Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16131

1 Thursday, 15 March 2007

2 [Prosecution Closing Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.16 p.m.

6 JUDGE VAN DEN WYNGAERT: Good afternoon. I give the floor to

7 Mr. Moore for 15 minutes.

8 MR. MOORE: Well, I will try and be shorter than that.

9 May I deal with the sentencing elements, and I have indicated to

10 my learned friend, if I deal with it just very gently. In our -- very

11 generally. There are two principal considerations in any sentence that we

12 submit the Court should take into account. One, that first part should

13 reflect the overall gravamen of the situation itself; and secondly, what I

14 will call an element of deterrence.

15 In this case, it is perfectly clear from the facts that have been

16 alleged and the court are very familiar with that this was an appalling

17 crime, and therefore we would submit that the following sentences are

18 appropriate: With regard to Mr. Mrksic and Mr. Sljivacanin, if they were

19 committed for what I will call JCE 1 or JCE 3, we submit that the

20 appropriate sentence is one of life imprisonment.

21 With regard to Mr. Mrksic and Mr. Sljivacanin in respect of

22 individual modes of liability or responsibility, namely, ordering or

23 aiding and abetting, we submit that life imprisonment is the appropriate

24 sentence. For Mr. Mrksic and Mr. Sljivacanin, for 7(3), we submit that

25 the failure to prevent such a large number of people being killed and/or

Page 16132

1 persecuted it should be life in prison, and for failure to punish, there

2 should be a period of 10 to 15 years.

3 In respect of Mr. Radic, if he were convicted of JCE 1 or 3, we

4 submit, even though his part is not as significant as the other two, life

5 imprisonment. In relation to Mr. Radic, for again, individual modes of

6 liability, in this instance only aiding and abetting, we submit that life

7 imprisonment is also appropriate. However, when we come to 7(3),

8 liability, there are certain subplots. The failure to prevent basically

9 the TO, if in actual fact the Court find that they were subordinated to

10 him, the appropriate sentence would be between 10 and 15 years. Failure

11 to punish the TO, sentence of 8 to 10 years, and if the Court is not

12 satisfied of the issue of subordination in relation to the TO itself,

13 there are clearly three other JNA soldiers who were directly subordinated

14 to him. We would submit that the period would be between 4 and 6 years.

15 Mr. Radic, I believe, has been in custody I think just over three years.

16 I would not seek to address the Court on any other issue in

17 relation to sentencing.

18 JUDGE VAN DEN WYNGAERT: Thank you very much, Mr. Moore. I will

19 then give the floor to Mr. Vasic.

20 [Defence Closing Statement]

21 MR. VASIC: [Interpretation] Good afternoon to all. Good

22 afternoon, Your Honours.

23 I would like to apologise now given the number of people who make

24 up the respective teams assisting us and the Prosecutor. I have not had

25 the time or the ability to put together a presentation for my closing

Page 16133

1 argument. I will be reading out all the relevant numbers, though, and I

2 will be using the tab given to us by Mr. Moore.

3 Your Honours, this closing argument has been conceived as a

4 response to the Prosecutor's final brief and the Prosecutor's closing

5 argument. I will be using references not mentioned in Mr. Mrksic's final

6 brief. As for any others that have been mentioned, we shall merely be

7 using the substance of information indicating that the facts were indeed

8 different from what the OTP have pleaded. We could say that the objective

9 of all the parties involved in this trial was to, after more than 15

10 years, contribute to shedding some light on the events that occurred

11 between the 20th and the 21st of November, 1991, at the Ovcara farm near

12 Vukovar.

13 Although at the outset this may have seemed an easy task, it was

14 by no means easy, partly because of the long time that has passed, leaving

15 a question mark over the evidence given by witnesses in terms of their

16 precision and reliability, and also because there is an abundance of

17 relevant documents that have in the meantime disappeared or have remained

18 beyond the reach of the parties involved in this trial. Unfortunately,

19 this documentation that the Defence looked for so hard, such as the

20 operations log of the Guards Motorised Brigade and the briefing book of

21 the Guards Motorised Brigade would certainly have allowed us to achieve a

22 more reliable construction of these events that occurred over 15 years

23 ago, as well as the respective roles of all of the protagonists. It would

24 certainly have allowed us to critically assess the evidence given by those

25 involved, evidence which they, as witnesses, brought before this Court.

Page 16134

1 Another problem which made this task even more arduous has been

2 the absence of a number of important witnesses who have not appeared

3 before the Trial Chamber because my learned friends from the OTP simply

4 dropped them or indeed because any effort to have them appear has proved

5 too complicated even once court orders have been issued. However, these

6 documents that the Mrksic Defence looked for so hard, sometimes physically

7 by rummaging through the archives and sometimes by requesting these

8 documents through official state bodies, have not been found. In all

9 likelihood, it could be addressed in more detail by witnesses who

10 regrettably are no longer with us or witnesses dropped by my learned

11 friend.

12 However, despite all the peculiarities of this case, we can say

13 that the initial hypothesis that a case which only concerns the territory

14 of a small town and its surroundings, such as Vukovar, and a time frame of

15 a single day and night will be swiftly and simply concluded, has proved

16 erroneous. Instead of that, over the one and a half years of this trial,

17 both parties have presented a large number of witnesses and exhibits which

18 we assessed in our final brief and which we are assessing now.

19 When assessing the evidence, at the end of this trial, the parties

20 were compelled to go again through more than 16.000 pages of the

21 transcript and over 880 exhibits in order to be able, in their final

22 briefs, to point out to the Court the relevant portions, and by

23 cross-referencing, try to show and prove what among all the evidence given

24 by witnesses was truthful and what was not, as well as the reasons why

25 certain witnesses should not be given credibility.

Page 16135

1 Although, in this way, the Defence has refreshed its memory of

2 everything that went on in this case as well as all the evidence, it was

3 quite surprised by the way that our learned friend Mr. Moore addressed all

4 these issues in his own final brief. While reading their final brief, it

5 was difficult sometimes to ascertain how certain conclusions were drawn

6 that are stated in the final brief, and sometimes invoking certain

7 portions of transcript came down to invoking isolated portions of the

8 transcript taken out of context might fit the Prosecutor's purpose.

9 However, many of these portions, once set in their proper context, do

10 suddenly look different in the context of a witness's overall evidence.

11 Sometimes my learned friend used generic phrases in order to obscure a

12 more focused version on the roles played by certain individuals in all

13 these events.

14 For example, in one part of his final brief, he uses names,

15 surnames, ranks, and positions occupied by certain people in order to

16 corroborate some of his submissions. In other portions, he just refers

17 generically to all these as OG South or the Guards Motorised Brigade, in a

18 bid to suggest that all of this is one and the same thing, although,

19 throughout the trial, we have been successful in distinguishing between

20 all these various entities and units. In fact, this goes so far that, as

21 witness Bogdan Vujic likes to say, even the representatives of the Supreme

22 Command such as Colonel Pavkovic and Colonel Terzic are placed within the

23 very same framework of OG South, although he himself at page 23, paragraph

24 44 of the final brief, states explicitly that they were detached to the

25 command of the Guards Motorised Brigade as liaison officers, which implies

Page 16136

1 that they were not part of the command nor could they receive any orders

2 whatsoever from the command of the Guards Motorised Brigade or indeed the

3 command of OG South. Colonel Pavkovic and Colonel Terzic, even in the

4 OTP's submission, had no command function to perform within the command of

5 the Guards Motorised Brigade.

6 On page 13691 of the transcript, Mr. Sljivacanin testified:

7 "Regulations that were in force in the Yugoslav People's Army and

8 at that time since Pavkovic came from the superior command, it is true

9 that Mrksic was unable to issue any assessment to him -- assignment."

10 Sorry.

11 My learned friend, on page 23 of his own brief, claims that

12 Colonel Mrksic issued orders to Colonel Pavkovic. He makes this claim

13 based on Mr. Sljivacanin's evidence more specifically at page 13550.

14 However, if we consider the response of Mr. Sljivacanin quoted above, it

15 is clear that Colonel Mrksic could never have issued any orders whatsoever

16 to Colonel Pavkovic, an officer belonging to the superior command and the

17 supervisor of the command of Guards Motorised Brigade and OG South.

18 Eventually this was confirm by all the relevant witnesses; not

19 only all the relevant Defence witnesses but OTP witnesses as well. For

20 example, the oft quoted witnesses Trifunovic, the relevant pages being

21 8064 and 8065. The following example could be found at page 26 of the

22 OTP's final brief, where in paragraph 55 the submission is made that

23 Colonel Mrksic resubordinate to the Petrova Gora TO to the 80th Motorised

24 Brigade and the Leva Supoderica Detachment to the 12th corps by an order

25 which was admitted in this trial as Exhibit 422. These submissions about

Page 16137

1 the signing of that order and report also apply to Exhibit 386 dated the

2 21st of November, 1991.

3 During the trial, it seemed quite obvious that the said order was

4 not signed by Colonel Mrksic but, rather, by the then stand-in commander,

5 chief of staff Miodrag Panic. The transcript reference is 14413, lines 21

6 through 25.

7 "[In English] On the same statement, on page 58, did you state

8 that that morning, the 21st of November, 1991, you signed an order on

9 resubordinating these units as deputy commander in the absence of

10 Mr. Mrksic? Did you say that? Do you remember that?" It was the

11 question.

12 "Answer: Yes, there is a document concerning that and I signed

13 it.

14 "Question: All right, Mr. Panic. Tell me, please, this order

15 here you signed at 6 a.m. on the 21st of November, 1991 pursuant to the

16 order of the 1st Military District 15 -- 115/151; correct?

17 "Answer: Yes."

18 This is transcript number 14414, lines 10 to 14.

19 [Interpretation] Furthermore, it seemed indisputable to us that on

20 the 21st of November, 1991, Colonel Mrksic was in Belgrade. If I

21 understand my learned friend correctly, and if he is suggesting that it

22 remains to be proved whether Colonel Mrksic left for Belgrade on the 20th

23 of November, 1991, then in relation to the 21st of November no such

24 statement was made. Despite this, in his final brief, he claims that

25 Colonel Mrksic wrote and signed both the order and the report to his

Page 16138

1 superior command, dated the 21st of November, 1991.

2 We all know that this report was again compiled by his deputy,

3 Miodrag Panic, who, at the time, was chief of staff.

4 Yesterday, my learned friend yet again repeated this stunning

5 claim in his closing argument, which moved me to conclude -- which led me

6 to conclude that he is holding on to this story that Colonel Mrksic flew

7 to Belgrade on the morning of the 21st of November, 1991, and not in a car

8 on the 20th of November, 1991, because he is aware of the fact that until

9 his departure there had been nothing at all to suggest that a tragedy

10 would occur. Any information that eventually reached him at the meeting

11 and the regular briefing, any information shared by Lieutenant Colonel

12 Panic, as well as some information shared by Lieutenant-Colonel Vojnovic,

13 clearly indicated that an omission had been made in terms of security, but

14 also that the situation was by no means critical and was now again fully

15 under controlment.

16 This is what witness Panic has to say about this. The transcript

17 reference is 14328 and 14329.

18 "[In English] Yes, yes. When I informed him about all of this, I

19 said it wouldn't be a bad thing if some of the security organs or military

20 police went to Ovcara to indicate certain things or offer assistance in

21 professional terms if necessary to Lieutenant Colonel Vojnovic. I don't

22 know whether he sent anyone. I think he did, and I think on the basis of

23 everything I remember and having made these previous statements too. I

24 think that he actually did send some people there, and I think that Mile

25 Bozic was among them. He was there in Negoslavci and at the command post

Page 16139

1 or, rather, in a house there near the command post."

2 [Interpretation] And this is what Witness Vojnovic says about it.

3 The page reference is 8980, lines 18 through 23.

4 "[In English] Question: You say Mrksic was angry and I told you

5 don't even tell me about that. Yes, don't even tell me about that. Your

6 report on Mrksic was in relation to the situation such that it was on the

7 time you left the hangar at Ovcara.

8 "Yes."

9 On the transcript 18983, lines 13 to 23:

10 "Question: You told him what had happen. You told him what was

11 going on. POW had been attacked, you are leaving the hangar, you are on

12 the way to the command. Some degree of order is now established because

13 these people are now physically separated from the terror men; right?

14 "Answer: Precisely.

15 "Question: Could Colonel Mrksic have told you and other

16 commanders perhaps no more than the following words: Don't even tell me

17 about that, meaning, take any measures that you can with your units, the

18 units at your disposal. If that proves out to be [indiscernible], I shall

19 authorise that you use units from the military company of the 1st Military

20 Company and the armoured vehicle to the chief of staff of the Operational

21 Group.

22 "The witness: No, I heard nothing like that."

23 [Interpretation] There is evidence to suggest that before his

24 departure from Belgrade that evening on the 20th of November, which is

25 something addressed by Witness Gluscevic, but also Witness Panic,

Page 16140

1 Lieutenant Colonel Panic, Mrksic warned everyone that there should be no

2 such incidents, and he requested that the commander of the 80th Motorised

3 Brigade, through the chief of staff Lieutenant Colonel Panic, in case of

4 need, should be given reinforcements in order to allow him to secure the

5 hangar.

6 My learned friend, in this inappropriate way, is trying to hold up

7 his -- his claim that on the 20th of November, the evening of the 20th of

8 November, Colonel Mrksic was in fact in Negoslavci. We know for a fact

9 that he wasn't there simply because a large number of witnesses confirmed

10 this. On the other hand, even the OTP witness Trifunovic claims that

11 Mrksic was not in Negoslavci that evening. However he claims that he was

12 in Berak and that he return the next morning, which is not consistent with

13 the truth, because it is beyond dispute that at 6.00 in the morning

14 Lieutenant Colonel Panic, chief of staff, signed an order on Commander

15 Mrksic's behalf which he could only have ever done if Mrksic had not been

16 around.

17 This story with the alleged order, which is on page 28 of the OTP

18 final brief, about the appointment of Miroljub Vujic as TO commander and

19 we need to remember that no one, save for Witness Trifunovic, ever claims

20 to have seen this and the OTP gives the following transcript references

21 8210 and 8371, as opposed to pages 8285 and 8286 from the evidence given

22 by the same witness, where Witness Trifunovic, of all people, claims that

23 it is possible that this order was signed on the 21st of November, the

24 morning of the 21st, which means precisely during Colonel Mrksic's absence

25 from Negoslavci.

Page 16141

1 In that case, the order could only have been signed by Lieutenant

2 Colonel Panic, the chief of staff. However, there is nothing in the war

3 log to suggest the existence of such an order, which leaves this as a mere

4 fabrication on the part of Witness Trifunovic in a bid to please the OTP.

5 This was eventually corroborated by Vujevic himself in a different

6 trial in Belgrade last week. At page 136, paragraph 375 of his final

7 brief, my learned friend himself claims that Dusan Jaksic was removed and

8 Miroljub Vujevic appointed as TO commander of TO Vukovar by Major Veselin

9 Sljivacanin. It is quite obvious that my learned friend cannot make up

10 his mind, and what he would like best is for all of the accused to be

11 responsible for everything.

12 In the chapter about the evacuation of the hospital in Vukovar and

13 the Zagreb Agreement, on pages 43 through 45 of the OTP final brief, the

14 substance of what this agreement was really about is obscured. What is

15 also obscured is the nature of the contacts between the ECMM and ICRC with

16 military officials in Negoslavci and Vukovar. It is quite clear that the

17 persons that the agreement spoke about were only the wounded and the sick

18 and that the observers such as Kypr, Schou, and Cunningham held talks with

19 officers from the SSNO, and the command of the 1st Military District who

20 spoke on behalf of the Supreme Command, General Raseta and Admiral Brovet

21 and not in fact with the OG South command. Exhibits 322, 333, and 344

22 clearly show this.

23 Yesterday my learned friend, in part at least, interpreted Exhibit

24 320, which is the ECMM report indicating that an ICRC representative was

25 thrown out of the hospital at 2000 hours on the 19th of November, which is

Page 16142

1 not really true if one takes into account what that same representative

2 sold Vesna Bosanac, which is something that Vesna Bosanac addressed at

3 686, lines 14 through 25.

4 At any rate, we find the following sentence in that report, which

5 is a sentence not quoted by my learned friend.

6 "[In English] After receiving instructions from General Raseta,

7 the registration process began and the sick and wounded were loaded into

8 bus and ambulances."

9 [Interpretation] On page 57, in paragraph 128, referring to the

10 meeting between Cyrus Vance and Colonel Mrksic, my learned colleague

11 states something which is not to be found in either Exhibit 418, nor was

12 it uttered by the witness Trifunovic. In his talk with Mr. -- with

13 Colonel Mrksic, Mr. Cyrus Vance was briefly informed of the situation in

14 the field and with the activities of the OG South, but he neither

15 expressed the desire at that moment to go to the Vukovar Hospital nor was

16 this at all discussed.

17 Page 8123 of the transcript refers to Mr. Cyrus's -- Cyrus Vance's

18 desire to go to the Vukovar barracks and not the hospital. Eventually, at

19 the end of the meeting, Colonel Mrksic said that the delegation should be

20 taken to see whatever it wanted to see in Vukovar.

21 The allegations of the Prosecution on page 76, paragraph 190, to

22 the effect that on the 19th of November, 1991, Colonel Mrksic had been

23 informed about the agreement reached in Zagreb between the JNA and the

24 Croatian authorities does not -- do not stand. It is quite clear from

25 ECMM documentation, that is Exhibit 315, that that mission received a

Page 16143

1 report on the signed agreement on the 19th of November in the evening,

2 namely, at 2241 hours by fax. So Colonel Mrksic could not have been

3 acquainted with this, neither at that time nor during his talk with Vesna

4 Bosanac, nor could have Vesna Bosanac have been acquainted with it as she

5 herself says. There is no dispute, in fact, about the fact that the OTP

6 has not proven that Colonel Mrksic received the text of this agreement in

7 any way and at any time.

8 As my learned colleague invoked this -- the statement of Vesna

9 Bosanac in regard of this particular fact yesterday, I should like to read

10 out for you what she says in the transcript. Page 672.

11 "[In English] No. My understanding at that time was as follows:

12 He said that the situation was now better because the shooting had ceased.

13 He said we would now be better able to conduct an evacuation.

14 Nevertheless, he himself didn't know exactly what it was that General

15 Raseta had signed in Zagreb."

16 [Interpretation] As regards the Zagreb Agreement, as a matter of

17 fact, my learned colleague deliberately or fortuitously seems to fail to

18 understand the substance of this agreement. Although the text of the

19 agreement was not available in the field in Vukovar, not even on the 20th

20 of November, because on that day Colonel Pavkovic says to the ICRC

21 representative to show him a copy of that agreement. It does seem that

22 the agreement itself states that it deals with the evacuation of the sick

23 and wounded from the Vukovar Hospital of whom, according to the data,

24 which were obviously obtained from the hospital on the date of the

25 signature of the agreement. There were 40 severe patients and 360 or so

Page 16144

1 wounded, a third of whom required stretchers. Those are the people

2 encompassed by that agreement. So there were a total of around 400 of

3 them.

4 If the fact is borne in mind that there were no combat operations

5 from the 18th of November and on and that no new patients were admitted,

6 then that should be the final number of patients to be evacuated. When

7 this number is compared with the number in Exhibit 321, the report of the

8 ECMM, which states that at 1430 hours on the 20th of November, 82

9 bedridden wounded persons, and 263 mobile-wounded persons were evacuated

10 and that there remained another 52 to be evacuated on the following day.

11 The conclusion that can be drawn is that is precisely the number which the

12 Zagreb Agreement refers to. And the number that was evacuated, in fact,

13 in the presence of the ECMM and the ICRC, when this is borne in mind, it

14 is not clear then what submissions my learned colleague is making in terms

15 of violations of the Zagreb Agreement.

16 Evidently the agreement was signed for the sake of the sick and

17 wounded. They are persons to be supervised by the ICRC, but they are at

18 the same time a category of persons which, under the provisions of the

19 Geneva Conventions, could also be categorised as POWs and retained on the

20 side of the capturing party. However, that obviously was not the case

21 here. All the sick and wounded, at least that is what the numbers say,

22 eventually reached Croatia. Thus it is not the category of people that

23 the agreement refers to, as my learned colleague claims, but the agreement

24 actually says the wounded and the sick.

25 Then perhaps the question could be asked, And who are then the

Page 16145

1 people who were taken out of the hospital in a convoy of six buses? Well,

2 the answer would be that they are not a part of the Zagreb Agreement,

3 which I again say never even reached the territory of Vukovar, and that

4 they were either not at all expected there or, on the other hand, were

5 brought there deliberately in order to create a problem with evacuation.

6 Had that not been so, then Dr. Bosanac, when she was giving the numbers of

7 the sick and wounded to Zagreb, probably on the 18th or on the 19th of

8 November, would have certainly included in that number also those on whose

9 healthy legs she would subsequently place plaster casts or whose healthy

10 arms she would cut notches in or put bandages on their eyes and whose

11 rifles she would then throw into the hospital garbage container.

12 As the numbers of the wounded and sick reported by the hospital

13 and those who were evacuated tally, then the people who were found at a

14 hospital were, in fact, in a place in which they shouldn't have been. It

15 was to be ascertained who they were and what they were and how come they

16 found themselves in the hospital seeing that they were not sick. And some

17 of them had to account for the fact why they were clothed in patient's or

18 hospital clothes without being either sick nor being part of the hospital

19 staff.

20 It is precisely for such persons and their selections that a group

21 of experts arrived from the security administration and the security

22 department of the 1st MD. The more so as those who were removed from the

23 hospital on the 20th were in fact those who did not transfer themselves to

24 Velepromet on the previous day voluntarily, even though they were not

25 under the auspices of the Vukovar Red Cross, even though they were not

Page 16146

1 within the category of persons who were supposed to be in hospital. The

2 removal of these persons actually does not amount to evacuation of the

3 hospital, because that implies evacuation of those who are in hospital for

4 treatment.

5 The people who were separated that morning were combatants. And

6 it seems to me that in Vukovar it was erroneous to divide people the way

7 my learned colleague does and the indictment does to ex-combatants,

8 political followers of the HDZ, journalists, the elderly, younger people,

9 women, because from the testimonies of witnesses heard here, it follows

10 that everybody had their place and role, their function, in the defence of

11 Vukovar, within the units of the ZNG, the MUP, volunteer units, and the

12 civilian part. That according to the statement of the witness Zvezdana

13 Polovina, even journalists were active in rendering support to the defence

14 staff of Vukovar.

15 Can -- an HDZ activist be imagined who at that time was not a

16 member of a military unit? I believe that that is in fact impossible.

17 And finally my learned colleagues forget that it was the precisely the

18 Prosecution witnesses who confirmed, here, to us all that there was a

19 general mobilisation in Vukovar which encompassed according to the then

20 law categories of persons from age 16 to the age of 65.

21 Also the submission of my learned colleague yesterday in -- to the

22 effect of ostensible differences in -- in the treatment of persons from

23 Mitnica, as he will put it yesterday, soldiers, and persons from the

24 hospital as he put it -- put it yesterday, terrorists and criminals, is

25 completely faulty. If you recall his point in this particular regard, it

Page 16147

1 was that in the first case lists were compiled, whereas in the second

2 instance no lists were made, and that that in fact was a difference in the

3 treatment of the two groups, a difference which was actually to determine

4 their respective fates.

5 Did my learned colleague lose sight of testimony of his own

6 witnesses, namely both Mr. Vezmarovic and Mr. Vojinovic, and P-014. As

7 far as I can see, and you will certainly recall this, in both cases were

8 lists made in the hangar at Ovcara.

9 In the first case it ended up with the security officer in Sremska

10 Mitrovica, and in the second case, according to what the witness P-014

11 said, it ended up precisely on the table of yet another Prosecution

12 witness and that is Lieutenant Colonel Vojnovic.

13 Witness P-014 in the transcript at page 7815 and page 7816 has the

14 following to say --

15 Your Honours, perhaps it would be good now to go -- to move into

16 private session. I'm not quite sure to what extent this statement I'm

17 going to read will actually reveal the identity of the witness.

18 JUDGE VAN DEN WYNGAERT: Okay, Mr. Vasic. Private, please.

19 [Private session]

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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Page 16149

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2 (redacted)

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7 (redacted)

8 (redacted)

9 [Open session]

10 THE REGISTRAR: We are in open session, Your Honours.

11 MR. VASIC: [Interpretation] So there was no difference whatsoever

12 in the treatment of these groups as regards their registration and as

13 regards their destination as well.

14 The epilogue of the events would probably have been different had

15 the security of the 80th Motorised Brigade not withdrawn late at night

16 without any apparent reason. Therefore, according to the position of the

17 Defence, this withdrawal is an incident and not a deliberate plan of the

18 JCE as submitted by the Prosecutor.

19 What does Colonel -- Lieutenant Colonel Vojnovic tell us in regard

20 to this list? On page 8974, lines 21 to 25:

21 "[In English] No, I'm not saying that it didn't reach the command,

22 but it didn't reach me or my desk. I assert that I didn't see it. Maybe

23 somebody placed it on the desk and then took it again. These are all

24 possibilities and guesses, and that's something that it's really not

25 material here."

Page 16150

1 [Interpretation] Now we shall leave this subject and pass to

2 another one, and that is the allegation of the OTP on page 105 of their

3 final brief.

4 "[In English] The command of OG South received specific written

5 orders from the 1st Military District warning them of the dangers of

6 retaliation by the Vukovar TO and volunteers against the Vukovar

7 population."

8 [Interpretation] No piece of evidence presented in these

9 proceedings demonstrates any such warning, nor does it follow from the

10 testimony of any one witness. And the order which is Exhibit 409 and

11 which is invoked by the Prosecution, it is not stated that this warning

12 refers to the actions of TO Vukovar, nor does it indicate in any way

13 whatsoever that this can be associated with the area of activity of this

14 TO. And I should like also to remind you that this was -- this order was

15 forwarded to all units that were subordinated to the command of the 1st

16 Military District.

17 In addition to this order, the command of OG South also received

18 an order of the command of the 1st MD, which is Exhibit 415, this exhibit,

19 which perhaps, has been the most exploited one by the Prosecution in this

20 case.

21 According to this -- under this order, according to the claim of

22 the Prosecution, Mrksic, with his written order, warned his subordinates

23 of practices to which the command of the 1st Military District had also

24 been pointing to. This is also attested to by OTP witnesses. For

25 instance, Witness Trifunovic, and Defence witnesses for Mr. Mrksic,

Page 16151

1 Colonel Lesanovic, Colonel Gluscevic, Lieutenant Colonel Danilovic, as

2 well as Defence witnesses for the Defence of Mr. Sljivacanin, Lieutenant

3 Colonel Panic, and Major Vukasinovic.

4 Colonel Mrksic pointed to the danger which was actually the

5 substance of these orders; also, in his order of the 20th of November,

6 1991, which constitutes Exhibit 419. Namely, he warned the commanders of

7 towns that they should secure and control the security of property and

8 persons in their respective zones of responsibility.

9 Also when he comments on the visit of Mr. Seselj to Vukovar, my

10 learned colleague does something that we have been pointing out to the

11 Bench at all times, namely, on page 110 of his final brief, my learned

12 friend states that the command of OG South had to allow this visit

13 invoking the testimony of Witness Trifunovic, although, on page 8287 of

14 the transcript, Witness Trifunovic has the following to say:

15 "[In English] In practice, what would happen with his visits is

16 something that I really don't know. Who authorised him or issued

17 permission for him to do that, I don't know that. But as far as the

18 procedure is concerned, I'm sure some people could explain how that went.

19 All I heard was that he came and that he was at Petrova Gora, that he was

20 in the south detachment 1, that he was raising morale working on the

21 motivation, and I think that Colonel Mrksic didn't issue permission for

22 that either. Perhaps when he found out he was just reconciled to the

23 fact."

24 [Interpretation] It is quite clear from this that, precisely the

25 witness invoked by the Prosecution, states that Colonel Mrksic did not

Page 16152

1 issue any permission to Mr. Seselj to come to Vukovar.

2 Furthermore, on page 111, the OTP suggests that the conflict in

3 Vukovar also went on after November the 18th, and that Witness Trifunovic

4 spoke about the problems that were created by members of the TO but also

5 by volunteers and by paramilitary units, and of which Colonel Mrksic had

6 allegedly been informed, and in the conclusion of the OTP, failed to take

7 any measures in order to -- failed to take any measures.

8 The Witness Trifunovic on page 8150 states the following:

9 "[In English] I heard that there were problems on all three days,

10 on the 18th in Mitnica, but these were minor problems which are quite

11 realistically possible in such a situation. I heard about 19, too, that

12 there were problems with the transfer of people from the captured parts of

13 town, primarily from the central part of town, to Velepromet, the barracks

14 in Ovcara, that there were problems with the local population as well as

15 members of the TO defence who are from that area."

16 [Interpretation] And then, as regards his assessment of the

17 situation, what his assessment of the situation in the command of OG South

18 was, he says on page 8281:

19 "Q. Yesterday you stated that all the information that came down

20 to verbal abuse or light physical contact as you put it?

21 "A. Yes."

22 [Interpretation] Therefore, not even the witness himself, the one

23 relied on by the Prosecution, didn't say that there existed information

24 indicating that the events were such that they could lead to any serious

25 incidents. Also, he didn't claim that volunteers and paramilitaries

Page 16153

1 participated in these events but, rather, just members of the local TO.

2 On page 138, paragraph 382, my learned friend brings the views of

3 Colonel Bogdan Vujic about having informed Colonel Mrksic and Major

4 Sljivancanin about events at Velepromet on the 19th of November. And that

5 on the following day, 17 corpses were found in Velepromet and that they

6 were buried at the military cemetery with the logistical support of

7 officers of Colonel Mrksic.

8 As for the personality and character traits of witness Bogdan

9 Vujic, we spoke about that in our final brief concerning the validity of

10 the conclusion of my learned friend that he was an honest and decent man.

11 This is something that Mr. Domazet will address a bit later.

12 It remains for me to say here that his story, the one he invented,

13 fortunately, had its own eyewitness, and that is the eyewitness who is

14 invoked by Bogdan Vujic himself. This is precisely Branko Korica, the

15 witness who was heard here, and based on his testimony, we can see exactly

16 which part of the story of Bogdan Vujic was correct and which part wasn't.

17 In this specific case, it is not true that he either informed

18 Colonel Mrksic or Major Sljivacanin, whom he didn't even see that night,

19 as well as that no bodies were found, bodies that were allegedly buried

20 with the assistance of Colonel Mrksic.

21 Had my learned friend wanted to present firsthand evidence to the

22 Trial Chamber, he would have called Mr. Kijanovic to come in and testify.

23 Witness Vujic says about Kijanovic that he allegedly told him about

24 burying those corpses himself. You will admit that that would have been

25 logical had he done that. However, preparing for this case, my learned

Page 16154

1 friend knew that Witness Kijanovic, in his testimony before the court in

2 Belgrade, did not confirm these allegations by Witness Vujic. Therefore,

3 he didn't call him to testify, and it all boiled down to the hearsay

4 evidence.

5 Naturally, Colonel Mrksic neither saw Vujic in the might between

6 the 20th and 21st of November, nor were the corpses buried by Lesanovic at

7 the time with the assistance -- I apologise, not Lesanovic but Kijanovic.

8 Buried by Kijanovic with the assistance of the logistical unit of

9 Mr. Mrksic. These are just pure fabrications of Witness Vujic that my

10 learned friend has accepted.

11 On the same page, in paragraph 383, my learned friend claims that

12 Colonel Mrksic involved -- or engaged the units of TO Vukovar in the

13 triage and transport of prisoners. That doesn't stand from any piece of

14 evidence or testimony heard before this Trial Chamber. Colonel Mrksic had

15 nothing to do either with the selection or transport of prisoners. And

16 this entire task was performed by security organs due to the nature of the

17 task itself. They had come to Vukovar in November -- on the 19th of

18 November, 1991, precisely in order to perform this task.

19 Colonel Mrksic never issued any kind of order for the TO Vukovar

20 units to participate in any similar operation. Thus, this is a pure

21 insinuation that is not supported by any material, formal, or written

22 piece of evidence.

23 Also in paragraph 385, my learned friend brings forward some

24 arbitrary conclusions concerning Colonel Mrksic. He claims that on the

25 19th of November, Colonel Mrksic gave assignments to his subordinates

Page 16155

1 about a joint plan -- or, rather, concerning joint criminal enterprise,

2 which was the evacuation of the so-called criminals, as he termed them,

3 from the hospital.

4 If you look at Exhibit 419, it will be clear that this is not true

5 and that by way of this order, precisely, the evacuation of the sick,

6 wounded, and civilian hospital staff was ordered and not the evacuation of

7 the so-called criminals, as termed by my learned friend, whose transport

8 and triage was dealt by the competent organs.

9 Your Honours, I would now like to ask you to turn into private

10 session, because this witness testified in a closed session, and this is a

11 very sensitive witness whose name was mentioned yesterday by my learned

12 friend, and this is a very important witness, and I will have to read out

13 a large portion of his testimony.

14 JUDGE VAN DEN WYNGAERT: Private.

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 16156

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Page 16158

1 (redacted)

2 (redacted)

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8 (redacted)

9 (redacted)

10 (redacted)

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15 (redacted)

16 (redacted)

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18 (redacted)

19 (redacted)

20 [Open session]

21 THE REGISTRAR: We're back in open session, Your Honours.

22 MR. VASIC: [Interpretation] Thank you.

23 There is not a single piece of evidence that can support the

24 argument of my learned friend that Colonel Mrksic ordered Lieutenant

25 Colonel Vojnovic, commander of the 80th Motorised Brigade, whose unit in

Page 16159

1 its area of responsibility guarded prisoners of war, to withdraw the

2 military police company and turn over prisoners to the TO Vukovar members

3 for further guarding.

4 This argument was not uttered by Vojnovic himself either, nor was

5 it uttered by witness Vukosavljevic, his security organ chief, or Witness

6 Vezmarovic, company commander of the military police company or Witness

7 Karanfilov who allegedly conveyed the order. Not even chief of staff,

8 Lieutenant Colonel Panic said that. Even the omniscient witness

9 Trifunovic has no knowledge of this.

10 These arguments of the Prosecution are not supported by logic

11 either, the arguments put forward on page 102 of the final brief. If we

12 were to rely on the tried and trusted claims of the Prosecution such as

13 who could have done it if it weren't for the commander, then the

14 Prosecutor would first have to explain several points. First, how come

15 Mrksic issued an order when he was not in Negoslavci, or at least, if they

16 claim that he was in Negoslavci, why did he do that through the security

17 organ with whom he had no direct contact? Why didn't he do it directly

18 through the commander of the 80th Motorised Brigade which whom he had

19 regular contact and whom he saw that same evening?

20 I will remind you that in his testimony here, Lieutenant Colonel

21 Vojnovic said that he did not receive any order from Colonel Mrksic about

22 withdrawing security detail but, rather, that he took the comment he heard

23 as the reason for withdrawing. That comment didn't even suggest anything

24 that we as laymen could use in order to conclude something like that. It

25 was definitely not sufficient for a professional soldier such as Vojnovic,

Page 16160

1 especially if I were to remind you that Lieutenant Colonel Vojnovic in his

2 career was a battalion commander of the military police and dealt with

3 security affairs.

4 It is the position of the Defence that this sentence which

5 Lieutenant Colonel Vojnovic, who in our view is the main culprit for the

6 tragedy that took place at Ovcara, was understood by him, providing that

7 it was uttered in the first place. The only possible interpretation in

8 our view would be this: What are you doing there? Why weren't you using

9 1.000 soldiers and tanks which I had resubordinated to you in order to

10 ensure law and order in the Grabovo, Ovcara, and Jakupovac sector?

11 This is why Colonel Mrksic could not have ordered to him, who was

12 commander of this sector, to withdraw the security detail.

13 We heard here both the theory and provisions of the rules of

14 service based on which it is clear that during the night Lieutenant

15 Colonel Vojnovic should not have withdrawn. He should not have allowed

16 for the security detail to withdraw from the Ovcara farm, the security

17 which was deployed there on the basis of his own order at 1600 hours.

18 Even had something of that nature been ordered by anyone else, Lieutenant

19 Colonel Vojnovic as an experienced officer knew that he had to request an

20 explicit written order for withdrawal rather than assume, as he put it

21 here, what somebody else thought.

22 Even if he had received a written order, which was not the case in

23 this instance, he still who should not have withdrawn the military police

24 during the night if he believed the situation to be critical. What he had

25 to do under the circumstances was refuse to carry out such an order and to

Page 16161

1 address himself to the commander of the 1st Military District and

2 intervene for the execution of such an order to stop.

3 Therefore, we were unable to find a single piece of evidence

4 indicating that Colonel Mrksic ordered anything of the sort except for

5 what is offered by my learned friend, which are the statement of

6 Lieutenant Colonel Panic as to who could have done it if it weren't

7 Colonel Mrksic, as well as the statement of Mr. Sljivacanin Defence expert

8 Mr. Vuga who again said, Who else could have done it but Colonel Mrksic.

9 Nobody either saw the order or heard the order, nor did the person

10 receiving the order ever claim that it was issued by Colonel Mrksic.

11 Given the state of affairs in this instance, any similar conclusion is

12 baseless.

13 Now I will go back to Lieutenant Colonel Panic and his claim about

14 the alleged instructions concerning the surrender of prisoners that he

15 received for the government cabinet session.

16 When he was asked to surrender them to the cabinet based on

17 this -- these instructions, when he was asked who was supposed to carry

18 out this surrender based on the instructions, the answer was, "I don't

19 know." "Was that you?" Answer, "No". "Where was surrender supposed to

20 take place?" The answer, "I don't know." "Where was this surrender to

21 take place?" The answer, "I don't know." "Who was supposed to write up

22 the lists for surrender?" Answer, "I don't know."

23 So what kind of a command representative is he as he described

24 himself? He went there to convey the order for the surrender of certain

25 people, and he said himself that he was authorised to do that but didn't

Page 16162

1 know who was supposed to surrender them, when, or where, or why. How come

2 this is not mentioned by a single word in his notebook?

3 I think that due to these reasons his testimony should not be

4 accepted. It should also not be accepted due to the portion which is

5 contradictory to the testimony of Bogdan Vujic about the session itself

6 and what Lieutenant Colonel Panic said about what had transpired during

7 that session, but I will speak more of this later.

8 I wanted to highlight something else here. It is clear to me why

9 witnesses Trifunovic and Panic do not speak truth about the events of the

10 20th of November, especially when it comes to the role of Mr. Mrksic and

11 his trip to Belgrade.

12 Deputy Commander Lieutenant Colonel Panic and Chief Operations

13 Officer, Trifunovic, upon the departure of the commander on the 20th of

14 November in the evening, were the ones in command of the unit. They

15 drafted -- or, rather, one of them drafted and the other one signed the

16 famous Exhibit 422 about resubordination, which is based on the alleged

17 order of the command of the 1st Military District, number 115-151, dated

18 the 20th of November, which in reality is not an order. It deals with the

19 issue of resubordination, and as I said, it is not an order but, rather,

20 just a plain report.

21 In this order, which has a false base, I'm referring to Exhibit

22 422, a false foundation, they used terms which cannot be found in any

23 other order from that period of time. They're using terms such

24 as "Seselj's men," or "Seseljevci," or "Sumadinac" or men from Sumadija.

25 If we look at Exhibit 444 dated the 22nd of November, 1991,

Page 16163

1 dealing with the cooperation of the Vukovar TO with the command of the

2 80th Motorised Brigade, this is to say about the cooperation, then it

3 becomes clear that there was no resubordination there whatsoever. Thus,

4 the content of Exhibit 422 is false as well.

5 It would have been natural, following the 18th of November and

6 completion of main combat operations in the liberation of the town, for

7 all TO units to return, TO units which were within temporary units such as

8 assault detachments. It would have been natural for them to return to the

9 command of their staff.

10 Your Honours, is this a good time for a break?

11 JUDGE VAN DEN WYNGAERT: Yes, Mr. Vasic. We will have a break of

12 20 minutes.

13 --- Recess taken at 3.47 p.m.

14 --- On resuming at 4.10 p.m.

15 JUDGE VAN DEN WYNGAERT: Mr. Vasic, may we ask you to be very

16 aware of the time. We will give you five minutes more that we have given

17 to Mr. Moore, but please be aware of the time because otherwise the

18 schedule will be impossible to maintain. Thank you.

19 MR. VASIC: [Interpretation] Thank you, Your Honour.

20 Speaking of the group of officers that the OTP call as their

21 witnesses, we have already pointed out that, in the case of many of them,

22 it would have been far more logical to find them included in the

23 indictment instead, especially those officers of the 80th Motorised

24 Brigade who, within their area of responsibility, guarded the prisoners of

25 war who were eventually struck by the crime that occurred.

Page 16164

1 The commander of the 80th Brigade, Vojnovic, used none of the

2 units resubordinated to him by Colonel Mrksic in order to secure the

3 territory of Grabovo, Ovcara, and Jakupovac, which means he didn't need

4 them and which means he had sufficient manpower to secure the hangar and

5 the prisoners. He is the principal culprit for not preventing the

6 withdrawal of his unit from the hangar, which is something that I have

7 already addressed.

8 He allowed Witness P-014, whose duty was to control the facility

9 and whatever went on inside it, to refuse to perform his function, and

10 even to refuse to return to the command post of his own unit unless the

11 assistance of military police were secured for him to guard his own

12 command post. He did get the security required from Colonel Vojnovic and

13 eventually returned to the command post, ordering to fire at anyone

14 attempting to enter the command building during that night. And people

15 were being taken away at a distance of a mere 200 or 300 metres from this

16 very place throughout the night.

17 As to all of these events and also what happened the following

18 morning, Vojnovic did not tell what he knew anyone from the superior

19 command, which is something that he himself has claimed. Instead, the

20 next day, he sent a delegation from Kragujevac to Ovcara to visit the

21 command and the witness that I have just mentioned.

22 None of these witnesses were included in the OTP indictment, nor

23 was, for that matter, Bogdan Vujic, if indeed what we heard from him

24 during his testimony is true. He claimed to have been the commander of

25 the triage of the persons at Velepromet on the 19th of November. He

Page 16165

1 claimed that he was given the assignment by the security administration

2 and he performed this task on behalf of the Supreme Command. He claims

3 that during the evacuation some persons were taken away and killed, and

4 yet he did nothing to stop this or indeed to arrest or even, if necessary,

5 kill the perpetrators which he names as Topola and Crevar. As a security

6 officer on this mission, he was certainly authorised to take steps of that

7 nature.

8 As a high-ranking officer of the security administration, he

9 didn't do this, yet he tried to shift the blame for his own omissions to

10 Colonel Mrksic and Major Sljivacanin during his testimony before this

11 Trial Chamber. Fortunately, his story is almost entirely illogical and as

12 such has been refuted in its entirety by the testimony of Witness Branko

13 Korica.

14 As to the group of witnesses called by the Prosecution and some of

15 the witnesses called by Mr. Sljivacanin's Defence team, that had

16 previously been dropped by the OTP, these witnesses are officers who faced

17 a potential indictment or at least faced the status of suspects. Based on

18 their evidence, we were able to tell that they tailored their evidence

19 with a view to escaping criminal responsibility, their own or that of

20 their own -- or that of their close associates. The objective was to

21 protect themselves and their associates to the degree possible. This

22 becomes clear if you study the evidence they gave in criminal proceedings

23 throughout the 1990s and compare these to the evidence provided by these

24 persons over the last couple of years, specifically before this court.

25 Some of these witnesses told us that meetings had been held as

Page 16166

1 well as debates between the witnesses themselves, witnesses of this

2 nature. Trials were monitored and transcripts were studied in order to

3 ascertain who said what at a certain trial, what sort of things were being

4 said and made public. The only person left with no protection at all,

5 left exposed and left to dry, as it were, as a convenient scapegoat was

6 Commander Colonel Mile Mrksic. There was finger pointing at him by those

7 whose task was to conduct the triage. Organs of the security

8 administration of the 1st Army. Vukasinovic who was in charge of the

9 transportation section or for that matter by those people whose duty was

10 to guard the prisoners at Ovcara such as the officers of the 18th Brigade

11 the ones I've already mentioned, and finally those who after the departure

12 of the commander on the 28th of November were the command of OG South

13 between the evening of the 20th and the afternoon of the 22nd these

14 persons being the chief of staff and the chief operative officer of the

15 Guards Brigade.

16 There is one thing that no one has raised during this trial. The

17 issue wasn't even raised by the OTP in their final brief, for that matter.

18 If things were the way they suggest they were, that is if Mrksic had

19 ordered the withdrawal, why then does Witness Borce Karanfilov not say in

20 plain terms before this Chamber that he had simply been ordered to do this

21 by his commander, to go to Ovcara and to withdraw the security detail of

22 the 80th Brigade? If that is true, the witness escapes personal

23 responsibility or indeed the responsibility of Mr. Sljivacanin on who's

24 behalf he testified.

25 The only reason he ended up not saying this was precisely this:

Page 16167

1 Colonel Mrksic never ordered anyone to withdraw the security detail from

2 the Ovcara farm.

3 As to who did this while waiting for him to leave for Belgrade,

4 now that is something that we have not been able to ascertain throughout

5 this trial. Another thing that will remain a mystery is who issued the

6 order or why. Documents have gone missing, that is one thing. And the

7 other is my learned friend simply chose not to call certain witnesses.

8 One thing is certain. The person who issued this order was not

9 Colonel Mrksic. Had he done this, then between the government session and

10 the withdrawal of the security there would not have elapsed over seven

11 hours. It would have been well known who was doing the hand-over, who was

12 involved in the hand-over, and where. The order to withdraw would not

13 have gone through security clerks but, rather, through the commanders of

14 the unit within whose area of responsibility these persons were and indeed

15 under whose command they were.

16 Likewise, it is certain that this would have been a subject raised

17 at the meeting with the regular briefing which in fact was not the case,

18 not even when the events at Ovcara were discussed.

19 Finally, this would no doubt have been entered into the war log,

20 which was not the case either.

21 As for the government session itself, even the OTP tendered under

22 Rule 98 bis statements made by government ministers who took part in that

23 session claiming that no decision was reached in that respect on that day

24 in Vukovar. Perhaps the most relevant witness on this is Witness Jaksic,

25 whom Mrksic explicitly instructed on the 28th of November to convey to the

Page 16168

1 president of the Supreme Court his refusal to surrender these persons.

2 Just as interesting is the testimony of Colonel Sisic, a

3 Sljivacanin Defence witness, who claims that on the 20th of November while

4 the buses were still in the barracks, he called Mrksic. He claims that

5 Mrksic told him to guard them at all cost until the government reached a

6 decision on their eventual fate. However, there is no inherent logic to

7 this evidence. This officer had no need to call Mrksic directly since

8 protection measures had already been taken by Witness Vukasinovic as he

9 already told us he was in charge of the convoy by the barracks and town

10 commander who was present, Major Branislav Lukic, and by the Guards

11 Brigade chief of staff who was also there, Miodrag Panic. The commander's

12 eyes and ears, which is how my learned friend Mr. Moore prefers to refer

13 to him.

14 Had that been the decision taken, then the convoy would have

15 stayed right there waiting for that decision. They would not have just

16 moved on. Yet it was before the session itself that he went to Ovcara.

17 It's OTP witnesses that we have on the record as saying that. They were

18 the people on the buses.

19 If that decision had been taken, it would have been recorded on a

20 slip of paper in that notepad used by Lieutenant Colonel Panic, which

21 apparently, as he said, he carried around instead of an official notebook

22 whenever he went to official meetings. We would be able to find decisions

23 there, not just a handful of sentences jotted down and no reference at all

24 to any decision whatsoever. This same Panic, controlling any entries into

25 the war log, would have asked for this to be recorded unless this had

Page 16169

1 already been done, and it hadn't. Probably this would have been the

2 subject of a report submitted to the 1st Military District, even perhaps

3 the report that Lieutenant Colonel Panic wrote himself on the 21st of

4 November, 1991.

5 There is no way this sort of information could have been

6 suppressed. Zivota Panic would have known through his own organs, through

7 his own commissions monitoring the Vukovar evacuation. Generals Mile

8 Babic -- General Mile Babic and Colonel Petkovic would have known who sent

9 out their own security troops from Sid to conduct a triage. Eventually,

10 General Aca Vasiljevic would have known the chief of the security

11 administration who on that same mission sent out one of his own teams and

12 was present in the area at the critical point in time.

13 Finally, we heard evidence from Mr. Karan, that even Goran Hadzic,

14 the Prime Minister at the time, was an associate of the military security

15 service. The SSNO should have known. They should have known about his

16 contacts to the officers, to Colonel Pavkovic and Colonel Terzic. The

17 SSNO was involved in the negotiations on how the evacuation to the Vukovar

18 Hospital was to be conducted through Colonel Pavkovic, General Raseta,

19 Admiral Brovet, and Colonel Memisevic, persons involved in these events,

20 even in some case as decision-makers.

21 Bearing all of this in mind, was it possible to conclude that

22 Colonel Mrksic had taken the decision to surrender these persons to the

23 government as Miodrag Panic would have it and yet for this to remain a

24 secret and go entirely unrecorded? Is it possible to hold him responsible

25 for that? This was outside his authority, and this is clearly confirmed

Page 16170

1 by such exhibits as the order by General Vlado Stojanovic, dated the 19th

2 of November. The hand-over of prisoners took place without his approval.

3 And we also have Aleksandar Vasiljevic's telegram, the telegram he sent to

4 Major Sljivacanin to show the same thing.

5 This sort of decision could not have been concealed, bearing in

6 mind all the circumstances. I don't believe it could have been concealed

7 from the representatives of the ICRC or the international monitors, for

8 that matter, who, on the same day they entered the hospital, found out

9 that people had been taken away even as the buses were still waiting in

10 the barracks. Therefore, the answer is no, there is no way that Colonel

11 Mrksic could have taken such a decision. There is no way that he would

12 have ever have been able or in a position to take such a decision.

13 Had he taken this decision, then Miodrag Panic would not have been

14 right there at Ovcara watching the prisoners leave. Security officers

15 Kijanovic, Tomic, and Mucan [phoen], as well as the rest of them, would

16 not have been there inside the hangar or around the hangar in the

17 afternoon and evening hours on that day. Finally, the prisoners would not

18 have remained under guard until 10.30 that night when the security people

19 eventually withdrew.

20 Had Mrksic decided for those persons to be surrendered, Captain

21 Vukosavljevic, the leaders of the counter-intelligence group from Sid

22 would not have told Captain Vukosavljevic not to investigate Ovcara but,

23 rather, to try and look after the safety of his own unit.

24 Finally, had Mrksic decided that, the exact entry relating to his

25 departure for Belgrade would not have been inaccurate. What we have heard

Page 16171

1 is he never took that flight with Major Tesic on the morning of the 21st

2 of November. Had Mrksic been there, this sort of order could never have

3 been taken, nor would it have ever been possible to withdraw the security

4 detail from the Ovcara farm.

5 These are examples of how the Prosecution decided not to indict

6 those who really are to blame for the crime at Ovcara in order to elicit

7 their testimony against the already-accused Mrksic. This creates a bias

8 in relation to their evidence, and we have seen this at work. I do hope

9 that the Honourable Chamber will eventually confirm this and rule on it.

10 Drawing conclusions as to why the final brief of my learned friend

11 says what it says and taking into account what in the submission of our

12 defence would be a valid assessment of the evidence, we have reached the

13 conclusion that the reason must be that the OTP did not pay sufficient

14 attention to evidence given by witnesses in cross-examination or in

15 re-examination.

16 In order to obtain, therefore, a complete mosaic of the events and

17 a valid assessment of the existence of the liability of the accused, it is

18 necessary to simultaneously read the brief of my learned colleague with

19 the final briefs of the Defence, because only then will it be -- will it

20 be possible for each individual question to be elucidated from all the

21 necessary sides.

22 I shall say a few words about the experts which the OTP called

23 here. First of all, about Mr. Theunens, who is in fact a member of the

24 Prosecution team and who according to his own testimony participated in

25 the shaping of the indictment in the compilation of the questions to be

Page 16172

1 put to the witnesses and the only thing which he did not do was to

2 question the witnesses in the courtroom, but he did question them outside

3 the courtroom, and we have testimony to that effect. He is on the OTP's

4 payroll, and he is temporarily employed there, and we deem that his

5 account cannot be objective and acceptable, while the material evidence

6 attached to his findings can be accepted and appraised.

7 As regards the other expert witness, General Pringle, with his

8 responses and with his attempt at sustaining the unsustainable where

9 Witness Vojnovic is concerned, he has compromised his expertise and his

10 objectivity.

11 I'm just going to mention the references, Your Honours, because I

12 do not have the time to read it all. These are transcripts number 11064

13 to 11096, and then 11070 to 11071, and 11093 to 11095.

14 In brief, this witness did not have an insight into a single -- he

15 did not inspect a single doctrine or document of general People's Defence,

16 total People's Defence and social protection that he pretended to give

17 expert opinions about [no interpretation].

18 JUDGE VAN DEN WYNGAERT: Sorry, interpreters have a problem?

19 THE INTERPRETER: He did not have access to the documents. He did

20 not have access to the documents of the 80th Motorised Brigade nor those

21 of the 1st Military District.

22 MR. VASIC: [Interpretation] Nor did he know that the command of

23 the 1st Military District had set up a team that monitored, that followed

24 the evacuation in Vukovar. And the greatest mistake was perhaps that he

25 thought that the Zagreb Agreement had regulated the evacuation of

Page 16173

1 prisoners of war, which is actually inadmissible lack of knowledge of the

2 content of this document, so that his expertise, in our view, cannot be

3 taken into account as grounded in the judicial decision that will be

4 reached.

5 I shall now speak very briefly about what my learned colleague

6 referred to yesterday when we talk about the rules on the application of

7 the rules of International Law of War. I should just like to say that my

8 colleague forgot to attach Articles 1 to 4 of the rule in question.

9 Article 1 states that it is applicable only in the event of an

10 international conflict, so that the different modality has to be found in

11 respect of the content of these provisions that my learned colleague

12 invokes in this context.

13 And the second omission which he made is his claim that the war

14 log was -- was actually kept from the 1st of October to the 23rd of

15 November.

16 Now, it was actually kept until the 22nd of November, when the OG

17 South actually handed over the zone of responsibility to the 80th

18 Motorised Brigade. This -- this is -- this is something that you will see

19 from Exhibit 401, which is the war log.

20 And finally, and I believe that this is the last question and it

21 stems from your question yesterday, Your Honour, Judge Thelin, and it is

22 connected to General Aleksandar Vasiljevic and his presence in Vukovar, it

23 is the position of the Defence that there exists serious claims that he

24 was in Negoslavci also in the night between the 20th of November and the

25 21st of November, and that could also be concluded on the basis of the

Page 16174

1 testimony of Witness Karanfilov who states that on the same day when he

2 brought the Commissioner for Vukovar to Negoslavci and saw the buses in

3 the barracks and a group of locals around the buses that on that same day

4 in the evening General Vasiljevic came to the house where the security

5 organs were accompanied by General Tumanov. This is not an a customary

6 thing for two security generals to come on such a visit. There had to be

7 a very special reason indeed for that. If the statement of Karanfilov is

8 to be lent credence that that could have happened only on the 20th of

9 November, because it was only on that date that there were buses in the

10 barracks surrounded by people, and it was only on that day that he could

11 have taken the Commissioner from the barracks to Negoslavci.

12 Why can this be of consequence? Well, if the head of the

13 administration was the one who was deciding on the fate of the POWs and

14 who was in charge of the exchange for the Labredo [phoen] group, then he

15 could have decided the fate of the captives from Ovcara as well. But

16 whether he had indeed done so is something that we could not actually

17 verify because my learned colleague from the Prosecution actually chose

18 not to call General Vasiljevic as a witness although he had been on the 65

19 ter list.

20 After this assessment of the final brief and the closing arguments

21 of my learned colleague, I am drawing to a close and I will give the floor

22 to my learned colleague, Vladimir Domazet who will actually conclude the

23 closing arguments for the Defence.

24 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Vasic. The problem is we

25 have only five minutes to go for Mr. Domazet, so he will have to be very

Page 16175

1 short. Thank you.

2 MR. DOMAZET: [Interpretation] Your Honour, it seems that I only

3 have the time to say good afternoon. Unfortunately, I had envisaged about

4 40 minutes for my statement, so in the five minutes allocated to me, I

5 will have to pick and choose from it and say a few words that in view of

6 the fact that Mr. Vasic has left me some time to contribute to the Defence

7 statement myself, but I will have to abridge that as well.

8 As regards Vujic, I would like to say a few words about some very

9 important things that our learned colleague, Moore, also insisted on

10 yesterday and that has to do with coming from Velepromet on that night.

11 At that time he certainly could not have seen Colonel Mrksic, not only

12 owing to the fact that it was far after midnight when the commander was

13 already in bed and only the officer on duty could have been in the

14 operations group room, but also because of the fact that the witness's --

15 the testimony of Witness Korica is eminently clear to the effect that he

16 had come from Velepromet before Vujic had, because in contrast to him who

17 walked, he had come by car and that throughout that period while he was

18 there, that is, he didn't see Colonel Mrksic, so that Vujic could not have

19 seen him either, Vujic who came much later, and then he went together with

20 Korica, that is to say they all went to bed.

21 And just another thing. It is really totally illogical and quite

22 unacceptable that an officer of the kind of Mrksic would have listened to

23 those -- would have heard the words uttered here by Vujic without

24 responding to that in any way whatsoever. That is unacceptable. It is

25 unbelievable. It is improbable, because Vujic could not have really

Page 16176

1 fabricated a response to the briefing, to the reporting that never was, in

2 fact.

3 Regrettably I cannot dwell on this in any longer. I shall just

4 focus for a couple of minutes on the role of Colonel Mrksic himself to say

5 that at times it emanated here from statements that his role was solely to

6 look after or see about what would be happening with this group of 200 or

7 so prisoners. One should bear in mind that especially during those final

8 days the commander of the operations group had to look after several

9 thousand soldiers under his command, several thousand civilians who

10 demanded to leave the city after the combat had died down, with the

11 situation being as it was still very insecure. The town was mined. He

12 had many problems to address and solve.

13 And having said this, I should like to add that not a single piece

14 of evidence was presented here to the effect that during the morning when

15 the triage took place in the hospital, had commander Mrksic at any moment

16 been informed whether it had been carried out, how many people had been

17 included in the triage process, who the people were, and it is claimed

18 that allegedly he handed over those people to some government at a meeting

19 that has already been referred to here repeatedly, and I'm not going to

20 repeat that myself.

21 Just a few words in conclusion about Mrksic himself, who was

22 actually born in Croatia where he pursued his schooling and where he

23 lived. He finished high school in precisely Vukovar, and he pursued his

24 education, his military education, reaching -- attaining the highest ranks

25 for the most part of the time in this elite unit, the kind of that the

Page 16177

1 Guards Brigade was. He would never have attained such positions, and held

2 such ranks had anything been there to indicate in any way whatsoever that

3 this was the sort of person who could do anything bad to people of another

4 ethnicity, who could do anything wrong by them.

5 I should like to remind you that as an officer and as a human

6 being he was referred to by all the witnesses who were asked the question

7 and who took the stand here. He was referred in the nicest terms --

8 referred to in the nicest terms by all such witnesses as a person and as a

9 commander.

10 And finally, in contrast to many who held much lower ranks and

11 held much lower positions in these wars but managed to amass fortunes,

12 General Mrksic was retired and lived with his wife and three children,

13 three daughters whom he's still supporting, namely who are still living

14 off his pension, and in fact until he surrendered to this Tribunal he did

15 manual work at a market in Belgrade in order to make ends meet, which

16 actually shows best what kind of a person he is.

17 Unfortunately, I really have no time, and I can only reiterate our

18 submission, our proposal and our submission which is the Defence considers

19 that the Prosecution has failed to prove beyond a reasonable doubt that

20 the accused Mrksic has committed the acts that he is charged with, and

21 that the Defence proposes to this honourable Tribunal to acquit the

22 accused of all charges. Thank you.

23 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Domazet.

24 We will turn now to the Defence of Mr. Radic. Mr. Borovic has the

25 floor.

Page 16178

1 MR. BOROVIC: [Interpretation] Thank you, Your Honours.

2 Your Honours, distinguished colleagues from the Prosecution, I

3 shall start with a quotation by our great poet of Petar Petrovic Njegos

4 who said, "Fear of life often taints honour." And this is a principle

5 that Miroslav Radic often followed in his life and that is why he decided

6 to come forward and tell the truth before this august Tribunal so that the

7 Croatian public and the public in Serbia and elsewhere would know what his

8 role had been in this entire thing. And we should like to say that the

9 accused Radic and the defence of Radic condemn the heinous act and crime

10 at Ovcara as an appalling act and that we all share this feeling.

11 The indictment charges the accused with the violation of laws and

12 customs of war and crimes against humanity. In our final brief, we have

13 dealt with everything which is dealt with under Article 3 of the Statute.

14 The Prosecution's final brief submissions in detail as regards Article 3

15 of the Statute and as regards Article 5 of the Statute, we can only add

16 that the Defence feels, at the very outset, that the Prosecution has

17 failed to prove the allegations of the Prosecution beyond reasonable

18 doubt, that is to say, that the accused had been aware of the widespread

19 or systematic attack or of its context of a widespread or systematic

20 attack or that his actions were part of that attack.

21 In addition to that, the Prosecution, both in its case and in its

22 final brief, failed to prove that the accused was aware of the fact that

23 the Serbian forces had taken all settlements in Eastern Slavonia, as the

24 Prosecution claims. The Prosecution also failed to prove that Miroslav

25 Radic was informed or could have been informed or put on notice or was

Page 16179

1 aware that an attack of that nature was in progress. He, as a company

2 commander, came to Vukovar, was given a task which was limited to just one

3 street, and he carried out this task pursuant to the orders of his

4 commander.

5 The jurisprudence of this Tribunal has established that one has to

6 prove that the accused not only had an intention to commit a crime that

7 he's charged with, but also had to know that there was an attack on

8 civilian population. We heard the account of Miroslav Radic during his

9 testimony. Another thing that one also needs to point out is that he had

10 to risk at least to have his acts become part of that attack.

11 I don't think that any of these three elements which constitute

12 the elements of violation of Article 5 were proven by the Prosecution.

13 In paragraph 139, the Prosecution speaks about the initial

14 selection at the hospital on the 18th and 19th of November. Yesterday, we

15 heard an inspired submission by my learned friend, Mr. Lunny, who said,

16 with respect to this, what Dr. Njavro stated during his testimony. What

17 is especially curious is what was inferred concerning this witness. They

18 said that if the Chamber does not prove Dr. Njavro, then definitely

19 somebody from the Guards Motorised Brigade participated in this initial

20 selection.

21 The Prosecution also believes that if Dr. Njavro was wrong and

22 wrongly conveyed the fact concerning Dr. Dejanovic, then it doesn't mean

23 that everything else said by Dr. Njavro wasn't true either. The Defence

24 believes this is something that should not be ignored.

25 Every witness who took an oath before this court, who took a

Page 16180

1 solemn declaration, not only Witness P-024 concerning whom we requested

2 that an investigation be instituted against him, has to speak the truth in

3 front of every court, and this applies to this witness as well, regardless

4 of the fact that he was a minister of health of Croatia. His testimony

5 was discredited by the testimony of officer Karan, an honest officer, who

6 learned that Dr. Radomir Dejanovic was mentioned in this context and he

7 explained very explicitly to this Trial Chamber that he was the one who

8 asked Dr. Njavro whether he knew Dr. Dejanovic, and he said that he was

9 the one who did all the acts that the Prosecution wrongly attributes to

10 the accused Radic. He was captain of security organ, and without knowing

11 what Karan was going to testify, the Defence kept pointing out that Radic

12 was not a security captain, was not a member who belonged to

13 counter-intelligence service, which is something that Dr. Njavro claimed.

14 He said that he not only inquired about his friend Dr. Radomir Dejanovic

15 but also in front of this court he explained who the members of

16 Dr. Dejanovic's assembly were, how old he was, where he had studied and so

17 on.

18 We put to Witness Njavro that Dejanovic could not have gone to

19 school with Radic and that he had completed his college in Belgrade, that

20 he was 10 years older than Radic, and that on the other hand Radic had

21 graduated from the military academy in Sarajevo and that he was 10 years

22 younger. However, the intention to trick the Chamber to assist the

23 Prosecution or perhaps some other reason which we are unaware of,

24 motivated this witness to stand by his original claims. However, owing to

25 the conditions which this Trial Chamber created for the Defence counsel

Page 16181

1 and for the fair trial of their accused, we conducted an investigation,

2 and I will put this in very mild terms and say that Njavro was wrong when

3 he said that Captain Radic arrested him and took to Sremska Mitrovica.

4 Witness Karan said, I was the one who did that. I was the security organ

5 and I did that task in accordance with the law and this is something that

6 many other witnesses confirm. Then Dr. Njavro proceeds to say something

7 about the events with Ante Maric. He placed it in the context of acts

8 allegedly performed by Radic, and Witness Antic said, "I was the one who

9 spoke to him. I said, take off the yellow boots, because otherwise you

10 could have problems."

11 All of this are the elements which Dr. Njavro tried to place

12 before the Trial Chamber, but these facts were not true. So not only is

13 it not true that somebody from the Guards Motorised Brigade participated

14 in this election process and abused -- abused patients in the hospital,

15 but simply the Trial Chamber cannot rely on this witness because he did

16 not say the truth.

17 Now, Witness P-012, who on page of the transcript 3727/5, when it

18 comes to the date, when a witness said that he toured the hospital with

19 Kuzmic, Njavro said that it was Radic, whereas this witness says that I

20 know that this was a captain with a moustache. I could recognise him if I

21 saw him, and I saw this captain in the movie "100 Days of Vukovar."

22 Your Honours, we introduced that piece of evidence here which is

23 Exhibit 171. I hope that any dilemmas concerning this have been resolved

24 by the Defence, and perhaps this could be of assistance to the

25 Prosecution. Perhaps this could point them in some other direction when

Page 16182

1 it comes to this witness.

2 The Prosecution interviewed Dr. Radomir Dejanovic, and he said, in

3 order to round off the conclusion, he said, "I do not know Captain

4 Miroslav Radic."

5 In paragraph 144, on the other -- of the Prosecution, there is a

6 position put forward that Radic took part in the process of identification

7 and selection of the alleged criminals acting pursuant to the orders of

8 Sljivacanin. In order to support their allegations, the Prosecution

9 brought Witness P-030 to testify here. This witness, P-030, claims that

10 he heard, and this is the only sentence which several years ago placed

11 Captain Miroslav Radic in the context of joint criminal enterprise. The

12 Defence has succeeded, and I will explain this further, in establishing

13 that this witness didn't say the truth either.

14 Perhaps it is not a popular method to say of the Prosecution

15 witnesses that they did not speak the truth, but I apologise, Your

16 Honours. Except for Witness Njavro, all other Prosecution witnesses who

17 allegedly agitate -- aggravate the position of Accused Radic were

18 protected witnesses who hid themselves from the public. This is why the

19 public will never learn -- both the public in Croatia and the public in

20 Serbia will never learn about their testimonies. Even once the judgement

21 is handed down, the public will not know what evidence was adduced because

22 all of the evidence was adduced in private or closed sessions.

23 So this Witness P-030 claims that he heard, when Sljivacanin

24 said, "Captain Radic, search the people." We asked him and this witness

25 gave several statements concerning this fact and he said the following:

Page 16183

1 "This is a captain who had four stars on his shoulders. He was 35

2 to 40 old. He was 175 centimetres to 180 centimetres tall." It was put

3 to him that Captain Miroslav Radic at the time was 29. It also put to him

4 that he was 192 centimetres tall. My learned friend yesterday claimed

5 that this was the height of Sljivacanin. It was put to this witness that

6 he was a captain who had three stars, but normally he didn't have rank

7 insignia on his uniform, and a lot of witnesses testified to this.

8 We also showed a photograph showing him without insignia on his

9 shoulders. This was something that was not done during wartime. Rather,

10 a badge was worn with insignia. He did not have a beret on his head, no

11 kind of burgundy beret nor did he wear an olive drab uniform on the 20th

12 of November, 1991. We clearly stated, that on the 20th of November,

13 Miroslav Radic wore a camouflage uniform.

14 We heard how Witness 2D4 confirmed this and he also confirmed that

15 he didn't wear his rank insignia on his shoulders.

16 The witness -- the Defence impeached and discredited this witness

17 not only when it comes to him seeing Radic on the 20th of November

18 conducting the selection and identification, but he was also discredited

19 by the witnesses of Mr. Sljivacanin. Sljivacanin himself, in his

20 testimony before the Court, said that Miroslav Radic on the 20th of

21 November, 1991 at the time when the evacuation was conducted was not

22 present at the hospital.

23 Witness Simic, commander of the military police company, which

24 secured the evacuation, conducted the search of the prisoners, escorted

25 them to the buses and so on, said firmly before this Court under oath that

Page 16184

1 Captain Miroslav Radic was not present nor did he participate in triage,

2 search, or selection of the prisoners.

3 Paunovic, a witness who explained in detail his role at the

4 hospital here, when asked directly, said that Miroslav Radic could not

5 have had any role nor did he have any role considering that his military

6 police company was present or, rather, his subordinate company commander

7 Simic and himself.

8 We asked Simic directly whether Radic participated in this

9 selection process. He said on page -- or, rather, Paunovic said on page

10 14182/24. And then we asked Simic, since I as Defence counsel failed to

11 put this question directly to Paunovic, I asked him how old he was in

12 1991, and he said that he was born in 1956, which means that at the

13 relevant period of time he was 35. He was 175 to 180 centimetres tall,

14 which means at least that this witness could have seen Witness Paunovic

15 but definitely not Captain Radic.

16 When the search was conducted and triage and when the people about

17 were escorted to the buses witnesses such as Dragutin Berghofer were

18 present as were Witnesses P-031, Emil Cakalic, Witness P-009, and Witness

19 P-012.

20 His Honour Judge Parker enabled the Defence at the time to put to

21 the Witness P-030 other things that witnesses had stated according to the

22 rules which in force at the time. None of them heard anybody mention or

23 call out the name of Captain Radic. All of them stood together in that

24 group in front of the hospital some one to two metres away from Witness

25 P-030. My learned friend, Mr. Moore at one point in time, tried to

Page 16185

1 explain this before the Trial Chamber. A question was put to Berghofer,

2 and he said that it seemed that that man had no rank insignia. He was

3 about 40 years old. Whereas Witness P-031 said it was a lieutenant, a

4 lieutenant who conducted the search, and that same person was present in

5 the barracks and took out those 15 people off a bus.

6 The Prosecutor insisted for quite a while on this issue. You can

7 see this on transcript page 3240 to 3248, and in the end it was clear that

8 that was the same person that was a lieutenant. Naturally, nobody ever

9 mentioned Captain Miroslav Radic.

10 This Trial Chamber knows that the problem of identification is a

11 very significant one. The Prosecution pointed that out as well, and

12 rightly so. Namely, that we have to be extremely cautious when

13 identifying somebody in order not to harm somebody, especially not one of

14 the accused.

15 Witness P-030 was perhaps misled by the movie called 100 Days of

16 Vukovar when a different person was shown and the name Miroslav Radic was

17 constantly attributed to that person, and that was a different person in

18 that footage. Perhaps Witness P-030 had to state that before the Trial

19 Chamber because, and we mustn't forget that he was one of the persons that

20 was subjected to special investigation by Croatian secret police, SIS. I

21 think that Exhibit 300 deals with this. This exhibit was adduced. And

22 let me repeat here that this secret Croatian service managed to acquire

23 information, secret information, from this OTP, and OTP should be

24 concerned about this. They used this information in order to prepare some

25 witnesses, including Witness P-030, and naturally somebody had to confirm

Page 16186

1 the allegations in this hastily assembled indictment. They didn't manage

2 to do this in the end. I think that the Prosecution should have attempted

3 to word the prosecution in a different way and the aim of that indictment

4 should have been to establish the truth and ensure a fair trial.

5 Another allegation of the Prosecution has to do with selection and

6 boarding on buses. On the 20th of November according to the Prosecution

7 in view of everything that I have stated so far, Radic was together with

8 Sljivacanin at the hospital. The Prosecution says yes, but in a different

9 context. And we could have avoided this, because we knew the factual

10 situation.

11 Radic said the truth when he said that he was at the hospital, but

12 he went there later after the evacuation. He wore camouflage uniform. He

13 did not meet Sljivacanin. He wasn't present during triage, selection, and

14 escorting of the people to buses.

15 The Prosecution invokes the testimony of Witness P-018 who said

16 that he went with Radic to the hospital perhaps, but in that case the

17 Trial Chamber here has to believe Witness Radic, because a number of

18 persons I mentioned confirmed that Radic was not present during the

19 evacuation, and I think that this is what we should highlight.

20 On the other hand, if we only remember the testimony of Witness

21 P-002 and 022, we will see that these two witnesses spoke about (redacted)

22 (redacted) in order to see what

23 was happening at the hospital.

24 Witness P-002 stated here, when testifying, that upon arriving at

25 the hospital he did not see Miroslav Radic. He knows him well, and he

Page 16187

1 tried hard to aggravate his position in the trial.

2 P-022 claims that Captain Radic was with Petrova Gora and he sent

3 him to take P-002 to the hospital. At the very moment when P-002 and

4 P-022 were at the hospital, Radic was elsewhere altogether. The witnesses

5 we heard here and the witnesses questioned in detail by the OTP told us

6 about the process of the search, selection, and triage. It was our

7 understanding when looking at the rules that some of that business or the

8 involvement of the military security in some of the business or the

9 involvement of the military police, it would have been so illogical and so

10 lifeless to reach the conclusion that an ordinary captain of an ordinary

11 military police company in a complicated operation like this simply

12 strolled along in order to issue orders to members of the military police

13 and the security organ.

14 As for Radic's presence at the barracks in relation to Witness

15 P-030, the one and only witness causing a lot of harm to Miroslav Radic

16 because of these two arbitrary constructions that he put together, Witness

17 P-030 says that, again after a while, he saw Captain Radic in the

18 barracks, this time, however, wearing some sort of a leather jacket and a

19 Bordeaux dark red colour beret, a cap that would not have been worn by any

20 officer, let alone Radic. He said he was holding a list of names and

21 searching persons who were later taken or, rather, returned to the

22 hospital.

23 Another witness we heard was the accused Sljivacanin's deputy,

24 Ljubisa Vukasinovic. Vukasinovic says, "I am the one who put persons on

25 the buses. I am the one who took 15 people off the buses inside the

Page 16188

1 barracks according to a list that I had and sent those back to the

2 hospital." This was his duty. This was his mission. He was asked

3 directly if Captain Miroslav Radic had any part in this or indeed if he

4 had ever been seen at the barracks. The answer was a clear negative.

5 Witness Susic was heard as well. He exercised command over the

6 military police at the barracks. He never met or laid eyes on Captain

7 Radic in the barracks, not before this time, not at the critical time.

8 I'm not sure how to phrase this mildly. There is this attempt by

9 the OTP to perhaps speculate, I'm not sure if that makes any sense, but

10 I'm an at a loss for a better word. As for Vukosinovic's evidence and the

11 evidence of Witness P-030, those are not mutually exclusive they say

12 because Vukosinovic looked at three buses. There is obviously the

13 possibility that Radic looked at some other buses, they say. Vukosinovic

14 is crystal clear on this. "I'm the one." These people are honourable

15 witnesses who testified under oath causing themselves a lot of grief. He

16 says, "I'm the one who read the names off that list, took people off that

17 bus, and sent them back to the hospital." There is no dilemma involved

18 here. There is no possible interpretation that can possibly aggravate the

19 position of Miroslav Radic.

20 Bearing all of this in mind, and we did try to explain this in

21 some detail in our final brief, it is perfectly clear that Radic could not

22 possibly have been present when people were mistreated or beaten in the

23 hospital, in the barracks, or, for that matter, at a later time, if indeed

24 such a thing ever occurred within the hospital compound, within the

25 perimeter of the hospital. He could not have been involved in the

Page 16189

1 so-called reselection that occur later on at the hospital as posited by

2 the OTP in their final brief, in the presence of Miroljub Vujevic, a TO

3 member, which means that he could never have known since he wasn't there,

4 that the prisoners had been attacked or threatened in any way. I think

5 the evidence is self-explanatory and the Defence does not have the

6 slightest doubt about this.

7 As for the mistreatment and killings at Ovcara on the 20th of

8 November, this is something that the OTP addressed. The Defence denied

9 this from day one, denied Radic's involvement in any way. Radic never

10 found out, and I will address the issue more thoroughly at a later stage.

11 There is a special chapter dedicated by the OTP to the omission of the

12 Guards Motorised Brigade to intervene in the more effective way during the

13 evacuation of the hospital and the withdrawal from Ovcara later on. I

14 think Mr. Vasic addressed that in quite some length. This is about the

15 responsibility of the 80th Kragujevac Brigade.

16 The Radic Defence believes the following: This is a very serious

17 circumstance and Defence counsel, in any criminal case, find it very

18 difficult to say this. But the Prosecution have clear evidence against

19 certain people from the 80th Kragujevac Brigade. And I'm saying this, not

20 because I now wish to cause grief, any grief at all to someone else, but

21 because those people decided to side with the OTP. They're trying to now

22 glorify their own actions there at the time and some of these people

23 occupy very high-ranking positions in what used to be the army of

24 Yugoslavia and is now the army of Serbia. Whereas what I have here is a

25 petty captain who left the army back in 1992 and he was on a fast track to

Page 16190

1 a glittering military career yet decided to leave. Now he's supposed to

2 foot the bill for these omissions committed by people who had to take

3 better care of their own zone of responsibility. Vujnovic was the town

4 commander for Jakupovac, Ovcara, and Grabovo, all three locations. His

5 own man was the commander of Ovcara, a responsibility which he had

6 bestowed on him, and at the time in question, he was there. He witnessed

7 the mistreatment and the attacks. They had the knowledge. They had the

8 awareness that a crime might happen at Ovcara, but they ran. They ran at

9 2230 hundred hours that night. They simply got away.

10 In addition to running from the scene at 2230 hundred hours, and

11 in addition to saying that no crime had occurred before then, this is

12 directly denied by Witness P-022, who says that the crimes actually took

13 place between 1700 hours and later on. And he says he left for Petrova

14 Gora at 11, 12, or 1.00. If we respect the principle in dubio pro reo,

15 which means that in that case we have to favour the accused, we to have

16 lend credence to the theory that he was at Petrova Gora at 11.00 on the

17 20th of November. If, at 11.00, he was there and he doesn't know exactly

18 how he got from Petrova Gora back to Ovcara, which is what he says, then

19 we have to believe that he simply walked there, which means he had left a

20 lot earlier before the 80th Kragujevac Brigade abandoned Ovcara, before

21 Ovcara was abandoned by Witness P-022. Therefore, he could not have known

22 that a crime was in progress and was not himself involved.

23 At any rate, I will be addressing the issue, but especially later

24 on. In theory, that Radic had to leave with his company after 11.00 with

25 his company, in order to foil the killings is entirely unfounded.

Page 16191

1 Firstly, he didn't know what Witness P-022 claims he knew. Secondly, this

2 is the area of responsibility covered by the 80th Kragujevac Motorised

3 Brigade. They have their own military police company. He had no business

4 calling them over to their area of responsibility. This theory is

5 entirely unfounded and I'm not even sure what it stems from. One thing we

6 mustn't forget is this: If at 10.30 on the 20th of November, they ran,

7 they abandoned the area where the crime occurred, on the 21st of November

8 at 0600 hours, in the OTP's submission, and we have that in evidence, the

9 Vukovar TO was resubordinated to the 80th Kragujevac Brigade. Okay,

10 10.30, the time between 10.30 and 6.00 the following morning, they were

11 still at Ovcara in the yellow house because that's where the town

12 commander was, the Ovcara town commander.

13 They assumed responsibility de jure at 6.00 that morning. They

14 were the ones who were in a position to stop that crime from happening

15 firstly and, secondly, to -- to punish the Vukovar TO members because it

16 was de jure that they were resubordinated to them at 0600 hours on the

17 21st of November, that morning, therefore, these two major counts of the

18 indictment are easily challenged and they invoke the responsibility of

19 Captain Miroslav Radic.

20 The next important question is whether the crimes at Ovcara were

21 predictable. This is an important question for the Trial Chamber. The

22 OTP believes that the accused should have known about the reputation of

23 the TO for lawlessness. The OTP corroborates this by saying that the JNA

24 people had the duty to be informed about their own respective areas of

25 responsibility and their subordinates. Not a single company commander

Page 16192

1 actually has a zone of responsibility according to the doctrine. They can

2 act in concert in coordination. It is only from the battalion level up

3 that areas of responsibility are assigned and I think even the OTP experts

4 confirmed this. However, at the time when Radic was along the axis of

5 operations of his own company, not a single crime took place, even in a

6 layman's interpretation, which is to say, that it was some sort of area of

7 responsibility, meaning the location along the axis of operations of his

8 company.

9 Radic's blamed even for things that he did well, in the sense of

10 him being aware of the poor reputation of the TO, because Miroslav Radic

11 was involved in the fighting along the front line. This is entirely

12 unfounded. He was an honourable officer. He fought. He didn't shy away

13 from the fighting. He didn't hide in the surrounding villages such as

14 Negoslavci as some officers did. He was there. He stuck with his

15 soldiers. We heard evidence from people who were wounded at the front

16 line how he looked after them after the war. All of that was misused by

17 the OTP. Even Radic visiting the graves of some of the people who were

18 killed, it is quite clear he didn't know, even if some of those people had

19 been involved, why would he have visited them. This proves his innocence

20 if it proves anything at all.

21 Another thing about this, about Radic being aware of the

22 reputation, of the poor reputation of the TO is this: The OTP talks about

23 his friendship with Karanfilov. Incredible. I never found anything about

24 that. I've gone through all the transcripts. What the OTP could possibly

25 have had in mind, so my conclusion was this: Miroslav Radic himself was

Page 16193

1 in Negoslavci once in October back when he was wounded and that's in

2 evidence and then twice on the 13th and 14th of November when he came

3 there to get permission, authorisation that was to be signed by Momcilovic

4 for leave, extra leave awarded to him by Captain Stijakovic, the commander

5 of the 1st Motorised Battalion as a reward. I have gone through all the

6 transcripts. There is nothing, nothing at all to indicate that he and

7 Karanfilov if indeed they ever met at all and there is no evidence to show

8 that, that he and Karanfilov discussed the problems and the lawlessness of

9 the Vukovar TO. Therefore, these two conditionally speaking attempts by

10 the OTP to blame Miroslav Radic for this led to nothing in my submission.

11 As for the behaviour of the Vukovar TO prior to the 18th of

12 November, 1991, paragraph 178 we see this wording again, namely that the

13 Vukovar TO members were subordinated to Radic and that he accepted their

14 reputation -- the reputation of the TO and the volunteers in his

15 interview, an interview which has been exhibited and I will be addressing

16 that later. However these two are entirely erroneous premises which the

17 OTP have used as a foundation for their theory firstly the fact that these

18 people were subordinated to Radic and we shall prove by the end of our

19 closing argument that in fact they weren't. In our final brief and

20 through our case I think we have even succeeded in convincing the OTP to a

21 significant degree at least.

22 The thing is we heard about this interview given by Miroslav Radic

23 that he trained, as the interview claims, nearly 500 people but we also

24 heard a witness who was the chief of security of the 80 Kragujevac Brigade

25 whose last name is Vukosavljevic. He says that about 400 people from the

Page 16194

1 1st battalion or the 2nd of the 80 Kragujevac Motorised Brigade I'm not

2 quite sure at the very outset actually found themselves in the Petrova

3 Gora area. They were securing the area. They were enjoying some sort of

4 logistical support but they weren't at the actual front line and it is in

5 relation to them that Captain Radic is claiming that they were some of the

6 volunteers which at the stage one of the operation he helped to train.

7 Therefore these are not Vukovar TO members. These are volunteers from

8 Serbia, and unfortunately there were some of those in the area too.

9 The fact about indiscipline and Radic is this is not in relation

10 to TO. This is in relation to the volunteers. This tells us many things.

11 This first of all favours Radic as someone who had established a good

12 command climate which is again abused by the OTP on the other hand he

13 identified all of those who were a potential source of trouble.

14 Therefore, those who remained were not people who had criminal reputations

15 of any kind and there was nothing to suggest that those people would

16 suggest crimes. Unfortunately the Prosecution invokes Witness P-024 who

17 is a witness that I invoked at the outset. I said this witness had to be

18 prosecuted because of all the things that he did not only in Serbia but

19 also because of perjury that he committed before this Trial Chamber. He

20 says that there was a lack of discipline among Radic's men that there was

21 violence and that there was a generally known principle at the time. All

22 of the witnesses including P-022, P-018, OTP witnesses as well as all the

23 officers and soldiers that we heard throughout this trial are unanimous in

24 this. Radic was an honourable officer a serious officer a strict officer

25 and an honest officer. There is no doubt about this. Trifunovic of all

Page 16195

1 people spoke about this when questioned by the Defence about the command

2 climate. All of it in relation to evidence provided by OTP experts before

3 this Trial Chamber.

4 Why was P-024 assigned this kind of role? Well, the Defence is at

5 a loss. This is the greatest Tribunal of this kind in the world and our

6 belief is that credible witnesses should be brought before this Tribunal.

7 Witness P-024, I am not using his evidence. I am not abusing the patience

8 of this Court. But when we suggested he be prosecuted, the decision was

9 made that the Chamber would take into consideration everything that we

10 submitted in terms of documents when deciding on the credibility of this

11 particular witness, which means that I now have to remind the Chamber that

12 this witness was unfamiliar with fundamental concepts relating to the area

13 in which he was at the time. He said that in addition to the Leva

14 Supoderica Detachment there was the Desna Supoderica Detachment. Nonsense

15 we won't forget the notebook, the booklet, a photocopy of which he brought

16 along for his testimony which was a piece of forgery as simple as that.

17 Thirdly -- or, rather, on page 3 of the document there's a box where you

18 need to get stamp for the military post and there were some general stamps

19 there belonging to a local commune, some local commune rather, and I think

20 we used Witness Trifunovic to disprove that.

21 We then asked him about the original of that booklet. We can't

22 possibly use a photocopy as evidence in a trial such as this, especially

23 if that is the only thing that corroborates this document. And he simply

24 said that he had burned it. Why then did we seek that this witness be

25 criminally prosecuted. We showed him Exhibit 19 A. He said that at the

Page 16196

1 time he would meet Captain Radic on a daily basis as well as his own

2 captain Kameni. That he was his right-hand man virtually and we showed

3 him that photograph Exhibit 19 A and he simply failed to recognise his own

4 commander in that photograph which can only suggest that he lied to the

5 Court.

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 My learned friends failed to do a background check on him and see

17 that he -- that he was a convicted criminal. That says -- that speaks

18 volumes about his credibility. In paragraph 100 -- it 283, the Prosecutor

19 speaks about violence. They speak about the beatings outside Radic's

20 command post and the kills and beatings that took place across the road in

21 a house, as suggested by Witness P-018. That's where there was a

22 detention facility. That's what he says. So this was the theory put

23 forward by the OTP. P-018 claimed that there was this special building.

24 As concerns the Defence of Miroslav Radic, we asked all the

25 witnesses this very question even Witness P-022. In this street at

Page 16197

1 Petrova Gora was there any sort of detention facility or a house where

2 people were tortured? There wasn't a single witness to confirm that.

3 Quite the contrary. The witnesses were astonished to hear about this

4 fabrication.

5 Witness P-018, at any rate we cross-examine him, he said that at

6 Ovcara 1.040 people were killed he was he was there. The transcript

7 reference is 7564, 7565. However -- however, he also says that he was

8 furious, that he made up these statements as he went along. He denied

9 ever having been present at Ovcara and so on and so forth.

10 The Prosecution is submitting something that is entirely erroneous

11 and my learned young friend Mr. Lunny spoke about that yesterday, namely

12 that Radic was present when a Croatian POW was beaten by the Vukovar TO.

13 This is a fabrication that has been repeated many times. The witness

14 invoked is Witness P-022.

15 The Defence claims and this is easy enough to prove, that this was

16 no Croatian POW at all to begin with. Secondly, even according to the

17 submissions of Witness P-022 he wasn't in fact beaten by the TO or the

18 Leva Supoderica men but which the military policemen securing Tesic's

19 headquarters. This is the notorious addendum made by Witness P-022 -- the

20 addendum which additionally appeared just on the eve of his evidence here,

21 15 years later he remembers that a man was beaten up and that Captain

22 Miroslav Radic was cool as a cucumber, never raised a finger. This was

23 probably to back up his own false allegation that when people came from

24 Ovcara and told him about the crime he just shrugged his shoulders.

25 Why are we so convinced that this is perjury, that this is false

Page 16198

1 evidence? It is for the following reason Witness P-022, in the transcript

2 on page 4979/19, this witness says about this person who the OTP claim was

3 a Croatian POW beaten by members of the TO, "Radic told me to take him to

4 Major Tesic's HQ which I did. There were military policemen there and I

5 said this is a deserter, whereupon one of the military policemen struck

6 out at Krstic. Krstic hit him in the head, in fact. He then fell down

7 and was beaten by another four persons... I then went back to the

8 headquarters and reported this to Captain Radic." It is based on this

9 that you can see this was no Croatian POW and was not beaten by the TO

10 members.

11 Thereafter, on page T 5100/16 he said, "I, Radic, and Vidic saw

12 that and we watched it." So even in this construction there was no

13 reference to Miroslav Radic's being at the command post and he was not

14 being beaten by TO members.

15 Witness P-022, in connection with the Krstic case, as we called

16 it, to the question whether that had happened on the very same day when

17 Lieutenant Kostic had died in transcript 0999/4 says, "Yes," because it

18 was on the same day and only eight -- eight lines further on page 5099/16

19 he says "No."

20 After all, I'm not going to belabour the point. It is the

21 position of the Defence that this witness misinterpreted things proceeding

22 from misinterpretation of the military orders that were presented and also

23 that the testimony of this witness -- do I have more time before the

24 break? I'm not able to tell.

25 JUDGE VAN DEN WYNGAERT: The break should be around about now. We

Page 16199

1 had until five past, so you can go for a few minutes or if -- can we have

2 the break now or...

3 MR. BOROVIC: [Interpretation] Yes, we can have the break now.

4 Thank you.

5 JUDGE VAN DEN WYNGAERT: We will start again at five to 6.00.

6 --- Recess taken at 5.37 p.m.

7 --- On resuming at 5.56 p.m.

8 JUDGE VAN DEN WYNGAERT: Yes, Mr. Borovic.

9 MR. BOROVIC: [Interpretation] Thank you, Your Honours.

10 The next question is Seselj's visit to which the Prosecution

11 attaches more importance than I consider is warranted for the problem that

12 we have at hand in this courtroom and to his -- and his visit on the 13th

13 of November, as the Prosecution puts it to Radic's command post. Radic

14 did not have a command post, that we heard many times already. The

15 witness never actually said so in his note which we presented as evidence

16 and that note it is very interesting because we waited for 15 years to

17 appear before a Court, because that witness had taken the stand in many

18 other cases, and I'm not going to say which in order not to reveal his

19 identity.

20 There is a formulation there by Seselj to the effect that no

21 Ustasha can leave Vukovar alive. That is the way it was interpreted.

22 Until that note, that memo appeared and analysing it we actually

23 ascertained that what was written there was no Ustasha can get out, but

24 there is another formulation which says no volunteer can -- may leave

25 Vukovar. So that is another one there. So by a compilation of these --

Page 16200

1 JUDGE VAN DEN WYNGAERT: I'm sorry, Mr. Borovic, but I don't see

2 in the transcript a reference to the witness that you are referring to.

3 You may have said it, but I don't see it, or I overlooked.

4 MR. BOROVIC: [Interpretation] I will -- I was referring to the

5 Witness P-022, and his document which was led here as evidence. P-022 is

6 the witness.

7 I shall just say that the note makes no reference whatsoever to a

8 command post. What it does make reference to is the house of so-and-so.

9 In the note, and that was presented as a piece of evidence, 884, page 212,

10 the name of Captain Radic is not mentioned as the person attending the

11 meeting whereas it would have been logical for his name to have been

12 jotted down along with the other ones.

13 This witness tried to invoke colleagues Peternik and Prelic who

14 gave testimony before the court in Belgrade when the Defence stated that

15 they had -- when the Defence actually said that to them, to him, what they

16 had said, the only thing that he had to say is that these were insane

17 people, crazy people, and liars. However, what is of importance for this

18 Court, we have dealt with it in the trial brief, so that I'm not going to

19 go into detail but just the essentials.

20 On page 2005, the note says, "(redacted) is coming. He's arriving.

21 He is wounded." The witness Razvigor Virijevic, Mladen Maric, Milivoje

22 Simic, and Jovan Susic, and -- were asked by me whether officer (redacted)

23 had ever been wounded at the Vukovar front and they all denied that.

24 Then most interesting, which also undermines the credibility of

25 that alleged document is the part which is on page 199 of the notebook and

Page 16201

1 I should like to ask the Bench to take a good look at page 199 as well as

2 page 200 and that for the following reason: Because it shows that this

3 witness P-002, to whom greater importance is attached indeed, actually

4 inserted on page 200 Captain Radic without any context, and then he

5 subsequently added in a different pencil colour the name of Captain Radic.

6 He talks about the axis of operations where captain (redacted) is and

7 the captain -- the tank operator Ristic who he called Rile, and then on

8 page 200, after this name Rile, he just added in parenthesis Radic, and

9 then Rile is an abbreviation for Ristic. It is short for Ristic and Rile

10 is short for Radic. So obviously there was no mistake, but by

11 subsequently later fabricating this note, he inserted him in that

12 particular period 13th of November, while at that time, Radic was actually

13 in Negoslavci and that was the time when he went to Belgrade to get that

14 permit.

15 In our final brief, we submitted an analysis of all that he had

16 written there, and worst of all and to which the Prosecution -- in the

17 fact that the Prosecution devotes so much attention to this witness is

18 that this witness came to this Prosecution either of his own volition or

19 initiative or I don't know why and with the courtesy of our colleagues he

20 gave (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 16202

1 (redacted) people who come to give

2 false statements for money and at a certain time were ardent followers and

3 servants of the regime of Slobodan Milosevic. Well, I have to say that in

4 1991, in March, we were on opposite sides. I was at the helm of the

5 biggest opposition party in Serbia, and he was on the other side. So this

6 is something that the public has to know because those riots, those

7 demonstrations were the largest ones organised after the war because of

8 the writings in the regime's media and this person wrote for one of the

9 regime's papers. I'm not going to say which.

10 So five years later, after he had learned, as he says, of the

11 crimes of the 21st of November, and it had been his duty to report that

12 but he hadn't, but he waited for five or six years and then started

13 concocting the scenario in agreement with the OTP.

14 As regards the knowledge of the accused of the behaviour of the

15 Territorial Defence on the 18th and 19th of November, I shall try to be

16 brief. He said that Radic attended the evacuation from the hospital. He

17 claimed that patients in light blue striped pyjamas all clean-shaven and

18 very neat were all taken out. Dr. Vesna Bosanac didn't say -- didn't know

19 that the wounded and the sick had been dressed in that fashion, and she

20 confirmed that the army had first entered the hospital compound on the

21 19th of November, 1991, and this was confirmed by P-021, 20 -- 2D04,

22 Paunovic, Simic, and other witnesses.

23 We should not forget when the colleague from the Defence team of

24 Mr. Sljivacanin showed the argument between Sljivacanin and Borsinger on

25 the 20th of November, the witness, without batting an eyelash, said in

Page 16203

1 court that that had been a few days before that in Belgrade. He actually

2 lied, because he didn't know how to explain about Captain Radic, in what

3 unit he was or where he was, nor did he provide any evidence about what he

4 wrote. And when he was asked, on a map, Exhibit 156, to show where the

5 hospital was in Vukovar, he was unable to do so. And he actually

6 testified here to the fact that he was a psychiatric patient but did not

7 use drugs but discarded them. And then when we pressurised him with proof

8 that the actual evacuation was on the 20th of November and when we showed

9 him the photograph of the soldier, it was quite clear that this witness

10 did not know at all what had happened in Vukovar on that day. And as he

11 said, "I was with the JNA and someone is going to pay dearly for

12 everything that happened to me." And I believe that this is a position

13 that is not to be adopted by any witness who is to give evidence before

14 this Court.

15 Three, the knowledge of the accused about the conduct of the

16 Territorial Defence on the 20th of November, 1991, and this refers to

17 abuses and mistreatment of people. Actually, what happened in the

18 hospital and the barracks. And as I have presented the Defence's

19 position, I'm not going to go into detail.

20 As regards the knowledge of the Guards Motorised Brigade on

21 crimes, the OTP invokes P-022 and P-018, the witnesses, namely, that

22 Captain Radic had found out from witnesses what had happened, that he had

23 found out what had happened. He just shrugged his shoulders, said they,

24 Captain Radic, according to him, was actually in the next room and could

25 be -- was able to hear what was being said.

Page 16204

1 The Defence managed to prove that Witness P-022, who is the most

2 important witness in respect of this fact, according to the OTP, was

3 lying, was not telling the truth owing to this fact. He actually gave his

4 statement to the OTP as a suspect. He was told, "You are a suspect but

5 there will be no criminal proceedings instituted against you."

6 (redacted)

7 (redacted)

8 I'm going to just quote something he said to demonstrate that on

9 the 20th of November, at the critical time when the crimes took place, he

10 was not at Ovcara, irrespective of the fact that he -- he claims that he

11 was a killer and that he was at Ovcara. He said that the security of

12 Captain Radic took P-022 to hospital. He claims that on the orders of

13 Captain Radic he took Witness P-002 to the hospital, and he was asked how

14 long he stayed in the hospital, and then he said "about one hour.

15 Following that, I returned back to the headquarters, and on that day, Your

16 Honours, I remained within the staff sector."

17 Various dates were mentioned there, when it comes to the bringing

18 of Witness P-002 by Witness P-022 to the hospital, but what is the most

19 important for this Tribunal is that both of them stated that he was

20 brought to the hospital only once with the assistance of soldier P-022.

21 We went over what was supplied by the OTP, and we found video

22 footage, Exhibit 568 in this trial, and in that film, in that excerpt, we

23 can see Witness P-002 at the time of the evacuation.

24 I may have made a mistake concerning protected witnesses. I am

25 doing my best, Your Honours. All of them are protected witnesses with a P

Page 16205

1 and multiple 0s.

2 Exhibit 568. If both witnesses claim that they met only on that

3 day and were brought to the hospital only on that day, and Witness P-022

4 claims that Captain Radic remained at home or, rather, at Petrova Gora,

5 and that he returned and spent the entire day in the sector of the

6 headquarters, that is to say, Petrova Gora, then he could not have been at

7 Ovcara at 12.00 as he claimed here to the Trial Chamber.

8 What remains for us to do? We believe that this Trial Chamber

9 consisting of professional Judges should not allow, and I'm sure that they

10 will not allow themselves to believe this witness who was a blackmailed

11 witness without verifying the facts. (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 If we were now to try and verify the claims of this witness

19 concerning other two soldiers, it would be a futile attempt. The persons

20 that he mentioned as being at Ovcara were Jankovic and Vidacek. Both of

21 those witnesses are dead now and it's not a coincidence in my view the

22 fact that he decided to mention two persons who cannot support or

23 discredit his story, and by doing so he denied us the possibility to

24 believe him that following the crimes that he committed he went back to

25 Nova Street and told Captain Radic about the events at Ovcara.

Page 16206

1 Why shouldn't we believe him is fully -- is further supported by

2 the fact that he doesn't know when he came back, with whom he came back,

3 and what his most surprising is that he says he was in civilian clothes

4 with a rifle that wasn't a standard issue rifle.

5 Witness P-002 was asked the following: On that day, the 22nd of

6 November, when this witness that we are referring to now brought him to

7 the hospital, how he was dressed and what weapons he had, he confirmed

8 what he stated in the Belgrade Ovcara trial, namely that he had a

9 camouflage uniform, an M-72 automatic rifle on him. On the same day at

10 the same time that we're referring to now I think that in this instance

11 Witness P-002 should be believed.

12 We heard from Witness P-022 that he killed in front of the hangar

13 from 1700 hours onwards. He said that there was a hall in front of the

14 hangar, and there is not another witness who was at Ovcara whom I failed

15 to ask, including the colonel who conducted sanitization following the

16 war, whether any traces of a hall in front of the entrance into hangar

17 were found, and this colonel said very graphically, "No. I only saw

18 soil."

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 THE INTERPRETER: Microphone, Your Honour, please.

24 MR. BOROVIC: [Interpretation] I truly apologise. Can we move into

25 private session, please.

Page 16207

1 JUDGE VAN DEN WYNGAERT: Private.

2 [Private session]

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 [Open session]

17 THE REGISTRAR: We are -- we're back in open session, Your

18 Honours.

19 MR. BOROVIC: [Interpretation] As for Witness P-018, we brought

20 witnesses Stijakovic, Vuckovic, Zirojevic, and Tesic to contradict him,

21 because during the critical evening Radic on the 20th evening attended

22 dinner at Vuckovic's. It is true, and later on I will speak about this.

23 For the second time Witness P-002 spoke the truth. Contrary to

24 Witness P-022, he said on the 20th of November in the evening he was at

25 home with Nada and Stanko and that evening Radic did not come home.

Page 16208

1 As for the 21st of November and what Witness P-002 told us about

2 that, from the note we were able to establish that there never existed any

3 command post. Rather, there was a house, Nada and Stanko's home, and this

4 witness never asked Captain Radic directly about murders at Ovcara. In

5 cross-examination when we cornered him specifically about what he had

6 asked Captain Radic, he answered, "Well, that." "Question: What that?"

7 This is not something that could be taken as serious indication

8 that he truly asked Captain Radic about what had happened at Ovcara.

9 Following that, we tried to verify his claims and he provided three

10 versions to us. Number one, that he asked him at the same time as Stanko.

11 Then the second version was that he asked him later on when he met him in

12 passing no less. And the third version was that he thought that it was

13 either that evening or the following evening.

14 When comes to such an important fact, we are not convinced, we do

15 not have evidence that proves beyond reasonable doubt that he indeed asked

16 Captain Radic about it, especially since we provided evidence to the Trial

17 Chamber that on the 21st of November Radic had an inspection of his

18 company conducted by Stijakovic deputy commander of the 1st Motorised

19 Battalion. This is further proven by Zirojevic, Stojanovic, Vuckovic and

20 Stijakovic naturally.

21 This witness attempted to show us that he spoke the truth, and he

22 even offered to confirm this in writing, and he invoked two witnesses to

23 support this. One was the volunteer Daca, and the other one was Slavisa

24 Pavlovic from Smederevo. Your Honours, this is a tried and trusted recipe

25 used by false witnesses. He again attempts to rely on two dead persons.

Page 16209

1 We cannot verify whether he indeed spoke to these people. Both of them

2 are dead.

3 When we cross-examined him about his notes, especially about

4 Slavisa Pavlovic, we asked him when he wrote down the name of Slavisa

5 Pavlovic. Witness P-002 said, "I wrote that in later on because

6 Aleksandar Vasiljevic told me the name of that person."

7 Do you see the absurdity of this, namely, that the general of

8 Yugoslav People's Army told him the name of a volunteer from Smederevo

9 five years after the fact, and he never saw this person. Can the Court

10 really rely on this?

11 And what is the worst thing about this witness, which undermines

12 his credibility, is that he made a lot of notations later on and then

13 corrected them. We spoke about this in our final brief. And when it

14 comes to the crimes at Ovcara, it says that he asked Stanko, "Why didn't

15 you do this in a more discreet way?" Can you believe the attitude of this

16 witness, who in 1991, approved a crime that was committed against innocent

17 people by asking, Why didn't you do it in a more discreet way? He never

18 reported this to anyone, and then later on he moved to an opposition

19 paper. Why did he do it? Because he wanted to make money. That idea

20 occurred to him. He lied, and somebody will be held responsible for this,

21 I hope.

22 Now I will speak about the responsibility of the accused, because

23 this is of greater interest to the Trial Chamber than the issues that I

24 spoke of just now.

25 If we are dealing with joint criminal enterprise -- now that we're

Page 16210

1 dealing with joint criminal enterprise, Your Honours, the Prosecution

2 claims that Mrksic, Radic, Sljivacanin together with other members of the

3 joint criminal enterprise had a plan to persecute Croats and other

4 non-Serbs present in the Vukovar Hospital. They list three things, three

5 points which I'll link to this Prosecution plan. Number one, that Mrksic

6 designated Sljivacanin as the person in charge of the evacuation of the

7 hospital; two, that the evacuation was conducted before the arrival of

8 international observers; and three, and this is something to do with my

9 client, namely, that the triage and selection were conducted with the

10 assistance of Radic, officer of the Guards Motorised Brigade.

11 Your Honours, Miroslav Radic did not participate in creating any

12 sort of a plan nor did he participate in selection, search or triage.

13 This is something that witnesses Sljivancanin, Simic, Paunovic,

14 Vukasinovic, and Karan speak about.

15 The Prosecution claims that the crimes were within the objective

16 of joint criminal enterprise and that each of the accused had intention to

17 carry out these crimes, or one of the crimes. The Prosecution believes

18 that there had to be joint act, and that is true, but other participants

19 of joint criminal enterprise listed by the Prosecution, specifically,

20 Miroslav Radic as company commander had no joint action with any other

21 members of joint criminal enterprise as defined by the Prosecution. He

22 had no plan involving members of the Vukovar TO, nor did he in any way

23 share the intention to execute that plan, to implement it.

24 I regret the fact that some honest witnesses testified here and

25 told the truth and the Prosecution misinterpreted that in their final

Page 16211

1 brief. The joint plan was to persecute Croats, and crimes for which

2 Miroslav Radic is charged with are part of that plan. Now the Prosecution

3 are saying, if they were not part to a joint plan, then alternatively it

4 was foreseeable and that Radic took the risk or accepted the risk.

5 However, I'm now repeating myself, and I'm doing that only because in the

6 OTP final brief, these issues mention several times. He was not present

7 at the hospital during the evacuation. He did not go to the barracks at

8 all, and he was not at Ovcara at all. So it is quite clear that he could

9 not have persecuted Croats. He had no joint plan, no joint action, and

10 that he wasn't able to carry out murders, torture, inhumane treatment, or

11 treating inhumanely prisoners at the hospital, in the barracks, and

12 Ovcara.

13 It is quite clear that in the alternative of what the Prosecution

14 is saying, if there was no joint plan, Radic wasn't able either to foresee

15 what was going to happen, nor did he voluntarily accept to participate in

16 the crime.

17 As for the earlier plan concept, the one mentioned by the

18 Prosecution, in order for the joint plan to materialise, there need not be

19 previous preparation, and this can stem from some facts. Theoretically,

20 this is true. However, the Prosecution claims that the first steps aimed

21 at persecuting Croats, torturing and killing prisoners, began before the

22 19th and 20th of November, 1991. They mostly speak about the status of

23 Sljivacanin and Mrksic in that regard and devote less intention to Radic.

24 As for the Territorial Defence of Vukovar and members of the joint

25 criminal enterprise, I will speak very briefly about that because I will

Page 16212

1 devote most of my attention to what the Prosecution insisted on most,

2 namely, that they were subordinated to Captain Miroslav Radic which is not

3 true. So the status and participation in joint criminal enterprise is not

4 something that is of interest to the defence of Miroslav Radic.

5 The Prosecution claims that Radic and units subordinated to him

6 contributed to the commission of the crime. Why did I say that I wasn't

7 going to speak of this in detail? Because the Prosecution keeps saying

8 that Radic and units subordinated to him participated in triage, and then

9 that Radic was seen at the barracks together with Sljivacanin and that he

10 sent at least three soldiers to Ovcara.

11 Radic's intention to work together with the co-accused and other

12 members of the joint criminal enterprise in order to achieve the joint

13 plan and goal boils down to triage and beating of the people in the

14 barracks and at the hospital, and then they go on to say that Radic was

15 aware of this beating and torture.

16 We deny this fully, and we base this on the facts that we pointed

17 out during our case and the fact that he wasn't present in these places at

18 the time.

19 It is said that Radic omitted to act when the three soldiers got

20 back, that's the third circumstance. And he was aware of this goal, and

21 he was aware of the secret evacuation. They said units were never

22 subordinate to Radic. It is the position of our Defence that Radic never

23 sent any soldiers to Ovcara and therefore he could not have been aware of

24 the killing or the beating that took place at Ovcara.

25 The OTP also states that the international observers were banned

Page 16213

1 from entering the hospital. My colleagues have addressed that, and I

2 won't be repeating it. What is important for this context, speaking of

3 the knowledge of the accused, any knowledge that the accused may have had

4 of the violent behaviour by the TO prior to the hospital evacuation, the

5 OTP claims that Radic should have known about this information from the

6 1st Military District because according to the chain of command he should

7 have found out from Tesic, but we have seen no evidence to corroborate

8 this.

9 Again there is a reference there to his friendship with

10 Karanfilov. They had spent four years together at the military academy,

11 but they weren't the only ones. There were plenty of friendships there.

12 So this is an encounter -- or, rather, this meeting where the TO was

13 supposed to be discussed never materialised. It's as simple as that.

14 As far as his involvement in the joint plan is concerned, for the

15 most part the OTP rely on the briefing in Negoslavci on that day. So if

16 that's the case it's quite obvious, isn't it, that Radic, if he was

17 involved in the joint criminal enterprise at least he would have turned up

18 at that meeting in Negoslavci where Mrksic was present, Sljivacanin and

19 everybody else who made up the command structure so to speak.

20 The Prosecution is trying to -- to sort of pin on Mr. Radic that

21 he was in Negoslavci at least that once or twice when he went there to get

22 the permit so that they may be able to place him in the context of

23 knowledge of the plan in some way. Radic did not additionally contribute

24 to that plan since he didn't know, and therefore he could not have been

25 involved in the selection at the hospital. He could not have been in the

Page 16214

1 barracks. He could not have seen what happened there. He didn't know

2 about the government meeting. He was never at Ovcara. And I think the

3 Defence has been successful in proving this.

4 My learned friends addressed in a particular way the question of

5 intent. Intent is something that matters a lot in this legal framework.

6 They said that the accused shared a joint intent, and then again there are

7 allegations that Radic participated in the beatings on the 18th of

8 November, that he was involved in the selection process at the barracks

9 and in the hospital. Some witnesses are named. However, the OTP have

10 never succeeded in proving that Radic had an awareness of this to begin

11 with, and nobody reported to him. There was talk of three soldiers, but

12 he never sent anyone there to begin with.

13 I'm not dealing with this any more because this is very repetitive

14 and it's all about three particular circumstances and three places where

15 Radic had no role to play, leaving him allegedly in this really serious

16 story. But since the OTP have provided no serious evidence, I won't be

17 dwelling on this individual criminal responsibility 7(1) and 7(3).

18 Radic was aware of the threats being made to prisoners. He was

19 aware of the reputation, and he was able to predict what would happen.

20 That's what the Prosecution claims when quoting P-016 and the alleged

21 statement made by Radic "These are dead men." But the timing is not right

22 and the witness cannot trusted. Therefore, Radic's awareness is not

23 corroborated. That is our submission. Therefore, Radic could not have

24 prevented any mistreatment in the barracks in the hospital or at Ovcara

25 itself.

Page 16215

1 As to the actus reus, in relation to 7(1), the OTP claims that

2 Radic aided and abetted the principal perpetrators of the crime by being

3 involved in the mistreatment in taking victims away from the hospital and

4 being involved in the selection process in the barracks and again we're

5 back to square one, these issues of responsibility. Radic is aiding the

6 principal perpetrators and then there is special focus given to the

7 selection process to him aiding Sljivacanin with the selection process.

8 There is a reference to Njavro, to Anto Aric and the Defence believes that

9 none of this requires any further comments at all.

10 In terms of individual responsibility, Article 7(1) cannot even

11 exist. Radic was not involved in the reselection in the JNA barracks. As

12 for the theory that Radic allowed regular soldiers to be involved in the

13 crimes at Ovcara. Well, even if we look at the evidence of that

14 particular witness, there is nothing to indicate that he could possibly

15 have had this sort of intent or for that matter an awareness of what might

16 happen at Ovcara even if you take that statement, even if you see it in

17 the most favourable light, it can't be used as evidence to show this, and

18 it must be proved beyond reasonable doubt which it wasn't. It has not

19 been that Radic was involved in a joint criminal enterprise or indeed that

20 there was some sort of coordinated cooperation between them as

21 co-perpetrators.

22 By this very fact we have to address the question of mens rea

23 about Radic knowing that by his acts and omissions he was contributing to

24 the joint criminal enterprise. This is not true. Radic was not in the

25 hospital. He was not in the barracks. He was not familiar with the

Page 16216

1 criminal propensity of the main perpetrators. He was not involved in the

2 selection process in the hospital. He was not involved in the

3 mistreatment on the 18th of November. He was not present in the barracks

4 when those 20 people were taken off that bus. He had no intention of

5 committing any sort of acts of discrimination along any ethnic, religious

6 or racial lines -- no discrimination whatsoever. Nor have the OTP been

7 able to prove anything at all to that effect.

8 The OTP have not succeeded in proving that the accused had the

9 sufficient mens rea in terms of knowing that his own actions would

10 contribute to the commission of a crime or indeed that he was aware of the

11 exceptional likelihood that his own actions might contribute to the

12 commission of a crime.

13 As for Article 7(3), we're speaking here about effective control.

14 This is a very important issue. The OTP claims there was both de jure and

15 de facto control. The Defence took issue with that -- that Captain Radic

16 had effective control over the TO on the Leva Supoderica Detachment. I

17 would like to particularly draw your attention to the 10th of November,

18 1991. The OTP had the ambition obviously in their final brief and I must

19 address this specially to use legal and doctrinal documents to invoke

20 certain witnesses in relation to this issue of effective control. Above

21 all as for any legal and doctrinal regulations, such as ones invoked by

22 the OTP, we would like to say this: It is certainly true that in

23 Yugoslavia and in the SFRY that is, there were such legal and doctrinal

24 regulations that existed quite independently of the influence of Miroslav

25 Radic but he as a company commander was duty-bound to apply those.

Page 16217

1 Secondly, in the armed forces of the SFRY there was a well-established

2 system of control and command. This existed quite independently from any

3 influence potentially exercised by Miroslav Radic. He was duty-bound to

4 comply with that system, the system already in place. Radic was sent to

5 Vukovar. There was nothing he could have done about that. There was

6 nothing he could have done about the mission given to the Guards Motorised

7 Brigade, the 1st Motorised Brigade and his own 3rd Motorised Company.

8 Facts have been proved beyond doubt if we look at the OTP

9 witnesses and the Defence Witness Forca. The following facts: The TO was

10 organised from the lowest possible level and then up to the republican

11 level. There was the municipal TO, municipal Vukovar TO at a certain

12 point in time. It split up into the Serbian faction and the Croat

13 faction. The Serb faction was the one that -- or rather, the Croat

14 faction was the one favouring secession from the SFRY and not in favour of

15 siding with the JNA in order to preserve the unity of Yugoslavia. What

16 has been proved as a fact is that a TO detachment is the highest-ranking

17 unit of the TO within its territorial structure. Expert Theunens should

18 know that this is a huge force in terms of manoeuvring power to be

19 employed in a small area like that.

20 The existence of the TO is beyond doubt even prior to the arrival

21 of the Guards Motorised Brigade in Vukovar, Your Honours. This is

22 confirmed by a written order on lifting the blockade and attacking Exhibit

23 405 issued by the commander of the Guards Motorised Brigade, Mrksic, the

24 1st of October 1991. If you look at item 3 of that order there's

25 reference there to neighbours. There's a store called the Vukovar

Page 16218

1 Territorial Defence who were neighbours. They had four companies. They

2 had good equipment. They were armed and they had their own logistic

3 support. The rules of combat, rules of engagement that prevailed in the

4 JNA and I think this is very important for our purposes are the rules in

5 relation to the battalions, platoons and companies and these rules say in

6 no uncertain terms which unit can be used to reinforce which other unit

7 within the structure of the JNA, which unit is used to reinforce which

8 other unit in the JNA. And then if you look at the rules in relation to

9 the company and platoon and in relation to motorised companies all it says

10 is that there could have been an element from that company, a platoon

11 specifically, and this could have been reinforced by a unit of the

12 Territorial Defence but not a company in its entirety. It was not

13 possible for an entire TO detachment to be attached to a company. That

14 was out of the question.

15 As for the established system of control and command and the OTP

16 expert says it was almost at NATO level that it was very good and

17 well-established. It's very easy to conclude that within that system of

18 command Mrksic and all the other superior commanders were familiar with

19 the provisions of this rule. They knew full well which units could be

20 attached to which other units and this rule was very much applied in

21 everyday practice. As for temporary units, temporary formations such as

22 Operations Group Assault Detachment and Assault Group there is no

23 doctrinal rule among those invoked by the OTP saying that a company could

24 be used in the role of an assault group. There is no rule anywhere to

25 suggest that possibility. At any rate let's try to imagine a single

Page 16219

1 street in Vukovar where operations were in progress. There were

2 buildings, there were streets. The witness told us all of that. You

3 couldn't fit a company into that one street with a Territorial Defence

4 Detachment attached. There could have been only one group. This is

5 settled area after all teeming with houses.

6 As for command of the armed forces in the SFRY what is accepted

7 there is the right to decide to give orders and to exercise control. A

8 person is appointed to give orders and exercise control and whoever that

9 person happens to be is also in command. I will now, briefly, reflect

10 upon several important points raised by the final brief of the Prosecutor,

11 such as 36 saying that each Motorised Battalion of the Guards Motorised

12 Brigade numbered an average 700 people. This is simply inaccurate, simply

13 because the Motorised Battalion was the first to march into Vukovar with

14 428 people.

15 When in item 41 they say that Radic was the commander of the 3rd

16 Assault Group, just one example. I'll use just one example to prove that

17 that is simply not true. P-022, on page 5000/18, when he speaks about

18 Jankovic, he says the following, "His son's name was Miroslav. He was

19 Miroljub's deputy. When Miroljub was wounded, Major Tesic appointed him

20 to be in charge of the Territorial Defence unit along the axis of our

21 company. There are three things that are important here, there is this

22 appointment by Tesic, not by Radic, at the head of any assault group

23 whatsoever. Right, they are being led by Miroslav Jankovic of the TO, not

24 by Radic. And, thirdly, they are along the axis of operations of our

25 company, along the axis of that company, but not actually as part of that

Page 16220

1 company, not absorbed by the company."

2 At 46 the OTP claims that Radic had a command post. There was no

3 such thing. We know that. There was an observation post. And there's a

4 huge distinction in terms of their structure between a command post and

5 observation post; these are two different concepts. Thirdly, company

6 commander commands his company from a combat disposition and the

7 observation post is always where the company commander is. There's also a

8 place where he rests, it's called observation post. Therefore, there can

9 be no such thing as a command post. All can be or, rather, it can only

10 exist, such a thing as command post, from battalion level up.

11 At 54 of their final brief, the OTP claims that the assault

12 detachments were established on the 15th of October, 1991, and that they

13 were reinforced with units of the Vukovar TO. That's not true. That's

14 what they say. The first attachment ever of the TO Petrova Gora

15 Detachment to the Assault Detachment 1 occurred on the 29th of October

16 1991. Secondly, by using the previous analogy, it is simply incorrect

17 that Radic was in command of the 3rd Assault Group or that it included

18 Leva Supoderica and Petrova Gora.

19 Thirdly, this is item 54 in the final brief. It doesn't mean that

20 operations group south was responsible for any logistics support to the

21 TO -- to the Vukovar TO Detachment because it was already enjoying such

22 support as pointed out earlier. There is the order "strictly

23 confidential" 235-1 by OG South for an extension of the attack against

24 Vukovar dated the 29th of October, 1991, and we're fully familiar with it

25 by now. It says, the Leva Supoderica, Petrova Gora detachments were among

Page 16221

1 the forces included in JOD 1, full stop. But it was Tesic and not Radic

2 who was in charge of JOD 1 and that's the essence of it.

3 Item 55. The OTP claims that Witness Vuga is right when he says

4 some important things about resubordination. In order to have

5 resubordination, you need to have a written order. We do accept that to

6 be a fact. I would like the OTP now to produce, for my benefit, a written

7 order on the resubordination of the Vukovar TO and Leva Supoderica to

8 Radic's 3rd Company. Can they please do that for me. There is no such

9 thing; it doesn't exist, therefore, this act of resubordination never took

10 place.

11 Item 55 makes reference to Colonel Trifunovic. Makes reference to

12 a lot of things really, but the OTP are trying to avoid saying what

13 Trifunovic said before this Chamber, namely, that Borovoje Tesic and

14 Borovoje Tesic alone was in charge of Leva Supoderica and Petrova Gora.

15 Tesic reported to him and that's how they were recorded in the war log.

16 He reported to him and he submitted reports to him on behalf of the TO and

17 Leva Supoderica not Radic.

18 At 55, the only thing that can be true is the very last sentence

19 about the earliest resubordination of Leva Supoderica and Petrova Gora but

20 by the Guards Motorised Brigade and towards other units. That's what I'm

21 saying by the Guards Motorised Brigade and not some other unit and

22 especially not by Radic. That's what it says.

23 Radic's commander was Tesic, item 56. Mrksic enabled Radic to

24 exercise command. Mrksic never made a decision in relation to Radic

25 directly, never. He never gave any orders to Radic whatsoever, nor did he

Page 16222

1 exercise any control over Radic. He was not a -- he was not under Mrksic;

2 he was under Tesic. At 55B, the OTP claims that Mrksic appointed Miroljub

3 Vujevic as Vukovar TO commander. If we accept that logic, it seems quite

4 ambiguous then who the Vukovar TO could have been subordinated to.

5 Item 61. They arbitrarily claim that Leva Supoderica and Petrova

6 Gora were subordinated to Radic. If this started at the latest, why the

7 15th of October, 1991 and it was not concluded by the 21st of November,

8 1991. That's what the Prosecutor claims. This is an absolute untruth.

9 We have the decision of the commander of OG South dated the 15th

10 of October, 1991, which shows that the Leva Supoderica Detachment is a

11 neighbour of the 1st Motorised Battalion, the Leva Supoderica Detachment.

12 There's no reference to it whatsoever. On the other hand, there is

13 nothing in writing such as I spoke about a while ago, something that the

14 OTP would like to see, nothing on paper to show that they were

15 subordinated to Radic. Particularly erroneous is the statement that Leva

16 Supoderica and Petrova Gora were subordinated to Radic. This error is

17 made particularly in item 63 in a bid to introduce what Radic himself

18 stated in that interview. Radic could have been boasting for example. I

19 explained the statement. I explained what Vukosavljevic statement was

20 about those 400 persons. But if they believe Radic's interview, why do

21 the OTP refuse to leave Radic at this trial, when he says he was not the

22 commander of Leva Supoderica or Petrova Gora.

23 Thirdly, and most importantly, the TO Detachment. The TO

24 Detachment could not have been subordinated to a company commander

25 especially not to detachments like that because a detachment is a much

Page 16223

1 larger unit with more manpower. We can corroborate that by Stijakovic's

2 diary. He says he arrived at Vukovar with 428 soldiers and officers and

3 this is very important. If you count them all up, all those who came with

4 the battalion, the volunteers and the reserve officers, that totals about

5 500 persons throughout the duration of the Vukovar operation. The fact

6 that this is not about Leva Supoderica and Petrova Gora can simply and

7 unequivocally be proved by comparing the diary produced by Stijakovic with

8 the war diary war log of the Guards Motorised Brigade; namely, the

9 greatest number of volunteers and reservists who were mobilised drafted

10 into the 1st Motorised Battalion came between the 26th and the 29th of

11 October, 1991, which is consistent with the war diary or war log kept by

12 OG South.

13 This detachment, therefore, was attached to JOD 1 to Tesic, not to

14 Radic. As for the interview, lest I forget, I think it's important for me

15 to point out what the headline is over that interview. The principal

16 headline is, "I am sick of war." That is Miroslav Radic's view. There's

17 that one sentence that the OTP's theory has been resolving around for a

18 year or more. We haven't been able to check it. Even if it had been

19 checked, I explained about why 500 people and what it meant. Radic goes

20 on to say that all conflicts should be resolved in a peaceful way and that

21 he's sick of war and that he wants peace and that is why he was the only

22 officer who is active in Vukovar who left the army back in 1992. That's

23 how he feels about the war, that's how he feels about the crimes. That is

24 something that this Trial Chamber needs to accept and bear in mind when

25 trying to assess the interview. I think all other written evidence is far

Page 16224

1 more important than this single interview and a sentence entirely torn out

2 of context.

3 The responsibility or the command climate, again, a

4 misinterpretation by the OTP. Radic was disciplined, he was responsible.

5 It is strange indeed that the OTP talks about those three soldiers, item

6 65, that Radic was in command of, as they say, by corroborating the fact

7 that Radic was in command of Leva Supoderica and Petrova Gora, but

8 refusing at the same time to lend credence to Stijakovic, Tesic's deputy

9 or Trifunovic. Stijakovic. But also the company commanders Vuckovic and

10 Zirojevic unequivocally stated that assignments were given to company

11 commanders by -- were handed out to company commanders by Tesic and to TO

12 commanders as well. Those were handed out by Tesic, too, to Jaksic first

13 and then later to Vujovic. Is this something that Jakic told us. When we

14 were at the command post of the 1st Motorised Battalion, special

15 assignments were handed out to company commanders. We got our own

16 assignments, but I exercised command over my own company commanders

17 because the Territorial Defence and those four that I mentioned.

18 At 67 of their final brief, the Prosecutor is trying to show how

19 they're really familiar with the doctrine. They think they know the

20 doctrine behind the armed forces of the SFRY, the principles of command

21 and control. And they say that on the 29th of October, 1991, this

22 doctrine was to the effect that all forces operating in the same area were

23 to be subordinated to one and the same commander, to a single commander.

24 I would like to read more slowly, but I don't have the time.

25 This is beyond dispute. The commander of the Vukovar operation

Page 16225

1 was Mrksic, the commander of OG South. In the sector of the first JOD, it

2 was Tesic. It is in this context that the position should be interpreted

3 against that kind of background. At 68, the OTP claims that Radic was in

4 command of all units along his axis of operations. That's quite correct.

5 All of his own units and he was coordinating this operation with other

6 units of the TO but he was not in command.

7 At 71 of their final brief, the OTP says that Radic admitted that

8 he was the only officer who had completed the military academy. He

9 assumed the duty and responsibility of planning combat operations. A

10 company is not the level at which combat operations are planned. Planning

11 operations is the highest military level. This is done at an operative

12 and strategic level. Radic may have drawn some sketches and diagrams,

13 coordinated signals and -- and general activities, this wasn't tantamount

14 to planning operations, nor did he have a command post.

15 There were no regular meetings, no such meetings were held. Radic

16 was never recorded in the war diary. It was the name of the JOD commander

17 that was recorded and so on and so forth.

18 Radic was not in command of the Leva Supoderica and Petrova Gora

19 detachments and the confirmation of this can be found in the diary of the

20 1st Motorised Battalion by Stijakovic.

21 Secondly, the decisions by Mrksic on the 14th and 16th of November

22 are pretty clear. There is a clear distinction between JOD 1 and the 1st

23 Motorised Battalion. What that distinction implies is other missions, new

24 missions, new activity along different axes.

25 At 83, about Mrksic's order, dated the 14th of November, it is

Page 16226

1 unequivocally clear what JOD 1 means. Mine is the 1st Motorised

2 Battalion. This means an explicit order from the commander of OG South to

3 split up the 1st Motorised Battalion and the remaining forces, the

4 remaining forces being Petrova Gora and Leva Supoderica.

5 They were split up on the 14th of November on a permanent basis

6 with permanent effect. On the 18th of November, Vukovar fell and it is

7 not my intention to keep accusing Tesic. I'm not accusing him. I think

8 he's an honourable officer. I think he wouldn't have allowed anything at

9 all to happen at Ovcara, but on the 18th of November, he had de jure and

10 de facto control which could have ceased on the 18th of November when the

11 need ceased for an Assault Detachment to exist. But if on the 21st of

12 November the Vukovar TO was resubordinated, couldn't that have been

13 resubordinated by Radic and the 18th Kragujevac Brigade. It could only

14 have been JOD 1. This is a fact proven beyond reasonable doubt. Miroslav

15 Radic, supported by such witnesses as Stijakovic and Trifunovic, is a

16 person who was in no way involved in commanding and controlling the TO

17 units or Leva Supoderica.

18 I see that I have three minutes left. Five minutes. Domazet took

19 a bit longer than he was supposed to, so if I may, I would like to have

20 another five minutes.

21 THE INTERPRETER: Microphone for the President, please.

22 JUDGE VAN DEN WYNGAERT: Yesterday, we went on until 7 past 7.00

23 so I give you five more minutes. Equality.

24 MR. BOROVIC: [Interpretation] Radic's awareness of the situation

25 at Ovcara. He sent two soldiers who reported to him, but not on time.

Page 16227

1 They are right on time and so the Prosecution claims that he was quite

2 aware that they would commit crimes. This is also mentioned in respect of

3 the statements of this witnesses and their credibility as regards his

4 subsequent knowledge of what happened at Ovcara. I believe that we have

5 more than cogently shown here that the OTP had a chance to say whether

6 those three soldiers had indeed been at Ovcara.

7 As regards one of these witnesses, I have shown what was wrong as

8 far as he is concerned. One of the witnesses did and one of them was in

9 the hands of the OTP. Lieutenant Hadzic gave an interview to the OTP. He

10 did not say that he had been at Ovcara and why did not the OTP call him as

11 a witness so that we could hear the relevance of what is claimed by a

12 witness who earlier invoked two dead witnesses and later a live one whom

13 the OTP failed to call before this court? Then we would be able to verify

14 those facts about the three soldiers.

15 As regards the alibi, I believe the OTP must have known that there

16 was a decision of this Tribunal associated with the witnesses Vuckovic and

17 Zirojevic, when the Chamber established that in the given circumstances

18 the expected statement of the witnesses Zirojevic and Vuckovic stricto

19 senso cannot be qualified as evidence which actually substantiates an

20 alibi in the sense of Article 79(A). At any rate, these two witnesses

21 were very adamant. These are people who, thanks to what Tesic stated in

22 the interview to the OTP, actually found confirmation in their accounts.

23 They didn't know that in an interview that he gave to the OTP Tesic had

24 stated that Vuckovic had told him that he was at a dinner with Radic on

25 the 20th of November. Why was not Tesic called and he was proposed by

Page 16228

1 both the OTP and the Defence of the first accused.

2 So following the principle which was established on that day in

3 the courtroom when colleague Weiner was studying Tesic's statement we also

4 availed ourselves of this right and said that what he stated was that

5 Miroslav Radic was with Miroslav Vuckovic on the 21st -- together on the

6 20th in the evening. So that is more than an alibi. Whether they talked

7 about it with Tesic on the 21st, they may have, but it doesn't really

8 matter.

9 We did not actually pursue this further because it was not up to

10 us to -- to ask Mrksic's witness whether he had seen or whether he was not

11 telling the truth as regards Mrksic's testimony. Radic did not, says the

12 Prosecutor, prevent the members of the Territorial Defence, if the 80th

13 Motorised Brigade failed to prevent them in the evening on the 20th at

14 2230, I don't see why it should have been the obligation given all these

15 circumstances of Miroslav Radic to stop them from doing that. The 80th

16 Motorised Brigade could have done that at 2230. Of course Miroslav Radic

17 had had no need or reason to punish Territorial Defence because, by 6.00,

18 they had been resubordinated to the 80th Motorised Brigade.

19 Thank you, Your Honours, for giving me this extra time. I'm not

20 going to pursue this any further. I should like to ask the Tribunal to

21 carefully weigh all this evidence to acquit Miroslav Radic for all counts

22 of the indictment from 1 to 8 for the crimes against humanity and

23 violation of the laws or customs of war because this was an honourable

24 descent man, a man who is the father of two children. His spouse is a

25 justice herself and this is a criterion. I made the choice of -- spouse

Page 16229

1 certainly says something about a man and any penalty would compromise the

2 integrity of his -- of his family. And as I said in the beginning, his

3 attitude towards decency and towards honourableness is such that it really

4 warrants an acquittal on the part of this Tribunal. Thank you.

5 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Borovic. I see Mr. Lukic

6 on his feet.

7 MR. LUKIC: [Interpretation] Very briefly, Your Honours. I should

8 like to ask to be granted another half hour, that is to say, an extra half

9 hour in addition to my normal two hours because -- for the simple reason

10 Mr. Moore spoke about solely about my client for over two hours yesterday,

11 so it would mean a lot to me if that were conceded. And I should like to

12 know the answer now. I would require perhaps an extra 15 minutes, that is

13 to say, perhaps less than two and a half hours, but given the multitude of

14 facts adduced by Mr. Moore in speaking about my client, I believe that it

15 would be useful.

16 And another thing that I should like to mention, Mr. Moore has

17 informally told me that he perhaps might not avail himself of his right to

18 reply so that perhaps we may be able to finish, if there is no such reply

19 on his part, we might be able to finish within the allotted time tomorrow.

20 JUDGE VAN DEN WYNGAERT: Can you help us with that Mr. Moore?

21 MR. MOORE: I cannot possibly give any undertaking until I hear

22 the argument. All I would ask the Court to bear in mind is that we had a

23 significant amount of material which we ourselves did not use and we stuck

24 to our own timetable. The points that we have referred to are in the

25 brief of my learned friend and were in our brief.

Page 16230

1 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Moore.

2 Mr. Lukic, we have a heavy agenda for tomorrow because, not only

3 do we have your final brief, but we also have the wish of the accused to

4 address the Court. We also have this question that I submitted to you for

5 your submissions, so I think it's going to be very difficult to -- to

6 accept what you propose. So I suggest that we stick to the calendar that

7 we had planned originally. So on this, we will adjourn and we will

8 reconvene tomorrow at a quarter past.

9 --- Whereupon the hearing adjourned at 7.08 p.m.,

10 to be reconvened on Friday, the 16th day

11 of March, 2007, at 2.15 p.m.

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