Tribunal Criminal Tribunal for the Former Yugoslavia

Page 3512

 1                           Wednesday, 12 November 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 3.48 p.m.

 5             JUDGE ROBINSON:  This afternoon we'll hear the 98 bis submissions

 6     from the parties, and we begin with the Defence for Milan Lukic,

 7     Mr. Alarid.

 8             MR. ALARID:  Thank you, Your Honour.

 9             I must admit, though, I'm kind of at a loss in terms of how to

10     approach 98 bis, and as I've been reading the rules and the decisions on

11     98 bis, it seems like an almost insurmountable -- seems like an almost

12     insurmountable rule because -- and I'm noting your decision, Your Honour,

13     in Dragomir Milosevic in where you discuss the evolution of the rule as

14     it was changed in 2004.  And the quandary I have is, I think, in relation

15     to the reason that the Sredoje Lukic team has elected not argue a 98 bis

16     is because it seems like the standard has evolved to a point where so

17     long as the Prosecution presents some evidence on each count, some

18     evidence, then a 98 bis would not be appropriate.

19             Now, I'm in a quandary, Your Honour, because part of me wanted to

20     go through a dissertation, of which I would not be prepared for today,

21     outlining the inconsistencies or cross-referencings between certain

22     witnesses, some for alibi rebuttal but are also incorporated into the

23     different counts.  But I realised that in looking at the rulings, that

24     would be inappropriate, because at this point in time according to 98

25     bis:  "At the close of the Prosecution's case, the Trial Chamber shall,

Page 3513

 1     by oral decision and after hearing the oral submissions of the parties,

 2     enter a judgement of acquittal on any count if there is no evidence of

 3     supporting a conviction."

 4             Now, what does that mean, Your Honour?  And I guess I challenge

 5     the Court to draw a line in this case, because this case is different.  I

 6     think it's different than what this rule was written for because by this

 7     being a first party commission case, the rule, as it's written,

 8     technically shifts the burden of proof to the defendant because it limits

 9     the Court's ability to look at this case.  Matter of fact, Your Honour,

10     it reads very similar to a directed verdict motion in my jurisdiction

11     where the Court, if there is some evidence to move beyond, then of course

12     the Judge either says, Defence put on your case and/or it goes to the

13     jury, because of course they are the ones that are going to be the

14     ultimate determiners of the facts.

15             But in your case, you technically pass it on to yourselves.  And

16     so what happens is, that, because technically under a hypothetical

17     situation, Your Honours, we could put on no defence.  We could put on

18     none.  And it's still the burden of the Prosecution to have proved every

19     element of each crime beyond a reasonable doubt.  And on the hypothetical

20     that we would put on no defence, you would have missed an opportunity to

21     rule it 98 bis based on counts that you believe, and it really limits the

22     Court's ability to narrow down the case as it goes into the Defence case

23     because, one, of course the Prosecution has showed their hand, if you

24     will.  And the way 98 bis is written today, it forces the Defence to show

25     their hand on all counts with limitations on the Court to decide a

Page 3514

 1     portion, or, for instance, a bifurcation of a single count because, of

 2     course, if you look at the indictment of the case, Count 1, persecutions,

 3     may give a broad scope of conduct.  And to be honest, Your Honour, for

 4     purposes of 98 bis from a factual perspective, we think Count 1 would

 5     survive anyway.

 6             But when you look at, for instance, the Drina River or

 7     Pionirska Street or Bikavac, there are five counts per alleged crime, and

 8     98 bis as written disallows the Court for looking into each count,

 9     separating them and deciding whether or not the burden has been met at

10     each level.

11             So again, Your Honour, in a quandary situation, I think that

12     Rule 98 absolutely prejudices a defendant only in so much as it has the

13     practical effect of shifting the burden of proof to the defendant at an

14     improper time in the case, considering that today, as it stands alone,

15     the Prosecution should have enough on each count to convict my client

16     beyond a reasonable doubt.  And if it does not, because you are the fact

17     finders that shift the case back on to themselves, you really have to

18     take the time to analyse this case in a first commission case.  Because I

19     understand the differences between a joint criminal enterprise or a

20     leadership and command responsibility wherein the evidence presented

21     might not touch on a particular person's actions or direct actions,

22     direct crimes, i.e., I shot you, I killed you.

23             And so in looking at this, Your Honour, I think the rule is

24     inadequate today and our preparation should have been more of a let's

25     outline everything, let's show the credibility problems of the witnesses,

Page 3515

 1     and see if the case stands on its own two feet today.  Because,

 2     Your Honour, looking at the rule, absent some minor technicalities, and

 3     not so minor, actually I take that back, but absent some technicalities,

 4     I think, factually speaking, the Prosecution has probably done close to

 5     its job in at least getting it past the requirements of 98.

 6             Now, we do need to look at the facts as is though and see if

 7     98 bis is appropriate for some or all of the counts based on the failures

 8     of the Prosecution to lay out the fact that this was a war.

 9             And I'm not saying that there was never a war, but I'm saying was

10     there a war in June of 1992.  Because we have some facts before us.  We

11     have that fighting started and there was a skirmish between people on the

12     dam early April, okay.  We have that the Uzamnica Corps came into town,

13     some bad things happened as a result of that but supposedly they left.

14             Now, I've been here trying to push some of the interrelations

15     because we are not running from the fact that Mr. Milan Lukic was a

16     reserve police officer at the time, embroiled in this situation; however,

17     the Prosecution has elected in their case in chief to avoid that

18     completely.  They've avoided it.

19             As a matter of fact in their most recent submissions, they

20     appeared to be denying it completely.  They want to separate Milan Lukic

21     from this otherwise broader power spectrum in the region.  But I think

22     that has a practical and fatal flaw.  Is by divesting Mr. Milan Lukic

23     from the conflict, they in fact divest him from the jurisdiction of the

24     War Crimes Tribunal itself.  By turning Milan Lukic into a rogue, someone

25     that is acting without any tacit connection to the power structure

Page 3516

 1     involved, not under the command of Dragomir Tomic, not under the command

 2     of Risto Perisic, not under the command of Branimir Savovic, but simply a

 3     rogue as alleged in the complaint or in the -- excuse me, in the

 4     indictment, he was supposedly a paramilitary leader.  A leader of a

 5     specific group called the White Eagles, and yet, the Prosecution is in

 6     some such and based -- really based on the evidence as presented, I mean,

 7     they can't control what their witnesses say, but their witnesses have

 8     said other things.  Their witnesses have said that Colonel Jovanovic was

 9     in control of the White Eagles.  Other witnesses and victims have said

10     that the White Eagles were held up in the hotel.  Other people have said

11     that these White Eagles came from Serbia, yet no one really has

12     established this relationship between Milan Lukic and this bigger sect of

13     "White Eagles."  And even that, they haven't created a nexus or a

14     relationship between the "White Eagles" and the grander scheme of things.

15     Because I would argue without that, the allegations as set forth in this

16     complaint are simply domestic crimes, and notwithstanding of the earlier

17     11 bis proceedings, those domestic crimes should be prosecuted in the

18     domestic jurisdiction.

19             I don't even think these are war crimes.  They would be alleged

20     as robbery, assault, battery, all the way up to murder.  Absolutely.  But

21     by saying that this is part of the War Crimes Tribunal, no one has really

22     established when the war started.  No one has really brought this in, and

23     if you want to take the limitations of the Court in terms of Mr. Masovic,

24     I think that intensifies the problem.  It intensifies it from a legal

25     factual perspective, because unless we have that -- because I mean, Your

Page 3517

 1     Honour, I guess I speak from my heart, I speak what I believe and even if

 2     I'm wrong you'll know that I've really wrestled with this.  And I wonder

 3     why in a region so plagued by crime, so plagued by tragedy with so many

 4     victims, the end all be all of the Bikavac conflict area -- or, excuse

 5     me, the Visegrad conflict area is a former bartender, a former police

 6     officer, and a now convicted waiter.

 7             No apparent ties to the leadership, by the OTP's presentation.

 8     To be honest, I would like to see more of a leadership -- because I think

 9     the War Crimes Tribunal in and of itself was meant for that.  To create a

10     court that transcends sovereignty, that transcends ordinary courts, that

11     transcends and has the power to bring and haul in people from anywhere in

12     the world, it's meant for the architects.  It's meant for the architects,

13     Your Honour, because what the architects that did -- that was so

14     dastardly, that was so horrendous, is they changed the rules for an

15     entire population by playing and manipulating old hatreds, old

16     prejudices.  They did this through in-advance propaganda, waging terrible

17     allegations against a people.  These allegations were acted upon by

18     ordinary citizens who lacked the sophistication, the education, or the

19     introspection to stand alone in a time period when standing alone in and

20     of itself could be dangerous.

21             In denying that Mr. Lukic is a part of this power structure or

22     this chain of command that can in fact arrest people and disappear people

23     and persecute people, round up women, put them in a hotel for horrible

24     things, then they must have laid a case that what put Mr. Milan Lukic, a

25     former bartender, in that position.  Because I don't think that any -- by

Page 3518

 1     any stretch of the imagination from what has been presented in this

 2     courtroom over the last few months can really put Milan Lukic as a

 3     leader.  At best, he was a leader of a small clique of friends.  And as

 4     far as the witnesses have been able to tie him, those small group of

 5     friends were associated by the most simple of relationships, i.e., blood,

 6     or kum relationship.  So this is not a relationship born of loyalty to a

 7     party or an ideology, or anything else.  At most, a lot of the actions

 8     described are opportunistic crimes that were created, and those

 9     opportunisms were created by a grander scheme, a bigger political

10     structure that Milan Lukic had no ability to influence, correct or change

11     the course.  And that's important because before we raise the

12     jurisdiction of this place, of this Court, of the United Nations, of the

13     planet that are willing to right a wrong, if you are going to go after a

14     waiter and a bartender, and a police officer, you had better show

15     evidence of the grand scheme.  Because other than that, they are just

16     alleged criminals.

17             JUDGE ROBINSON:  You say first that there's no evidence of a war,

18     of an armed conflict.

19             MR. ALARID:  Yes.

20             JUDGE ROBINSON:  And that is a prerequisite for the commission of

21     the crimes.

22             MR. ALARID:  Yes.  And I would -- and I would argue that -- I

23     mean, I have such a hard time, because I know people were dying, of

24     course, people were fighting.  But when did it transcend this level of a

25     disorganised civil discourse that was really was precipitated from

Page 3519

 1     outside.  There were -- I mean, I think we've all been around here long

 2     enough to know that the big forces involved were manipulating a large,

 3     relatively ignorant population.

 4             People that, Your Honour, were existing in an economic crisis.

 5     You want to talk about the customs and standards of war?  I think we

 6     could create a prediction model for this kind of tragedy that's almost

 7     mathematical because I think any time a nation state has been allowed by

 8     the international community to descend into such terrible poverty, I

 9     mean, we heard in this courtroom 50 billion Dinars bought your life.

10     It's my understanding that 7.000 Dinars was a penny.  And so what does

11     that transcend to, to be a dollar?  And so if you want to look at any

12     time tragedy has been allowed to work its way in, it has been in the

13     poorest and the most ignored regions of our planet.  Nazi Germany elected

14     Hitler in the worst economic times and the world community allowed the

15     German people, following World War I, as punishment to descend in this

16     economic problem that then precipitated a tyrant rising in their midst,

17     democratically elected to a certain degree.

18             So what do we have, what is it the tangential relationship

19     between the Bosnian conflict and the Rwandan conflict, or the Sudanese

20     conflict, is that the international community allows a set of people to

21     get so desperate that any powder-keg event can cause an absolute

22     de-evolution of our civilisation for a time.

23             I would argue that another thing that the OTP has failed to prove

24     in this case as a prima facie prerequisite is that the acts or conducts

25     of my client, as alleged, could be -- and I guess the words are right out

Page 3520

 1     of the indictment, that the persecutions of the Bosnian-Muslims and other

 2     non-Serb civilians on political, racial or religious grounds.  Well, we

 3     may have a greater understanding -- we may have a greater understanding

 4     of the motivations of that architect sect, but I don't think that we've

 5     really entered the mind or the motivations of this bartender or waiter or

 6     police officer.

 7             There has been evidence before the Court that Milan Lukic had

 8     many Muslim friends.  There has been evidence before the Court that he

 9     never caused trouble in high school with Muslims, never fought them,

10     never had this discourse.  But what we have heard though, is, is that

11     Milan Lukic is from Rujiste.  And Your Honour, Rujiste is at the end of

12     the road right next to Slap, which you have heard about.  Slap is that

13     bend in the river where the bodies were collected by Mr. -- I think it

14     was a protected witness, but they were buried there but that was also

15     considered the "frontlines."

16             So what did Milan Lukic do and what is the evidence that's been

17     presented for the Court but that Milan Lukic was in Switzerland, he

18     didn't even live there, and he came back to the region only after

19     whatever conflict we can define it as started.

20             Again, Your Honour, with no evidence that this is anything more

21     than him returning to his home country in a time where I think we can

22     argue that anyone in the region would be in some kind of danger,

23     especially people living near the "frontline."

24             It's arguable that Milan Lukic like many young men in that area

25     at the outset were forcibly mobilised, drafted.  You participate or you

Page 3521

 1     are an outsider.  There's been evidence that in fact, and it's in dispute

 2     of course, it's in dispute by me but it was presented by the Prosecution,

 3     that Milan Lukic killed Serbs.  And so if you want to argue the fact that

 4     it is a prerequisite that the persecution or the acts be based on a

 5     religious or ethnic racial grounds, then I argue that they've presented

 6     absolutely no evidence of that fact.

 7             I think one of the problems with the case that --

 8             JUDGE ROBINSON:  How would you find that evidence?  Isn't it by

 9     way of inference from the evidence?

10             MR. ALARID:  Well, I agree with you.  I can see how you can see

11     that because the inference is so powerful in my mind because I watch the

12     news and read the -- you know, like everybody else, but the fact is, is I

13     think in a direct commission case, it really goes to the motives of the

14     actor.  By inference, you could argue that but aren't you arguing

15     transferred inference.  Transferred intent.  This isn't a JCE so we got

16     to look into the mind of Milan Lukic whether we like it or not.

17             And if you add to this fact, Your Honour, that Mitar Vasiljevic,

18     we know broke his leg the day of the fateful fire in Pionirska, and I

19     take absolutely different positions with Pionirska as Bikavac, I think

20     the presentation of the Defence and where we've gone with that takes a

21     different position.  But in Pionirska, regardless of that fact, I think

22     the Court has to entertain the fact that assuming Mitar Vasiljevic hurt

23     himself at 5.00 and was no longer able to participate in either Bikavac

24     or Pionirska, and the second amended complaint is notably devoid of

25     Mitar's name, but that does not eliminate the fact that several groups of

Page 3522

 1     witnesses especially related to Bikavac but including Pionirska, are

 2     adamant and absolutely unwavering in their assertion that

 3     Mitar Vasiljevic participated in the late night situation at Pionirska,

 4     as well as Bikavac, and things in between.

 5             I think that is a real problem because one of the things that

 6     despite leaving the name out in the second amended indictment or maybe

 7     not asking questions on direct, or because the statements were in such a

 8     way, but under 92 ter you've seen all these statements, you've seen all

 9     these conflicting statements that have come in.  And one of the things,

10     though, that was noticeable is that these witnesses were not ready to let

11     go of Mitar.  They just weren't.  And the interesting thing that how ID

12     now comes into this is because in the Mitar Vasiljevic case, most of

13     these witnesses, pre-trial, outside the courtroom, were given lineups and

14     they successfully ID'd Mitar.

15             Now, it's arguable that those same people put Mitar at the

16     Bikavac location on June 27th, and so that just means they were familiar

17     enough with him over the years to pick him out of a picture, but

18     otherwise lying or grossly mistaken about his presence.  And if they can

19     be grossly mistaken about his presence and so much so that their

20     statement almost puts him arm and arm with Milan, I recognise them

21     together because.  And you've -- ID is a huge issue because you've

22     watched these witnesses struggle with ID.  In the courtroom they have

23     struggled, and that to me is beyond comprehension because the courtroom

24     ID is the most suggestive process on the planet given this setup, given

25     the uniforms we have to wear.

Page 3523

 1             In fact, every witness that sits there, they don't have to have

 2     seen a picture of them, they don't have to have watched the news, they

 3     don't have to do anything.  All they have to know are the two names, I

 4     assume they did that, they all gave statements, and they have to know who

 5     is older.  If you know who is older, a hundred per cent of the time given

 6     ordinary human common sense, those people would get an in-court ID

 7     correct.  And yet there's been problems.  That problem does go into the

 8     witness statements themselves when the alibi rebuttals -- I mean, it was

 9     just unimaginable to me that I come and the alibi rebuttals for a crime

10     are a new crime.  A serious crime.  Not -- not, you know, I saw him

11     shoplifting at the store that day, that's why I know he was in town.  No,

12     it was, He raped me this day.  He killed my friend this day.  That's

13     powerful.  But you got to look at them for a second.  One of those alibi

14     rape victims said he had tattoos on his arm.  I would have expected him

15     to have tattoos on his arms.  One of them says he had blond hair blue

16     eyes.  I would have expected that.  So there's a real problem with ID

17     issues that goes into Pionirska, and I think just like the Court

18     separated Mitar Vasiljevic at Pionirska, there is an issue of -- I think

19     the Court needs to be open the possibility, let's just call it a

20     hypothetical, that I can be there robbing you in the afternoon, but it

21     doesn't necessarily mean I'm part of the group that's killing you at

22     midnight.

23             Think about that for a second.  Because if you think of Pionirska

24     by itself, there was two mother and sons survivors and a couple of other

25     people, the young girl, the young girls, the sisters, as well as the old

Page 3524

 1     gentleman.  And those are all the survivors.  Well, the interesting thing

 2     about the mothers was, is that they saw -- one, they are married to who

 3     was there at the beginning and married to Mitar Vasiljevic being there.

 4     At the end of the night in the dark when the lights are out and there's

 5     only flashlights and there's no power, who is there?  They see these

 6     guys.  Well, we all know Mitar couldn't be there; he in the ambulance

 7     getting a shot of alcohol with his ambulance driver on his way to the

 8     hospital.  Okay.  So what happens then?  The older women only count the

 9     three or four.  I think that's really powerful because, one, they are

10     mistaken because Mitar is not there; and two, what do their sons see?

11     What do the younger girls see?  The sons see a column of soldiers down to

12     Pionirska.  Several.  The girls saw a roadblock at the end of the street,

13     a blockade.

14             We cannot eliminate the possibility that there were much more

15     people involved, by no means were they run or commanded by Milan Lukic,

16     and that in fact, it was that maybe grander power structure that had it

17     out for those people.  The one exception that I do have with Pionirska as

18     a theory is that it was not a fire in the traditional sense.  Why,

19     because the picture shown by the Prosecution didn't have all the

20     carbonisation that we would expect.  You look at the floor boards in that

21     photograph and they are burnt but there has been a little fire in the

22     middle, almost like teenagers went and drank their beers there, hanging

23     out.  There's clearly small arms fire and weapons impact in the walls.

24     The survivors of Pionirska heard screams and gun-fire for 30 minutes to

25     an hour.  That is not evidence of people being burned up because the fire

Page 3525

 1     would consume and kill them.  That was evidence of survivors of what, a

 2     grenade attack?  Shrapnel wounded the mother that exited the room and

 3     there was a grenade?  Who is to say that these soldiers didn't simply

 4     attack them with grenades and guns, and didn't try to burn anyone alive

 5     in the house.  It was the impression of the survivors that led to that

 6     conclusion.  Not necessarily that that was a factual situation.

 7             But I think we need to be open to the fact that the OTP failed

 8     entirely to prove the presence of my client at that fateful point in

 9     time.  Not vis-a-vis alibis or anything else, but simply because their

10     evidence didn't rise to that level and they never ever, ever, ever dealt

11     with Mitar being injured.  They didn't deal with that.  They didn't put

12     it to their witnesses, Hey, look, you might have been mistaken, are you

13     sure?  No.  They came in here sure of Mitar.  And that is a problem

14     because, Your Honours, if 92 bis -- excuse me, Rule 98 is appropriate,

15     then you should never ever look at the facts of the case and say, You

16     know what, if the Defence doesn't put on a case today, has the

17     Prosecution met beyond a reasonable doubt today?

18             That's really the possibility.  And I would argue that, by virtue

19     of their time constraints and everything else, at best what was put on

20     here was a summarized version of what I think should be a much more

21     in-depth and detailed presentation of the facts.  And maybe those facts

22     are incorporated in all those statements we admitted, but on the same

23     token, I expected more details.  And the number one person I expected

24     those more details from, Your Honour, was Ms. Turjacanin involving her

25     being in that fire.

Page 3526

 1             If you look at her statements, if you look at her transcripts of

 2     the news interviews and if you look at her testimony in court, her

 3     memories of that fateful moment of when she was taken from her home, put

 4     in a fire supposedly and escaped never escapes a paragraph with not all

 5     the requisite details and feelings and emotions other than you would

 6     expect but without all the details that I would expect in a court of law.

 7             Problematic points of the case on two focal points.  One of which

 8     is, both Pionirska and Bikavac, there has been insufficient documentation

 9     or evidence of the deaths.  Bikavac, in the complaint, listed 16 people

10     associated with it.  Pionirska, 70.  If you believe Ms. Turjacanin, 70

11     people were in that house.  Forensics has been done, no human remains

12     have been found.  This is a home that supposedly collapsed in on itself,

13     presumably breaking, shattering or otherwise entombing 70 people's

14     charred and brutalised remains?  And yet not a single tooth, bone shard,

15     finger bone, fingernail, skull fragment, anything, was presented from

16     that site.  We saw pictures, it looks like it's a ruined foundation where

17     some people have thrown their trash, but no real evidence, and basically

18     we are all left to suppose where the remains of the house went.  We can

19     imagine the worst of possibilities.  But the problem is, is the

20     Prosecution did not present any evidence to that fact.

21             So we have a single potential eyewitness victim who --

22     Your Honour, I believe Ms. Turjacanin was brutalised.  I don't

23     necessarily believe it was by the fire.  I believe she was attacked in

24     that neighbourhood.  The reason being, Your Honour, is right from their

25     own witnesses, the alibi witnesses, remember all these women that are in

Page 3527

 1     the Bikavac neighbourhood that meet Zehra and she tells their story and

 2     they believe her.  Remember every single supporting witness in Bikavac

 3     talked to Zehra.  A couple of them claim to have seen skulls and bones

 4     poking out of ruins, but yet they all spoke --

 5             JUDGE ROBINSON:  You say you believe she was attacked.  Attacked

 6     by whom?

 7             MR. ALARID:  I believe she was a victim of the rape scenario that

 8     was going on in the area.  The reason being, Your Honour, is rape victims

 9     in and of itself all state how they were trapped there, could not leave,

10     and otherwise didn't have a method of egress, waiting for convoys or

11     whatever promises were meant.  These women were being taken out and

12     returned at different intervals and they all describe this.  I find it

13     hard to believe.  And this is an environment where Ms. Turjacanin's own

14     brother was walled up in their home right under their very noses.  This

15     is a situation where a number of women were taken and returned for their

16     mothers not to ask question but everyone knew something horrible happened

17     to them.  I found it hard to believe that Zehra would have spent two

18     weeks as a young lady in this neighbourhood and not been a victim of this

19     back and forth transport of women that was evidenced by those other

20     ladies.  So if you think about that for a second, it is the perfect

21     impetus for the trauma to be transferred on something else.

22             I ask yourself, Your Honour, is -- is -- even other witnesses for

23     the Prosecution had heard Ms. Turjacanin had burned herself on a stove.

24     I ask yourself to look at her -- think of her injuries, Your Honour, and

25     her description of the fire.  She burned herself on a door that was too

Page 3528

 1     hot to touch.  Well, that doesn't explain the burns on the back of your

 2     arms.  That's explained by being immersed in some fire.

 3             I submit that her first description of her injuries to doctors

 4     and Serbs that she caught herself on fire is -- and her injuries are

 5     consistent with the household accident.

 6             JUDGE ROBINSON:  But she gave an explanation for that.

 7             MR. ALARID:  She did.  I would expect her to.  And that's been --

 8     what is tough, Your Honour, is, you know, part of me wants to acquiesce

 9     to your wishes to put things straight on to a witness, but yet on the

10     same token, sometimes I want to marry a witness to their statement

11     because when you compare against someone else's or some other bit of

12     evidence, that's when it becomes silly.  I can't do that with every

13     person nor do I want to shatter Ms. Turjacanin's belief system.  I think

14     that's dangerous.  I think it's dangerous that no one has taken care of

15     her in all this time and gotten her psychological help.  She claims to

16     have only seen a psychologist for 30 minutes, and yet this is a woman

17     that now speaks another language because of the trauma she experienced in

18     that area.

19             And I can't even begin to address that.  But I think the

20     reasonable possibility exists she was injured, that she was traumatized

21     that she was victimized, but the Bikavac in itself did not happen that

22     way.  The simplest, most logical way I believe that, Your Honour, is her

23     own brother in his statement stating that she had never met Milan Lukic

24     with him.

25             That goes a long way.  A lot of these witnesses in their IDs

Page 3529

 1     claim to have seen him on the bus, gone to school with him, but if that

 2     were all true, Milan would have to be older.  He would just have to be

 3     older.  I mean, we all know, I think it's judicial notice of his birthday

 4     at this point, and too many people came across this courtroom and said

 5     they knew him; but when pressed for the details of why, when and how they

 6     had that knowledge and familiarity, they failed.  They failed here on the

 7     stand to explain why and how they knew him.  And when queried about age

 8     differences and things like that that would be ordinary, they digress to

 9     I know him, he is from Rujiste and a repetitive discourse of sticking to

10     stories that no longer made sense.

11             I would argue that the killings of seven men at the Varda factory

12     are from a perspective of witnesses that did not have the requisite

13     vantage point to make such identification.  The reason I say that,

14     Your Honour, is that the Prosecution relies way too heavily on the

15     allegations of the taking of Behija's Passat.  The reason think it's

16     overreaching is that in at least three statements that I have looked at,

17     just kind of trying to get a sense of the case again last night, three

18     people ID'd him in different cars.  Three people.  And not to say that

19     the Passat wasn't an issue in that town.  Of course it was.  I can't deny

20     that.  But I think it's just as logical as that it could have been used

21     by a multitude of people in a time when every Muslim car was technically

22     being robbed from the populace and given to the authorities.

23             The Muslim property was turned into the carpool of the SDS and

24     the establishment.  They rely way too heavily on people at a distance

25     where they would be absolutely disadvantaged to actually identify a

Page 3530

 1     single person that they did not know extremely well or have some kind of

 2     magnifying device to assist them.

 3             If you even look at the Drina River incident, Your Honour, the

 4     gentleman VG-79 across the river had binoculars.  So much so he could

 5     clearly identify victims by name because he knew them.  And even in that

 6     particular case, he saw only three gentlemen all in black with skulls on

 7     their heads and a Peglica instead of a Passat, and a Yugo, which I think

 8     at that point became undisputed.

 9             And so although I would agree that I think the Drina River, given

10     Mitar's testimony at length in the previous trial, makes that the most

11     difficult one to say couldn't survive a directed verdict motion or a 98

12     motion or anything related to it, still there are problems on

13     identification.  There are problems because the gentleman even the two

14     victims believe was Milan Lukic had his face painted.  And one of them

15     clearly remembered a large mole near his mouth.

16             This case is such that certain aspects of it for the Prosecution

17     have fallen apart.  And it is under the jurisprudence of this Court that

18     almost falling apart is required to get past Rule 98.  And I would argue

19     to a certain degree certain aspects of the case have fallen apart.

20             The Koric murder.  A single witness.  Will it make it past?  I

21     think the ID is still an issue for that single witness that testified.

22     There was a single statement in contradiction to that that was not

23     admitted yet.  So I don't think it's as relevant to this point, but I

24     think it's a very weak case given the nature of the identity and the

25     limited witnesses that participated in that.

Page 3531

 1             And like I said, Your Honour, I believe Pionirska in itself could

 2     be divided.  The beatings at the Uzamnica camp, from a Rule 98

 3     perspective we would concede there's probably enough there, but it's

 4     interesting how the first statements and even on direct -- excuse me, on

 5     cross-examination a couple of the witnesses came back to only seeing

 6     Milan Lukic there three or four times, but yet after their testifying, it

 7     was almost every day.  And you got to wonder, well, why did it -- I think

 8     to convict Mr. Lukic, you wouldn't need every day.  You really only need

 9     three or four times if that was the threshold, but it was interesting

10     from a motivated witness standpoint how the first statements could evolve

11     from a few to, like I said, every day.  If you are not going to look at

12     the credibility of the witnesses, at this point, you know, maybe that's

13     just a moot point, but I think it's something to consider for purposes of

14     looking at that which I believe is a pretty serious count.

15             Again we have not been able to present the evidence for some of

16     that time in the Uzamnica allegations.  Mr. Lukic was in fact in jail and

17     I think that brings some problems.  But again, that probably wouldn't

18     preclude a Rule 98 defeat.

19             So all in all, Your Honour, I'd ask to you bifurcate Pionirska.

20     I'd like you to rule in our favour for a 98 against the actual fire and

21     deaths allegations considering the adjudicated fact of Mitar Vasiljevic

22     and the ID issues that have been presented in the court in the witness

23     statements, because ID is a number one issue here.  I'd ask you to

24     dismiss Bikavac in its entirety.  And understanding that the Drina River

25     and Uzamnica and the overall persecutions could withstand at least the

Page 3532

 1     strict construction of the rule.

 2             JUDGE ROBINSON:  Can you identify the counts specifically that

 3     you are asking us to dismiss.

 4             MR. ALARID:  Yes, Your Honour.  In relation to -- I'm conceding

 5     enough under the ordinary Count 1, persecutions.  In looking at Counts 2,

 6     3, and 4, and 5, that relates to the Drina River, although I believe

 7     there's problems, I think from a Rule 98 perspective, these would survive

 8     under an ordinary analysis.  Looking at Counts 6 and 7, we would ask you

 9     to dismiss the Varda based on problems.  And I must say, that the

10     problems of identification for our co-accused help the overall picture

11     for a 98 perspective, because I think some of the identification issues

12     for Mr. Sredoje Lukic are even more difficult or even more egregious.

13     People that said they should have known him no longer saw him and I think

14     that goes to the overall credibility problem of the ID case in this

15     matter.

16             Looking at the Pionirska Street, I would ask to you bifurcate

17     simply based on the adjudicated fact and the, again, problems with

18     identification.  We would ask you to bifurcate out and dismiss Count 8.

19     Count 9, Count 10 and Count 11, inhumane acts, I think can transcend

20     deaths or murders, and cruel treatment, that can be alleged as anything

21     earlier in the day beyond the actions of the evening.  However -- and in

22     Bikavac which is Counts 13, 14, 15, 16, and 17, we would ask that they be

23     dismissed in their entirety.  The killing of Ms. Koric, Counts 18 and 19,

24     we would ask that they be dismissed in their entirety.  And Counts 20 and

25     21, we would concede would not meet the muster of 98 bis under its

Page 3533

 1     current writing.  And the entire indictment should be dismissed if the

 2     Court were to find a failure of the Prosecution to meet its burden into

 3     proving an armed conflict existed that was part of a widespread and

 4     systematic application based on the prejudicial motives of race,

 5     ethnicity and religion.  I don't believe they've met their burden.  And

 6     other than that, Your Honour, Mr. Lukic has to fight a case in Serbia

 7     where he has already been sentenced to 20 years and I think he should be

 8     allowed to go fight that case.  Thank you, Your Honours.

 9             JUDGE ROBINSON:  Thank you.  Mr. Groome.

10             MR. GROOME:  Thank you, Your Honour.

11             The applicable standard of proof for a 98 bis decision is that

12     the Court must grant the motion wherever a reasonable trier of fact could

13     not base a conviction on the evidence presented.  Conversely, it must be

14     denied where there is sufficient evidence upon which a Trial Chamber

15     could enter a conviction.  Of critical importance to this standard is

16     that the Trial Chamber could convict and not that it would convict.  A

17     Chamber's decision at this stage does not bind it in its judgement.

18             The standard for a judgement of acquittal under 98 bis is well

19     settled.  In the Dragomir Milosevic case, Your Honour Judge Robinson

20     expounded on the applicable standard as follows:  "Significantly, the

21     test proceeds on the basis that the Prosecution case is accepted, and

22     therefore ... at this stage, the Trial Chamber is not concerned about

23     contradictions or inconsistencies in the Prosecution's case, or, more

24     generally, with issues of credibility.  Those are matters to be addressed

25     by the Trial Chamber in determining the guilt of the accused at the end

Page 3534

 1     of the case."

 2             What remains unclear to me, however, Your Honours, is the effect

 3     of Sredoje Lukic's waiver of his right to make submissions under Rule 98

 4     bis.  There is an interpretation of the rule that the Chamber is still

 5     obliged to assess the evidence related to each accused.  It is,

 6     therefore, my intention to briefly summarize the relevant evidence

 7     indicating Sredoje Lukic's culpability as well as Mr. Milan Lukic's

 8     culpability unless directed to do otherwise by the Chamber.

 9             Before I begin my review of the evidence, I would like to make a

10     few preliminary remarks.  The first has to do with transcript references.

11     It is my intention to avoid unnecessarily citing transcript references to

12     the evidence I will discuss.  I have prepared my remarks in such a way as

13     I will in most cases be able to refer the Chamber to a precise transcript

14     reference if called upon to do so.  In the event the Chamber would like

15     to know a transcript reference for anything I say, please interrupt me

16     and I will be happy to oblige.

17             The second preliminary matter I would like to address is the use

18     of in-court identifications of the accused.  The parties have filed

19     lengthy submissions on the law related to in-court identifications.  In

20     preparing for this submission and having reviewed the evidence carefully,

21     I believe that the Prosecution can comfortably meet the standard of

22     98 bis without relying on in-court identifications.  Given that our view

23     of the jurisprudence places upon the Chamber an obligation to engage in a

24     detailed analysis of a witness's prior knowledge and familiarity with an

25     accused before relying on an in-court identification, it may be more

Page 3535

 1     expeditious to avoid reliance on them at this stage unless necessary.

 2             I will therefore not refer to any in-court identifications as,

 3     again, I believe the standard of 98 bis is clearly met without them.

 4     Should the Chamber disagree with respect to any count and come to the

 5     belief that the Prosecution can only meet its burden under 98 bis through

 6     reliance on an in-court identification, I would of course ask the Chamber

 7     to give me the opportunity to address that particular issue with respect

 8     to specific counts and specific witnesses.  It is the Prosecution's

 9     position that in each of the charged crimes there is at least one

10     recognition witness as defined by the relevant jurisprudence and upon

11     whose in-court identification the Chamber could rely.

12             The first crime alleged in the indictment occurred at the

13     Drina River on the 7th of June, 1992.  The Prosecution's evidence with

14     respect to the Drina River incident charged in Counts 2 through 5 of the

15     indictment exceeds the requirements of Rule 98 bis.  The Prosecution's

16     four key witnesses for this incident --

17             JUDGE ROBINSON:  Sorry, Mr. Cepic is on his feet.

18             MR. CEPIC:  I apologise for interrupting, Your Honour, but could

19     Mr. Groome speak a little bit slower because it is quite difficult for

20     interpreters to translate in B/C/S.

21             JUDGE ROBINSON:  Thank you.  Mr. Groome you heard that.

22             MR. GROOME:  The Prosecution's four key witnesses for this

23     incident paint a picture of these events that is both clear and

24     consistent.  The Chamber will recall that these witnesses include the two

25     survivors of this execution, a man who watched the execution from the

Page 3536

 1     opposite bank of the Drina River, and other evidence taken in closed

 2     session.

 3             The story that emerges from these witnesses' testimony is the

 4     following:  In the afternoon of the 7th of June, 1992, Milan Lukic and a

 5     group of other soldiers captured VG-014 and VG-032, as well as five other

 6     men in the houses where they were staying in the Bikavac neighbourhood of

 7     Visegrad.  Milan Lukic forced VG-014, VG-032, and the other prisoners

 8     into two cars, one of which was the red Passat that had previously

 9     belonged to Behija Zukic.  The Chamber has heard ample evidence about her

10     death and Milan Lukic's subsequent use of her car and his arrest in

11     October 1992 in possession of that car.

12             Milan and the other soldiers then drove the prisoners to the

13     Vilina Vlas Hotel.

14             After a short time at the hotel, they were driven to a junction

15     known as the Sase junction.  Near that junction, the cars were parked and

16     the prisoners were forced out and marched down to the Drina.  They were

17     forced to face the river, and the soldiers behind them began shooting at

18     them.  Five of them were killed.  VG-014 VG-032 were not hit and managed

19     to play dead and, thereby, survive.

20             The evidence related to the identification of Milan Lukic as the

21     perpetrator of this crime is as follows:  VG-014, who was born in the

22     same year as Milan Lukic and attended school with him for two years,

23     testified that he recognised Milan Lukic instantly when he came into

24     VG-014's house and that he had no doubt about that recognition.

25             VG-032 had also seen Milan Lukic before the day of the

Page 3537

 1     Drina River incident.  He had first seen Milan Lukic at a cafe where

 2     other people identified Milan Lukic to VG-032.  He next saw Milan Lukic

 3     after Behija Zukic's murder, when Milan Lukic arrived at the

 4     Visegrad Health Centre where VG-032 worked, driving Behija's red Passat.

 5     VG-032 had a good opportunity to observe Milan Lukic on this occasion as

 6     Milan Lukic got out of the red Passat.  He recognised him as being the

 7     same person who had been previously identified to him at the cafe.

 8             VG-014 and VG-032 also give nearly identical descriptions of

 9     Milan Lukic on the day of the Drina River incidents.  Both observed a

10     bandage on the inside of his elbow.  The Chamber now has before it the

11     protocol book from the hospital in evidence as P165, and in that book an

12     entry for the 7th of June indicates that a person by the name of

13     Milan Lukic received an injection.

14             Your Honour, I'd ask if we could now move briefly into private

15     session.

16             JUDGE ROBINSON:  Yes.

17             THE REGISTRAR:  Your Honours, we are in private session.

18                           [Private session]

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 3538

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             MR. GROOME:  To summarize, the Prosecution's evidence with

 8     respect to the Drina River incident is capable of supporting a conviction

 9     on these charges and exceeds the requirements of 98 bis.

10             Counts 6 and 7 of the indictment charge Milan Lukic with murder

11     as a crime against humanity and murder as a violation of the laws or

12     customs of war for the killing of seven workers from the Varda furniture

13     factory on the banks of the Drina River.

14             The indictment charges that these killings happened on or around

15     the 10th of June, 1992.

16             The Prosecution led evidence from three witness with respect to

17     this event; VG-017, VG-042 and VG-024.  Each of these witnesses saw the

18     incident from a different perspective, and each tells a different part of

19     the overall story.

20             VG-042 watched these events from the terrace of her house which

21     was about 50 metres from the sawmill gate and about 100 metres from the

22     place where Milan Lukic killed the men by the side of the river.  She

23     testified that from that distance she was able to recognise the victims

24     and Milan Lukic.

25             VG-017 was watching from a hiding place behind some barrels and

Page 3539

 1     in a henhouse.  VG-024 was at work inside the factory where she was able

 2     to observe the events from a short distance, even having the opportunity

 3     to speak with one of the victims.

 4             On the morning of the day in question, VG-017 and VG-042 saw the

 5     red Passat arrive near the guard house at the sawmill gate at the Varda

 6     furniture factory.  VG-017 and 042 saw three people getting out of the

 7     car, including Milan Lukic.

 8             After Milan Lukic got out of the car, he went into the workshop

 9     and brought a man by the name of Nedzad Bektas down to the guard house.

10     He then returned to the factory floor and brought out other workers.

11             VG-024 testified that about half past 11.00 on that day, a man

12     named Mirko Dukanovic told her to go behind the factory because it was

13     almost noon.  VG-024 briefly left the factory with her colleagues Naza

14     and Hajra but returned after a few minutes because she wanted to see what

15     was going on.  When she returned to the factory she saw Milan Lukic

16     coming out of the polish section of the factory bringing Hamed Osmanagic,

17     Nusret Aljusevic, Sabahudin Velagic and Lutvo Tabakovic with him.  And on

18     his way out he picked up Ibrisim Memisevic.  He didn't take these men out

19     the main gate; rather, he took them towards the sawmill.

20             When Milan Lukic came out of the sawmill with the workers, he

21     re-entered the field of view of the VG-017 and VG-042.  VG-017 said that

22     he brought out six or seven workers.

23             42 testified that Milan Lukic then forced the prisoners to walk

24     down to the Drina River in one group "like sheep."  VG-17 indicates that

25     the men were taken down to the river in two groups.  The first group

Page 3540

 1     composed of three persons, the second group of three or four.

 2             VG-042 testified when the men reached the bank of the river,

 3     Milan Lukic made them line up one next to the other and killed them one

 4     by one.  He then fired another burst of gun-fire into the bodies.

 5             After killing the men at the river, Milan Lukic began walking

 6     back.  He saw VG-042 and the others watching on the terrace and shot a

 7     burst of gun-fire at them.  He then got back into the red Passat he had

 8     arrived in and drove back towards town.

 9             I'd ask that we go briefly into private session.

10             JUDGE ROBINSON:  Private session.

11             THE REGISTRAR:  Your Honours, we are in private session.

12                           [Private session]

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 3541

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             MR. GROOME:  In addition to her great familiarity with

 8     Milan Lukic, Witness VG-024 also had a chance to closely observe him

 9     shortly before the Varda factory killings.  VG-024 testified that

10     Milan Lukic was "almost a regular visitor" to the factory, an employer of

11     many from the factory -- an employer of many from the Muslim community.

12     Milan Lukic would just come and just walk through the factory sometimes,

13     she testified.

14             VG-024 also testified about one particular occasion a few weeks

15     before the charged incident when Milan Lukic took away several Muslim

16     co-workers of hers.

17             In addition, she testified that Milan Lukic identified himself as

18     "Milan" to one of her co-workers, and was addressed by another co-worker,

19     as "Milan."  Under these circumstances, there can be no reasonable doubt

20     about VG-024's be ability to identify Milan Lukic on the day of the Varda

21     factory killings.

22             VG-042 also had a solid basis for her recognition of Milan Lukic.

23     VG-042 testified that she knew Milan Lukic when he was a boy.  Like

24     VG-024, she knows that he went to primary school first in Klasnik, and

25     then in Prelovo.  She would regularly take a bus to a co-op; this was the

Page 3542

 1     same bus that Milan Lukic would take to school.  VG-042 testified that

 2     she took this bus trip countless times and that she did see a great deal

 3     of Milan Lukic during this time.

 4             VG-042 also testified that Milan Lukic is from Rujiste and that

 5     her family had fields near his family's fields.  VG-042 knew

 6     Milan Lukic's mother Kata and his father Mile.  She said Milan Lukic's

 7     parents were on good terms with her parents.  They would greet each other

 8     and occasionally drink coffee or brandy together.  VG-042 described how

 9     she also would exchange greetings with Milan Lukic's parents.

10             In addition to this familiarity with Milan Lukic, his family, and

11     his upbringing, VG-042 also had an opportunity to see Milan Lukic

12     immediately before the incident in which the seven Varda factory workers

13     were killed beside the Drina.  VG-042 testified that earlier that same

14     day, Milan Lukic had come to the Varda sawmill with his Passat and parked

15     at the gate.  Milan Lukic got out of the Passat and gathered up three

16     workers:  Ramiz Karaman, Ahmed Kasapovic, and VG-042's husband.  He put

17     them all into the Passat and drove them off towards the town.  VG-042

18     testified that as they drove towards the town, they went right in front

19     of her house.

20             VG-042 thus had a strong fundamental familiarity with Milan Lukic

21     as well as an opportunity to observe him immediately before the killing

22     of the seven men by the Drina.  She thus provides a strong and reliable

23     identification of Milan Lukic that strongly corroborates the evidence of

24     VG-024.

25             While VG-017 was not as familiar with Milan Lukic as VG-024 or

Page 3543

 1     VG-042, he had seen him multiple times before the killings at the Varda

 2     factory and had a solid basis for recognizing him.

 3             VG-017 testified that he had seen Milan Lukic two or three times

 4     before the day that Milan Lukic came and killed the seven workers by the

 5     river.

 6             In addition to this occasion, VG-017 testified generally that he

 7     saw Milan Lukic when the war began, when Milan Lukic started going around

 8     VG-017's neighbourhood when the killings started.

 9             VG-017 also testified that Milan Lukic used to pass by his house

10     all the time in the car that he drove to the Varda factory on the day of

11     the killings.

12             He testified that on the day of the killings, he got a look at

13     Milan Lukic's face.  When asked how he could recognise Milan Lukic here

14     in court, he answered:  "How wouldn't I?  I know him.  I know the man."

15             Taking the evidence of these three witnesses together, it is

16     clear that a reasonable trier of fact could convict Milan Lukic of the

17     killings at the Varda factory charged in Count 6 and 7 of the indictment.

18             Koritnik is a town in the municipality of Visegrad and is located

19     approximately 7 kilometres from the town itself.  After several weeks of

20     increasing harassment and attacks against the village, on the 13th of

21     June, 1992, a local Serb told the Muslim residents of Koritnik they had

22     to leave the following day.

23             On Sunday, the 14th of June, 1992, the Koritnik group left.

24     Approximately 50 Bosnian-Muslims, including elderly men, women, children,

25     and a two-day-old baby comprised the group.  All members of the Koritnik

Page 3544

 1     group hailed from the same family, the Kurspahic family.  None of them

 2     was armed, none of them wore military uniform.

 3             After a long trip on foot, the Koritnik group arrived in Visegrad

 4     around noon.  Once there, Serb soldiers in front of the police station

 5     screamed at the group that they should go to the Red Cross.  The

 6     Red Cross office was closed, so the group moved to the new hotel or the

 7     Visegrad hotel.

 8             Mitar Vasiljevic arrived and directed the group to the Mahala

 9     settlement in which Pionirska Street is located.  Many of the Koritnik

10     group knew this neighbourhood because they had relatives who lived there.

11     The column of about 70 people made its way to Pionirska Street.  The

12     majority of the Koritnik group began entering the house of Jusuf Memic.

13     Around seven others entered the house of Jusuf's son, Mujo Memic, but

14     later joined the larger group in Jusuf Memic's house.

15             Mitar Vasiljevic arrived.  He addressed the group.  He told them

16     that buses would be provided the next day to take them to Kladanj.  He

17     presented one of the Koritnik group, Mujo Halilovic, with a piece of

18     paper, instructing the group to present it as a document of guarantee for

19     their safety.  He told the group to stay together.

20             Ultimately around 70 people crammed into the Memic house.  Around

21     4.00 or 5.00 p.m., four men arrived.  Roughly half an hour after

22     Mitar Vasiljevic departed.  Soldiers kicked open the door and

23     Milan Lukic, Sredoje Lukic, Milan Susnjar, and other armed men entered.

24     None of these men wore anything to cover their faces.  One of the men

25     introduced himself as Milan Lukic.

Page 3545

 1             VG-101 immediately recognised Milan Lukic, having gone to school

 2     with him where she saw him every day.  After she finished secondary

 3     school, she continued to see him at social events.  Her sister, VG-078,

 4     also knew Milan Lukic from school.  They attended the same school in

 5     Prelovo for seven years.

 6             VG-078 identified Milan Lukic when he entered from where she

 7     stood about metre and a half away from him.  The men had stormed in, and

 8     in the rush of events, VG-101 recognised Milan Lukic first and then spoke

 9     to her sister VG-078.  It was at that time that VG-078 was able to put a

10     name to her former schoolmate's face.

11             VG-084 corroborated Milan Lukic's identification, testifying that

12     a quarter of the people in the room knew him and that "there were girls

13     in the house who used to go to school with him, so they used to be school

14     mates."

15             A cursory examination of the list of victims attached to the

16     indictment bears out that a number of victims were of similar age and

17     quite likely in school with him.

18             VG-018 stated that Sredoje Lukic also introduced himself.  VG-038

19     knew Sredoje as a police officer in Visegrad, and used to see him on his

20     way to school.

21             For seven years while he went to primary school in Visegrad, he

22     saw him as frequently as every other day excluding weekends.

23     Additionally, Sredoje Lukic was a colleague of VG-038's relative,

24     Huso Kurspahic.  VG-038 knew Sredoje Lukic from seeing him often in his

25     relative's company.

Page 3546

 1             VG-013 testified that she saw Sredoje Lukic often at social

 2     gatherings and that they had grown up in neighbouring villages.  VG-013

 3     also knew him in his official capacity as a police officer, and her

 4     father-in-law knew him.  She was present with her father-in-law when

 5     Sredoje Lukic used to come by and testified that her father-in-law would

 6     offer him coffee.

 7             Also highly relevant to the issue of identification is the

 8     instantaneous recognition by a large number of people in the group.

 9     These people who perished that night knew both the accused well and their

10     statements are now before the Chamber.  I will make more detailed

11     submissions regarding the weight that should be placed on these but would

12     simply note at this juncture that even in common law jurisdictions which

13     adhere to rigorous rules regarding hearsay would admit and place

14     significant evidential weight on these statements as exceptions to the

15     general hearsay rule.

16             These witnesses or victims had no time nor motive to fabricate.

17     They spontaneously uttered the name to the persons they saw at

18     Pionirska Street.  Several of these victims were close in age to

19     Milan Lukic, and it is reasonable to conclude that from their statements

20     that they knew him from school.

21             Witnesses or victims such as Ramiza Kurspahic.  Huso Kurspahic

22     was told by his father Hasib, who survived the fire, that

23     Ramiza Kurspahic told him that she went to school with Milan Lukic.

24     Sajma Kurspahic, approximately 20 years of age, she told VG-048 that she

25     knew Milan Lukic from school.  Ismeta Kurspahic, approximately 26 years

Page 3547

 1     of age the night of the fire, she told VG-013 that her husband sat at the

 2     same bench in school as Milan Lukic.  Other young women such as

 3     Jasmina Vila, Dzheva Kurspahic, Izeta Kurspahic, Latifa Kurspahic, and

 4     Medina Kurspahic were all close in age to Milan Lukic and it is

 5     reasonable to infer that they attended school in Visegrad along with him.

 6             Others like Jasmina Vila had been previously victimized by

 7     Milan Lukic.  Similarly, the Chamber must take into account

 8     Ifeta Kurspahic who was 17 at the time and taken from the house by

 9     Milan Lukic.  Both of those women, upon their return, identified

10     Milan Lukic as the person who had taken them from the house and returned

11     them.

12             Finally, VG-013 described how Kada Sehic, approximately 39 years

13     of age at the time, identified Milan Lukic by name to her as the person

14     who took away her son and her husband.

15             The Koritnik group surrendered all of their possessions to

16     Milan Lukic, Sredoje Lukic and their men, and were subsequently subjected

17     to a humiliating strip search before the group left.  The men promised

18     that they would be back.

19             Around 10.00 in the night, the noise of a loud car broke the

20     tense silence.  A vehicle arrived and shone its headlights into the

21     house.  Milan Lukic approached the Memic house and knocked on the door.

22     He was carrying a rifle.  Sredoje Lukic accompanied Milan Lukic.

23     Milan Lukic, positioned at the doorway of Memic house, ordered the

24     Koritnik group to move to a different house, telling them that the Memic

25     house was not safe for them.

Page 3548

 1             As VG-013 passed the doorway, she was less than 30 centimetres

 2     away from Milan Lukic.  Edhem Kurspahic, one of the others in the

 3     Koritnik group, said that Sredoje Lukic was walking alongside the column

 4     as it made its way to the Omeragic house.

 5             One of the group directed the Koritnik group -- one of the armed

 6     men directed the Koritnik group to the Omeragic house.  He ordered the

 7     group to walk another member who held a handheld torch light and lit the

 8     group's way toward himself.  Admittedly the sun had already set by this

 9     time, but witnesses have recalled for the Chamber lighting from a number

10     of sources in addition to these handheld flashlights.  From the car

11     itself, from the light outside the Memic house, from the light outside

12     the house across from the Memic house, and from lights from the housing

13     development behind the Omeragic house.  There was sufficient light for

14     the witnesses to see the men who led them to the Omeragic house and

15     ultimately set them ablaze.

16             VG-078 identified Milan Lukic throughout the move between the

17     Memic house and the Omeragic house.  She managed to escape and saw

18     Milan Lukic walk between the houses from a distance of about 30 steps.

19     VG-038 identified Sredoje Lukic and Milan Lukic, and the other men as

20     transferring the Koritnik group to the Omeragic house.  Also, VG-101

21     identifies Milan Lukic as standing in front of the Omeragic house in a

22     lit area.

23             Inside the Omeragic house, the Koritnik group occupied the lower

24     floor.  About 70 women, children and elderly men were crammed into the

25     two-windowed apartment.  VG-013 describe the carpets as being stained

Page 3549

 1     with a sort of liquid that stuck to their feet and it exuded a smell.

 2     The only door to the room in which the Koritnik group were put was

 3     closed.

 4             After a short time, Milan Lukic threw some sort of device,

 5     something like a bomb at the door.  As the witness described, flames

 6     appeared as large as the door itself and reached up to the ceiling.  When

 7     the door was opened, the fire was immediate and blazing.

 8             VG-101 and VG-078, who had managed to escape during the transfer

 9     towards the Omeragic house, could now hear shooting from the house next

10     to the creek.

11             A few of those barricaded into the house were able to escape.

12     VG-018 and her son VG-084 were able to get out through one of the

13     windows.  Similarly, VG-013 and her son VG-038 were also able to escape

14     out the window.  Hasib Kurspahic, who had been the last person to enter

15     the room in which the Koritnik group was held, ran out of the door when

16     it opened.  He jumped into the creek and laid down in cover for the

17     shooting.  He would tell his son shortly thereafter that Milan Lukic and

18     Sredoje Lukic had been directly responsible.

19             The evidence of the witnesses who watched the fire and heard

20     sounds of the victims dying, the fact that they have never seen their

21     family members again contradict Mr. Alarid's assertion that there was

22     never a fire there.  71 human beings died in the house burning at

23     Pionirska Street.  In support of the annex A of the indictment, the

24     following individuals are named.  Prosecution Exhibit P39 contains a list

25     of these victims as affirmed by the witness Huso Kurspahic.  Your Honour,

Page 3550

 1     before I move into the Bikavac portion of the submission, would it be

 2     convenient to take the break there?

 3             JUDGE ROBINSON:  Yes.

 4             I just want to raise two matters for your consideration.  First,

 5     in my view, you are not required to make submissions in relation to

 6     Mr. Cepic's client, Sredoje Lukic.  No submissions were made on his

 7     behalf in respect of 98 bis.  I know that the rule is perhaps silent on

 8     it, but it does say after hearing the oral submissions of the parties,

 9     and if a party has made no submissions, then I can't see the need to

10     address it.  At rock bottom, the procedure we have here is still

11     adversarial and a party system.

12             I don't rule out the possibility that the Chamber could proprio

13     motu, in an appropriate case itself raise 98 bis, if a party doesn't.

14     For example, if it is evident on the evidence that a legal ingredient is

15     missing from a crime, and a party doesn't raise it, I think the Chamber

16     would have an obligation to do so.  But generally, I would say that where

17     a party does not intend, and has made it clear, to apply 98 bis, there is

18     no need to -- for the Prosecutor to answer.

19             The second point I wanted to make is that Mr. Alarid made what I

20     think is an arguable case in relation to the presence of an armed

21     conflict.  That is, of course, one of the chapeau requirements of the

22     crimes that are charged and I'd like to you consider it.  What I

23     understand him to be saying is that the violence in the area did not

24     reach a level where it could be characterized as an armed conflict.  It

25     was sporadic.  And he even went further to say that it was just criminal

Page 3551

 1     activity.  It wasn't a matter for the consideration of this Tribunal.  I

 2     believe that's a worthy submission that requires your attention.

 3             We'll take the break now for half an hour.

 4                           --- Recess taken at 5.17 p.m.

 5                           --- On resuming at 5.47 p.m.

 6             JUDGE ROBINSON:  Before you continue, Mr. Groome, I just take

 7     this opportunity to inform the parties about the status of the

 8     outstanding motions.

 9             Today the Chamber will issue decisions on two motions from

10     Milan Lukic, pursuant to Rule 94(A), filed on the 26th of September.  It

11     will also issue a decision today on Milan Lukic's motion of 30th October

12     2008, requesting that the Chamber bar the entry into evidence of

13     Masovic's statement and his related testimony.  And lastly, it will issue

14     a decision on Sredoje Lukic's motion of the 12th of September for the

15     admission of adjudicated facts.

16             That leaves three Prosecution motions outstanding.  Two of those

17     relate to the admission of exhibits from the bar table.  Exhibit 167 and

18     Exhibits 190.1 through 190.6.  The Chamber will issue a written decision

19     on the Prosecution motion to admit Exhibit 167 tomorrow.

20             With regard to the motion for the admission of Exhibits 190.1 to

21     190.6, which was only filed this Monday, the Chamber requests the Defence

22     to file a response, if any, by next Tuesday, 18th November.

23             Now, please bear that in mind, Defence counsel.

24             Yesterday evening the Prosecution filed a motion requesting the

25     Chamber to reconsider its decision of the 5th of November excluding the

Page 3552

 1     testimony of VG-094.  The Chamber will decide on the motion once it has

 2     received Defence responses, if any.

 3             Lastly, the Chamber is seized with a motion from Serbia filed on

 4     the 10th of November requesting certain protective measures, and this

 5     matter will be dealt with next week.

 6             Yes, Mr. Groome.  Oh, Mr. Cepic first.

 7             MR. CEPIC:  I apologise for interrupting.  I thought it would be

 8     useful moment just related to decision of this honourable Trial Chamber

 9     on the decision on Sredoje Lukic amended motion for judicial notice on

10     adjudicated facts.  Related to that decision, Your Honour, I kindly ask

11     admission of Exhibit number 1D38 which is marked for identification, and

12     that exhibit contains medical records of Mitar Vasiljevic in Uzice

13     hospital.

14             JUDGE ROBINSON:  You are saying that would be a consequence of

15     that decision?

16             MR. CEPIC:  Yes, Your Honour.

17             JUDGE ROBINSON:  We'll give that decision tomorrow.

18             MR. CEPIC:  Thank you very much.  I apologise for interrupting.

19             JUDGE ROBINSON:  Yes, Mr. Groome.

20             MR. GROOME:  Your Honour, in light of your comments prior to the

21     break, I have omitted several pages of summary of evidence directly

22     related to Sredoje Lukic.  Of course I'm unable to take out references

23     that witnesses made to both men.  It also occurs to me, Your Honour, that

24     when Mr. Alarid, when speaking about the Uzamnica -- or counts related to

25     Uzamnica, said at transcript page 20, line 8:  "From a Rule 98 bis

Page 3553

 1     perspective, we would concede there's probably enough there."  It's a bit

 2     of an equivocal concession that it's there, but if Mr. Alarid is willing

 3     to clarify that and the Chamber does not wish to me to summarize the

 4     evidence in Uzamnica, that would also be a sizeable reduction in my

 5     submission to the Chamber.

 6             JUDGE ROBINSON:  Do you want to -- can you clarify that,

 7     Mr. Alarid?

 8             MR. ALARID:  Yes, Your Honour.  I believe that, you know, absent

 9     other considerations is raised, i.e., the armed conflict issue and

10     whatnot.  I think the if the Court gets past that on its simplest based

11     on 98 bis, we would concede Uzamnica barracks.  There is sufficient base

12     foundation under the rule.

13             JUDGE ROBINSON:  Yes, thank you.

14             MR. GROOME:  So, Your Honour, I'll -- when I get to that section

15     if the Chamber wishes me to move past it, I'll certainly do that and get

16     to some of the issues regarding to armed conflict.

17             JUDGE ROBINSON:  You can move past that, yes.

18             MR. GROOME:  Your Honours, Counts 13 through 17 of the indictment

19     charge Milan Lukic and Sredoje Lukic with extermination, murder and

20     inhumane acts as crimes against humanity, and murder and cruel treatment

21     as violations of the laws and customs of war with regard to the burning

22     of a house in Bikavac settlement of Visegrad on or about the 27th of

23     June, 1992, in which approximately 70 civilians were killed and one

24     civilian who survived was badly burned.

25             The Prosecution led evidence from four witnesses regarding this

Page 3554

 1     incident:  VG-035, VG-115, 119, and the sole survivor, Zehra Turjacanin.

 2     Each of these witnesses testified about these events from a slightly

 3     different perspective.  VG-035 saw Milan and Sredoje Lukic immediately

 4     before they went off to commit the crime.  VG-119 saw them both

 5     immediately before and immediately after, and saw Zehra Turjacanin

 6     afterwards, in her grievously injured state.  VG-115 watched the crimes

 7     being committed from her place of hiding in a nearby orchard.  And

 8     finally, Zehra Turjacanin was inside Meho Aljic's house and survived the

 9     fire itself.  Despite the fact that each of these women experienced these

10     events from a different perspective, their collective testimony tells a

11     remarkably consistent and coherent story, one which, in the Prosecution's

12     submission, would clearly allow a reasonable trier of fact to convict

13     Milan and Sredoje Lukic for this crime.

14             The first witness to see Milan Lukic and Sredoje Lukic in the

15     Bikavac neighbourhood on that day was VG-035.  Milan Lukic had already

16     been to her house twice that day, and Sredoje Lukic had already been

17     there once.  VG-035 testified that both Milan and Sredoje Lukic returned

18     to her house between 4.00 and 5.00 in the afternoon of the 27th of June.

19     They brought one other soldier with them, one whom VG-035 did not know.

20     Milan and Sredoje Lukic took all of VG-035's money and jewellery, and

21     then Sredoje Lukic left.  Milan Lukic stayed for awhile longer and then

22     left as well.

23             When Milan Lukic left, VG-035 saw that he had a car with him and

24     recognised it as Behija Zukic's car.  There was loud music coming from

25     the car, which VG-035 could hear inside her home.  The car drove a short

Page 3555

 1     distance and parked.  VG-035 was still able to hear the music coming from

 2     the car.  Some time after Milan Lukic left, VG-035 heard loud shooting, a

 3     lot of shrieking and screaming.

 4             VG-119 was the second witness to see Milan and Sredoje Lukic in

 5     the Bikavac settlement on that evening.  At around 8.00 p.m., someone

 6     began knocking on the door of the house that VG-119 was staying in.  When

 7     the door was opened, a group of Serbs entered the house.  VG-119

 8     recognised Milan Lukic among them.

 9             When the men arrived, VG-119 could hear music playing from the

10     cars outside.  The men who came into the house asked if there were any

11     women from the Zupa area of Visegrad in the house.  When the residents

12     told them that there were not, the soldiers left, saying that they would

13     return.  Altogether, they had remained in that house for 10 to 15

14     minutes.  When the soldiers left, the women in the house where VG-119

15     were staying, could still hear the loud music coming from the cars.

16             Zehra Turjacanin, the survivor of the fire, was the third witness

17     to see Milan and Sredoje Lukic in Bikavac that evening.  Ms. Turjacanin

18     testified that she also remembers that the 27th of June, 1992, was the

19     Orthodox holiday of Vidovdan.  On that day, Ms. Turjacanin was at home

20     with a group of family members and neighbours.  At some point during the

21     day she went across the street to visit her neighbour.

22             She remembers it was evening when she left that neighbour's

23     house.  When she arrived home, she went out on her balcony to smoke a

24     cigarette.  And from that balcony, she heard very loud Serbian

25     nationalistic music coming from the loud speakers of some car below.

Page 3556

 1     Shortly after she heard the music, someone began knocking on her door.

 2     When the people in Zehra Turjacanin's house opened the door in response

 3     to the knocking, a group of soldiers and other men ordered them out of

 4     the house.  Ms. Turjacanin, her family, and neighbours who were gathered

 5     in the house left it with the exception of her brother Dzevad and her

 6     cousin who were hiding in the house.

 7             When she went outside, Ms. Turjacanin was told they would leave

 8     on a convoy to Bajina Basta, but she could see no buses or other vehicles

 9     capable of transporting them to safety.  Ms. Turjacanin specifically

10     remembers that Milan Lukic was one of the soldiers in the group.  Milan

11     Lukic was standing on the path separating Ms. Turjacanin's old house from

12     her new house when she saw him.

13             VG-119 testified that both she and Zehra Turjacanin, after the

14     fire, eventually ended up in Medjedja.  There, VG-119 would go visit

15     Zehra every day.  One day, journalists interviewed Ms. Turjacanin and

16     asked her who was responsible for her injuries.  VG-119 heard Zehra

17     mention the names of both Milan Lukic and Sredoje Lukic.

18             After having left their houses, Ms. Turjacanin and the other

19     residents of the surrounding houses followed this group of armed men for

20     approximately 100 metres to another house.  This house belonged to

21     Meho Aljic.  Ms. Turjacanin testified that at the moment she entered the

22     house, she saw a large group of people sitting against the walls of the

23     room she was in, which was a combined living-room and kitchen.

24     Ms. Turjacanin stayed close to the glass door through which she entered.

25     Her sister Aida was right next to her.

Page 3557

 1             The other people in the house with Ms. Turjacanin were mainly

 2     young mothers with small children.  There were also a few elderly women

 3     and men.  The youngest child in the house was about a year old.

 4             Ms. Turjacanin testified that an atmosphere of fear gripped that

 5     room that she and the others were imprisoned in.  After they entered, the

 6     armed men who had put them in the house began throwing rocks at the house

 7     to break the windows.  Then they threw in several grenades.  After the

 8     grenades exploded, a fire broke out in the room that spread very quickly.

 9     Ms. Turjacanin's clothes caught fire.

10             Ms. Turjacanin decided to try to escape through the glass door

11     through which she had entered.  When she got to the door, though, she

12     found that the way was blocked by a metal garage door that had been

13     placed up against the glass door.

14             The garage door had some small openings in it.  Ms. Turjacanin

15     was able to climb through one of these openings and escape, though her

16     hands were badly burned within she touched the hot door.

17             When she escaped from the house, Ms. Turjacanin saw the men who

18     had set the fire lying in the grass about 100 metres away.  The men saw

19     her as well and yelled for her to stop.  She ran, and as she was running,

20     she took off her burning clothes.  She ran towards the Serb neighbourhood

21     of Megdan.

22             Your Honours, I ask that we briefly move into private session.

23             JUDGE ROBINSON:  Private session.

24             THE REGISTRAR:  Your Honours, we are in private session.

25                           [Private session]

Page 3558











11  Page 3558 redacted. Private session.















Page 3559

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             MR. GROOME:  VG-035 also saw evidence of the fire.  At around

 8     9.00 p.m., her mother-in-law told her to go look at something through the

 9     bathroom window of the house.  She went and looked and saw a huge flame.

10     She testified that she had never seen a flame so high and assumed that a

11     house must be engulfed.

12             VG-119, who had seen Milan and Sredoje Lukic in her house earlier

13     that evening, also saw Milan Lukic after the fire.  According to her

14     evidence, at about 10:00 p.m., the same group of soldiers had come into

15     her house earlier that night had returned.  This group included

16     Milan Lukic.  The lights the were on in the house, and VG-119 could see

17     that the soldiers were dirty and dripping with sweat.

18             Ms. Turjacanin testified that after escaping from the burning

19     house, she was severely burned on her face and hands and felt very ill.

20     Nevertheless, she returned to Bikavac to warn the remaining residents to

21     leave.  Ms. Turjacanin testified that she went to four houses in Bikavac

22     to warn the residents.  The fourth house she visited was the Salic family

23     house.  VG-119's testimony confirms this account.

24             VG-035 also saw Zehra Turjacanin after the fire.  She estimates

25     that Zehra arrived at her house after midnight.  When VG-035's

Page 3560

 1     mother-in-law opened the door, Zehra told them that Milan Lukic had set

 2     everything on fire and that she had tried to save her sister but wasn't

 3     able to.  Ms. Turjacanin then left saying that she was going to warn

 4     others.

 5             Following Zehra's warning, VG-035, her children and her

 6     sister-in-law tried to flee Bikavac.  They passed by the house and

 7     smelled burned bodies and burned hair.  In the end, they were unable to

 8     leave that night.

 9             Each of the witnesses who testified about these events had a good

10     opportunity to observe Milan Lukic on the day in question.  They were

11     each familiar with Milan Lukic from before, and thus, had a solid basis

12     for recognizing him.

13             On the night in question, Ms. Turjacanin had an excellent

14     opportunity to observe Milan Lukic.  She also had a solid basis for

15     recognizing him.  She specifically recalled seeing Milan Lukic two times

16     in the minutes preceding the inferno at the Meho Aljic house.  First, she

17     saw him standing near her house, when she and her family first came out

18     of their house.  Second, she saw him when he took her gold chain from her

19     neck as she was entering Meho Aljic's house.

20             On this second occasion, Milan Lukic was standing immediately

21     beside the door of the Meho Aljic house.  The same door that would later

22     be barricaded as the last of the victims walked into the house.

23     Milan Lukic was necessarily close enough to touch Ms. Turjacanin at this

24     point.  Ms. Turjacanin clearly had an excellent opportunity to observe

25     Milan Lukic on this occasion.

Page 3561

 1             She also had an excellent basis to recognise him.  She attended

 2     secondary school in Visegrad at the same school Milan Lukic attended.

 3     She was older than him and, consequently, was in her fourth year of

 4     secondary school when Milan Lukic was in his first.  Ms. Turjacanin's

 5     brother, Dzevad Turjacanin, was younger than she was, and was in the same

 6     class as Milan Lukic.  In fact, Ms. Turjacanin's brother Dzevad sat at

 7     the same school table as Milan Lukic.

 8             During their school days, Ms. Turjacanin saw Milan Lukic during

 9     breaks between classes at school.  Students who smoked would go behind

10     the school for a cigarette during these break times.  Since both

11     Ms. Turjacanin and Milan Lukic smoked, she would see him there behind the

12     school during class breaks.

13             In addition to this strong foundation of prior familiarity with

14     Milan Lukic, Ms. Turjacanin also had three opportunities to observe him

15     in person after his return to Visegrad in 1992, and before the night of

16     the fire.

17             The first of these opportunities arose in the afternoon of a day

18     in June.  Ms. Turjacanin was at the house of her neighbour.  At one

19     point, Milan Lukic arrived at the house, politely greeted the ladies, and

20     told them that he would protect them.  He stood about a metre away.  She

21     had a clear view of him in good light.  She immediately recognised him as

22     Milan Lukic.

23             On another afternoon in June, Ms. Turjacanin saw Milan Lukic at

24     her place of work in Visegrad, which was a lady's clothing factory.

25     Milan Lukic had come to that factory to find one of his neighbours, a

Page 3562

 1     woman who also worked at the factory.

 2             Ms. Turjacanin's third opportunity to observe Milan Lukic

 3     occurred in late June 1992.  On that occasion, she watched as group of

 4     soldiers brought by Milan Lukic burned two men to death.  Milan Lukic and

 5     his group doused the two men with gasoline and set them on fire.

 6             In sum, Ms. Turjacanin knew who Milan Lukic was from their school

 7     days.  She then saw him clearly on multiple occasions in June, and was in

 8     a good position to recognise him when she saw him on the 27th of June,

 9     shortly before the Bikavac fire.

10             VG-035's contact with Milan Lukic began on the 26th of June.  On

11     that day, Milan Lukic appeared outside her house with a Serb boy.

12     Milan Lukic introduced himself by name.  She testified that when she

13     learned who he was, she was frightened.  She had heard that he had been

14     doing bad things in Visegrad.  Milan Lukic asked the witness about her

15     husband, where she got her house, where she was working, and as they were

16     discussing these matters, they also discussed their ages.  And

17     Milan Lukic told VG-035 that he was born in 1967.

18             When VG-035 told Milan Lukic that she didn't know where her

19     husband was, Milan Lukic said, "I'll check and I'll be back to tell you.

20     If you are lying to me, I will kill you."  During the course of this

21     conversation, VG-035 and Milan Lukic were less than a metre away from

22     each other.  At the end of the conversation, Milan Lukic told her that he

23     would return.

24             Milan and Sredoje Lukic had been banging on the door of the house

25     where VG-035 was staying with her family.  When her mother-in-law

Page 3563

 1     answered the door, Milan and Sredoje Lukic barged into the house and

 2     entered the bedroom where VG-035 was lying in bed, and pulled the bed

 3     covers off.  He was standing immediately beside her bed with nothing

 4     obstructing his face.

 5             Sredoje Lukic stood behind him.  VG-035 recognised Milan Lukic as

 6     the person who had introduced himself to her in front of the house the

 7     day before.  Milan Lukic returned several hours later, again banging on

 8     the door of the house.  Again VG-035's mother-in-law opening the door.

 9     He took her out of the house and put her in the back seat of the car that

10     had been owned by Ekrem Dzafic.  He drove the two of them to a house

11     owned by the Forta family in an area called Megdan.

12             Your Honour, I'd ask that we briefly go into private session.

13             JUDGE ROBINSON:  Yes.

14             THE REGISTRAR:  Your Honours, we are in private session.

15                           [Private session]

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 3564

 1   (redacted)

 2   (redacted)

 3                           [Open session]

 4             MR. GROOME:  As discussed earlier, VG-035 saw Milan Lukic again

 5     around 4.00 or 5.00 in the afternoon when he returned to her house.

 6     VG-035 thus had the opportunity to see and observe Milan Lukic in the

 7     closest possible proximity for several hours over the course of two days.

 8     There can be no doubt that the image of Milan Lukic was crystal clear and

 9     fresh in VG-035's mind on the day, when she recognised him again, of the

10     Bikavac fire.

11             VG-119 was also very familiar with Milan Lukic.  She had recently

12     had two opportunities to observe him at close range for extended periods

13     of time.

14             VG-119's first opportunity to observe Milan Lukic came in late

15     May of 1992.  Her and her family had attempted to flee from Visegrad to

16     Belgrade, but were turned back in Priboj, Serbia.  When they returned to

17     Visegrad, the taxi that they were riding in was stopped at the old bridge

18     in Visegrad by three cars filled with armed soldiers.  One of the cars

19     was the Zukic red Passat that VG-119 recognised.  Four or five soldiers

20     got out of these cars.  One of them was Milan Lukic.  Although VG-119 had

21     not known Milan Lukic previously, her husband did and he identified him

22     to her.

23             Milan Lukic ordered VG-119's family to get back into the taxi and

24     to go to their home in Dusce.  Milan Lukic and the other soldiers got

25     into their cars and followed the taxi to VG-119's home.  When they

Page 3565

 1     reached their home, Milan Lukic ordered the women to go inside.  He took

 2     VG-119's husband away in his car, while VG-119's father-in-law was taken

 3     away in another car.  Neither was seen alive again.

 4             VG-119's second opportunity to observe Milan Lukic occurred later

 5     that same day, at about 8.00 in the evening.  Milan Lukic arrived at her

 6     house and asked for the wife of the husband he had taken away earlier in

 7     the day.  He took VG-119 and put her in the red Passat.  He drove her to

 8     the Vilina Vlas Hotel where she remained for several hours.  Later that

 9     night, a Serb soldier who she had seen earlier in the night reappeared

10     and on Milan Lukic's instructions took VG-119 back home to Dusce.

11             That night, VG-119 and the other women she was hiding with

12     decided to leave Dusce because they were afraid Milan Lukic would return.

13     They left the house in Dusce for Bikavac, where they were on the night of

14     the Bikavac fire.

15             Thus, prior to the night of the Bikavac fire, VG-119 had the

16     opportunity to observe Milan Lukic at very close range for a relatively

17     long period of time on two occasions.  On the night of the Bikavac fire,

18     she saw him twice in the house where she was staying.  In sum, VG-119 had

19     an excellent basis on which to identify Milan Lukic and an excellent

20     opportunity to observe him in order to do so.

21             These identifications were made by four witnesses who were very

22     familiar with Milan Lukic before the night in question.  These four

23     identifications are also independent.  None of the four witnesses'

24     identifications is based on information received or related to any other

25     witness.  Indeed, none of the four witnesses were even in the same place

Page 3566

 1     at the time they saw Milan Lukic.

 2             Finally, the testimony of these four witnesses gives a very clear

 3     and consistent picture of the events of that night, indicating that these

 4     witnesses have strong, independent recollections of these events.  In

 5     light of this evidence, the Prosecution submits that a reasonable trier

 6     of fact could clearly convict Milan Lukic of Counts 13 through 17 of the

 7     indictment.

 8             The murder of Hajra Koric.  On a day between the 1st of July and

 9     the 5th of July, Hajra Koric was brutally murdered by Milan Lukic.

10     VG-035, an eyewitness to the murder, stated:  "Milan Lukic shot

11     Hajra Koric.  No one else."

12             The Prosecution has led evidence from one eyewitness, VG-035,

13     regarding the killing of Hajra Koric.  As VG-035's ability to identify

14     Milan Lukic on that day that Ms. Koric was killed is one of the key

15     aspects of the Prosecution's case with respect to these counts, the basis

16     of VG-035's familiarity with Milan Lukic has already been discussed in

17     detail.

18             Following the day of the Bikavac fire, the next time VG-035 saw

19     Milan Lukic was on the day he killed Ms. Koric.  At that time, VG-035 had

20     moved to a house in the Potok neighbourhood of Visegrad, where a group of

21     women and children were staying because this house was close to the bus

22     station and VG-035 had been trying to escape from Visegrad.  At some

23     point on that day of Hajra Koric's murder, a group of soldiers entered

24     the house where VG-035 was staying.  Ms. Koric hid under the kitchen

25     table, but the soldiers chased her and the other women and children out

Page 3567

 1     of the house.  In the midst of the turmoil, Milan Lukic and his group

 2     appeared.  After he stopped the group, Milan Lukic lined the women up.

 3     Ms. Koric was last in line.  Milan Lukic and another man went from woman

 4     to woman looking for Hajra Koric.  When Milan Lukic recognised her, he

 5     pulled her out of the line.

 6             After Milan Lukic questioned Ms. Koric, he shot her in the chest.

 7     He laughed as she fell to the ground, and said, "What is she doing?"

 8     Milan Lukic then turned Hajra Koric over with his foot and shot her once

 9     in the back.  After this, she gave no signs of life.

10             Your Honours, I will not address the evidence with respect to

11     Uzamnica.  Now having detailed the acts of the accused and summarized the

12     relevant evidence, I will now turn my attention to the actual charges and

13     the establishment of the required elements.  As Judge Parker said in

14     delivering the 98 bis decision in the Mrksic case on the 28th of June of

15     2006, "There must be evidence which meets the standard that we have set

16     out above in respect of every element of the offence alleged by the

17     count."

18             The two broad categories of crimes alleged in the indictment are

19     crimes against humanity and violations of the laws or customs of war.  I

20     will summarize the applicable law and incorporate by reference my earlier

21     submissions on the evidence without repeating what I have said so far.

22             I will first deal with crimes against humanity.  What

23     distinguishes ordinary crimes perpetrated during times of chaos and

24     crimes against humanity is the connection these crimes have to a

25     widespread or systematic attack against a civilian population.  This

Page 3568

 1     chapeau can be broken down into five constituent elements.

 2             The first element is the existence of an attack.  An attack is

 3     distinguished from an armed conflict and is -- in its simplest terms,

 4     constitutes acts of violence perpetrated against a civilian population.

 5     It is not necessary to recount the six comprehensive factors enunciated

 6     by the Trial Chamber in the Dragan Nikolic Rule 61 decision.  It is clear

 7     that what happened to the civilian population of Visegrad was very much

 8     an attack on its civilian Muslim population.

 9             The goal of the attack was the ethnic cleansing of the Muslim

10     population of Visegrad.

11             The second chapeau element is the connection between the attack

12     on the civilian population and the acts of the accused as required or as

13     defined in the Vasiljevic trial judgement at paragraph 32 and the Kunarac

14     trial judgement at 418, which set out two factors for consideration.

15     First, did the conduct of the accused, by its nature and effect, further

16     the attack on the civilian population?  Second, was the accused aware

17     that his acts were part of an overall attack?

18             In the context of this case, both are abundantly clear.  The

19     selection of victims, the timing of the crimes, the pattern of searching

20     for men and then killing large numbers of women, elderly and children,

21     all lead to the inescapable conclusion that the acts of Milan and

22     Sredoje Lukic was in fact, and in their minds, inextricably connected to

23     the overall campaign of ethnic cleansing of Muslims in Bosnia during the

24     spring and summer of 1992.

25             The third element require that is the attack be directed at the

Page 3569

 1     civilian population.  In other words, that it be the target of the

 2     attack.  Again would I cite the Kunarac Appeals Chamber judgement, this

 3     time at paragraph 91.  In this case there can be no doubt that the

 4     careful selection of civilians, the inducements offered a fearful and

 5     terrified people made clear that it was the civilians of Visegrad that

 6     the attack was directed against.

 7             The fourth element, the widespread or systematic nature of the

 8     attack, this element defines a crime against humanity, not only by its

 9     target, but also by its scale.  Was it widespread or systematic?

10     Widespread connotes the scale of the crimes, and in this case you have

11     heard compelling demographic and pathology evidence indicating the

12     widespread nature of the crimes perpetrated against the civilian

13     population in Visegrad.

14             With respect to systematic, this refers to the organisation of

15     the attack.  Were the crimes a disconnected series of events that simply

16     coincided with each other?  Or, as required by crimes against humanity,

17     were they the result of a organised effort?  In addition to the

18     demographic evidence, the Chamber has heard sufficient evidence to

19     conclude that the attack on the civilian population of Visegrad proceeded

20     by way of a system ensuring the destruction of the Muslim population.

21     Targeting entire villages such as Koritnik and Bikavac, going house to

22     house for an intense and unrelenting period of ethnic cleansing.

23             The fifth element concerns the mens rea of the accused, and the

24     Prosecution must establish that the accused is aware that there is an

25     attack on the civilian population, and that his acts are part of or are

Page 3570

 1     connected to the attack.  This was first enunciated in the Blaskic

 2     Appeals Chamber judgement at paragraphs 124 to 127.

 3             The record is replete with evidence from which a reasonable

 4     Trial Chamber could find that both of these accused acted with full

 5     knowledge that their conduct was not only part of the attack on the

 6     civilian population of Visegrad, but was in fact the primary attack on

 7     the civilian population itself.

 8             Count 1 of the indictment charges the first crime against

 9     humanity, the crime of persecution.  Persecution on political, racial or

10     religious grounds is a crime against humanity that, in addition to the

11     chapeau elements, has three underlying elements.  One, the occurrence of

12     a discriminatory act or omission.  Two, the discriminatory basis was on

13     political, religious or racial grounds.  And three, the accused intended

14     to cause and, in fact, did cause an infringement of an individual's

15     enjoyment of a fundamental right.

16             While persecutory acts can encompass a plethora of serious

17     infringements on personal rights, for the purposes of this indictment

18     against both accused, the Prosecution's case, as set out in the second

19     amended indictment, alleges five such persecutory acts.  In

20     paragraphs 4(a), 4(c), 4(d), and 4(e), the Prosecution alleges Milan and

21     Sredoje Lukic's treatment and conduct towards approximately 140 Muslim

22     civilians constitutes persecutory acts.  These acts included their

23     confinement, the theft of their personal property, their harassment,

24     humiliation and psychological abuse, as well as their subsequent murder

25     by setting them on fire.

Page 3571

 1             With respect to Milan Lukic alone, the Prosecution also asserts

 2     in paragraphs 4(a) and 4(d), that his treatment and murder of Muslims at

 3     the Drina on June 7th, the Varda factory on June 10th, and Hajrija Koric

 4     also constitutes persecutory acts.

 5             In paragraph 4(b), the Prosecution has established that the cruel

 6     and inhumane treatment of the Muslim detainees at the Uzamnica camp were

 7     also persecutory acts.

 8             I've already summarized the evidence of all of these acts and

 9     will not recall it again, other than to remind the Chamber that all of

10     the victims in this case were Muslims, and during the course of the

11     crimes, many of the witnesses refer to derogatory language used to refer

12     to them as Muslims, words such as "balija."  The evidence is ample and

13     compelling and clearly meets the test set forth by Rule 98 bis.

14             Murder as a crime against humanity has been charged in Count 2

15     with respect to the Drina River incident, Count 6 related to the Varda

16     factory killings, Count 9 related to Pionirska Street fire, Count 14

17     related to the fire in Bikavac, and Count 18 related to the killing of

18     Ms. Koric.

19             The elements of murder as a crime against humanity, and murder as

20     a violation -- I should say the underlying elements of murder as a crime

21     against humanity and murder as a violation of the laws or customs of war

22     are essentially the same except for their chapeau elements.

23             The elements of murder are the death of the victim, the death was

24     caused by an act of the accused, and thirdly, the act was done with the

25     intention to kill or to inflict grievous bodily harm in the reasonable

Page 3572

 1     knowledge that such was likely to cause death.

 2             In the case of every criminal event alleged in the indictment, it

 3     has been clearly established that the deaths of the victim were the

 4     product of the intentional conduct of these two accused.  The victims

 5     were either shot to death or burned to death.

 6             Inhumane acts as a crime against humanity has been charged in

 7     Count 4 with respect to the Drina River incident, Count 11 related to

 8     Pionirska Street fire, Count 16 related to the Bikavac fire, and Count 20

 9     related to the Uzamnica camp.  The concept of inhumane acts is a broad

10     one and of a residual nature, in that it casts a large net to encompass

11     criminal acts not specifically enumerated in other specific crimes

12     against humanity.

13             The elements may be listed as:  One, it is an act of like

14     seriousness to other enumerated acts under Article 5.

15             The act caused serious mental or physical suffering or injury,

16     and constituted a serious attack on human dignity.  And lastly, the

17     attack was performed intentionally by the accused.

18             The evidence clearly establishes that each of the accused -- and

19     this clearly establishes that each accused, in the counts on which they

20     have been charged, have committed the crime of inhumane acts with respect

21     to the survivors of those crimes.

22             Extermination as a crime against humanity has been charged in

23     Counts 8 and 13 with respect to fires in Pionirska Street and Bikavac,

24     respectively.  Quoting from the Akayesu trial judgement at paragraph 591:

25     "Extermination is a crime which by its very nature is directed against a

Page 3573

 1     group of individuals.  Extermination differs from murder in that it

 2     requires an element of mass destruction which is not required for

 3     murder."

 4             There is no minimum threshold or number of victims.  With respect

 5     to the mens rea, the Prosecution must establish that the person intended

 6     to kill a large number of individuals or to intentionally inflict

 7     grievous bodily harm to a large number of people with the knowledge that

 8     such was likely to cause death.

 9             The Prosecutor must not only prove that the perpetrator intended

10     to kill the individual victim with knowledge of the larger murderous

11     context, I'm quoting from Mr. Mettraux's book, International Crimes and

12     the Ad Hoc Tribunals, at page 179.  As the Ruzindana Trial Chamber

13     stated:  "A single killing or a small number of killings do not

14     constitute an extermination.  In order to give practical meaning to the

15     charge as distinct from murder, there must in fact be a large number of

16     killings."

17             The Prosecution has established with evidence upon which a

18     reasonable Trial Chamber could convict Milan and Sredoje Lukic of

19     extermination for their conduct as described in Counts 8 related to

20     Pionirska Street, and Count 13 related to the Bikavac fires.

21             Violations of the laws and customs of war.  I now turn my

22     attention to the violations of the laws and customs of war and begin by

23     summarising the chapeau elements.

24             In order for a crime to be considered a war crime it must be

25     established first, that a state of armed conflict exists.  And two, there

Page 3574

 1     is a nexus between the crime and the armed conflict.

 2             The Tadic jurisdictional decision was the first to deal with

 3     whether an armed conflict existed in Bosnia, and in determining that it

 4     did, it found that when there is a "protracted armed violence between

 5     governmental authorities and organised armed groups, or between such

 6     groups within a state."  That's paragraph 7, and a similar statement was

 7     made in the Kunarac appeals judgement at paragraph 56.

 8             There is no clear line or threshold indicating the level at which

 9     hostilities are sufficiently intense to constitute an armed conflict.

10     The Trial Chambers have relied on a number of factors articulated in the

11     Tadic trial judgement, the Akayesu Trial Chamber, and the Tadic

12     jurisdictional decision, as well as several other significant judgements

13     and decisions.  The factors some of the factors that have been relied on

14     include:  One, the involvement of a large amount of weaponry and troops.

15     Two, sustained and coordinated military operations.  Three, inability of

16     a state, in this case Bosnia, to control all of its territory.  And four,

17     the scope of the geographic area implicated in the conflict.

18             Pictet, in the commentary on the Geneva Conventions says that the

19     closely related criteria of intensity and organisation are used primarily

20     "for the purpose as a minimum of distinguishing an armed conflict from

21     banditry, unorganized and short-lived insurrections or terrorist

22     activities which are not subject to international humanitarian law."

23     That's page 33.

24             The Tadic jurisdiction decision at paragraph 69 and 70 and the

25     Kunarac appeals judgement at 57 and 64 hold that once established -- once

Page 3575

 1     it has been established that an armed conflict is in existence, the laws

 2     of war will in principle apply and continue to apply until a general

 3     conclusion of peace or until a peaceful settlement has been reached.

 4     That clearly --

 5             JUDGE ROBINSON:  Mr. Groome, in the Slobodan Milosevic case, the

 6     Trial Chamber wrote a Rule 98 bis decision which was 187 pages, I think.

 7     Are you threatening to challenge that length?  I hope not.  It was

 8     shortly after that that the present Rule 98 bis was formulated by the

 9     plenary, and I wonder whether we need all the detail that you are

10     offering us?

11             MR. GROOME:  Your Honour, I'll be guided by the Chamber.  I took

12     some of the comments from before the break that this was a primary area

13     of concern for the Chamber.  I will move from -- I don't mean to insult

14     the Chamber by citing so much of the law, so let me move to some of the

15     evidence that the Chamber has heard on this issue.

16             In this case, VG-011 testified:  "In April 1992, that is to say

17     the beginning of April, barricades were set up, set up by both sides.  A

18     paramilitary unit from Serbia was introduced into the Dobrun territory

19     and there was an armed conflict.  According to the documents that were

20     seized by one such group, the people involved were so-called White

21     Eagles."  That was from the witness's testimony in Vasiljevic on the 12th

22     of September, 2001.

23             Mirsada Kahriman who testified before you, stated:  "The war in

24     the area started around 5th of April, 1992, when the area was shelled

25     from the direction of the Serbian border."

Page 3576

 1             VG-025, in his 92 quater statement that is now in evidence as

 2     P168:  "After this we started to organise ourselves into some sort of

 3     Territorial Defence which developed into some sort of army.  We were

 4     considered as members of the BiH Army from the 11th of June, 1992."

 5             There's a statement of Milan Lukic in evidence, a statement that

 6     was given to a witness of Serb -- someone from the Serb government and

 7     it's Prosecution Exhibit 149.  Quoting from that, this is Milan Lukic's

 8     own words:  "I have been on the front in Visegrad and its surroundings

 9     since the 10th of April, 1992.  I am the commander of a group called the

10     Avengers.  The group has between 20 and 50 men and is under the command

11     of the Visegrad TO."

12             So Your Honours, I believe -- well, let me make mention of one

13     more, it's an adjudicated fact.  Fact number 10 that the Chamber found to

14     be an adjudicated fact was that the Uzice Corps entered Visegrad on the

15     14th of April.  So Your Honours, I believe there is ample evidence that

16     an armed conflict was in existence prior to the commission of any of the

17     crimes in the indictment, and there certainly is no evidence that there

18     was a general cessation of hostilities during the period of the

19     indictment.

20             Murder as a violation of the laws or customs of war has been

21     charged in Count 3 with respect to the Drina River incident, Count 7

22     related to the Varda factory killings, Count 10 related to

23     Pionirska Street fire, Count 15 related to the fire in Bikavac, and Count

24     19 related to the killing of Ms. Koric.  As I've said earlier, the

25     underlying elements are essentially the same for whether the crime is

Page 3577

 1     charged as a crime against humanity or violation of the laws or customs

 2     of war.  I incorporate these elements and my comments about the evidence

 3     into this part of my argument.

 4             Cruel treatment as a violation of the laws or customs of war has

 5     been charged in Count 5 with respect to the Drina River incident, Count

 6     12 related to Pionirska Street, Count 17 related to Bikavac, and Count 21

 7     related to Uzamnica.  The Celebici Trial Chamber, in paragraph 50 of its

 8     judgement, characterized cruel treatment as "treatment that is inhumane."

 9             Cruel treatment, inhumane treatment and inhumane acts essentially

10     require similar proof.  The elements can be defined as an intentional act

11     which causes serious mental or physical suffering, or constitutes a

12     serious attack on a person's dignity.  The attack is perpetrated against

13     someone who is not participating in the hostilities, and the mens rea

14     element is that the perpetrator of the cruel treatment did so

15     intentionally.  Once again, the charge of cruel treatment as it relates

16     to each accused has been clearly established by the survivors of the

17     crimes that have been charged.

18             Your Honours, that concludes my submission on the Rule 98 bis.

19     The Prosecution in its case in chief has adduced ample and compelling

20     evidence upon which a reasonable Trial Chamber could enter a conviction

21     on the charges contained in the indictment against Milan and

22     Sredoje Lukic.  I thank you for your attention.

23             JUDGE ROBINSON:  Thank you, Mr. Groome.

24             Any reply, Mr. Alarid?

25             MR. ALARID:  Very briefly, Your Honour, and I guess I'm slightly

Page 3578

 1     more baited into the -- into a couple of issues on the facts and one

 2     would be, like, 115, VG-115 who supposedly witnessed Bikavac.  Well, if

 3     you put Ms. Turjacanin's and 115's maps of the neighbourhood together,

 4     then VG-115 is in the orchard with the soldiers who are out of ammo and

 5     drugged up and letting Ms. Turjacanin walk by.  Just by virtue of the way

 6     the maps rode out.  So, you know, those are one of the things where I

 7     think the inconsistencies or the differences between two statements

 8     create an illogical premise.

 9             Going back, though, to, I think, the more legal side of it which

10     is whether or not -- I do find it hard that Mr. Groome relies on lay

11     witnesses to establish the existence of the armed conflict in compliance

12     with the statute.

13             I understand perceptions might think of it that way.  However, I

14     don't believe these perceptions would rise to the level of a legal

15     conclusion which would satisfy the jurisdiction of the Court.

16             If you take into consideration that no banditry or terrorism is

17     not or does not fall into the jurisprudence and jurisdiction of an

18     international Tribunal, that is the nature of the argument, because at

19     this stage -- and I would also take exception to characterizing the

20     summary of Mr. Lukic's supported supposed interrogation as a statement.

21     Regardless of what Mr. Lukic says, he even cannot establish the existence

22     of an armed conflict despite the fact that -- that those words in a

23     summary are trying to be used against him for purposes of establishing

24     that.

25             I think at the very worst case scenario, assuming all facts in

Page 3579

 1     favour of the Prosecution, they still have not established that this was

 2     not simply banditry or terrorism, which would fall outside the scope of

 3     jurisdiction of the Court.  Thank you.

 4             JUDGE ROBINSON:  Thank you.  I thank all the parties for their

 5     submissions.  The Trial Chamber will consider them carefully and give its

 6     decision tomorrow.  We are adjourned.

 7                           --- Whereupon the hearing adjourned at 6.47 p.m.,

 8                           to be reconvened on Thursday, the 13th day

 9                           of November, 2008, at 2.15 p.m.