript, when asked by the Prosecution whether she had spoken the truth

19 in her first statement answered, "Well, in fact, I didn't," line 5. And

20 to the next question of the Defence which was, "And in your second

21 statement" she said, "There are truths in there. Not everything in there

22 is false. I kept quiet about other things, and I told you what the reason

23 for that was."

24 If this witness states and admits before the Court that she did

25 not speak the truth in any of her statements, then the credibility of such

1 a witness is seriously brought into question before this Court, and no

2 decision can be based on her testimony because one cannot believe a

3 witness who admitted in one statement that she did not speak the truth and

4 who said that there is some truth there, adding unacceptable explanations.

5 The Defence has to ask what the difference is in what this

6 witness, when first interviewed by representatives of the authorities,

7 mentioned events and also mentioned Witness DP6 and the future husband of

8 191, and instead of the future husband of 191, she mentioned the accused

9 Kunarac, if it is true that he was the one who took her to Trnovace.

10 About her later stay at the house at Trnovace, Witness FWS-186

11 claims that she thinks that on that evening, Kunarac and Gaga were not

12 there, and that DP6 was consuming alcohol the whole time. And that is

13 page 2945 of the transcript. That part of the statement of this witness

14 is also typical because when asked by the Prosecutor what really happened

15 when they arrived at the house, this witness answers, "That first evening

16 we sat there, and DP6 gave us some meat to cook dinner. Kunarac was

17 there, and Gaga as well. I don't remember exactly. I think in fact

18 Kunarac and Gaga were not there. I think they had gone away somewhere. I

19 know that DP6 was consuming alcohol all the time."

20 When the Defence says that this part of the testimony is typical,

21 we mean that the witness claims at one point that Kunarac was there, the

22 next moment she says he had gone and returned about 2.00 or 1.00 a.m.

23 This witness goes on to say that no one, including DP6, threatened her or

24 beat her or slapped her, which means that no force or threats were used

25 against her or the others.

1 When asked by the Prosecutor, responding to the Prosecutor's

2 question, this witness said she was afraid while she was at that house.

3 When asked what she was afraid of, she answered that she was afraid

4 because when DP6 and the accused Kunarac was away, other soldiers would

5 come, demand that she open the door, and called her names. This witness

6 goes on to state that she was also afraid of DP6 and the accused Kunarac,

7 which is again contradictory because if she claimed that she was afraid of

8 other soldiers when the accused Kunarac and DP6 were away, then why would

9 she be afraid of DP6 and the accused Kunarac who offered her some

10 protection?

11 It is noteworthy that on page 2953 of the transcript, this witness

12 affirmed that they were sometimes alone at the house in Trnovace, they

13 even had the key, and thought about running away but had nowhere to run.

14 And when she was directly asked by the Prosecutor whether the accused

15 Kunarac and DP6 had been friendly to them, her answer was, "I don't know

16 how to answer this question exactly, but they did not abuse us as far as

17 my psychological abuse is concerned or physical." That is page 2953, line

18 16 to 18.

19 This witness claims that Witness FWS-191 was repeatedly raped by

20 the accused Kunarac in a period lasting for about one and a half to two

21 months. However, this witness answering the question how often the

22 accused Kunarac came to the house, answered that he had often been away.

23 Asked whether she remembers he had been injured, she answered that there

24 had been something wrong with his arm and that that had occurred perhaps a

25 month later. Furthermore, this witness states she doesn't know whether

1 DP6 and the accused Kunarac were friends and whether they knew each

2 other. It is a bit odd that they came to the house without her knowing

3 whether they had known each other, which again casts doubts on the

4 statements of this witness.

5 It would be curious now to look at the testimony of Witness

6 FWS-191 and compare it with the testimony of Witness FWS-186. In her

7 statement given to investigators on the 22nd and 23rd of September, 1998,

8 Witness FWS-191, explaining an incident she claims occurred on the 2nd of

9 August, 1992, when she was transferred from the school in Kalinovik, first

10 to Foca, to the house at 16 Osmana Djikica Street, she claims that they,

11 that is, women from Kalinovik, were the only women and girls in that

12 house. That is Defence Exhibit 58A, page 6.

13 We wish to point out immediately that Witnesses 87, 75, 50, and

14 DB, claim that on the 2nd of August, 1992, they were at 16 Osmana Djikica

15 Street, and some of them claimed they had spent the night there; whereas

16 Witnesses 87 and 50 claim that on that same day, that is more precisely

17 evening, the accused Kunarac raped them at that house as well.

18 It is a fact that some witnesses claim to have been in that house,

19 and some of them mention that women from Kalinovik were brought there,

20 such as Witness FWS-75 who claims that she saw a pregnant woman, which

21 should be Witness FWS-101. This is not such a minor detail that Witness

22 FWS-191 would fail to remember.

23 All this casts doubt on the testimony of Witness 191 and her

24 claims that she was brought to Foca, to 16 Osmana Djikica Street, that is,

25 that the accused Kunarac was the one who took her to Trnovace together

1 with Witness 186 and JG, because Witness 186 is not sure that the accused

2 Kunarac was with them; and in her first statement, she didn't even mention

3 him, whereas the accused relies on his alibi which has been confirmed for

4 that particular night.

5 Apart from that, Witness FWS-191 claims that from Kalinovik they

6 were taken away somewhere around 7.00 or 8.00 p.m. - that is page 3257 of

7 the transcript - and she assumes that it happened at that time, whereas

8 later answering questions as to when they arrived in Aladza at 16 Osmana

9 Djikica Street, she explains it was late. Responding to further questions

10 of the Defence on the same page of the transcript, that is 3267, she

11 claims she had heard no detonation while at the house in Aladza. This

12 fact, too, the fact that the witness does not remember the detonation,

13 also casts doubts on her entire testimony.

14 Witnesses 50 and 87 claim that on the 2nd of August, Kunarac did

15 not rape them and that he personally was the one who brought them from

16 Partizan that night, and they further claim it was on the evening when the

17 mosque in Aladza was blown up, it is clear that the accused Kunarac could

18 not have been both at 16 Osmana Djikica Street and in Kalinovik as the

19 witness FWS-191 purports to remember, especially in view of the proved

20 alibi of the accused Kunarac for that particular day.

21 We should point out at this point the testimony of Witness 190 who

22 stayed in Kalinovik in the primary school and who also describes the event

23 when she was taken to Foca together with seven other women in a Zastava

24 101 vehicle, unlike other women who claim it was a Lada car. This witness

25 gave a statement to investigators on the 7th and 8th of June, 1998, and

1 that is Defence Exhibit 61A, page 5. She claims in that statement that

2 she is not sure that the accused Kunarac was at the school. She says that

3 two or three armed soldiers from Zaga's unit came and took them to Foca.

4 She claims that she knew the names of these soldiers and that one of them

5 Ranko Radulovic, while she doesn't remember the name of the other. She

6 claims that Kunarac was not at the house when she arrived, but she also

7 says she heard the explosion that night, and claims that she was taken

8 away on the 5th of August, 1992, but later expressed doubts as to that

9 particular date.

10 From this analysis, it follows clearly that these witnesses cannot

11 be believed in the part where they described how they were taken from the

12 school in Kalinovik to the house in Trnovace, and if they cannot be

13 believed in this part, then they cannot be believed in other parts of

14 their statements, and therefore we cannot believe the claim of Witness

15 FWS-191, that she was raped by the accused Kunarac.

16 Witness FWS-191 claims that on the same evening when she was

17 brought to the house in Trnovace she was raped by the accused Kunarac.

18 Allegedly, on that day, the accused Kunarac put his knife on the

19 table -- next to the table, and she was afraid of the knife, but she does

20 not explain -- she does not mention that he threatened her or said

21 anything concerning the knife. She did not explain where the knife came

22 from or where he kept it. She explained that he tried to -- he had tried

23 to have intercourse with her, but unsuccessfully, and he did not succeed

24 in deflowering her that night. She also confirmed that she did not

25 remember him saying anything, but she knows that he never hit her. That

1 is page 3173 of the transcript.

2 She further explained that she wasn't crying, but she was

3 trembling frightfully, and that she talked the next day with Witness

4 FWS-186 once the accused Kunarac had left after spending the whole night

5 with her, and that the said witness had told her that she had been raped

6 by DP6.

7 She goes on to claim, and that is page 3178 of the transcript,

8 that the accused Kunarac came to the house at Trnovace after September

9 1992 and that he raped her every time, and furthermore, that on the second

10 night, when he raped her again, he succeeded in deflowering her. That

11 means that on the 3rd of August, 1992, the accused Kunarac raped her.

12 However, answering the question whether the accused Kunarac lived

13 there for two months, she said she didn't know whether he had lived there,

14 but he came often, sometimes when he was not on the front line. That is

15 page 3179 of the transcript.

16 She claimed also that DP6 practically lived in that house when he

17 was not on the front line. She affirmed that the accused Kunarac wanted

18 to take her and FWS-186 to Montenegro, but they had refused.

19 This witness claims that she and FWS-186 asked DP6 whether they

20 could stay in that house, and he told them that they had better stay

21 there, otherwise they could be raped by others. She claims that when DP6

22 was at the house, he gave them a feeling of -- a small feeling of

23 security. She claims that they were more afraid of the accused Kunarac

24 than of DP6 because she is sure that the accused Kunarac would not keep

25 them in that house if he had not respected DP6.

1 These claims of Witness FWS-191 are contradictory, because if they

2 were afraid of DP6, who was drinking heavily, and she explains at the same

3 time that they were more afraid of Kunarac because she's sure that Zaga

4 would not have kept them there had he not respected DP6, then the question

5 arises why they were afraid of Kunarac, who had to obey DP6, whereas DP6

6 inspired them with the feeling of safety when he was there; and on the

7 other hand yet, she claims that they were also afraid of DP6 because he

8 was a heavy drinker.

9 When we add to this the statement of this witness to the effect

10 that they begged DP6 to stay in that house, then the Defence fails to see

11 the logic or the truth of this witness' statement, because on page 3182 of

12 the transcript, this witness, asked whether Zaga had ever slapped her,

13 beat her, or shouted at her, answers, "No, never."

14 The Defence should also like to point out the statement of this

15 witness to the effect that they had a key to the house but did not try to

16 leave because they didn't know where to go. After this, this witness also

17 speaks about the existence of Zaga's unit and says that DP6 had a higher

18 rank than Kunarac, but later explains that she had read all this in the

19 papers, where the term "reconnaissance units" was used.

20 In her statement she fails to give any explanation as to

21 when -- as to how the rapes came to happen in that -- in a later period in

22 that house, or to explain how many times they occurred or how. According

23 to her testimony, that could not have happened often, and this witness

24 should certainly know how the whole thing happened, especially if that man

25 really deflowered her. This is the kind of incident that is etched into a

1 person's memory, whereas Witness FWS-191 is unable to describe it.

2 Witness 191 also describes another incident which Kunarac himself

3 confirms, but their testimonies differ as to the date. It involves the

4 fact that Kunarac brought her a letter that -- brought a letter that

5 Witness 191 had written to her mother, who had still been in

6 Kalinovik - that is page 3188 of the transcript - where she says that the

7 accused Kunarac brought her a letter from her mother and some stuff, and

8 she answered that letter. This witness, in her statement to the

9 investigators - that is Defence Exhibit 58 - fails to mention that she

10 first got the letter from her mother, as she explained at the trial, which

11 is another inconsistency in her statements, all the more so because the

12 witness claims that she asked for permission to write to her mother of

13 DP6, who told her that she could, but she then says that she wasn't sure

14 whether it was really DP6, because both Kunarac and DP6 were there at the

15 time.

16 It means that she intended to leave open the possibility that the

17 accused Kunarac was the one who gave her the permission, although she had

18 previously claimed that she had the impression that DP6 had a higher rank

19 than Kunarac, so it would have been logical for him to be the one to allow

20 her to write the letter instead of the accused Kunarac.

21 Witness [Interpreter's microphone not activated] ... certain that

22 he would not have given a telephone number, the telephone number of his

23 father as well, if he had treated her the way she describes in her

24 statement. On the other hand, if one is to disbelieve Witness 191 in

25 relation to these events -- I beg your pardon. If we are to believe

1 Witness 191 in relation to the event that occurred on the 2nd of August,

2 1992, then the accused Kunarac would have to be pronounced not guilty for

3 this particular count of the indictment, because it is impossible at the

4 same time for him to rape Witnesses 87 and 50 in Foca and in Trnovace

5 Witness 191, as we mentioned earlier on.

6 The Defence believes that the alibi for the accused Kunarac for

7 this particular day and night of the 2nd of August, 1992 has fully been

8 proven.

9 Finally, as far as this particular count is concerned, the Defence

10 believes that the statements made by Witnesses 191 and 196 cannot be

11 accepted with regard to the accused Dragoljub Kunarac and that the

12 Prosecutor has not beyond all reasonable doubt proven in fact counts 18,

13 under enslavement; 19 and 20, rape; and 21, outrage upon personal dignity.

14 Your Honours, I would like to say something about the

15 responsibility of Dragoljub Kunarac with regard to 7(3), Article 7(3) of

16 the Statute, command responsibility.

17 According to paragraph 3.1 of the amended indictment, the

18 Prosecution claims that the accused Dragoljub Kunarac was commander of a

19 special reconnaissance unit of the army of the Bosnian Serbs in the period

20 from June 1992 until February 1993, and that that unit consisted of

21 volunteers, primarily from Montenegro, and that some of them were

22 personally recruited by the accused Kunarac and that he also had his

23 headquarters in the house in Osmana Djikica 16 in the neighbourhood of

24 Aladza, where 10 to 15 soldiers were stationed.

25 The Prosecution claims that the accused Kunarac was commander of

1 these soldiers and that he knew and that he had reason to know that his

2 subordinates sexually abused Muslim women and that he personally took part

3 in the sexual abuse and rape of women, and that therefore he was

4 responsible for the acts committed by his soldiers.

5 It seems that such claims are mostly based on the statement of

6 Witness 191. Her statement will be analysed later. And analyses will

7 show that this witness cannot be believed, because she does not have

8 immediate knowledge of the assertion that the accused had his own unit and

9 that he commanded it. In addition to that, this witness is not very

10 reliable in her testimony and not very clear. Also with regard to

11 paragraph 4.7, where it is claimed that, according to counts 1 to 4 and 14

12 through 17, that is to say, from paragraphs 5.1 to 5.5, and D2 [As

13 interpreted], the accused is responsible for his subordinates according to

14 Article 7(3) of the Statute.

15 The Defence wishes to point out to the Trial Chamber an allegation

16 made in paragraph 4 of the indictment, where the Prosecutor highlights the

17 following:

18 "Criminal responsibility of a superior officer is the

19 responsibility of a superior officer for acts of his subordinates if the

20 superior officer knew or had reason to know that his subordinate would

21 commit such acts or that he had committed such acts, and if the superior

22 officer did not take necessary and reasonable action to stop such acts or

23 to punish the perpetrators."

24 The Defence wishes to underline the word "superior officer"

25 because it is obvious that the Prosecution also believes that it is only a

1 superior officer person who can be responsible for his subordinates. Such

2 responsibility can by no means be held by a soldier such as the accused

3 Dragoljub Kunarac was who, throughout the period relevant for the

4 indictment, has the capacity of an ordinary soldier. Therefore, the

5 Defence wishes to point out straight away that we shall prove through our

6 further analysis that the accused Kunarac cannot be held responsible on

7 these grounds, not by any means.

8 One of the most highly contested issues, both factual and legal,

9 before this Court is the question of establishing superiority and,

10 therefore, responsibility on the basis of this superiority, that is to

11 say, on the basis of command responsibility.

12 As for so-called command responsibility, there has been quite a

13 bit of discussion after the end of the trials of accused for crimes

14 committed during the Second World War, and the Defence will not go into an

15 assessment of all these positions. We shall simply present our position

16 that in the procedure of establishing the assistance of relationships

17 between superiors and subordinates before this Court, this has to be

18 discussed in such a way so as not to put a mark of equation between

19 individual and objective responsibility or to simply do away with any

20 delineation with regard to that.

21 I do not wish to repeat what has already been said in our final

22 brief, but I shall say that the allegation made by the Prosecution that

23 the accused Kunarac when giving his first interview said that he was

24 commander of a group is of no importance whatsoever. It is correct that

25 the accused Kunarac said when he was first interviewed that he was

1 commander of a group, but he also said that he issued orders on the

2 ground, in the field.

3 The Defence is not denying his command responsibility in carrying

4 out combat tasks. That is what the expert witness General Radinovic has

5 also claimed. However, once a combat task has been carried out, his

6 command responsibility ceases to exist because the reconnaissance group

7 was not a permanent military formation. It was an ad hoc group.

8 Your Honours, may I remind you of the following: When General

9 Radinovic completed his expert opinion and when he stated that in the

10 documents of the Foca Brigade that he had looked at, he could not find the

11 group of Foca as a permanent unit, the question was put whether he could

12 provide these documents to the court. The expert, after that, submitted

13 two documents. The Prosecution did not object to the authenticity of

14 these documents. These documents show the formation composition of the

15 Foca Brigade, the Focanska Brigade, and within this formation there is no

16 reconnaissance group as a permanent unit. That is the essence of General

17 Radinovic's findings.

18 As the Prosecutor has been trying to prove that Kunarac had

19 command responsibility, the Prosecution relied on an order issued on the

20 7th of July, 1992, which was signed by Marko Kovac, Colonel Marko Kovac,

21 and the Zaga Detachment is mentioned in this unit [As interpreted].

22 During the proceedings, it has been established beyond any doubt,

23 both by Prosecution witnesses and by the Defence, that when Kunarac went

24 out to carry out his tasks, he never had more than 15 men. When Muhamed

25 Nogo, Prosecution witness, was asked by Prosecution investigators to

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1 clarify the word "detachment" and to explain what kind of a military

2 formation this was, he said that a detachment is a military formation

3 which has from 450 to 500 men. We leave it to the Trial Chamber to

4 estimate whether there is an obvious glaring mistake in the order issued

5 on the 7th of July, 1992.

6 Also, the Prosecution mentions the word "cleansing," which is

7 mentioned in that particular order, claiming that this is ethnic

8 cleansing. However, such a position is untenable. The word "cleansing"

9 or "mopping up," rather, is a part of military terminology which is

10 customary. Witness Nogo also -- witness Subasic also said that this is a

11 word that is used in the BiH army as well, "mopping up."

12 The claim made by the Prosecution that the accused lied about the

13 period he spent at Cerova Ravan and that he could go out in the evening

14 and take women out, because the order show that from the 7th of July, he

15 had to be present in carrying out his combat task. Had he not been

16 present throughout this period all the time, that is, he would have been

17 held responsible as a deserter. He would have been held accountable for

18 desertion.

19 The Defence believes that an alibi has been proven for this entire

20 period. The Defence could have brought in a multitude of other witnesses

21 who would have corroborated this same.

22 Also, we cannot accept the Prosecutor's claim that in the

23 interview, he did not mention his stay at Cerova Ravan. He said this in

24 his second interview, and in the first interview he was not even asked

25 about this. He was only asked to clarify matters related to his plea, his

1 plea of guilt. When he said that, I think that he was referring to the

2 event of the 3rd of August, 1992, in relation to Witness DB.

3 So we cannot accept the Prosecutor's claim that he did not

4 repent. He did repent because of this event, and that is why he came

5 here. However, he thought that this was moral guilt on his part, and it

6 was up to the Court to establish what his guilt actually is. Therefore,

7 the Defence states that the accused Kunarac by no means had command

8 responsibility.

9 Your Honours, now I'm going to say a few words about circumstances

10 related to sentencing. The Defence in its written closing brief under

11 "VP" put forward its joint standpoint on what the Court should take into

12 account when sentencing, but bearing in mind Rule 86(c) which places upon

13 the Defence the obligation of considering the circumstances which are of

14 importance in sentencing, and bearing in mind the principle of individual

15 punishment, I shall put forward some circumstances related to the accused.

16 The family circumstances as well as the circumstances of the

17 tempora crimines which circumstances in the opinion of the Defence must be

18 seen as mitigating when sentencing, are the following: The Defence wishes

19 to point out that the accused Kunarac at the time of the armed conflict

20 was an ordinary soldier on the Serbian side which was in conflict with the

21 Muslims. The accused Kunarac throughout the time of the armed conflict

22 complied with the rules and laws of war, even when, with other soldiers,

23 he encountered horrifying scenes of the suffering of civilians, their

24 mutilation, and the destruction of their homes. All these circumstances

25 indicate the special character of the accused Kunarac which must be taken

1 into account when judging the degree of his responsibility, should the

2 Trial Chamber decide that he should be held accountable for crimes.

3 The accused Kunarac was wounded in the military conflict, and his

4 health was seriously damaged by the consequences of his injury because he

5 practically lost an elbow into which an artificial prosthesis has been

6 inserted. His injury should be seen as a mitigating circumstance when

7 deciding on a possible sentence.

8 The accused Kunarac is the father of three underaged children.

9 His wife is unemployed, and the financial situation of the family is very

10 difficult. This circumstance should also be taken into account as a

11 significant mitigating circumstance.

12 Since all the witnesses of the Prosecution have confirmed that the

13 accused Kunarac, even if it should be proved, was in contact with the

14 witnesses -- with some of the witnesses, he behaved properly. He did not

15 use any kind of force. He did not threaten anyone, except for the

16 testimony of Witness 183 who mentions threats and who, as was proved in

17 the analysis, cannot be believed. And this must also be taken into

18 account as a mitigating circumstance.

19 The Defence maintains that as far as the circumstances of the

20 events in which criminal offences may have been perpetrated, even if the

21 accused Kunarac had committed some of the offences, and the Defence

22 considers that there is insufficient evidence to show this, there are no

23 aggravating circumstances in the case of the accused Kunarac.

24 Bearing in mind the provisions of Article 24(2) of the Statute,

25 the Defence -- and the Rule 101(b)(2), the Defence might point out as a

1 significant mitigating circumstance is the fact that the accused Kunarac

2 gave himself up of his own free will to the International Tribunal,

3 prepared to face trial and prepared to -- for the Court to decide whether

4 he can be held criminally responsible or not; and that he cooperated

5 significantly with the Prosecutor during the trial and agreed to make a

6 statement to investigators on two occasions, and also agreed to testify

7 before the Trial Chamber before the Defence put forward its case. All

8 this underlines the significance of his cooperation, and all these

9 circumstances should be taken into account as mitigating circumstances.

10 Bearing in mind these facts which contribute to a large extent to

11 the establishing of the facts but also to the presentation of the Court as

12 a judicial body, the Defence finds that all this must be especially taken

13 into account when deciding on a possible sentence for the accused Kunarac,

14 especially bearing in mind the principle of individual criminal sanctions.

15 Bearing in mind the provisions of Rules 101(b)(3) and the evidence

16 put forward by the Defence through the expert witness, Professor Stanko

17 Bejatovic who gave an overview of the penal policy in the courts in the

18 former Yugoslavia before and after the conflict on the territory of Bosnia

19 and Herzegovina, the Defence finds that the maximum punishment for any of

20 the crimes which Kunarac might be found guilty of should in no case exceed

21 five years.

22 And to conclude, Your Honours, I wish to refer to the Prosecutor's

23 standpoint as regards the sentence. I will refer to paragraph (b) in

24 which the Prosecution puts forward the basis on which it asks for a

25 sentence. The Defence wishes to say that it is very surprised by the

1 proposal that Kunarac should be sentenced to not less than 30 years in

2 prison.

3 Bearing in mind the standpoint of the Defence that the application

4 of Article 24 is mandatory, or rather that sentencing should be in

5 accordance with the practice in the former Yugoslavia, when we start from

6 this standpoint it should be clear that all the sentences delivered to the

7 Court and put forward as evidence during the testimony of Professor

8 Bejatovic, it is evident that even for the most serious forms of rape,

9 sentences of 3 to 5 years were handed down, and a little more only in

10 exceptional cases, so that in no case could a prison sentence exceeding 20

11 years be handed down. And as for the crime of rape, according to Article

12 103, paragraph 3 of the criminal law of Republika Srpska, the punishment

13 for rape is 15 years, and that is in cases where death occurred as a

14 consequence of rape. So the maximum punishment for this crime, which can

15 occur both in peacetime and wartime, is as mentioned above.

16 So the standpoint of the Prosecution, as put forward in the

17 closing brief that the accused was in uniform or that he was armed is not

18 based -- because without this fact, rape cannot be seen as a war crime.

19 So the fact that he was in uniform and that he was armed cannot be taken

20 as an element of the crime and at the same time as an aggravating

21 circumstance, because had there been no war, there would have been no

22 criminal offence.

23 The Prosecution maintains, with no proof whatsoever, that the

24 alleged crimes were perpetrated in combined actions by the army and police

25 and that this was part of widespread rape undertaken for the humiliation,

1 for discrimination, obtaining of information, and punishment. No evidence

2 has been put forward to indicate any kind of joint activity by the army

3 and police, and the Prosecution is basing this claim on an ordinary

4 coincidence, which is that the Partizan Sports Hall was close to a police

5 station.

6 None of the witnesses claimed that any of the accused turned up in

7 a police uniform. No evidence has been put forward to show that the

8 rapes, even if they happened, were known to a wide circle of people or

9 that they were carried out for purposes of discrimination.

10 With this state of affairs, it is not sufficient for the victims

11 to be Muslims for it to be considered that they were raped because of

12 discrimination. On the contrary, discrimination cannot be based only on

13 the fact as erroneously asserted by the Prosecution, but the intention has

14 to be proved that certain acts were committed for purposes of

15 discrimination. And even this is not an element that can be taken as an

16 aggravating circumstance, because it is actually part of the crime of rape

17 that is alleged.

18 If the Prosecutor says that the accused Kunarac said to Witness

19 183 that she should look a Serb in the eye when he is raping her, this

20 cannot be seen as humiliation, if we overlook, of course, the very fact of

21 rape itself, which need not contain an element of humiliation as seen by

22 the Prosecution.

23 The Prosecution says that Witness 48 cannot be believed, but even

24 so, considers that Kunarac told that witness that she would bear a Serbian

25 child and that this would be humiliating for the witness. This statement,

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1 in our view, is absurd, because the witness is not believed and yet what

2 she says is taken as an aggravating circumstance.

3 The Prosecutor further claims that in every incident humiliation

4 was the goal, and maintains that the girls were raped in the same

5 classroom. This has not been proved, especially not in such a way that

6 humiliation could be established as a goal. The standpoint of the

7 Prosecution that the return of the raped girls to their mothers would be

8 discriminatory in intent is something we cannot understand. We cannot

9 understand that the Prosecution would claim such a thing where no

10 witnesses confirmed categorically that they discussed among themselves

11 what happened to them.

12 I cannot understand how my learned friends from the Prosecution

13 can maintain that the rape of Witness DB by the accused Kunarac could be

14 under -- could have taken place under especially humiliating

15 circumstances. To be sure, the Prosecution states that they think it was,

16 but the Defence feels that it is hard to see this as rape at all, let

17 alone that the behaviour of the accused Kunarac could have brought Witness

18 DB into a humiliating situation.

19 The witness Stanko Bejatovic, who was heard here as a witness,

20 when shown all the facts connected with the event of the 3rd of August,

21 which Kunarac says happened with Witness DB, when Witness DB took the

22 initiative, he cannot be held responsible for this, because Kunarac did

23 not know that the witness Gaga [as interpreted] had threatened Witness DB,

24 which is why she took the initiative. The rape would not have happened

25 had it not been for her initiative.

1 The Defence of the accused Kunarac cannot but wonder why the

2 Prosecution maintains that there was intimidation in every case and that

3 open rapes of women in the secondary school in Partizan were carried out

4 with this intention. None of the witnesses that claim to have been raped

5 confirmed that any of the rapists threatened or intimidated them in any

6 way.

7 The Defence has to say that this standpoint of the Prosecution,

8 which is not based on evidence, is unacceptable.

9 The claim of the Prosecution that the Muslims went through ethnic

10 cleansing is untenable. No one expelled the Muslims from Foca, because,

11 as the Defence has shown, they left Foca of their own accord, following

12 their own armed forces, and settling on the territory where they -- which

13 they controlled, and that Serbs came to Foca, where the Serbs were in

14 control.

15 During the proceedings, no evidence was presented as to what

16 happened in Gacko or Kalinovik or other municipalities which the

17 Prosecution analyses in its closing statement, and it is odd that the

18 Prosecution allows itself to undertake such an analysis when no evidence

19 was presented to this effect and when the Trial Chamber focused only on

20 events in Foca.

21 The Prosecution maintains that there were repeated and continuous

22 attacks, which proves that the attack was systematic, and this is not

23 tenable. There were times when either the Serb or the Muslim forces

24 advanced or retreated. The battle for the Rogoj Pass is the best

25 illustration of this.

1 The claim of the Prosecution that there was evidence that official

2 policy was behind this cannot be maintained because no evidence has been

3 put forward to show this.

4 The Prosecution twisted the order to investigate the blowing up of

5 the Aladza mosque to try to show that this was part of a policy because no

6 one was held responsible for this. The Defence, following the evidence,

7 has shown that no official policy existed to destroy mosques, and no

8 evidence was presented by the Prosecution to counter this, so it will

9 suffice to say that the Defence feels it does not need to present any more

10 evidence as to how the investigations of the blowing up of the mosques

11 ended, because there has been no evidence to show that the blowing up of

12 the mosques was part of a planned policy.

13 The claim of the Prosecution that the arrest and killing of

14 Muslims by the military police was officially accepted cannot be

15 maintained because in these proceedings it was not established -- nothing,

16 rather, was established about the arrest and killings of Muslims. And the

17 claims of Witness 48 that she went to complain to the police and that a

18 witness was raped on that occasion is evidently a lie before this Tribunal

19 by this witness.

20 Bearing all this in mind, as well as the fact that the Prosecution

21 claims that Kunarac's command responsibility was an aggravating

22 circumstance, the Defence will show that none of the aggravating

23 circumstances put forward by the Prosecution can be considered as such.

24 The accused Kunarac had no command responsibility, as has been shown, and

25 as some of the witnesses confirmed by saying that they thought that

1 Kunarac was dependent on DP6, so he could in no way have encouraged others

2 to commit any criminal offences, especially not rapes of which he had no

3 knowledge.

4 The time period also cannot be taken as an aggravating

5 circumstance because the accused Kunarac proved his alibi, and the

6 Prosecution states that allegedly he and his men -- and we reiterate that

7 the accused Kunarac did not have any men of his own -- on several

8 occasions between the 13th of July and the 2nd of August, 1992 took women

9 out of Partizan, or that for a month and a half he kept Witness 191 in

10 sexual slavery and Witness 186 in Trnovace, because all the evidence

11 points to the fact that the accused had nothing to do with that house and

12 could not have held anyone there.

13 The accused Kunarac did not participate, as the Prosecution

14 claims, in gang-rapes, nor can the event with Witness 183 be taken as an

15 aggravating circumstance, because it has not been proved that this event

16 took place.

17 It is truly hard to understand how the Prosecution can say that

18 the accused testified that he was raped by Witness DB. The Defence is

19 astonished that such a thing can be said, because from what the accused

20 Kunarac said and from what DB herself has said, it is clear that the

21 accused was not raped. It is clear that there was an ordinary sexual act

22 which would not have taken place had not DB taken the initiative, as she

23 herself said.

24 The standpoint of the Prosecution that another aggravating

25 circumstance is the false defence of the accused and that this in fact

1 amounts to contempt of court, putting forward as an example that the

2 witness Maslo [phoen] said that he had seen Kunarac in Podstijena, that

3 Kunarac said he had spent the night in Kozanj, the Defence has to wonder

4 whether the Prosecution has looked at the evidence, because Maslo [phoen]

5 said that during the day he was with Kunarac in Podstijena and that he was

6 not with Kunarac during the night. Because if Kunarac said he spent the

7 night in Kozanj, then there is no contradiction there, because Kozanj is

8 very near Podstijena, and carrying out the operation during the day,

9 Kunarac arrived at Podstijena.

10 Therefore, this illustration by the Prosecution that the accused

11 Kunarac is not telling the truth is in fact proof of the fact that Kunarac

12 is telling the truth and proof of the fact that the Prosecution has not

13 sufficiently taken into account all the facts or all the legal elements

14 when relying on the judgement of Judge Batavia, asking for 35 years of

15 imprisonment, because all the evidence goes to show that those who are

16 most to blame were sentenced to 15 or 16 years, and the others to 2 years,

17 6 months, 10 years, or less, and these were much more serious crimes than

18 those alleged against the accused Kunarac.

19 Thank you, Your Honour.

20 JUDGE MUMBA: Thank you, Mr. Prodanovic.

21 Are we ready with the next counsel? Yes, Mr. Kolesar. I think we

22 can start.

23 MR. KOLESAR: [Interpretation] Yes, Your Honour. Thank you.

24 Your Honours, distinguished and learned colleagues, Prosecutors,

25 by the amended indictment submitted by the Prosecution office to the

1 Tribunal on the 8th of December, 1999, and after the Court has reviewed

2 the motion on the form of the indictment by the Defence of the accused

3 Radomir Kovac as we have stated in our final brief which has been

4 submitted to the Chamber and the Prosecution office, the accused Radomir

5 Kovac is charged with the following:

6 Under Count 22, enslavement, which constitutes a crime against

7 humanity punishable under Article 5(c) of the Statute of the International

8 Tribunal.

9 Under Count 23, rape, which constitutes a crime against humanity

10 punishable under Article 5(g) of the International Tribunal.

11 In Count 24, rape, which constitutes a violation of the laws and

12 customs of war punishable under Article 3 of the Statute of the

13 International Tribunal.

14 And in Count 25, outrage upon personal dignity, which constitutes

15 a violation of the laws and customs of war punishable under Article 3 of

16 the Statute of the International Tribunal.

17 The actions incriminated in the said counts are described in the

18 indictment in paragraphs 11.2 through 11.6.

19 The Defence of the accused Radomir Kovac stands by all its

20 positions, conclusions, and proposals stated in its written final brief

21 which has been submitted to the Court and to the Prosecution office.

22 Today in this closing argument, the Defence of the accused Radomir Kovac

23 will concentrate on adding to and clarifying some of its positions,

24 conclusions, and proposals from its final brief; will comment on the

25 Prosecutor's closing argument; and argue for the justification and

1 legality of the Defence's requests to be allowed a rebuttal as envisaged

2 by Rule 85(a) of the Rules of Procedure and Evidence; and we shall also

3 touch upon some questions related to sentencing which have not been

4 discussed before, making a maximum effort not to repeat what we have

5 already written and said.

6 The Prosecutor bases his indictment as far as the accused Radomir

7 Kovac is concerned on the statements and testimonies of witnesses that

8 have been heard, Prosecution witnesses, namely, FWS-75, 87, Witness AS,

9 Witness 132, 190, and 191. In most cases, they mentioned the last name of

10 Kovac and often his first name of Radomir.

11 In the Section LF of its written final brief, the Defence of the

12 accused Radomir Kovac gave a brief overview of the testimonies of

13 Prosecution witnesses. In paragraph LF3, the Defence concluded that it is

14 its position that Witnesses 75, 87, and AS in those parts of their

15 testimonies which relate to the arrival of the accused Radomir Kovac at

16 the apartment, his stay at the apartment, and incidents in the apartment,

17 as well as his departure from the apartment, are largely contradictory,

18 confused, and insecure, and that for this reason, these parts of their

19 statements which have been refuted by the testimonies of Defence witnesses

20 DK, DL, DM, DH, DV, DO, DN, and DI, cannot serve as a basis for a

21 conviction.

22 The Defence will today elaborate on the contradictions in the

23 testimonies of these witnesses, point out the places in which these

24 statements are confused and insecure, and the parts which have been

25 refuted by the testimonies of the aforesaid Defence witnesses so that they

1 cannot serve as a basis for a conviction.

2 The Defence of the accused Radomir Kovac is doing this also for

3 the reason that the Prosecution in his closing argument does not analyse

4 the testimonies of his own witnesses, does not juxtapose them with the

5 testimonies of Defence witnesses who have been heard, witnesses of the

6 accused Radomir Kovac, but only quotes in its closing argument certain

7 parts of the testimonies of its own witnesses, trying thus to prove the

8 grounds and accuracy for the allegations in the indictment. The Defence

9 of the accused Radomir Kovac is surprised by this such behaviour of the

10 Prosecutor, and sees the justification for this attitude only one reason,

11 and that is that if the Prosecutor would act this way, that is, if they

12 dealt also with other testimonies and compared them, they would cast doubt

13 on the credibility of their own witnesses and the viability of the

14 indictment.

15 The Defence of the accused Radomir Kovac will analyse only the

16 major facts from the testimonies of the witnesses who have been heard,

17 what they stated in individual phases of the proceedings, compare them

18 mutually, and will try to avoid wasting our precious time.

19 If you wish, I can break off now and continue tomorrow.

20 JUDGE MUMBA: Is it appropriate moment for you to break?

21 MR. KOLESAR: [Interpretation] Precisely, Your Honour.

22 JUDGE MUMBA: Then we will break off, and we will resume tomorrow

23 morning at 0930 hours.

24 --- Whereupon the hearing adjourned at 3:58 p.m.,

25 to be reconvened on Wednesday, the 22nd day of

1 November, 2000, at 9:30 a.m.

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