Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20918

 1                           Tuesday, 15 April 2014

 2                           [Rule 98 bis Decision]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.32 a.m.

 6             JUDGE ORIE:  Good morning to everyone in and around this

 7     courtroom.

 8             Madam Registrar, would you please call the case.

 9             THE REGISTRAR:  Good morning, Your Honours.  This is case

10     IT-09-92-T, the Prosecutor versus Ratko Mladic.

11             JUDGE ORIE:  Thank you, Madam Registrar.

12             I see that the Prosecution is represented by Mr. Groome and

13     Mr. McCloskey.  I see that Mr. Mladic is represented today by Mr. Ivetic,

14     who's a member of the Defence team, and the Chamber received the consent

15     of Mr. Mladic that Mr. Ivetic would represent him today in the absence of

16     counsel.

17             The Chamber will now deliver its decision on the Defence's

18     request for acquittal pursuant to Rule 98 bis.

19             The Chamber heard oral submissions from the Defence on the

20     17th of March, 2014, and in response from the Prosecution on the

21     18th of March.  On the 19th of March, both parties made further

22     submissions.  In reaching its decision, the Chamber has considered all

23     submissions of the Defence and the Prosecution as well as all evidence

24     admitted by the time of hearing the submissions.

25             The Chamber will first give a brief summary of those submissions.

Page 20919

 1     Thereafter, it will address those submissions, give an overview of the

 2     indictment, and then address the evidence related to all counts of the

 3     indictment.

 4             The Defence made four submissions under Rule 98 bis.  First, the

 5     Defence argues that the word "count" in the text of Rule 98 bis has been

 6     restrictively interpreted by Trial Chambers to mean that judgements for

 7     acquittals can only be entered in respect of entire counts and not

 8     individual charges or incidents.  The Defence submits that the precise

 9     meaning of the wording of Rule 98 bis should be determined with recourse

10     to the intention of the drafters and the object and purpose of the rule.

11     According to the Defence, the object and purpose of Rule 98 bis is to

12     streamline the case by removing allegations that cannot be sustained,

13     ensuring that the trial is expedited, and that the Defence's resources

14     are not laid to waste.

15             Secondly, the Defence requests that the charges concerning the

16     Jadar River incident, which is Scheduled Incident E1.1, the charges

17     concerning the Sirokaca shelling incident of the 28th of May, 1992, which

18     is part of Scheduled Incident G1, and all the charges relating to

19     destruction of cultural monuments and sacred sites set out in Schedule D

20     be dismissed.

21             Thirdly, the Defence submits that the Prosecution has not

22     proffered any evidence capable of sustaining a conviction under

23     Article 7(3) of the Statute on crimes perpetrated by third-party or

24     non-VRS actors.  In advancing this proposition, the Defence asserts that

25     the Prosecution has failed to identify the subordinates over whom it

Page 20920

 1     alleges that the accused exercised effective de jure or de facto control.

 2     In addition, the Defence contends that there is evidence which supports

 3     the claim that the accused did not have effective control over armed

 4     groups other than the Bosnian Serb Army, hereinafter VRS, in particular

 5     over the Bosnian Serb Ministry of the Interior, hereinafter MUP, forces,

 6     Arkan's Tigers, and the Skorpions.

 7             Fourthly, the Defence makes a number of submissions with respect

 8     to genocide as charged under Counts 1 and 2, characterising the

 9     Prosecution's evidentiary basis as deficient in meeting the reduced

10     burden of proof set by Rule 98 bis.  In respect of Count 1, the Defence

11     argues that in the case concerning the Application of the Convention on

12     the Prevention and Punishment of the Crime of Genocide, the

13     International Court of Justice, hereinafter referred to as ICJ, decided

14     to dismiss allegations of the crime of genocide in the municipalities on

15     the ground that there existed insufficient evidence of the specific

16     intent to destroy a protected group.  The Defence also points to the

17     judgements in the cases of Stakic, Sikirica, Krajisnik, and Brdjanin,

18     which concluded similarly.  Moreover, the Defence argues that even though

19     the Chamber has received evidence of criminal acts directed against

20     Bosnian Muslims and Bosnian Croats in the municipalities, the evidence on

21     these crimes does not establish that they were committed with genocidal

22     intent.

23             As regards Count 2, the Defence argues that according to the

24     testimony of General Milovanovic pertaining to military Directive 7.1,

25     the accused left out two crucial portions of Directive 7 when issuing

Page 20921

 1     Directive 7.1.  The first of these two portions was Karadzic's

 2     instruction that complete physical separation of Srebrenica from Zepa

 3     should be carried out as soon as possible.  The second related to the

 4     creation of an unbearable situation of total insecurity with no hope of

 5     further survival or life for the inhabitants of Srebrenica and Zepa.  The

 6     Defence submits that the accused, by leaving out these two instructions,

 7     has shown that he did not share the common purpose to commit genocide in

 8     Srebrenica.

 9             The Chamber now moves to the Prosecution's submissions.

10             Responding to the Defence's first three submissions, the

11     Prosecution argues that the Defence has provided no sound reason as to

12     why the Chamber should depart from the well-established practice of this

13     Tribunal and look within each individual count and examine whether the

14     accused may be acquitted of a portion thereof.  Moreover, the Prosecution

15     submits that there is sufficient evidence to maintain the charges

16     specifically challenged by the Defence.

17             The Prosecution sets out the evidence concerning each of the

18     counts in the indictment, especially in respect of Counts 1 and 2.  As

19     regards Count 1, the Prosecution submits that there is evidence

20     indicating that, in 1992, Bosnian Muslim and Bosnian Croat communities

21     were targeted for destruction and that those that survived the ensuing

22     destruction were forcibly displaced.  According to the Prosecution, the

23     combination of physically destructive acts and other acts targeting the

24     foundation of the two protected communities, such as displacements and

25     the destruction of property and cultural and religious sites, effectively

Page 20922

 1     led to their physical demise and their inability to reconstitute

 2     themselves.  The Prosecution submits, moreover, that the fact that the

 3     ICJ did not declare that in 1992 genocide had occurred in

 4     Bosnia-Herzegovina is not relevant to the present proceedings as the ICJ

 5     made that determination on the basis of a different legal standard and a

 6     different body of evidence.  Furthermore, the Prosecution argues that in

 7     all prior Tribunal cases at the Rule 98 bis stage, the genocide count for

 8     the municipalities has been upheld, whether by Trial Chambers or by the

 9     Appeals Chamber following an appeal.

10             With regard to Count 2, the Prosecution submits that Directive 7

11     and Directive 7.1 form an indivisible whole since Directive 7.1 expressly

12     refers to Directive 7.  The wording of the latter document therefore

13     remains valid and important.

14             The Chamber will now set out the law applicable at this stage of

15     the proceedings.  Rule 98 bis of the Tribunal's Rules of Procedure and

16     Evidence provides as follows:

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

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

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

20     capable of supporting a conviction."

21             Under the case law of the Tribunal, the Chamber must examine

22     whether there is evidence upon which a reasonable trier of fact could be

23     satisfied beyond a reasonable doubt of the guilt of the accused.  Thus,

24     if a reasonable Chamber could be satisfied beyond a reasonable doubt of

25     the guilt of an accused on the basis of the evidence adduced in relation

Page 20923

 1     to a count, then the count must stand.  There must be sufficient evidence

 2     for each element of the alleged crimes and for one of the modes of

 3     liability contained in the indictment.  The test would not be satisfied

 4     if there was no evidence.  If the Prosecution has presented evidence,

 5     that evidence is entitled to credence unless incapable of belief.  At

 6     this stage, the evidence should be taken at its highest for the

 7     Prosecution.  The Chamber therefore will not concern itself with issues

 8     of credibility or reliability unless a witness is so lacking in

 9     credibility and reliability that no reasonable Chamber could find him or

10     her credible or reliable.

11             As a preliminary remark before addressing the submissions in

12     substance, the Chamber notes one matter.  During its Rule 98 bis

13     submissions, the Defence objected to how the indictment was pled,

14     suggesting that the charges lack specificity.  In particular, the Defence

15     invited the Chamber to consider the "far-reaching consequences of

16     including this many actors as sharing in the common purpose in light of

17     the lack of specificity in the indictment."

18             According to the Rules, motions challenging the indictment are to

19     be filed prior to the start of a case.  On the 13th of October, 2011, the

20     Chamber decided upon such a motion and dismissed alleged indictment

21     defects, including those raised now again by the Defence.  The Chamber

22     will not revisit the issue.

23             The Chamber will now address the parties' submissions.

24             In relation to the Defence's first argument, the Chamber

25     considers that Rule 98 bis as a procedural rule is a corollary of the

Page 20924

 1     right of an accused to be presumed innocent until proven guilty.  There

 2     are various procedural avenues which give effect to this right and they

 3     are not necessarily limited to the stage of the end of the Prosecution's

 4     case.  The Rule's amendment in 2004 adjusting the scope of Rule 98 bis

 5     decisions was intended to streamline the proceedings in the interests of

 6     judicial economy.  The amendment changed the procedure from a written to

 7     an oral one and shifted the determination to be made to the counts rather

 8     than to individual charges in an indictment.  The Rule's amendment did

 9     not affect an accused's right to be presumed innocent until proven

10     guilty.  Effect will ultimately be given to this right in the final

11     judgement.  The Hadzic Trial Chamber, in its Rule 98 bis decision issued

12     on the 20th of February, 2014, presented an extensive overview of the

13     practice in this Tribunal in relation to the count-based approach of

14     Rule 98 bis.

15             The Chamber further notes that a failure of the Prosecution to

16     adduce any evidence or insufficient evidence on individual charges has an

17     effect on the proceedings that will follow.  For the purpose of preparing

18     and presenting its evidence, the Defence will in effect be left with no

19     case to answer in relation to those individual charges.  The Defence is

20     not forced to spend the resources to challenge charges which it believes

21     have not been supported by evidence.  The Defence is not forced to

22     present any evidence for that matter.  The Prosecution has to establish

23     beyond a reasonable doubt that the charges are proven.  If according to

24     the Defence the evidence does not prove the charges, it may decide to

25     refrain from presenting evidence thereon.  This may especially be the

Page 20925

 1     case in relation to charges where the Defence believes that the

 2     Prosecution has not even met the lower threshold applicable at this stage

 3     of the proceedings.  For the foregoing reasons, the Chamber rejects the

 4     Defence's first argument.

 5             In its second argument, the Defence challenges a number of

 6     incidents:  The Jadar River killings, the shelling of Sirokaca on the

 7     28th of May, 1992, and the incidents listed in Schedule D of the

 8     indictment in relation to destruction of religious sites.  The

 9     Jadar River killings incident is one out of 20 scheduled killing

10     incidents in relation to Srebrenica alone.  The Sirokaca shelling is not

11     even specifically mentioned in Schedule G to the indictment, but forms

12     part of Scheduled Incident G1 which charges shelling of the city of

13     Sarajevo as of the 28th of May, 1992.  The destructions of religious

14     sites are part of one of seven charged underlying acts of persecution for

15     the municipalities part of the case.  The other part of this underlying

16     act concerns the destruction of public and private property.  Considering

17     these very narrow challenges and in light of the Chamber's analysis of

18     Rule 98 bis and the Tribunal practice developed as set out earlier, the

19     Chamber will not further consider these incidents in this decision.

20             The Defence further generally challenged the mode of liability

21     under Article 7(3) of the Statute on the basis that the Prosecution has

22     failed to establish that non-VRS persons or groups allegedly committing

23     crimes were under the effective de jure or de facto control of the

24     accused.  In addition, the Defence asserts that there is no evidence to

25     suggest that the accused issued any criminal orders to persons who are

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 1     alleged to have been perpetrators of crimes and therefore liability under

 2     the ordering limb of Article 7(1) cannot be sustained for charges in the

 3     indictment.

 4             The Chamber refers to its position in relation to challenges to

 5     portions of a count set out earlier.  In similar vein, considering that

 6     various modes of liability are charged in respect of all counts, it is

 7     sufficient that there is evidence capable of supporting a conviction on

 8     the basis of one of the modes of liability.  The Defence challenges in

 9     this respect are narrow given that they pertain to one element of the

10     alleged superior responsibility of Mladic, the de jure or de facto

11     control, under Article 7(3) and ordering under Article 7(1) and in

12     relation to a small number of alleged perpetrator groups.  For the

13     foregoing reasons, the Chamber rejects the Defence's third argument.

14             The Chamber further considers that the Defence's challenges of

15     the specific crimes do not extend to a challenge of the general elements

16     and jurisdictional requirements that must be proven under Articles 3 and

17     5 of the Statute of the Tribunal.

18             Notwithstanding the above, the Chamber considers that there is a

19     duty under Rule 98 bis to assess whether there is evidence capable of

20     supporting a conviction on every count of the indictment, irrespective of

21     whether the Defence explicitly challenged all counts.

22             For a better understanding, the Chamber will first provide a

23     summary of relevant parts of the indictment.

24             The indictment covers 11 counts of crimes allegedly committed

25     between March 1992 and the 30th of November, 1995.  The areas covered by

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 1     the indictment include Sarajevo, Srebrenica, Gorazde, and the following

 2     municipalities in Bosnia-Herzegovina which are dealt with together in the

 3     indictment:  Banja Luka, Bijeljina, Foca, Ilidza, Kalinovik, Kljuc,

 4     Kotor Varos, Novi Grad, Pale, Prijedor, Rogatica, Sanski Most, Sokolac,

 5     Trnovo, and Vlasenica.  Hereinafter, I will refer to the part of the

 6     indictment covering those 15 municipalities as "the municipalities."

 7             According to the indictment, the accused held various positions

 8     in the Yugoslav People's Army, hereinafter referred to as the JNA, and

 9     later in the VRS and was the commander of the Main Staff of the VRS as of

10     the 12th of May, 1992.

11             The first two counts charge genocide.  The third count charges

12     persecution as a crime against humanity.  The fourth and fifth counts

13     respectively charge extermination and murder as crimes against humanity.

14     The sixth count charges murder as a violation of the laws or customs of

15     war as recognised by Common Article 3(1)(a) of the Geneva Conventions of

16     1949.  The seventh and eighth counts respectively charge deportation and

17     the inhumane act of forcible transfer as crimes against humanity.  The

18     ninth and the tenth counts respectively charge terror and unlawful

19     attacks on civilians as violations of the laws or customs of war.  The

20     final count charges taking of hostages as a violation of the laws or

21     customs of war.

22             The indictment alleges that the accused and others participated

23     in an overarching joint criminal enterprise, hereinafter referred to as

24     JCE, the objective of which was the permanent removal of Bosnian Muslims

25     and Bosnian Croats from Bosnian Serb-claimed territory in

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 1     Bosnia-Herzegovina.  This objective was allegedly carried out by the

 2     commission of crimes charged in Counts 1 and 3 to 8.  Alternatively, this

 3     objective was carried out by the commission of crimes charged in Counts 7

 4     and 8, while the accused willingly took the risk of the commission of

 5     crimes charged in Counts 1 to 6 as a foreseeable consequence of the

 6     implementation of the objective.

 7             According to the indictment, the accused's participation in the

 8     JCE included commanding and controlling the VRS and other elements of the

 9     Serb forces and encouraging the commission of crimes by members thereof.

10     It also included participating in the development of Bosnian Serb

11     governmental policies and disseminating propaganda intended to advance

12     the objective of the JCE, failing to take adequate measures to protect

13     prisoners of war and detainees under his effective control, as well as

14     directing the restriction of humanitarian aid to non-Bosnian Serb

15     enclaves.

16             The indictment further alleges that the accused and others

17     participated in three additional JCEs.  The objective of the second JCE

18     was to spread terror among the civilian population of Sarajevo through a

19     campaign of sniping and shelling consisting of crimes charged in

20     Counts 5, 6, 9, and 10.  The objective of the third JCE was to eliminate

21     the Bosnian Muslims in Srebrenica through crimes charged in Counts 2 to

22     8.  The objective of the fourth JCE was to take United Nations personnel

23     as hostages through the crime charged in Count 11.  The accused's

24     participation in these three additional JCEs included various forms of

25     participation in the overarching JCE.

Page 20929

 1             The indictment further charges the accused with criminal

 2     responsibility for having planned, instigated, ordered and/or aided and

 3     abetted the crimes, as well as with criminal responsibility as a

 4     superior.

 5             The Chamber will now address whether each count in the indictment

 6     stands.

 7             In its legal characterisations, the Chamber adopts and applies

 8     the Tribunal's consistent case law with respect to the definition of the

 9     elements of the crimes and modes of liability charged in this case.  In

10     this decision, the Chamber will address the law more specifically only

11     when this is required to explain the Chamber's findings.

12             The volume of evidence before the Chamber and the character of

13     the Rule 98 bis proceedings do not allow for a comprehensive discussion

14     of the evidence in this decision.  The Chamber has, however, considered

15     the evidence in its entirety.  The specific evidence that the Chamber

16     will refer to in this decision is therefore a focused selection of what

17     the Chamber has considered to be relevant for the purposes of this

18     decision.

19             In relation to the crimes charged, the Chamber verified whether

20     the evidence addresses all the elements of each of the crimes.

21     Similarly, it verified whether the evidence addresses all the

22     requirements for criminal responsibility as charged against the accused.

23     Finally, in relation to each crime charged, the Chamber verified whether

24     the evidence, taken at its highest for the Prosecution, could lead a

25     reasonable trier of fact to conclude beyond a reasonable doubt, both that

Page 20930

 1     the crime has been committed and that the accused bears criminal

 2     responsibility for it.

 3             Turning to the counts, in relation to Counts 1 to 3, 5, and 6,

 4     there is evidence of crimes taking place during the indictment period in

 5     the municipalities and Srebrenica.  The Chamber will start with murders

 6     in the municipalities part of the case and will focus on a few incidents

 7     in order to determine whether the counts stand.

 8             In relation to Scheduled Incident B16.2, the Chamber heard from

 9     Witness RM066 that on 30 September 1992, four Serb police officers sent

10     by the chief of the public security service, hereinafter SJB, in

11     Vlasenica arrived at the Susica camp.  During the night, the Serb police

12     officers called out three groups of detainees, each consisting of 30 or

13     40 persons, loaded them into a truck, and transported them from the camp.

14     The witness later learned from Ilija Jankovic, a police officer from the

15     SJB Vlasenica, that the majority of these detainees, mainly Muslims from

16     Vlasenica and surrounding villages, had been killed.  The witness

17     testified the camp was a joint operation between the VRS and the

18     Bosnian Serb MUP in Vlasenica municipality.

19             In relation to Scheduled Incident B5.1, the Chamber received

20     evidence that in July 1992, the KP Dom Foca detention warden Krnojelac

21     reported that 469 prisoners had been brought to the KP Dom detention

22     centre since the start of the war, 459 of whom were Bosnian Muslims.

23     This is contained in Exhibit P4019.  Witnesses RM063 and RM046, who were

24     detained at the KP Dom detention centre from April 1992 for a period of

25     six months and more than a year respectively, testified that every night

Page 20931

 1     during their detention a number of detainees were taken out for beatings.

 2     Witness RM063 testified that the beatings were carried out by a policeman

 3     called Dragoljub Obrenovic and a number of KP Dom guards.  According to

 4     Witness RM063, detainees were very often taken to solitary cells from

 5     which moans, screams, thuds, and shots could be heard.  During a weekend

 6     in August 1992, Witness RM063 saw approximately 200 detainees taken away

 7     in groups from the KP Dom.  These detainees never returned.

 8             In relation to Scheduled Incident B13.1, Witness Safet Taci, who

 9     was detained in Room 2 of Keraterm detention camp, testified that one day

10     he saw a table with a machine-gun and a portable spotlight being put up

11     and directed at the door of Room 3, a small room where 180 to

12     200 detainees were squeezed in.  Around midnight he heard machine-gun

13     fire after the door of Room 3 had been opened and people started to

14     stream out.  The next day the witness was ordered by a soldier to load

15     the bodies inside and in front of the door of Room 3 onto a truck.  The

16     Chamber notes that according to one adjudicated fact, the machine-gun

17     outside Room 3 had been placed there by Bosnian Serb army personnel on

18     the 20th or the 21st of July, 1992.

19             In relation to Scheduled Incident B8.1, Witness RM018 stated that

20     on the 31st of May, 1992, soldiers wearing JNA uniforms escorted him and

21     around 70 other Muslim men from Castovici and Vojici to a room in an

22     elementary school in Velagici.  At 11.30 p.m., soldiers cursed and beat

23     the men and ordered them to form a line and face two armed soldiers.

24     Soon after, those soldiers opened fire at them.  The witness was able to

25     hide under the bodies.  The witness heard the soldiers discussing going

Page 20932

 1     to Laniste, where the Knin Corps was stationed, to get a loader and a

 2     truck to dispose of the bodies in the forest.

 3             In relation to Scheduled Incident A3.3, Witness Dzevad Dzaferagic

 4     stated that on the 10th of July, 1992, at about 5.30 a.m., he woke up to

 5     the sound of automatic gun-fire.  From his house he saw a convoy of 50 to

 6     60 men in civilian clothes being led to Kljuc by eight or nine Serb

 7     soldiers wearing JNA uniforms.  The witness saw Serb soldiers entering

 8     houses, removing men and beating them.  From approximately 10.00 a.m.,

 9     groups of Serb soldiers wearing JNA and camouflage uniforms escorted

10     groups of seven or eight Muslim men to a stable from where he heard

11     gun-fire.  At approximately 6.00 p.m., the witness saw a yellow excavator

12     and a lorry arrive at the stable and several unidentified Serb soldiers

13     loading bodies from the stable onto the excavator.  During this process

14     one of the soldiers said, and I quote, "That is the way of the true

15     Serb."  The Chamber heard evidence indicating that the attack had been

16     planned and carried out by troops belonging to the VRS.

17             In relation to all of these incidents, the Chamber also received

18     forensic material in support of the witnesses' evidence.

19             The Chamber will at a later stage make a determination whether

20     the evidence is sufficient for certain counts to stand.

21             The Chamber will now turn to Srebrenica.

22             The Chamber heard the evidence of Witness Drazen Erdemovic, who

23     testified that on the morning of the 16th of July, 1995, he and seven

24     other members of the VRS 10th Sabotage Detachment were ordered by their

25     group commander, Brano Gojkovic, to go to the Zvornik Brigade

Page 20933

 1     headquarters.  From there, they were escorted by a VRS lieutenant-colonel

 2     and two members of the Drina Corps military police to Branjevo

 3     Military Farm.  Upon arrival at the farm, Erdemovic overheard Gojkovic

 4     talking with the lieutenant-colonel about buses arriving, and then

 5     Gojkovic told the witness and other members of his unit that buses

 6     carrying civilians from Srebrenica would arrive and they were to execute

 7     these people.

 8             Buses began arriving carrying Bosnian Muslim males aged between

 9     17 and 65 and dressed in civilian clothing, and each bus had two armed

10     Drina Corps military police escorts onboard.  The Bosnian Muslims from

11     the first bus were blindfolded and had their hands tied together.  The

12     detainees were led from the buses to the execution site where Erdemovic

13     and the other VRS soldiers were ordered by Gojkovic to open fire on them.

14     Erdemovic also testified that Gojkovic had ordered the bus drivers to

15     kill at least one prisoner each so that they would not later testify

16     about what had happened.

17             Later that day, as the last bus with Bosnian Muslim detainees

18     arrived, a group of ten VRS soldiers from Bratunac joined the witness's

19     unit at the execution site.  These soldiers beat and cursed the

20     detainees, forcing them to kneel and pray, and I quote, "in the Muslim

21     manner."  The VRS lieutenant-colonel who had earlier escorted the witness

22     and members of his unit to the execution site arrived at the end of the

23     executions and discussed the burial of the victims in the field.

24     Erdemovic testified that he and other VRS soldiers participated in the

25     execution of between 1.000 to 1200 Bosnian Muslim males dressed in

Page 20934

 1     civilian clothes who had been brought to the execution site by between

 2     15 and 20 buses that day.

 3             The Chamber also heard evidence from Witnesses RM346 and RM255,

 4     who testified about surviving the Branjevo Farm executions.  Both

 5     witnesses gave evidence that after being captured and detained by

 6     soldiers, they and other Bosnian Muslim detainees, some of whom were

 7     blindfolded with their hands tied behind their backs, were transported by

 8     bus to a field on the 16th of July, 1995.  Witness RM346 testified that

 9     upon arrival, Serb soldiers began cursing the detainees, saying things

10     like, and I quote, "Alija does not want you, step out," as the soldiers

11     took the detainees off the buses in groups of ten.  Witness RM255 gave

12     evidence that one of the soldiers asked if he wanted to declare himself

13     as a Serb and then be released.  In response to this, two of the

14     detainees then said they were Serbian but were not separated from the

15     line.  The detainees were led to an area where they were lined up between

16     corpses that were already on the ground.  They were ordered to turn their

17     backs and to lie down, and then a group of ten soldiers began shooting

18     the detainees.

19             Having survived the executions, Witnesses RM255 and RM346 lay

20     motionless among the corpses listening to the process repeat itself

21     throughout the day, the soldiers returning multiple times with groups of

22     detainees, ordering the detainees to line up, shooting them, asking if

23     anyone was still alive, and then killing anyone that responded.

24     Witness RM255 also gave evidence that on two occasions he heard that the

25     soldiers were making statements about them committing genocide, once

Page 20935

 1     while he was being led to the execution site and another time after his

 2     escape while he was hiding nearby.

 3             The Chamber will at a later stage make a determination whether

 4     the evidence is sufficient for certain counts to stand.

 5             The Chamber will now set out some evidence on rapes and cruel and

 6     inhumane treatment for the municipalities part of the case.

 7             The Chamber also heard evidence in relation to a large number of

 8     rapes committed at various locations in Foca municipality.  For the

 9     purposes of this decision, the Chamber will focus on the evidence it

10     heard regarding Karaman's house as set out in Schedule C6.2 of the

11     indictment.

12             Witnesses RM070 and RM048 testified that around 3 August 1992,

13     they and other girls were taken by one of Pero Elez's soldiers and the

14     soldiers of Dragan Kunarac, also known as Zaga, in Miljevina,

15     Foca municipality.  Witness RM070 testified that the youngest girl at

16     Karaman's house was 12 years old.  During the evenings, soldiers from

17     Pero Elez's group raped one or more of the girls and the soldiers would

18     regularly beat the girls when they refused to follow orders.

19     Witness RM070 testified that Pero Elez raped all of the girls once or

20     twice.  Witness RM048 testified that she learnt that Elez was the

21     commander of a group of soldiers under the command of Marko Kovac, about

22     whom the Chamber heard evidence that he was the commander of the VRS

23     brigade from May 1992 until the end of 1994.

24             Around mid-August 1992, Witness RM048 was taken from Karaman's

25     house to the house of a Serb soldier where she was held and raped until

Page 20936

 1     she was released in July 1993.  During this time the soldier took the

 2     witness to a celebration where Mladic approached them, asking the soldier

 3     whether the witness was his "Herzegovinian girl."  Mladic then turned to

 4     the witness directly and asked her whether it was, and I again quote,

 5     "better than in Alija's state."  The witness testified that this made her

 6     believe that Mladic knew about girls that were kept as sexual slaves.

 7     According to Witness RM048, there were no Muslim women or girls living

 8     freely in Foca at the time.  The Chamber notes that one of Mladic's

 9     notebooks, Exhibit P359, records the names of two young women the

10     Bosnia-Herzegovina officials were looking for and about whom witnesses

11     have testified they were held in Foca as sexual slaves.

12             The Chamber heard a large amount of evidence regarding the cruel

13     and inhumane treatment of persons detained in camps in the

14     municipalities.  For the purposes of this decision, it will only focus on

15     the Keraterm and Omarska camps in Prijedor municipality, mentioned in

16     Schedules C15.2 and C15.3 of the indictment, and Manjaca camp in

17     Banja Luka municipality, referred to in Schedule C1.2.

18             In relation to Keraterm camp, Safet Taci testified regarding his

19     detention in Room 2, which was approximately 10 by 12 metres, very hot,

20     unhygienic, and filled with a large number of Croats and Muslims, many of

21     them severely beaten.  The witness testified that on one occasion a man

22     by the dame of Duca entered Room 2, called on two detainees who were

23     brothers, and forced them to beat each other severely.  According to the

24     adjudicated facts, the Keraterm camp held up to 1500 prisoners crowded

25     into a number of large unlit rooms or halls which got intensely hot in

Page 20937

 1     the summer as there were no windows or ventilation.  Prisoners were kept

 2     locked in these rooms for days, crowded together.  The detainees were

 3     allowed to go to the toilet only once a day.  Infestations of lice

 4     appeared at the camp and dysentery was rife.  There was no medical care.

 5     Detainees suffered from malnutrition and starvation and were beaten on

 6     arrival.

 7             In relation to the Omarska camp, Witness Nusret Sivac testified

 8     he was taken to Omarska camp on the 20th of June, 1992.  Upon his

 9     arrival, he and other prisoners were beaten severely by members of an

10     intervention platoon, including Mrdja and Zoran Babic.  On one occasion,

11     all the detainees in the camp were beaten from the early hours of the

12     morning until late afternoon.  The shift on duty, led by Mlado Radic,

13     also known as Krkan, set up a gauntlet of guards, assisted by guards from

14     other shifts.  The witness saw people screaming and falling down

15     everywhere as the guards beat them with baseball bats and metal chains

16     with balls attached to them.  One guard struck the witness on his head

17     using a metal chain and ball, after which he lost consciousness.

18             According to the adjudicated facts, sometimes 200 persons were

19     held at the Omarska camp in a room of 40 square metres, and 300 prisoners

20     were confined in one small room.  Some prisoners spent the time crowded

21     together in the lavatories.  In the lavatories, prisoners were packed one

22     on top of the other and they often had to lie on excrements.  Many of the

23     prisoners confined in the white house on the Omarska compound did not

24     receive food during their time there.  Some prisoners lost 20 to

25     30 kilogrammes during their time at Omarska, others considerably more.

Page 20938

 1     Drinking water at Omarska was often denied to the prisoners for long

 2     periods and the water given to the detainees was not fit for human

 3     consumption.  Prisoners had to wait hours before being allowed to use the

 4     lavatories and sometimes risked being beaten if they asked to use them.

 5     There were no effective washing facilities.  Skin diseases were prevalent

 6     as were acute cases of diarrhea and dysentery.

 7             The Chamber also received a large number of detailed reports that

 8     were sent to the VRS officials regarding the inhumane treatment in the

 9     camps.  From as early as the 22nd of June, 1992, the operational team in

10     charge of interrogating the detainees in the Manjaca camp sent daily

11     reports to the 1st Krajina Corps commander Talic regarding the treatment

12     of prisoners in the Manjaca camp in Banja Luka.  On the 1st of July, it

13     was reported that, and I quote, "more than 95 per cent of the prisoners

14     are Muslims."  The operational team urged Talic to remind the military

15     police commander at the camp that it, again I quote, "is not a torture

16     house," that prisoners were, and I quote again, "maltreated, beaten, and

17     humiliated to the extreme," that the policemen at the camp beat the

18     prisoners as they pleased, but that it was difficult to eradicate this

19     behaviour as the security commander of the camp often said in front of

20     the soldiers that the prisoners, and I quote again, "should all be

21     killed."  On the 22nd of July, 1992, a daily report mentioned that it was

22     the first time that the operational team had witnessed that a group of

23     detainees had been brought to the camp, and I quote again, "intact, i.e.,

24     there are no traces of violence."

25             After we've taken a break, the Chamber will start to assess

Page 20939

 1     whether Counts 1 to 3, 5 and 6 stand as far as the crime base evidence is

 2     concerned.  We first take a break and we'll resume at 11.00.

 3                           --- Recess taken at 10.30 a.m.

 4                           --- On resuming at 11.04 a.m.

 5             JUDGE ORIE:  As I announced before the break, we'll resume and

 6     the Chamber will now assess whether Counts 1 to 3, 5 and 6 stand as far

 7     as the crime base evidence is concerned.

 8             Specifically in relation to Counts 1 and 2, there's evidence that

 9     acts of genocide took place in the municipalities and in Srebrenica

10     during the indictment period.  The Chamber already addressed the killings

11     of a number of individuals earlier.  Killing is one of the charged

12     underlying acts of genocide.  The Chamber also refers to the evidence

13     cited in relation to the crimes of detention and cruel and inhumane

14     treatment, including rape and other acts of sexual violence as causing

15     serious bodily or mental harm and conditions calculated to bring about

16     the victims' physical destruction.  The evidence cited also provides

17     information on the perpetrators' genocidal intent.

18             The Chamber considers that the evidence before it, including the

19     mentioned examples, addresses all the elements of the crime of genocide,

20     the crimes of persecution and murder as a crime against humanity, and the

21     crime of murder as a violation of the laws or customs of war.

22             The Chamber now turns to the responsibility of the accused for

23     these crimes.

24             The Chamber will examine the evidence with regard to the mode of

25     liability of participation in a JCE.  As set out in the case law of the

Page 20940

 1     Tribunal, the elements of this mode of liability are:  A plurality of

 2     persons, a common objective which amounts to or involves the commission

 3     of a crime provided for in the Statute, and the participation of the

 4     accused in the objective's implementation.  The contribution of an

 5     accused need not have been substantial or necessary to the achievement of

 6     the common objective.  However, it should at least be a significant

 7     contribution to the crimes forming part of the common objective.  The

 8     mental element required is that the participants in the JCE shared the

 9     intent to achieve the common objective through the commission of the

10     statutory crime or crimes.

11             The parties have agreed on many aspects of the accused's military

12     background and role as alleged in the indictment, which the Chamber will

13     proceed to summarise.  The accused held various positions in the

14     9th Corps of the JNA and on the 30th of December, 1991, became its

15     commander.  On the 10th of May, 1992, Mladic assumed the command of the

16     2nd Military District headquarters of the JNA.  On the 12th of May, 1992,

17     the VRS was formed.  Also on the 12th of May, 1992, the Bosnian Serb

18     Assembly in Banja Luka during its 16th Session appointed Mladic as

19     commander of the VRS Main Staff, as evidenced by the transcript of that

20     session admitted as Exhibit P431 and supported by evidence from expert

21     witnesses Reynaud Theunens and Robert Donia.  Mladic was in command of

22     the VRS Main Staff until at least 8 November 1996.

23             The first joint criminal enterprise charged in the indictment

24     relates to the goal of permanently removing Bosnian Muslims and

25     Bosnian Croat inhabitants from Serb-claimed territory of

Page 20941

 1     Bosnia-Herzegovina through the commission of crimes enumerated in

 2     Counts 1 and 3 to 8.  Alleged JCE members include Radovan Karadzic,

 3     Slobodan Milosevic, and Momcilo Krajisnik.  The indictment alleges that

 4     the accused significantly contributed to achieving the objective of the

 5     JCE and shared the intent for the commission of the charged crimes with

 6     others who acted in concert with him.

 7             In relation to the common plan and the plurality of persons of

 8     the overarching JCE, the Chamber heard evidence regarding the planned

 9     take-over of the municipalities which sought to establish separate

10     Bosnian Serb institutions and the creation of a Bosnian Serb homogenous

11     state.  It received evidence that throughout 1991 and early 1992, the

12     Bosnian Serb leadership, under the direction of Radovan Karadzic, began

13     creating parallel Serb civilian and military structures in the

14     municipalities throughout Bosnia-Herzegovina.  The Chamber refers in this

15     respect to the evidence of Milan Babic.  It notes that on the

16     24th of October, 1991, the Bosnian Serb leadership established a separate

17     Bosnian Serb Assembly and on or about the 20th of December, 1991,

18     Karadzic issued the so-called Variant A and Variant B instructions to

19     municipality leaders for the creation of bodies not provided for in the

20     existing legal order, including the Serbian Crisis Staffs.

21             The Chamber heard extensive evidence with regard to the

22     promulgation of the six strategic objectives.  On the 6th of May, 1992,

23     the accused recorded a meeting in his notebook, Exhibit P352, with

24     Karadzic and a group of JNA generals.  During this meeting, Karadzic

25     emphasised the imperative of ethnic separation and articulated three

Page 20942

 1     other goals that subsequently became strategic goals two, three, and six

 2     of the so-called six strategic goals.  During a meeting on the following

 3     day attended by the accused, Momcilo Krajisnik stipulated the six

 4     strategic goals of the Bosnian Serb leadership in express terms.  On the

 5     12th of May, 1992, the six strategic objectives were publicly announced

 6     by Radovan Karadzic and adopted at the 16th Assembly Session of the

 7     Bosnian Serb republic on the same day.  The Chamber refers to

 8     Exhibit P431.  At this same session at which the accused was also

 9     appointed as the VRS Main Staff commander, the accused showed that he

10     shared the objectives and appeared to have participated in creating them,

11     stating that he had, I quote, "read, mulled over for a long time and

12     discussed within the most select circle of comrades whom we convened, the

13     strategic goals that are of substance."

14             The Chamber heard evidence about the relationship between

15     Karadzic and the accused.  It notes the testimony of Witness Herbert Okun

16     that Karadzic on at least two occasions between 1992 and 1993 explicitly

17     told him that the accused was under his control, adding on one occasion

18     that, and again I quote, "you know how the soldiers are.  They don't like

19     to be controlled by civilians, but we control them."

20             Further, the Defence submitted that the accused, and I again

21     quote, "always issued orders seeking to have perpetrators disarmed,

22     arrested, investigated, and prosecuted."

23             The Chamber heard evidence that instructions were issued to VRS

24     forces condemning the commission of crimes in the municipalities, but

25     that in practice, the VRS soldiers were instructed to continue with their

Page 20943

 1     behaviour irrespective of whether it was criminal.  The Chamber notes

 2     that on the 12th of June, 1992, the VRS Main Staff issued instructions

 3     regarding the treatment of prisoners and the creation of detention camps.

 4     The Chamber refers in this respect to Exhibits P377, P189, P3910, P3979,

 5     and the notebook of Mladic, P353, at page 160.

 6             The Chamber also refers to the evidence of Witness RM019, a

 7     member of the 11th Herzegovina Light Infantry Brigade from May 1992, who

 8     testified that at the end of May or in early July 1992, Zoran Vukovic --

 9     yes, when I misread -- yes, I misread, it was at the end of May or in

10     early June 1992, Zoran Vukovic the battalion commander, read out a

11     statement allegedly signed by Karadzic to a group of soldiers, including

12     the witness.  According to the statement, the soldiers were not to burn

13     any more property or kill any more prisoners.  Following the statement,

14     Vukovic asked each soldier to sign a paper to the effect that they had

15     heard the statement.  Vukovic conveyed the best regards of the commander

16     in Pale to the soldiers and told them they were doing a great job and

17     should continue to do so.  One of the soldiers asked Vukovic why he

18     wanted him to sign the statement if the killing and burning should

19     continue, to which Vukovic responded that the soldier should not think

20     too much.

21             Witness RM081 testified that he watched television coverage of

22     the Assembly in Sarajevo where Karadzic announced that at some point

23     Muslims will disappear from the face of the earth.  He also testified

24     that around September 1992, Sveto Veselinovic, president of the Serbian

25     Democratic Party in Rogatica and member of the War Commission of the

Page 20944

 1     Serbian Republic of Rogatica, told the witness that all Muslims would

 2     disappear from the territory.  Veselinovic disclosed to the witness that

 3     he had met with Karadzic in Pale, where it had been decided that

 4     one-third of Muslims would be killed, another one-third would be

 5     converted to the Orthodox religion, and the remaining one-third would

 6     leave.

 7             The Chamber heard evidence that throughout the municipalities,

 8     the execution of the policy of the Bosnian Serb leadership resulted in

 9     large-scale expulsion of the non-Serb populations from the

10     municipalities.  From the beginning of the conflict in April through

11     August 1992, more than 30.000 Bosnian Muslims and Croats moved out of the

12     municipality of Prijedor alone, either out of fear or due to unbearable

13     circumstances.  The Chamber also recalls its earlier findings regarding

14     the large-scale killings in and around the detention camps throughout the

15     municipalities.  There is ample witness testimony and documentary

16     evidence that persons detained at the detention camps in the

17     municipalities were placed there solely on the basis of their ethnicity.

18     The Chamber refers in this respect to Exhibit P3801, a report by the

19     Bosnian Serb MUP to Radovan Karadzic dated the 19th of July, 1992,

20     stating -- when I misread I should have read dated the 17th of July,

21     1992, stating that, and I quote, "the Army, Crisis Staffs, and

22     War Presidencies have requested that the Army round up or capture as many

23     Muslims as possible," who were to be placed in camps.

24             Based on the foregoing, the Chamber considers that there is

25     evidence upon which, if accepted, a reasonable trier of fact could be

Page 20945

 1     satisfied beyond reasonable doubt that during the period relevant to the

 2     indictment there existed a joint criminal enterprise composed of,

 3     inter alia, members of the Bosnian Serb leadership and the VRS, including

 4     Radovan Karadzic and the accused, the purpose of which was to permanently

 5     remove the Bosnian Muslims and/or Bosnian Croats from

 6     Bosnian Serb-claimed territories in Bosnia-Herzegovina through the

 7     commission of the crimes charged in the indictment.

 8             In relation to the accused's contribution to this JCE, there is

 9     evidence that the accused, as commander of the VRS Main Staff,

10     implemented measures to carry out the strategic goals as previously set

11     out to advance the objective of the joint criminal enterprise.  The

12     Chamber received evidence that throughout the indictment period the

13     accused issued nine operational directives implementing the six strategic

14     goals into orders for major VRS combat operations.  The Chamber refers,

15     for example, to the operational directives in evidence as Exhibits P747,

16     P1963, and P1968, as well as the report compiled by Reynaud Theunens.

17             Witness Pyers Tucker testified that the accused told him that the

18     prisons at Foca, Batkovic, and Kula were under his control.  The Chamber

19     also received documentary evidence indicating the accused's control of

20     the detention camps.  Particularly, it notes Exhibit P201, a VRS order of

21     August 1992, indicating that the accused personally exercised direct

22     military control over units in control of the detention camps in Manjaca,

23     Trnopolje, Omarska, and Prijedor.  Other evidence of direct involvement

24     of the Main Staff in the detention camps is reflected in Exhibits P2899,

25     P4147, and P3687.

Page 20946

 1             In relation to the accused's mens rea, the Chamber refers to

 2     Mladic's involvement in the creation and promulgation of the six

 3     strategic goals in May 1992 as discussed earlier.  The Chamber notes that

 4     there is evidence that the accused throughout the period of the

 5     indictment knew about the crimes committed in the municipalities.

 6     John Wilson testified that in December 1992 or January 1993, he spoke to

 7     Mladic in Geneva about a photograph circulating in the media of a

 8     malnourished man held at a Serb detention camp.  The Chamber further

 9     recalls the evidence of Witness RM048 who testified that Mladic knew that

10     girls from Foca were kept by his troops as sexual slaves.

11             The Chamber notes the effect that the rapes had on the

12     Bosnian Muslim women, and the testimony of a rape victim who stated that

13     in her opinion the Serbs, and I quote, "wanted to destroy, kill, destroy

14     our spirit as much as they could because there is no cure for a woman who

15     was raped," adding that she would never recover.

16             The Chamber also refers to the evidence of David Harland, who

17     testified that during the week ending on the 3rd of November, 1993, he

18     attended a meeting where Mladic stated that unless all 22 Serb prisoners

19     of war in the Gorazde pocket were returned, he would kill everyone in the

20     eastern enclaves except for the children.  Mladic's words at this meeting

21     were recorded by international observers in Exhibits P4639 and D7.

22             The Chamber also received intercept evidence regarding the

23     accused's state of mind.  In an intercepted telephone conversation of

24     May 1992, Mladic warned Fikret Abdic that he would, and I quote again,

25     "order the shelling of the entire Bihac."  Mladic stated that, I quote,

Page 20947

 1     "the whole of Bosnia will burn if I start to 'speak,'" and continued by

 2     saying, I again quote, "not just Sarajevo."  In an intercepted

 3     conversation of the 5th of August, 1992, Mladic threatened to use heavy

 4     artillery weapons on a, I quote again, "densely populated area," if his

 5     demands to cease combat activities were not met.

 6             The Chamber also heard the evidence of Sefik Hurko, a

 7     Bosnian Muslim who was detained in the Rasadnik camp in Rogatica

 8     municipality from August 1992 through April 1994, who testified that

 9     sometime in April 1994, 10 to 15 detainees from the camp, including the

10     witness, were brought to a place near Gorazde.  There they were

11     instructed by the warden of the camp, Bojic, to work in the forest and to

12     speed up because Mladic was coming.  When Mladic noticed the detainees,

13     he asked who they were.  Bojic responded that they were prisoners from

14     Rogatica.  Mladic asked him if they were loyal or captured, to which

15     Bojic responded that they were loyal.  Mladic then ordered the detainees

16     to be lined up in front of him and said that if they were willing to

17     change their religion they could stay.

18             Based on the foregoing, the Chamber is satisfied that there is

19     evidence upon which, if accepted, a reasonable trier of fact could be

20     satisfied beyond reasonable doubt that during the period relevant to the

21     indictment the accused participated in the joint criminal enterprise

22     comprised of, inter alia, members of the Bosnian Serb leadership

23     including Radovan Karadzic.  The purpose of this JCE was to permanently

24     remove the Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed

25     territory in Bosnia and Herzegovina through the commission of crimes

Page 20948

 1     charged in the indictment.  The accused shared the intent of the other

 2     members of the overarching JCE to carry out its objective through the

 3     commission of crimes.  He also significantly contributed to it.

 4             Under these circumstances, the Chamber finds that Counts 1, 3,

 5     and 5 and 6 stand.

 6             The Chamber recalls that the Defence did not specifically

 7     challenge the second joint criminal enterprise.  The Chamber will further

 8     deal with Counts 9 and 10 later in this decision.

 9             The Chamber will now move on the third -- to the third joint

10     criminal enterprise alleged in the indictment, namely, the JCE to

11     eliminate the Bosnian Muslims in Srebrenica by killing the men and boys

12     of Srebrenica and by forcibly removing the women, young children, and

13     some elderly men from the enclave, through the commission of crimes

14     charged in Counts 2 through 8 of the indictment.  The implementation of

15     this plan is alleged to have commenced as early as March of 1995,

16     continuing until the 1st of November, 1995.  Alleged JCE members include,

17     inter alia, Radovan Karadzic and senior officers of the VRS and

18     Bosnian Serb MUP.  The accused is alleged to have contributed to achieve

19     the objective of the JCE by, inter alia, commanding and controlling the

20     VRS in furtherance of the objective.  It is alleged further that he

21     shared the intent for the commission of the charged crimes with other

22     members of the JCE.

23             In relation to the objective of the said JCE, the Chamber recalls

24     the evidence of Momir Nikolic who testified that from the moment the

25     enclaves were set up, the VRS forces had the political goal to cause the

Page 20949

 1     forcible removal of the entire Muslim population from Srebrenica, Zepa,

 2     and Gorazde to Muslim-held territory.  The Chamber also considered

 3     Directive 7 in evidence as Exhibit P1469 and discussed by the parties

 4     during their submissions.  This directive is dated the 8th of March,

 5     1995, addressed to the commanders of the various corps commands and

 6     signed by the supreme commander Radovan Karadzic.  It ordered,

 7     inter alia, that the Drina Corps carry out the, I quote, "complete

 8     physical separation of Srebrenica and Zepa," and the quote further

 9     continues, "as soon as possible, preventing even communication between

10     individuals in the two enclaves," end of this quote.  And another quote

11     from the same document:  "By planned and well-thought-out combat

12     operations create an unbearable situation of total insecurity with no

13     hope of further survival or life for the inhabitants of Srebrenica and

14     Zepa," this quote ends here.  The directive also stated, and I quote

15     again:  "Through the planned and unobtrusively restrictive issuing of

16     permits, reduce and limit the logistics support of the UN Protection

17     Force, hereinafter UNPROFOR, to the enclaves and the supply of material

18     resources to the Muslim population, making them dependent on our

19     goodwill, while at the same time avoiding condemnation by the

20     international community and international public opinion."

21             Directive 7 was referenced in a Drina Corps command order issued

22     on the 20th of March, 1995, signed by Milenko Zivanovic and VRS

23     Main Staff Directive 7/1, dated the 31st of March, 1995, signed by

24     Mladic.  These are in evidence as Exhibits P1468 and P1470 respectively.

25     The Drina Corps command order incorporated, inter alia, Directive 7's

Page 20950

 1     language with regard of the creation of unbearable circumstances for the

 2     inhabitants of the enclaves.  Witness Manojlo Milovanovic testified that

 3     somebody reading the reference to Directive 7 and Directive 7/1 would

 4     have to look back at Directive 7 in order to be able to fully implement

 5     it.

 6             On the 2nd of July 1995, the Drina Corps issued an order for

 7     Operation Krivaja 95, in evidence as Exhibit P1465.  This order

 8     formulated the task, pursuant to Directives 7 and 7/1, to carry out

 9     offensive activities with the objective of, inter alia, separating and

10     reducing in size the Zepa and Srebrenica enclaves, and to create

11     conditions for the elimination of the enclaves.

12             Several witnesses, including Momir Nikolic and Rupert Smith,

13     testified that the VRS attack on Srebrenica started on the 6th of July,

14     1995.  Evert Rave testified that on the 7th of July, 1995, the VRS fired

15     into the safe area and targeted UN facilities causing several civilian

16     deaths.  On the 9th of July, 1995, in a message in evidence as P1466,

17     General Tolimir reported that Karadzic had been informed of successful

18     combat operations around Srebrenica by units of the Drina Corps enabling

19     occupation of the enclave and that Karadzic had agreed with, inter alia,

20     the continuation of operations for the take-over of Srebrenica.

21             The Chamber received evidence from several witnesses that

22     Srebrenica ultimately fell to the VRS on the 11th of July, 1995.

23             Momir Nikolic testified that early in the morning of the

24     12th of July, in a conversation with Popovic and Kosoric, Popovic told

25     him that all the women and children would be transferred to territory

Page 20951

 1     controlled by Muslim forces, which was either Kladanj or Tuzla.  The

 2     witness asked what would happen to the able-bodied men, to which Popovic

 3     responded that all the, and I quote his words, "balijas" should be

 4     killed.  Witness RM513 and Richard Butler testified that the term

 5     "balijas" was used in a derogatory fashion by Serb forces to refer to

 6     Muslims.  Nikolic, Kosoric, and Popovic then discussed possible execution

 7     sites.

 8             The Chamber heard evidence of a meeting at around 8.00 p.m. on

 9     the 13th of July between Beara and Momir Nikolic in the centre of

10     Bratunac.  Beara told Momir Nikolic that the Muslim prisoners would be

11     temporarily detained and then executed in Zvornik.  In a subsequent

12     meeting attended by Beara, Miroslav Deronjic, and Vasic, Deronjic and

13     Beara had an argument about where to take the captured Bosnian Muslims.

14     Momir Nikolic testified that on this occasion Beara insisted that the

15     prisoners remain in Bratunac, stating that he had received an order from

16     his, and I quote, "boss" that the Muslims should stay there.

17     Momir Nikolic understood Beara's reference to his "boss" to refer to

18     General Mladic, as all officers referred to Mladic as "the boss."

19     Deronjic opposed Beara's proposal, stating that he did not want the

20     Muslims detained and killed in Bratunac and that he had received an order

21     from Karadzic that the Muslims should go to Zvornik.

22             The Chamber also considered the evidence of witnesses including

23     Witness RM322, Damjan Lazarevic, and Cvijetin Ristanovic of co-ordinated

24     burial operations organised by the VRS following several executions

25     alleged in the indictment, involving, among others, the Zvornik Brigade

Page 20952

 1     Engineering Unit.

 2             With respect to the requirement of plurality of persons, the

 3     Chamber refers to the evidence set out above concerning the interaction

 4     and communications between the various high-ranking VRS officers

 5     including Mladic, Tolimir, Beara, Kosoric, Krstic, and Popovic.  In

 6     addition, it notes the evidence of Momir Nikolic concerning the presence

 7     of MUP commander Ljubisa Borovcanin in Potocari during the process of

 8     transportation of the Bosnian Muslims discussed earlier in this decision

 9     as well as the involvement of Karadzic in respect of Directive 7.

10             Finally, the Chamber recalls the evidence referred to earlier in

11     this decision with respect to the crime base and considers that an

12     inference can be drawn, together with the evidence set out here, that the

13     alleged Srebrenica joint criminal enterprise existed and was implemented.

14             In relation to the accused's contributions to this third JCE, the

15     Chamber gave regard to the following evidence.  In an excerpt of an

16     intercepted conversation recording a voice which

17     Witness Ljubomir Obradovic identified as that of the accused, Mladic is

18     recorded as stating, with reference to UNPROFOR and humanitarian convoys,

19     that he would not have taken Srebrenica or Zepa if he had not starved

20     them in the winter, adding that since February he only let through one or

21     two convoys.  This conversation is in evidence as Exhibit P1789.  The

22     Chamber also considers Obradovic's testimony concerning Exhibit P1788, a

23     series of UNPROFOR requests to the Main Staff for convoy approval with

24     the handwritten initials of the accused accompanied by the words "no" as

25     evidence of Mladic's direct involvement in the restriction of supplies

Page 20953

 1     reaching the enclave.

 2             The Chamber further notes the testimony of Momir Nikolic that

 3     General Krstic was in command of all units taking part in the Srebrenica

 4     operation until General Mladic arrived and took over command.  The

 5     Chamber also refers to Exhibit P724, a report by MUP commander

 6     Ljubisa Borovcanin on the combat engagement of police forces in the

 7     period of 11 to 21 July 1995, which details that Borovcanin took orders

 8     from Mladic to engage police forces in, inter alia, Potocari.

 9             Momir Nikolic testified, moreover, that during one of the

10     meetings held at Hotel Fontana on the evening of the 11th of July, 1995,

11     Mladic threatened and intimidated the Dutch officers as well as

12     Nesib Mandzic, a Bosnian Muslim, telling them that he wanted the Muslim

13     army to surrender, that the future of Mandzic's people was in Mandzic's

14     hands and that they could choose to survive or disappear.  This is

15     recorded in video footage in evidence as Exhibit P1147.

16             In relation to the accused's intent, the Chamber refers to the

17     following evidence in particular.  Video footage in evidence as

18     Exhibit P1147 depicts Mladic walking through Srebrenica town the

19     11th of July together with Serb forces, stating, inter alia, and I quote,

20     "Here we are, on 11 July 1995, in Serb Srebrenica"; further on, "We give

21     this town to the Serb people as a gift"; and "the time has come to take

22     revenge on the Turks," end of these three quotes.  Witness

23     Reynaud Theunens testified that the word "Turks" was used to refer to

24     Bosnian Muslims and was often considered a derogatory term.

25             Momir Nikolic testified that in the afternoon of the

Page 20954

 1     13th of July, he met Mladic at the crossroads in Konjevic Polje where

 2     there were prisoners visibly present.  Mladic exited his vehicle,

 3     approached a group of prisoners and addressed them, stating that they

 4     should not worry and would soon be taken wherever they pleased.

 5     Returning to the vehicle, the witness asked Mladic what would really

 6     happen to the prisoners.  Mladic responded by smiling and making a

 7     sweeping gesture with his right hand from left to right approximately at

 8     the middle of his body.  Mladic then laughed and entered the vehicle.

 9             The Defence submits as examples that Mladic's preference for a

10     cessation of hostilities and his efforts to exchange Muslim with Serb

11     prisoners negates any possibility that he intended to destroy the Muslims

12     in Srebrenica.  Based on the above-cited evidence, the Chamber considers,

13     however, that the evidence could lead a reasonable trier of fact to be

14     satisfied that the accused possessed the specific intent.

15             The Chamber considers that on the basis of the foregoing, there

16     is sufficient evidence upon which, if accepted, a reasonable trier of

17     fact could find beyond reasonable doubt that there existed a joint

18     criminal enterprise, composed of a plurality of persons, including

19     Karadzic, Mladic, Tolimir, Borovcanin, and other high-ranking VRS and MUP

20     officers, the common purpose of which was to eliminate the Bosnian

21     Muslims in Srebrenica through the commission of the crimes charged in the

22     indictment.  The Chamber considers further that there is sufficient

23     evidence in accordance with the aforementioned standard that Mladic

24     participated in and made a significant contribution to this JCE.  The

25     standard is equally met with respect to Mladic's intent for the JCE,

Page 20955

 1     namely, that he shared intent with other alleged JCE members to commit

 2     the crimes charged in the indictment.

 3             Under these circumstances, the Chamber finds that Count 2 stands.

 4             The Chamber recalls that the Defence did not specifically

 5     challenge the fourth joint criminal enterprise.  The Chamber will further

 6     deal with Count 11 now.

 7             The Defence has not specifically challenged Counts 4 and 7 to 11

 8     of the indictment or the general elements and jurisdictional requirements

 9     that must be proven under Articles 3 and 5 of the Statute.  The Chamber

10     has carefully examined the evidence and is satisfied that there is

11     sufficient evidence under the applicable legal standard at this stage of

12     the proceedings for these counts to stand.

13             Accordingly, the Chamber considers that the accused has a case to

14     answer on all counts of the indictment.

15             And this concludes the Chamber's decision on the Defence's

16     request for acquittal pursuant to Rule 98 bis.

17             Before we adjourn and since we might not see each other in court

18     soon, I would like to give an opportunity to the parties to raise any

19     matter that has to be urgently raised at this moment.  And I add to this,

20     when I said we might not see each other in court soon, that we still

21     intend to have the Pre-Defence Conference on the 12th of May and that the

22     start of hearing the Defence evidence would then start on the

23     13th of May.

24             Mr. Groome, I was informed that at least you had to raise -- you

25     would like to raise a matter.  You have an opportunity to do so.

Page 20956

 1             MR. GROOME:  Thank you, Your Honour, just a few brief matters.

 2     Yesterday, Your Honours, the Defence filed nine 92 ter motions publicly.

 3     All of them, in each of the cases, they seek to have a statement that's

 4     attached as an annex tendered under 92 ter.  When I look at the

 5     statements, none of them are signed.  That seems to be somewhat unusual.

 6     So could I ask the Defence to clarify:  Are these draft statements that

 7     will be signed or are -- is there a signed copy somewhere and these are

 8     final statements?  I would appreciate some clarification with that.

 9             JUDGE ORIE:  Mr. Ivetic.

10             MR. IVETIC:  Yes, Your Honours.  The statements are statements

11     that will be signed by the witnesses when they arrive for proofing here

12     in The Hague.

13             MR. GROOME:  Can I then just follow-up whether Mr. Ivetic expects

14     the witnesses to make any amendments to these statements; and if so, is

15     there a plan to get the Prosecution the final statements in time to

16     prepare for the examinations?

17             MR. IVETIC:  We of course will endeavour to give the Prosecution

18     as much advance notice of any corrections or modifications to the

19     statements.  We do not foresee the statements to be drastically altered

20     when the witnesses arrive.

21             MR. GROOME:  That's helpful and I'm grateful to Mr. Ivetic for

22     that information.

23             Also when we attempted to call up the associated exhibits in

24     e-court, we were unable to do so.  Can I inquire whether there's a plan

25     to have those released?

Page 20957

 1             MR. IVETIC:  Your Honours, we have had some extreme difficulties

 2     with e-court and indeed the log-ins for the Defence teams over the last,

 3     I would say, two weeks.  I do not know what I can represent in relation

 4     to that.  The plan is to have them all released at the time of the motion

 5     being filed.  I know they have been uploaded into e-court at that time,

 6     but we are still having technical difficulties that we've been trying to

 7     resolve with the other organs of the Tribunal.

 8             MR. GROOME:  Your Honour, in light of that, could I ask that

 9     Mr. Ivetic send us a courtesy copy so we can begin to work on our

10     response to these motions.  That would be very much appreciated.

11             MR. IVETIC:  Of the associated exhibits you mean?

12             MR. GROOME:  Yes.

13             MR. IVETIC:  I will have that passed along and we will do that.

14             JUDGE ORIE:  You'll do it.

15             MR. GROOME:  And finally, Your Honour, given the number --

16             JUDGE ORIE:  Could I ask -- just intervene for one moment.

17             If you say that you have had for two weeks technical difficulties

18     and you referred -- yes, you tried to resolve that with the other organs

19     of the Tribunal.  I'm a bit surprised that in two weeks it's still not

20     resolved.  Can the Chamber in any way assist or is there anything you

21     would -- because it's of some concern to the Chamber if this would

22     continue for the further future?

23             MR. IVETIC:  As Your Honour knows, the computer systems have been

24     updated recently and there have been some difficulties after the update.

25             JUDGE ORIE:  Yes, but could the Chamber, for example, assist in

Page 20958

 1     urging and then you should tell us who to address to give priority to

 2     resolving your problems at this moment?

 3             MR. IVETIC:  We have a problem with the log-ins, Your Honour, of

 4     the -- for instance, today most of us don't have access to e-court

 5     because we're all using one log-in.

 6             JUDGE ORIE:  Yes.  I had problems with logging in as well,

 7     although that was resolved rather quickly.  When did you report the

 8     log-in problems to the -- our technical people?

 9             MR. IVETIC:  Monday, last Monday.

10             JUDGE ORIE:  Last Monday, does that mean yesterday or --

11             MR. IVETIC:  Last week.

12             JUDGE ORIE:  -- last week Monday?  Okay.  That's then eight days

13     which -- to the extent the Chamber is able to assist, we'll certainly try

14     to have it fixed and priority be given to that problem of yours.

15             Mr. Groome.

16             MR. GROOME:  And the final matter, Your Honour, is:  Can I

17     inquire whether Mr. Ivetic would be willing to provide us with a

18     tentative order for these nine witnesses.  Given the short time-frame, we

19     would appreciate knowing how best to prioritise our responses to them.

20             MR. IVETIC:  I am not in a position to answer that.  I will have

21     to check with the rest of my team in Belgrade as I do not have that

22     information at present, but I can informally communicate that to the

23     Prosecution as soon as I receive it.

24             MR. GROOME:  I thank Mr. Ivetic and I thank the Chamber.

25             JUDGE ORIE:  And when do you think you could receive that?

Page 20959

 1             MR. IVETIC:  Your Honour, I will contact the office as soon as we

 2     conclude today and hope to get it by tomorrow hopefully.

 3             JUDGE ORIE:  Yes.  So we are talking in terms of days --

 4             MR. IVETIC:  Right.

 5             JUDGE ORIE:  -- not in terms of a week or more?

 6             MR. IVETIC:  Correct, Your Honour, I hope I should be able to get

 7     that within a matter of days.

 8             JUDGE ORIE:  Yes.

 9             Any other matter, Mr. Groome?

10             MR. GROOME:  No, Your Honour.  Thank you.

11             JUDGE ORIE:  Then, Mr. Ivetic, is there any matter you would like

12     to raise?

13             MR. IVETIC:  The Defence has nothing further to raise at this

14     point.

15             JUDGE ORIE:  Thank you very much.

16             Then we will adjourn, and as far as matters stand now, we'll

17     resume with the Pre-Defence Conference on the 12th of May.  We stand

18     adjourned.

19                           --- Whereupon the hearing adjourned at 11.57 a.m.,

20                           to be reconvened on Monday, the 12th day of

21                           May, 2014, at 9.30 a.m.