Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16231

1 Friday, 16 March 2007

2 [Open session]

3 [Defence Closing Statement]

4 [The accused entered court]

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

6 JUDGE VAN DEN WYNGAERT: Good afternoon. We will now hear the

7 submissions of Mr. Lukic.

8 MR. LUKIC: [Interpretation] Good afternoon, Your Honours. Good

9 afternoon all the parties in the proceedings.

10 In July 2003, when Mr. Sljivacanin was to state his plea in regard

11 to the indictment for the first time and in the absence of counsel he

12 pleaded not guilty. Today, when it is upon us to close this chapter and

13 hand over all the pages of the records and documents to solely your hands,

14 Your Honours, at the end of my closing argument I shall reiterate these

15 words of his with my deepest conviction that that will be your decision as

16 well.

17 I should like to remind you that in his opening words at the

18 beginning of this trial, Sljivacanin said that he wanted his truth all

19 about Ovcara to also become your truth, because the truth about Ovcara is

20 needed by all who are not afraid of it. It is needed by the families of

21 the victims, by the JNA, the Yugoslav People's Army, the families of the

22 killed soldiers and officers and the Serbian and Croatian public, the

23 Guards Brigade, and it is also needed by Veselin Sljivancanin and his

24 family.

25 You have received in the closing arguments two versions of the

Page 16232

1 event, a version of the Prosecution which we foresaw in certain form, and

2 even though the Prosecution in his closing arguments surprised us with

3 some of his new theses, quite contrary to his earlier positions,

4 nonetheless we cannot expect the Prosecutor to do anything else but do his

5 job within the framework of the mandate, and trusted him, and that mandate

6 is to prosecute.

7 As regards that method of the Prosecution's contribution to the

8 exercise of his mandate, Prosecution and the primacy of prosecution of the

9 truth, we shall be discussing that today, but we expected that. That is

10 an attack looking the other party in the eye. That is an attack applying

11 the Machiavellian approach, namely that the end justifies the means,

12 whatever the means.

13 But then you also have received and have before you another

14 version of the events, the version of the Defence of Mr. Mrksic, his

15 Defence team. This is a version that we did not expect, and I believe

16 that the Prosecutor himself did not expect it. This is a version which

17 the Defence team kept in its custody within the confines of its notes and

18 folders avoiding to present evidence in that respect or to confront it

19 with the witnesses in the courtroom and on behalf of history as they claim

20 to actually place it in its proper place after the close of the

21 evidentiary procedure.

22 It is quite normal that that blow, the blow that you sustain with

23 the other parties not looking you in the eye, is all the harder and all

24 the more painful, but we are not afraid of the pain, we who want to

25 establish the truth and not afraid of such pain.

Page 16233

1 These approaches did not intimidate a single -- also did not

2 intimidate one of the witnesses for the Defence, Mr. Sljivacanin, and not

3 a single witness for the Defence of Mr. Sljivacanin who came here to

4 publicly take the witness stand among the -- those who -- from whom the

5 teams of the Prosecutor and Mrksic fled away although they had

6 courageously placed them on their lists of potential witnesses. We shall

7 be drawing attention to that also in our closing argument and to the

8 specific and selective approach in the evidentiary procedure in regard of

9 the presented version of events.

10 Now we have occasion to inform you of our own version of events.

11 We sought in our closing arguments not to impose any conclusions, not by

12 way of logic, which is the favourite approach of Mr. Moore in his closing

13 arguments nor by way of inferences or conclusions on allegations outside

14 the evidentiary procedures -- procedure, as directed to do by Mr. Vasic.

15 In our closing argument, and today here we have decided to speak primarily

16 with a desire to remind and point -- remind of and point to everything

17 that has been heard here during the trial in the respective cases and not

18 outside it. We analysed from the angle of the defence for Mr. Sljivacanin

19 the evidence and the evidentiary claims, both those which are in favour

20 and those which are not in favour of Mr. Sljivacanin. Your conclusion on

21 this trial may and must be based solely on the factual allegations which

22 were heard during this trial in this courtroom. The question which is

23 before you is whether such claims shall suffice for you to draw a

24 conclusion on the existence of the criminal liability of the accused, and

25 even more so whether they shall suffice for the establishment of the full

Page 16234

1 truth about the crime at Ovcara.

2 The professional burden and the task that you face is primarily to

3 analyse the testimonies of witnesses as the most voluminous portion of the

4 presented evidence, and there, in assessing their testimonies, you will be

5 confronted with a major problem, that is the reliability and the cogency,

6 the compelling nature of the descriptions of events that took place 15

7 years ago, 15 years before they were -- the evidence on them was

8 presented. And apart from that, in respect of almost all the witnesses

9 you also have their earlier statements before you and transcripts from

10 other trials about this particular event.

11 I believe that during the proceedings not a single witness

12 appeared without the parties pointing to certain contradictions of such

13 witnesses in respect of their previous accounts. There were witnesses

14 both on the Prosecution's on the Defence's side who had given six or even

15 previous statements before. All the parties in the proceedings, where it

16 suited their thesis and what the witness had stated in his prior

17 statement, always asked the cliche question, "Do you agree with me that

18 your memory earlier had been fresher with respect to that particular event

19 than it is today?"

20 So this is vitally tenable and logical thesis, but the prior

21 statements of the witnesses actually have a trap hidden in them, and this

22 is something which has not been overlooked nor neglected by the

23 jurisprudence of this Tribunal. Such statements have been taken by the

24 method of entering into the record responses without the questions of

25 those who is doing the interviewing, especially when those questions were

Page 16235

1 leading and directed to support the interests, to corroborate the thesis

2 of the interviewer. This was actually the Prosecution's favourite

3 approach to the taking of statements. Although we know from their

4 practice that the Prosecutors record all conversations or interviews and

5 that they have audio regarding of them, we were submitted only several

6 such recordings during this trial. When we asked them to submit to us the

7 audio recording of Witness P-009, they just informed us that one didn't

8 exist. The signature of the witness, Your Honours, is not at all in

9 doubt, nor whether it is the witness's offered the possibility to enter

10 any corrections prior to signing statements. What is in doubt, what is

11 disputable, and that is a key in respect of key topics, is what the

12 interviewer asks and how the question is formulated and how the answer is

13 formulated. Corroborating this submission of ours is the enormous number

14 of the addenda of Prosecution witnesses with respect to their prior

15 statements.

16 We are underlining all this, and we have pointed this in our

17 opening arguments also, that due to the lapse of time and the precise

18 questions which we were interested in with reason that documents have

19 become an important source for two of your tasks. First, you can

20 establish facts on that basis with reliability, and on the other hand you

21 can verify the credibility of witnesses. Documents, as has been shown,

22 have become during this trial the means of our struggle for the truth, and

23 for some other people they have become a problem in grappling with the

24 same truth.

25 Now I'm going to move to some other questions which were also

Page 16236

1 raised these days in the closing arguments, and I shall just limit myself

2 to the key issues, wishing not to repeat what has already been written.

3 First I shall say a few words about the place of the security organs in

4 the structure of the JNA and specifically the Vukovar operation, namely

5 whether by virtue of his function Sljivacanin has command function

6 primarily in respect of the military police.

7 In their final -- in their closing arguments, the Prosecution

8 seems to forget what they claimed in the indictment and what their own

9 military experts claimed. At that time, the Prosecutor claimed that

10 Sljivacanin did not have any de jure ordering position vis-a-vis anybody,

11 and this is something that the Prosecutor decidedly asserts, including not

12 towards the military police, and this ambiguously emanates from the

13 relevant regulations. I have given a detailed explanation of this in our

14 final brief, and I'm not going to dwell on the subject now.

15 What should be pointed out is the significance difference,

16 distinction, from the jobs in which the organ of security is the actual

17 holder of the office, the actual vehicle of the function, and those in

18 which he just participates. Obviously this is a difference that neither

19 the Prosecutor nor the Defence team of Mr. Mrksic wanted to notice,

20 because both the Prosecutor and Mr. Mrksic's Defence team know full well

21 that the -- this transport and security of POWs exclusively the task of

22 the military police and that in such jobs, the unit of the military police

23 as well in other jobs, it is exclusively subordinated to its commander.

24 The Prosecutor actually suppresses this fact through the

25 construction about the de jure position of Sljivacanin in the evacuation

Page 16237

1 of the hospital, while Mr. Mrksic's Defence team compounds that with

2 another construction yet, namely that the organs of security are only

3 competent for POWs, and the only ones competent for POWs, and that that

4 was done outside the command and the command chain, and that the commander

5 knew nothing about it. To their regret it is just not so, because the

6 evidence and the regulations and the documents and the testimonies

7 actually show that it is quite the opposite.

8 The job of evacuation including POWs is solely within the remit of

9 the command line of the unit, and it is implemented through subordinated

10 units, primarily the military police. In the service of the organs of

11 security there is no reference whatsoever about POWs, and whereas

12 regulations for the military police do make such references in contrast,

13 and it is quite clear to whom the military police is subordinated.

14 There is another thing which is sought to be mystified, which is

15 the procedure to detect persons who are potential perpetrators of criminal

16 offences against armed forces and the constitutional order. They -- this

17 is sought to be represented as the exclusive job of the OB from the lowest

18 to the highest level, and thereby as far as possible from the command

19 structure of the unit. What is important in that thesis is to portray the

20 absence of the existence -- to portray the existence of some parallel

21 chain of command in the structure of the organs of security. No, there is

22 no parallel command chain, and that is quite clear also from the report of

23 the expert Theunens and his expertise on page 81.

24 A significant number of documents have been tendered on the

25 activities of the organs of security which relate to information on the --

Page 16238

1 about the adversarial side. Yes, there existed reports which were

2 received from different sources on individuals who were the subject of

3 interest of organs of security specifically with relation to their own

4 ambit. Yes, these are reports, Your Honours, which the OB received, and

5 they were important information for the commanding officers' structure

6 also because they were indeed sent in order for the commanding officers to

7 acquaint themselves with them in order to plan combat operations. That is

8 evidence A 2485.

9 Those documents show that -- that there were unambiguous

10 indications that the hospital was not being used only for its primary

11 function, that members of the ZNG and the MUP were hiding there, that it

12 was being used as hideout by these persons and that after the end of

13 combat they disguised themselves as civilians and wounded. This was

14 explicitly confirmed for our benefit by Mr. Moore two days ago as well. I

15 will not be invoking those specific documents. They have been pointed out

16 in our brief.

17 What is a security organ expected to do, having received that type

18 of information and instruction, lists, data, sketches? Sljivacanin and

19 the security organs did what they had to do. They performed their task

20 under the regulations and pursuant to orders from their commander. They

21 had a duty to track down any such persons, and they had a duty to

22 contribute to setting up the conditions for a safe evacuation of the

23 wounded and sick. That was all they did, and they did no more than that.

24 However, never for a moment, and this is something that I wish to

25 underline, did they shy away from their task. And this is what

Page 16239

1 Sljivacanin told me when I met him. I mentioned that in my opening

2 argument. He said, "If I am to answer for what I did, and if that is a

3 crime, then the Court must establish that and tell me as much." The

4 Defence submits what Mr. Sljivacanin did in his capacity as a security

5 organ and a JNA officer is no crime. Everything was done in compliance

6 with the regulations including those relate together security organs, and

7 for as long as everything was done in compliance with those rules no crime

8 occurred nor did Mr. Sljivacanin or the security organ have anything at

9 all to do with the crime. It was only pursuant to an approval of his own

10 commander or his order could a security organ go about their work in the

11 proper way. Their work was not independent of the chain of command. It

12 is primarily used for the needs and purposes of the chain of command, and

13 it has to do with the safety and security of the units.

14 The security organ reports primarily to their own commander under

15 Article 12, Exhibit 107. This article makes no distinction whatsoever in

16 relation to cases where a commander is simply denied information. As for

17 the duty of transporting and securing prisoners, that is not

18 counter-intelligence work and nothing for the security organ, as Mr. Vasic

19 says in paragraph 138 of his own brief. It is true that the remit of the

20 security organ is to track down persons undermining the armed forces and

21 the constitutional order. However, first and foremost, it is the chain of

22 command that has a duty of security transport and ensuring that such

23 persons are safe.

24 Let us have a look at who ordered the 80th Motorised Brigade to

25 secure the Mitnica group. The commander of the brigade. Who from the

Page 16240

1 80th Brigade made the decision regarding the -- the hangar appointing

2 Danilovic as camp commander? Who did Vezmarovic report to when he arrived

3 from Sremska Mitrovica about having completed that task and the lists that

4 he typed up on the morning of the 19th, as he claims? Who ordered the

5 security organs to be present at Velepromet as early as the 27th of

6 October? At least that's what Exhibit 401 suggests. Who received word of

7 the fact that the ZNG and MUP were disguising themselves in the hospital?

8 And this is the commander's daily report, Exhibit 401. Who informed

9 accordingly the command of the 1st Military District and SSNO, Federal

10 Secretariat for All People's Defence cabinet? Why did Colonel Mrksic in

11 his daily report dated the 18th of November, Exhibit 417, write that

12 activities were being carried out in order to select and distinguish the

13 civilian population from the Ustashas? And then, if we look at Exhibit

14 418, which is another regular report, daily report, there is word of a

15 selection being in progress in the Vucedol area and a group of the Croat

16 forces, Ustashas, being put together in the Velepromet area; that was the

17 expression used.

18 Finally, if prisoners of war and processing prisoners of war were

19 not within the remit of the of the command, or the commander, on the

20 critical date the 28th [as interpreted] of November, why then did

21 Colonel Mrksic write the following in Exhibit 421, his regular daily

22 report at 1800 hours? He wrote that a selection was carried out and that

23 many Ustasha were discovered hidden among the civilians, mingling with the

24 civilians, and that the selection process was conducted in full compliance

25 with the Geneva Conventions. We all know what the only selection process

Page 16241

1 was on the 28th [as interpreted] of November, the one taking place at the

2 hospital.

3 It should be the 20th of November, page 10, line 24.

4 If tracking down prisoners of war, selecting them and transporting

5 them is within the exclusive remit of the security organ in this notorious

6 chain of command, why then are there such precise references about this in

7 the report by the commander who was part of the regular chain of command?

8 The answer is quite simple. There is no need to look for answers in

9 the -- in the realm of imaginary security associations. The security

10 detail and its organs did their own job within the function of their

11 command at all levels.

12 There is something else I wish to say. One of the things that

13 Mr. Moore discovers and one of the theories espoused for the first time in

14 his final brief is that Sljivacanin was in charge and in command of all

15 previous evacuations, including those that took place in October, the one

16 organised by the Medecins Sans Frontiere, as well as the one on the 18th

17 of November at Mitnica and the 19th of November at Velepromet.

18 Mr. Moore, that is quite clear, had to weigh this up carefully and

19 think carefully about whether he wished to make this theory public now, at

20 the very end of our trial. One thing that was a potential trouble for him

21 was no doubt the fact that in all these evacuations the actions taken by

22 the JNA and officers of the JNA were positive steps to help conduct the

23 evacuation. These are facts that so contradict his own theory on the

24 existing plan and the joint criminal enterprise. However, in making this

25 assessment, Mr. Moore find out that he did not have sufficient evidence on

Page 16242

1 Sljivacanin's own command function in the context of the 20th of November

2 evacuation. Therefore, he had to create some sort of foundation. Why

3 would Sljivacanin of all people be put in charge of this evacuation?

4 Which is exactly what Mr. Moore does. "Sljivacanin," he says, "was in

5 order of all the previous evacuations. It was only logical for him to be

6 in charge of the one that occurred on the 20th as well." Unfortunately

7 that was not the case. Sljivacanin was involved in the October evacuation

8 to the extent that anyone was. This was part of his work as a security

9 organ. Even Mr. Theunens confirmed in his report that security organs

10 were actively involved in the evacuations. This is paragraph 76 and the

11 page is 10718.

12 Sljivacanin gave ample evidence in his own testimony about his own

13 involvement in these evacuations. However, Mr. Moore never asked him a

14 single question about the October evacuation, which in itself shows that

15 his theory on the purported command role of the Sljivacanin as early as

16 October only ever occurred to him as he was drafting his final brief. I

17 will not be speaking any long better October evacuation, but there has

18 been ample evidence about that during the trial. I would like to draw

19 your attention to Exhibit 829, which is a video clip. There was security

20 assessments to the effect that the Croatian side would misuse the October

21 convoy for their own ends. All the more reason for the security organ to

22 be actively involved in escorting that evacuation. These are exhibits 408

23 and 878.

24 Mr. Moore knows this full well, or perhaps he chooses to forget,

25 but what is particularly indicative is that in paragraph 530, when

Page 16243

1 claiming that Sljivacanin was in command of the October evacuation, in his

2 footnote 1653, Mr. Moore invokes the evidence of Dr. Bosanac, Kolesar, and

3 Njavro. This was not something that I was able to actually find in their

4 statements. As for the November 18 evacuation the Defence have provided

5 our own arguments in our brief. We have a new position, by Mr. Moore

6 again, which is quite contrary to what he says in his pre-trial brief and

7 the opening argument, namely that here again Sljivacanin was in command.

8 As to fact, based on which one could ascertain who was in charge

9 of that evacuation, this is clearly established based on such evidence as

10 has been produced, and cannot be established based on circumstantial

11 evidence and constructions. The security and transport of the prisoners

12 was something that was done by the members of the 2nd Battalion of the

13 military police, Paunovic, and the 3rd JOD under the command of Major

14 Stupar, Exhibit 831 specifically.

15 As for organising, securing, and accepting up -- or, rather,

16 appointing the camp commander at Ovcara, as well as the dismantling of

17 the Ovcara camp, we all know this Exhibit 371. These are all

18 fundamental decisions made in relation to the evacuation because of

19 Commander Vojnovic. These were orders from the commander to his own

20 units. That is the only fact there is. That is a model, and that is the

21 form that the evacuation actually took. How it was organised and the

22 hospital evacuation was supposed to follow the same pattern, the same

23 model.

24 I would like to ask the Court to please go into private session

25 briefly.

Page 16244


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're back in open session, Your Honours.

18 MR. LUKIC: [Interpretation] What can be reliably concluded on the

19 basis of important documents and competent witnesses is once again

20 something that the Prosecutor does not wish to accept, let alone tell you

21 that. Here when it comes to evacuation the key role in negotiations,

22 surrender, and evacuation, was played by Colonel Pavkovic. He led that

23 process, he did a good job, and his efforts were recognised, and this is

24 something that is publicly known. He led negotiations. He informed the

25 command about negotiations. According to his information, commander

Page 16245

1 issued an order. Please look at Exhibit 401, dated 18th of November at

2 1400 hours and 1430, where they speak of Mitnica. Mr. Moore saw this but

3 he decided to ignore it.

4 Pavkovic came and supervised the departure of the Mitnica group on

5 the 19th of November. This is something that the Prosecution witness,

6 Vojnovic, testified about, transcript page 9080. The conclusion of the

7 Prosecution that the Guards Brigade once again did everything in

8 accordance with the regulations with the presence of the International Red

9 Cross is fully tendentious. The International Red Cross namely

10 Mr. Borsinger were present at negotiations and surrender of the Mitnica

11 group only on the 18th. They were not present at Ovcara. They were not

12 present when the organisation of the evacuation of civilians was done.

13 However, everything was done in accordance with regulations and

14 international standards. It was done in a professional, humane, and

15 dedicated way involving soldiers and officers of the Guards Motorised

16 Brigade, regardless of whether they were supervised by the International

17 Red Cross or not.

18 Similar to the evacuation on the 18th of November, from the

19 documents and from the testimony one can easily glean the role of

20 Sljivacanin in the evacuation on the 19th, and it is clear that he had no

21 command role in that evacuation. The Prosecutor forgets that the

22 Velepromet facility was organised as a reception centre much earlier than

23 the 19th of November and that several evacuations were organised from that

24 location by way of which civilians left the war area. This is something

25 that Dr. Vesna Bosanac was fully aware of when she insisted that civilians

Page 16246

1 did not come to the hospital and that they should go to Velepromet.

2 Prosecution witness P-301, page 3533, spoke about this, as well as

3 Tanja Dosen and Dr. Bosanac herself, page 7121.

4 THE INTERPRETER: Witness P-031, correction.

5 MR. LUKIC: [Interpretation] Even though it doesn't quite suit

6 Witness Bosanac now, she firmly confirmed before the Court that she did

7 not complain to Borsinger about the fact that civilians were taken away on

8 the 19th, of which she was fully aware at the time. Page 860 and 861. It

9 must be that Dr. Bosanac was aware of other things as well, namely that at

10 the time on the 19th in the afternoon at the hospital there were already

11 many members of ZNG and MUP. They were disguising themselves, that

12 somehow they had to be included in the evacuation of the wounded and the

13 sick, and that the presence of the large number of civilians at the

14 hospital at that time was actually a hindrance in that process.

15 As for the conflict between Sljivacanin and Borsinger, which

16 allegedly existed before the incident on the bridge only the 20th of

17 November, actually was never there.

18 Now I'm going to remind you of the body language that Mr. Moore

19 insisted upon in order to show the arrogance of Sljivacanin in Exhibit 318

20 and his constant belligerent attitude.

21 Your Honours, do you know why Mr. Moore did not play the audio

22 feed when he played that tape to support this argument? Because audio

23 feed spoils his argument about the alleged constant obstruction of

24 Sljivacanin and -- in relation to the International Red Cross. In the

25 dialogue, that we have seen so many times during this trial from opening

Page 16247

1 arguments on, I think that all of us by now know it by heart. So in that

2 footage Borsinger says, "I'm used to better cooperation," when Sljivacanin

3 addressed him. So it is Borsinger who claims before cameras that he had

4 good cooperation with the JNA. That's how it was on the 18th and on the

5 19th.

6 Please remember who put journalists in touch with Borsinger.

7 That's something that van Lynden testified about. Sljivacanin testified

8 about that as well.

9 This shows the friendly relationship between Sljivacanin,

10 Borsinger, which the Prosecutor cynically put under quotation marks. This

11 is something that Borsinger confirmed himself.

12 Velepromet was never within the jurisdiction of Sljivacanin or the

13 JNA. The Prosecutor misinterpreted Exhibit 835 in order to support this

14 argument. Please pay careful attention to the content of that exhibit,

15 and the jobs performed by Borisavljevic in order to uncover extremists and

16 members of ZNG and MUP is something that is used to attribute effective

17 control to Sljivacanin over those facilities. There is no evidence to

18 support this. The document that the Prosecutor invokes and the documents

19 that we supplied to you show something quite the opposite.

20 In that facility there were absolutely no problems before the

21 night of the 19th of November. This is something that even the Prosecutor

22 acknowledges in the indictment, because they charged Mrksic and

23 Sljivacanin with the knowledge about the crime which took place in the

24 night of -- on the 19th of November, paragraph 31. Once again here, the

25 Defence points out a very important detail when it comes to mens rea of

Page 16248

1 Sljivacanin and security at Velepromet. Had there indeed been something

2 in relation to the crime at Velepromet that Sljivacanin knew about or

3 supposed about, would he have taken that -- there on that same day in the

4 morning Cyrus Vance and a delegation including so many journalists? On

5 that occasion Mr. Vance had unhindered talks with civilians who were

6 present there. Exhibit 69, 70, and 861.

7 Had the evacuation task from Velepromet indeed been within the

8 competence of Sljivacanin, as the Prosecutor claims, and had it been the

9 case, as Mr. Vasic claimed, that this was within the competence of the

10 security organ, then this would not have been within the competence of the

11 Operations Group South command, Exhibit 418. The work of all security

12 organs at the Velepromet, at the hospital, and on the following day, and

13 at Vucedol on the previous day, was exactly the way it was described in

14 Exhibit 401 in the entry that is there, and you will remember that this

15 was something described by the people from the security administration who

16 came there.

17 It says there that they came there to perform the selection and

18 separation of the members of armed forces of Croatia from civilian

19 population, full stop. Transport, security, and surrender is something

20 that was done by other organs of the command of the 1st Military District.

21 When it comes to Velepromet, we have to highlight in several words

22 something that was described in detail in our final brief. Rather, I'm

23 now going to tell you that famous sentence of the witness, Vujic, which

24 was mentioned here for the first time before you, even though from 1999 he

25 testified more than four times. Allegedly Sljivacanin told him, "Don't be

Page 16249

1 surprised if some Chetnik there cuts a throat of some Ustasha there."

2 I'm going to tell you now something that Mr. Moore said, namely

3 that Mr. Korica is an honourable and decent officer, and is a friend of

4 Mr. Vujic. Mr. Korica firmly denies that he heard that sentence uttered,

5 even though he was present when they met. But Vujic himself is the one

6 who impeaches his own testimony. Page 4785, especially page 4795, show

7 that his own testimony at the trial in Belgrade was put to him in the

8 trial against the accused Vujanovic, et al. There, Vujic stated that he

9 was surprised by the presence of Chetniks at the Velepromet because nobody

10 told them previously that they could come across some Chetniks there, and

11 also that nobody told him that they could encounter anything unpleasant

12 there.

13 The view of the Defence is that this was stated very clearly and

14 reliably. This is recorded on an audiotape, and this is an unequivocal

15 statement. However, Vujic was unable to explain before this Trial Chamber

16 the discrepancy when this comes to this sentence that was now uttered for

17 the first time, and that was not that he had just remembered it. No. He

18 claimed quite the opposite. Sljivacanin did not utter that sentence.

19 This was firmly confirmed by Korica. In that portion of his testimony,

20 Vujic is unconvincing and confused.

21 The addendum with this sentence was provided at the time when the

22 Prosecution kept trying to include the events in Velepromet in the

23 incriminating deeds in the indictment.

24 Now let us turn to the question which is truly fundamental for the

25 Defence of Mr. Sljivacanin and his criminal liability. Was he appointed

Page 16250

1 commander of the evacuation of the hospital both including wounded and ill

2 and the persons that were separated between hospital and Ovcara, and did

3 he, by that fact, have de jure command authority over all the persons

4 included in this? All joint passionate arguments both of the Prosecution

5 and Mr. Mrksic's Defence with the same conclusion is something that we

6 heard and read. The Prosecution needs to prove that Sljivacanin was de

7 jure competent for the evacuation of the hospital because the authority

8 was delegated to him by the commander, and the Prosecution needs to do

9 that because they're deeply aware of the fact that looking at his function

10 and position, Sljivacanin did not have such command responsibility.

11 The Defence of Mr. Mrksic needs to remove Mr. Mrksic as far away

12 from the evacuation as possible including the evacuation of the wounded

13 and sick, and they need to show he had no responsibilities whatsoever over

14 transport, security, and the accommodations of prisoners of war.

15 Can the commander transfer his competencies to one of the

16 subordinate commanders. Certain regulations allowed for such a delegation

17 of authority both in writing and verbally; however, the rules of service

18 of security organs did not allow that tasks be issued to the security

19 organ by the commander that fall outside of his scope of work. This is

20 Article 48, Exhibit 107.

21 Is this selection and separation of persons something that is

22 within the scope of work of the security organ. The position of the

23 Defence is that it is.

24 Is the transport and security of prisoners of war and evacuation

25 of the wounded and sick something that falls within the scope of work of

Page 16251

1 security organ? The position of the Defence is that it is not.

2 According to the regulations, was Mrksic authorised to appoint

3 Major Sljivacanin for commander of the evacuation of the hospital? Our

4 position is that he wasn't.

5 Was a special written decision necessary for such unlawful

6 decision? Well, Prosecution Witness Trifunovic, who was considered as

7 expert here, and I fully agree with that, firmly says on page 8324 that

8 such a written decision was necessary.

9 What is now even more striking in the final brief of the

10 Prosecutor in supporting such a thesis is Mr. Moore's approach to the

11 necessity of essential decisions being in the required written form and

12 the invocation of experts Vuga and Pringle in his brief in paragraph 81

13 and foot into the 363 to that effect. In accomplishing this aim, the

14 Prosecutor actually applies different standards in interpreting the

15 regulations. For resubordination, according to him, a written decision is

16 necessary, and for tasks which are beyond the remit and the -- for the

17 tasks which are within the operation of the evacuation of the hospital,

18 they do not matter.

19 You have read Vasic's thesis in his own brief talking about being

20 already at tasks of selection and triage with which, according to him, the

21 commander has nothing to do whatsoever. Sljivacanin was appointed also

22 commander of the evacuation by an oral order of the 19th of November,

23 which, as Vasic claims in paragraph 185 of his final brief, all the

24 commanding officers heard at the daily meeting. What commanding

25 officers? Paunovic was not [as interpreted] at all at the meeting.

Page 16252

1 Susic was at the meeting; he didn't hear it. Gluscevic, a member of the

2 command, had to be at that meeting.

3 A correction. I apologise to the interpreters. It is page 21,

4 line 25. Paunovic was at the meeting, and Gluscevic, a member of the

5 command, had to be at the meeting, a witness of Mr. Mrksic's Defence.

6 Mr. Vasic just didn't ask him about that. Lesanovic, a command member,

7 was at the meeting, also was not asked about it by anyone. He was not

8 asked by Mr. Vasic, who is actually advancing this thesis. Vojnovic

9 doesn't know anything about the evacuation. We heard that from his

10 testimony here and he was a member of the command and went to the

11 meetings.

12 No questions are being asked about the thesis that needs to be

13 proven. The facts in this case are established on the basis of

14 testimonies and presented evidences rather than on the basis of assertions

15 in the briefs, in the submissions.

16 And, finally, both the Prosecution and Mr. Mrksic's Defence in

17 asserting this thesis solely and exclusively invoke the testimony of

18 Witness Panic from his statement, which he gave to the OTP in 2005. That

19 is indicative, namely that both the Defence of Mr. Mrksic and the OTP have

20 placed Mr. Panic on the list of their potential witnesses but they

21 abandoned it very hastily. I mean the idea. The Defence of Sljivacanin

22 claims, and this was also demonstrated during his testimony, that both

23 Mr. Moore and Mr. Vasic knew full well what Panic would testify, what

24 documents that they had shown him, and what documents they had not shown

25 him within the proofing process, and how important it was for him --

Page 16253

1 for -- for them for him not to appear before the Court.

2 You saw during this two days how painful for them was the

3 testimony of Mr. Panic, and you saw that from both their final submissions

4 and their closing arguments. And what was it that Mr. Panic actually

5 testified in relation to the task of the evacuation of the hospital? He

6 clearly testified before this Court that Sljivacanin had been issued a

7 precise task by the commander, and that was to separate persons suspected

8 of having participated in combat operations and to put in place safe

9 conditions for the evacuation of the wounded and sick. That is transcript

10 14294-5.

11 Sljivacanin was issued -- received no command function at all over

12 the evacuation of the hospital, and nobody heard anything of the kind at

13 the command held in OG South on the 19th of November, 1991. What he was

14 issued was a task from his own remit like other organs received -- were

15 assigned tasks from their own fields of competence. The logistics to

16 ensure transportation, military police to secure the operation, the

17 Medical Corps to examine the sick and the wounded. So Panic and all the

18 other participants in the evacuation adamantly testified that on that day

19 Sljivacanin did not issue any orders to them at all, and that, as regards

20 their tasks which they had been assigned and which they were implementing,

21 they never reported on them to Sljivacanin but to the person who had

22 issued them the task, their commander, Mrksic.

23 The facts attest to that, the testimonies attest to that, and not

24 the statements -- these statements which were taken in a quite problematic

25 way.

Page 16254

1 And as regards how the statement -- how Panic's statement was

2 taken, the statement which is now treated as the only source of the OTP

3 assertion and the Defence of Mr. Mrksic's assertion on the alleged de jure

4 command function of Sljivacanin, and that is transcript 14546 to 48, will

5 be weighed properly, as we said at the beginning of our closing arguments,

6 by this Tribunal by judging the assertions in the prior statement, a

7 statement taken in this way. And the method of its taking was very

8 simple. That was, just show those documents which are corroborative of

9 your thesis, even though you do have at your disposal a huge number of

10 documents to the contrary.

11 Now all that notwithstanding, in his final brief the Prosecutor

12 wonders in paragraph 573 on the basis of what was it that the witnesses of

13 the -- for the Defence had refreshed their memories? Well, Mr. Moore, the

14 witnesses said it -- said that -- replied to that themselves on the basis

15 of the documents, which the Prosecution had in its possession, when it was

16 taking their statements. Those documents having been previously been

17 disclosed to us, the Defence, but it had no interest to though them to

18 these very same witnesses. And I'm talking about military documents or

19 ECMM documents.

20 This one and only statement on which the Prosecution bases its

21 assertion on the command role of Sljivacanin was taken from Panic almost

22 15 years after these events. He is now negating it in that part

23 explaining that his memory was refreshed primarily by his being shown a

24 large number of documents and evidence for the first time on the part of

25 the Defence team for Mr. Sljivacanin.

Page 16255

1 Now, who is shying away the establishment of facts in this case?

2 And as a cherry on this top -- on the top of this cake, which is jointly

3 offered us by the Prosecution and Mr. Mrksic's Defence, I should like to

4 say that at the time this only statement of Panic was being taken in which

5 he speaks about de jure Sljivacanin's responsibility, Panic was a

6 potential witness for the Defence of Mr. Mrksic. Then he was very hastily

7 dropped by both the OTP and Mrksic's Defence team. But General Panic

8 appeared before this Tribunal anyhow as a witness for the Defence which

9 wanted and dared find out the truth and inter alia said, and that's at

10 14420, and I shall say this in his mother tongue, "I hope, I guess that we

11 want the truth to be established here, even in the hardest of moments I

12 went to testify. I've come here regardless of whether I'm a witness for

13 the Prosecution, for the Defence of one or the other party. That is

14 immaterial for me. I'm a person who has participated at certain events.

15 I remember what I remember after so much time has elapsed, but I am one

16 who wants the truth to be established for the sake of all those who worked

17 honourably for the sake of all those who were killed, for the sake of the

18 victims of the war, and because of the lesson which posterity should

19 learn."

20 Should we not have called a witness who utters these words and has

21 so much active knowledge about the event which is actually the subject of

22 this trial to appear before this Tribunal? This is something that

23 actually the Honourable Trial Chamber will tell us in the end through

24 their decision.

25 There is another important detail which one needs to bear in mind

Page 16256

1 in assessing the command function over the evacuation of the hospital.

2 Exhibit 419 is the only written document which makes a reference to the

3 evacuation of the hospital. That is an order on the daily tasks for that

4 day signed by Mrksic. There is no information about the delegation of

5 command authority to anyone, and the tasks are being issued by the

6 commander to all the units, and all the units are in respect of the

7 execution of their tasks including the evacuation of the hospital

8 responsible to the commander, and that was how it was on that day as well.

9 All the reports on the executed tasks in connection with the

10 evacuation of the hospital, the wounded and the sick, as well as the

11 contested evacuation which ended up at Ovcara, were addressed and sent to

12 Mrksic, and we have written in detail about that in our final brief.

13 The Witness Trifunovic who also actually drew up that decision and

14 kept the war log had no knowledge whatsoever about the alleged commanding

15 of the evacuation by Sljivacanin and that is at 8181 in the transcript,

16 but he clearly described, however, what it was that the Chief of Staff

17 did. That's 8009. And that was to follow the implementation of the

18 decisions of the commander and to inform the commander of how his

19 decisions had been carried out in practice.

20 And now let us look at what Panic was doing on that day, the 20th

21 of November. On the basis of the evidence presented, a large bulk of it,

22 at the order of the commander he went to the government session with

23 instructions and thereafter he informed the commander of the outcome of

24 that meeting. Then he went to Ovcara to ascertain how the government

25 decision was being implemented and thereafter informed Commander Mrksic of

Page 16257

1 that. This is the conventional, classical behaviour or conduct, rather,

2 of a Chief of Staff working within the -- his own remit in connection with

3 the commander's decision.

4 So even if the Tribunal accepts the testimony of Gluscevic in

5 regard to the alleged order of Mrksic addressed to the late Bozic, the

6 Court can clearly see from it who was issuing the orders in connection

7 with persons at Ovcara. Mrksic [Realtime transcript read in error

8 "Gluscevic"], according to Gluscevic's words, did not say, "I'm not in

9 charge of that. Vojnovic, go see Sljivacanin. He is the commander. The

10 prisoners are within his competence." No. Throughout that day not a

11 single commanding officer of the OG South, which was the superior command

12 or representatives of the Supreme Command, no one addressed Sljivacanin to

13 inform him of problems or to ask that he take action. They addressed

14 their request to the commander. They reported to him, and they received

15 their orders from him.

16 An intervention in the transcript.

17 THE INTERPRETER: Microphone, please.

18 MR. LUKIC: [Interpretation] I said that -- this is page 27, line 7

19 in speaking about Mr. Gluscevic, I said Mrksic did not say and then what I

20 quoted would be logical if it was claimed that Sljivacanin was the

21 commander of the evacuation. In a bid to expedite matters I make

22 mistakes. I shall repeat this sentence.

23 Even if the Tribunal should accept Gluscevic's testimony in

24 connection with the alleged order of Mrksic addressed to the late Bozic,

25 and you know what that was, the Court can clearly see from that who is

Page 16258

1 issuing orders in connection with persons in Ovcara, because the commander

2 Mrksic, according to Gluscevic's words, did not say, "I am not competent

3 for that, I'm not in charge for that," but he gave an order that, if need

4 be, they go to Ovcara. So as Gluscevic said, if need be take an armoured

5 battalion and go -- and go to Ovcara. He doesn't say, "I have nothing to

6 do with it. I'm not in charge. Go to Sljivacanin, he's the commander."

7 That's not what he says.

8 The Prosecutor also invokes the testimony of Colonel Vojnovic to

9 the effect that at the meeting on the 19th of November Sljivacanin had

10 stated that he was personally appointed to be in charge of the

11 evacuation. The Defence analysed Vujic's testimony in its brief in

12 detail in respect of that ostensible night meeting in Negoslavci around 1

13 hour o'clock [as interpreted] after midnight and offered clear proof that

14 this encounter between Sljivacanin and Vujic and his group did not take

15 place at all at that time, but only a meeting around 2000 hours, and on

16 that occasion at that time, Sljivacanin nothing -- said nothing about his

17 alleged command function in respect of the evacuation and Korica's -- and

18 testimony.

19 To conclude this thesis, not a single document does not speak

20 about the command function in the evacuation of the hospital given to

21 Sljivacanin. All the competent witnesses from the very structure of the

22 OG South, the Motorised Brigade, the 80th Brigade, the administration of

23 security, the security administration, the 1st MD, who participated or had

24 direct knowledge about the evacuation of the hospital, and please consult

25 our final brief, the paragraphs being 313 and 32 -- to 325, they are all

Page 16259

1 categorical that on that day Sljivacanin did not issue them any orders

2 whatsoever, or reports on the activities of the participants in the

3 evacuation actually were addressed to the commander of the OG South, and

4 he personally reported -- or rather, informed the superior command on all

5 the activities surrounding the evacuation including the separation and

6 singling out of POWs in his daily report of the 20th of November, 1991,

7 Exhibit 421.

8 Now for the evacuation itself. You have heard two theories on how

9 the evacuation was supposed to take place. Both theories tend to ignore

10 the government session of the SAO Slavonia, Baranja, and Western Srem, as

11 an event that changed the course of the plan itself as well as the

12 evacuation. The Prosecutor claims that both Mrksic and Sljivacanin knew

13 about the arrival of the government members. In relation to Sljivacanin

14 there is absolutely no reference to back that up. Not a single footnote,

15 not a single mention, simply because there is no evidence at all to show

16 that Sljivacanin knew about that.

17 The Prosecutor knows full well, both based on based on witness

18 statements, to what event Sljivacanin was clashing with certain problem

19 members of that government. For example, the minister of the interior

20 Bogunovic and what sort of report he forwarded to the security

21 administration about Prime Minister Hadzic, which is Exhibit 843. Exhibit

22 843.

23 The Prosecutor knows full well what sort of evidence Goran

24 Hadzic's statement of TV Belgrade was. This is Exhibit 576. And

25 Mr. Vasic knew full well too. They made such an enormous efforts to

Page 16260

1 convince this Trial Chamber, and the Sljivacanin Defence as well, that

2 exhibit was useless, inappropriate, and invalid. And only the verdict

3 will eventually show us if they were right or not.

4 The Sljivacanin Defence submits that this is one of the crucial

5 pieces of evidence in this trial. We submit that this is the document

6 which in the most graphic terms and with no ambiguity whatsoever provides

7 a key to the events that followed. We submit that those events were not

8 planned, were not predictable, nor was Sljivacanin involved in those

9 events in any shape or form.

10 This is a document that smashes into bits the Prosecutor's already

11 paper thin theory on Sljivacanin's involvement in the joint criminal

12 enterprise.

13 What exactly does the Prosecutor do? Mr. Hadzic's statement was

14 introduced by the Prosecutor in the Dokmanovic case when a member of that

15 government stood indicted. In that particular trial, the document

16 appeared to them to be a valid one and, as such, had probative value.

17 Following that, the Prosecutor place this exhibit on their 65 ter list in

18 this trial but decided after all not to tender it into evidence, and they

19 were perfectly within their rights to do that. Then, however, to our

20 great surprise, they opposed asked the Sljivacanin Defence introducing

21 this document as an exhibit. This is a blatant example of how little the

22 Prosecutor cares about the truth. They much prefer simply prosecuting.

23 There must be some sort of primacy of Prosecution over truth at work here,

24 conveniently shoving aside one's own evidence whenever it proves

25 inconvenient. The truth, after all, does not seem to be a primary concern

Page 16261

1 in cases such as these.

2 Why then is this exhibit such a thorn in the side of the

3 Prosecutor and the Mrksic Defence? Simply because it directly

4 corroborates a theory that we have been putting forward from day one of

5 this trial. At this government session in Vukovar, the route of the

6 evacuation was changed and this session was a turning point for the

7 evacuation from the hospital to the prison in Sremska Mitrovica. Ovcara

8 was not a destination that was envisioned on that day at all. Here we

9 must consider why this exhibit is such a thorn in the side of the Mrksic

10 Defence. You have heard them insist time and time again that the hospital

11 convoy was meant to go to Ovcara because that had been announced in the

12 war log of the 80th Brigade. We defined our own position on this in our

13 final brief. Again, this is a theory that doesn't fit Mr. Moore's

14 purposes, because then Vojnovic and his own brigade are suddenly facing a

15 very inconvenient position. These are certain theories and speculations

16 that other parties to these proceedings have had to face.

17 Not us, however. Let anyone who knows something say whatever it

18 is that they know about Ovcara. Why can't everyone just help and

19 contribute to the healing of these wounds which perhaps can never heal but

20 perhaps can be made to hurt less.

21 Hadzic states for television on that day that, on that day, there

22 was the first government session in Vukovar. It wasn't an informal

23 meeting. It was a government session. The principal decision that was

24 made being that the prisoners were not allowed to leave their territory,

25 and they had apparently reached an agreement with the representatives of

Page 16262

1 the military authorities that the prisoners should stay in the camps

2 around Vukovar. This statement made by Mr. Hadzic is in full collaration

3 [as interpreted] with the evidence given by Vujic and Panic. The notes

4 made by Panic were not written after 2001 and the Mrksic Defence know that

5 full well because they submitted the note to the military court on the

6 28th of December, 1999, when he gave evidence. This note is fully

7 consistent with Vujic's evidence and what certain persons involved said.

8 It is even consistent with the statement made at page 4562 of Vujic's

9 testimony when he said that Panic had arrived with some sort of notebook

10 or some sort of folder.

11 The Sljivacanin Defence finds it particularly indicative that

12 there was evidence about the threat, or should I say blackmail, made by

13 the minister of the interior, Bogunovic, whom Sljivacanin press charges

14 against over crimes saying that he will, if need be, lie down in front of

15 a tank unless the prisoners were surrendered to them.

16 This is the note made by Mr. Panic. He said that the people would

17 lie down in front of the tanks, not he.

18 Your Honours, it is clear that approval for this government

19 decision could only have been issued by an activity, an order, and for the

20 convoy to be redirected to Ovcara instead of Mitrovica. This is a serious

21 task that you are facing and this is something that you need to establish.

22 Following such information as was shared by Panic with them following

23 which his approval for the send of prisoners, 14307, the meeting soon drew

24 to a close. Unlike Mr. Vasic I'm not surprised by Panic's answers quoted

25 yesterday, "I don't know, I don't know, I don't know." What that shows to

Page 16263

1 my mind is that the decision and what followed was something entirely new

2 to all those who were involved.

3 The Sljivacanin Defence thinks it is entirely reliable to conclude

4 that the buses were in the barracks until the government decision was

5 made. Vujic did not leave the government session and immediately go to

6 the barracks, as Mr. Vasic says. Vujic himself confirms that he stayed in

7 Velepromet for some time after the end of the meeting because he was

8 afraid to leave the room. This is page 4564 of the transcript. And you

9 can see the same thing in that video clip, which is Exhibit 269. But

10 Panic left the room immediately. That's what he says, and that's what

11 Vujic has confirmed. He off to the barracks first thing to inform

12 Colonel Mrksic, and what he finds there are buses. The page is 14321.

13 The buses soon after left the barracks and headed for Ovcara, a camp which

14 Goran Hadzic at the government meeting had referred to as a government

15 camp in the surroundings of Vukovar. The page reference in Panic's

16 evidence is 14313.

17 What else are both the Prosecutor and Mr. Mrksic's Defence

18 saying? They are wondering why the convoy was sent from the hospital to

19 the barracks as a temporary accommodation facility, explaining that the

20 facility did not have a fence, that it was near the notorious location of

21 Velepromet and that it was only logical for the convoy to be sent to

22 Mitrovica straight from the hospital or alternatively to Ovcara as the

23 Mitnica group. They forget that the Vukovar barracks was a facility with

24 a very serious and powerful military structure. This was the location of

25 the forward command post of OG South. They had good and permanent links

Page 16264

1 to Negoslavci. There was a military police company securing the barracks

2 all the time. That's where the command of the 1st Military Police

3 Battalion was. That's where the command post of the 2nd Motorised

4 Battalion was. And the barrack's commander to those were units of the 2nd

5 Motorised Battalion. There was no more fighting on the 20. They forget

6 that on the following day persons from the nearby Velepromet facility were

7 transferred to the barracks. They were offered accommodation and

8 protection until they were eventually taken to Mitrovica.

9 Was there a fence or not? When dealing with a facility like that

10 and the manpower present there this is entirely irrelevant. Where was the

11 fence at Ovcara and who did that fence protect from beating on the 20th of

12 November. An attempt to look for any similarity with the Mitnica location

13 is simply false. We know which area Mitnica belongs to and which area

14 Ovcara belongs to. At Mitnica the people surrendered of their own free

15 will's well as weapons, and at the hospital they didn't. The Mitnica

16 surrender took place in the late afternoon --

17 THE INTERPRETER: Could Mr. Lukic please be asked to speak up

18 because we can barely make out what he's saying. Thank you.

19 MR. LUKIC: [Interpretation] The parameter for the joint criminal

20 enterprise did not occur when these persons were surrendering. It was

21 only after they were put up in the hangar during the night there was no

22 omission in triage itself, as far as the fact was concerned,, and I'm

23 saying this in relation to the hospital that the persons separated were

24 not listed while still at the hospital. They were to be listed before

25 they were surrendered and sent to the Mitrovica prison. But the plan of

Page 16265

1 their evacuation had been changed without Sljivacanin or his associates

2 knowing about it and with no involvement on their part, the aim having

3 been to stay away as far as possible from the anathemised security organs,

4 and from those who so severely criticised the work of that government and

5 their own command.

6 Look at Exhibit 269 in its entirety. It's a video clip. It shows

7 what went on in Velepromet on the 20th of November. You will see at the

8 end of that clip the convoy of buses from the hospital passing the

9 facility; this is the evacuation of the sick wounded and hospital staff.

10 Your Honours, this too shows that the barracks was on the way from the

11 hospital to Sremska Mitrovica. And yes, persons were separated and this

12 convoy with these persons, when a convoy was being set up for the security

13 of these people it was supposed to go to Mitrovica. That's why these

14 people were put up at the barracks and that's why the barracks was the

15 best facility for temporarily accommodating these people.

16 I will now move on to a number of brief observations in relation

17 to certain submissions made by the other parties in their final briefs.

18 It is entirely uncorroborated and contradictory what the

19 Prosecutor says in paragraph 609, namely that Sljivacanin was present at

20 the briefing at the OG South headquarters on the 20th of November when

21 Vojnovic and Mrksic spoke. We presented clear arguments about this in our

22 own brief, paragraphs 711 through 713. Who is saying this? Vojnovic and

23 Vukosavljevic, OTP witnesses, are. Seeing Mrksic, but Sljivacanin is not

24 there, you see. They say they didn't see him. They're crystal clear

25 about that. Vukasinovic is a witness whose evidence is invoked by

Page 16266

1 Mr. Moore because Sljivacanin told him, "I'm off to the meeting." But

2 he's not at the meeting. He's outside his command post, and he doesn't

3 know whether the meeting has already -- had already drawn to a close or

4 not. What leaves us dumbfounded is the fact that in three and a half days

5 of cross-examining Mr. Sljivacanin, the Prosecutor never asks the

6 question. Sljivacanin, in terms of his responsibility under Rule 98,

7 which is something that was so often invoked during our own

8 cross-examinations, they didn't confront Sljivacanin with their own

9 theory, with their own position. No. The Prosecutor never challenged

10 Sljivacanin's evidence as concerns this.

11 The next thing, I will not be commenting specially the Mrksic

12 defence, a proposition on the alleged forgery of Exhibit 422 committed by

13 Panic and Trifunovic. It's down to the Chamber to judge that. But let me

14 draw your attention to Exhibit 425 a report signed by Commander Mrksic on

15 the 22nd of November, signed by him personally, where he says -- where he

16 refers to that forgery and to that decision of the 1st Military District

17 which Mr. Vasic finds to -- to be not credible.

18 Apparently there were raised voices in the conversation that took

19 place between Sljivacanin and Vasiljevic in the 19th of November, but

20 there were none, especially not about the exchange telegram. Karanfilov,

21 whose evidence is referred to by my friend, clearly says that he didn't

22 hear the substance of the conversation between Sljivacanin and

23 Vasiljevic - this is page 15480 - but Witness Karan did hear the substance

24 of their conversation and says that they talked about the desire felt by

25 Karan and Sljivacanin's associates to tape their conversation with Marin

Page 16267

1 Vidic, and Vasiljevic flatly refused. No voices were raised during that

2 conversation, the reference being 15678. Sljivacanin is not exactly a

3 soft speaker and this was amply confirmed by Mr. Moore some days ago when

4 he spoke about his obvious arrogance.

5 The Prosecutor wrongly claims that Sljivacanin didn't testify

6 about the meeting with his subordinate commanders on the 19th of November

7 about the tasks for evacuation. Sljivacanin testified about that in

8 detail, on page 13618, about the tasks he assigned to his subordinate

9 commanders.

10 The Prosecutor also wrongly refers to the testimony of Witness

11 P-012, transcript page 3663, about the fact that allegedly nine persons

12 who were returned from the barracks to the hospital were then returned and

13 sent to Ovcara. Nobody said that, not even that witness. It -- nine

14 persons were not returned, and there are many other testimonies about this

15 fact.

16 Sljivacanin was not in the barracks or at Ovcara on the 20th of

17 November. The Defence of Mr. Sljivacanin has been claiming this from

18 before the pre-trial brief and throughout the entire trial. It seems that

19 the Prosecution did not insist too much on proving this argument. They

20 kept -- they persistently chose not to call of their witnesses who

21 described Sljivacanin in great detail at the hospital, but who also said

22 that they didn't see him at Ovcara or in the barracks.

23 The Prosecution kept waiting for this sole witness of theirs who

24 allegedly saw him in the barracks and at Ovcara and the other witness who

25 saw him only at Ovcara. All other witnesses of the Prosecution, and even

Page 16268

1 of the Defence, did not merit the attention of the Prosecution -- of the

2 Prosecution. They chose not to check this argument with them.

3 I will now continue further about this topic, but perhaps this

4 could be a good time for our break so that I can gain five minutes after

5 the break.

6 JUDGE VAN DEN WYNGAERT: We will have a break of 20 minutes now.

7 --- Recess taken at 3.41 p.m.

8 --- On resuming at 4.01 p.m.

9 JUDGE VAN DEN WYNGAERT: Mr. Lukic, you now have 35 minutes, and

10 then we will hear from the Prosecution whether there is a need for

11 rebuttal.

12 Mr. Lukic.

13 MR. LUKIC: [Interpretation] Thank you, Your Honours. I started

14 discussing the argument about the alleged presence of Mr. Sljivacanin at

15 the barracks and at Ovcara on the 20th. We discussed this in detail in

16 our written brief concerning the testimony of Witness P-009 and Zlatko

17 Zlogledja. Here, in our closing arguments, I would like to add that we

18 received the greatest support of our argument precisely from the testimony

19 of the OTP witnesses. We didn't fail to ask any of them who described

20 Sljivacanin's appearance at the hospital about their observation in the

21 barracks or at Ovcara concerning Sljivacanin. There were over 15 of such

22 Prosecution witnesses, and we heard from everyone a clear and firm answer,

23 namely that Sljivacanin was not in the barracks and not at Ovcara on the

24 20th of November.

25 I will next that it was also confirmed by all of Defence

Page 16269

1 witnesses, and to further highlight the neglectful attitude of the

2 Prosecution for this argument of theirs, I will mention the fact that none

3 of those witnesses of the Prosecution were asked in redirect examination

4 and none of the Defence witnesses were asked in cross-examination about

5 this argument of the Prosecution, because the Prosecutor knew what kind of

6 answer he would have received.

7 I would like to remind Mr. Moore of that only because in his final

8 brief he very arbitrarily mentioned that it was only Witness Susic who

9 said that Sljivacanin was not in the barracks. There was a comment there

10 as well that Susic was not in front of the buses throughout the entire

11 time. Let me remind Mr. Moore that -- and I'm not going to mention now

12 the witnesses on the buses. I will only mention those outside of the

13 buses and, namely, there were Panic, Vukasinovic, Maric, and Karanfilov

14 there at different times, and none of them saw Sljivacanin.

15 I will also remind Mr. Moore that he should not forget a great

16 many of his witnesses' documents and videotapes which clearly show where

17 Sljivacanin was at the time when he was allegedly seen at the barracks and

18 at Ovcara. I will remind the Prosecutor that he, the Prosecutor, claims

19 in his final brief in paragraph 565 that Sljivacanin was at the hospital

20 at around 1430 when the convoy set out. Plus we also have an exhibit,

21 341, which speaks of the fact that convoy left from the hospital at around

22 1600 hours. And that's precisely the time that the Prosecution witness

23 P-009 claims that Sljivacanin was at Ovcara.

24 Why did we insist so much on establishing as accurately as

25 possible the time-frame of Sljivacanin's alleged presence in the barracks

Page 16270

1 and at Ovcara? Witness P-009 was very vague when he -- when it came to

2 his memory and earlier statements. Everything became physically

3 impossible in those statements, or perhaps there were more than one

4 Sljivacanin in Vukovar or even Sljivacanin was an epitome of the entire

5 JNA in Vukovar.

6 Despite such obvious media bias about his role in Vukovar events,

7 almost all witnesses of the Prosecution were unequivocal; namely, they did

8 not see Sljivacanin either at the barracks or at Ovcara.

9 This document, the folder provided by Mr. Moore two days ago, with

10 quoted words of witnesses about Sljivacanin is an excellent example of the

11 work of Prosecution and a further support of my position. Mr. Moore

12 brilliantly showed his approach to the final brief and closing arguments.

13 Take out just what suits you and pretend that nothing else exists, as

14 though all of us here in this courtroom did not spend a year and a half

15 together listening to the testimonies. However, one cannot get around the

16 fact that all of those witnesses who described Sljivacanin at the hospital

17 in such great detail did not see Sljivacanin either at the barracks or at

18 Ovcara, and he is such a man, as Witness Berghofer put it and Mr. Moore

19 quoted it, that one can recognise him from a distance of one kilometre.

20 Your Honours, this will be a difficult and thankless task for you

21 to compare all of these testimonies at the hospital. Some of the

22 witnesses said that Sljivacanin did not address them. Some claim the

23 opposite. Some said that he issued orders. Some didn't hear those

24 orders. Some said that he went outside of the bus area. Some say that he

25 didn't. Some say that he ordered the buses to set out. The others claim

Page 16271

1 that it wasn't him. However, it is undisputable that Sljivacanin was at

2 the hospital on the 20th in the morning and also in the afternoon hours.

3 What did Mr. Sljivacanin actually do when it comes to the

4 evacuation of the hospital? He participated together with the security

5 organs, doctors, and hospital staff, despite of how difficult it is to

6 some of them to acknowledge it now. He worked with them in order to

7 ensure all the necessary conditions for evacuation of the wounded and the

8 sick, and the separation or triage of the persons who had to be

9 separated. Even though this doesn't suit Mr. Moore, Sljivacanin did the

10 work he had to do within his duties, his competence, together with the

11 officers of the security organs of the 1st Military District and security

12 administration. He had to. He was supposed to act in accordance with the

13 order of the superior command.

14 There are two documents proving this and you heard about that

15 Exhibit 316 and 333. They speak clearly about the fact that on the 19th

16 of November, Pavkovic did not give the consent for the wounded members of

17 Croatian forces to be evacuated. Not only those who were hiding and

18 disguising but also Croatian fighters who were wounded.

19 On the 20th of November in the morning, Colonel Pavkovic told the

20 representatives of the ECMM that there was a definitive - I stress

21 definitive - order of General Raseta that wound members of the Croatian

22 forces who were at the hospital could not be evacuated. This is Exhibit

23 333.

24 And what was the task of security organs now that we have all this

25 information? That they should not allow those who Mr. Moore calls former

Page 16272

1 town defenders to be evacuated.

2 Why does the Prosecutor wish to stress as contentious the fact

3 that in one part of that work the security organs used both local

4 residents and TO members in order to gain information? Let me just stress

5 that the Prosecution expert Mr. Pringle, in paragraph 74 of Exhibit 600,

6 said that everything that Mr. Sljivacanin did was fully legitimate.

7 Nothing was done covertly in this operation. Quite the contrary. The

8 representatives of the European mission and journalists were told by

9 Sljivacanin upon their arrival at the hospital that those people had been

10 separated and taken to the prison. Please look at Exhibit 837 and 840,

11 and please look at exhibits invoked by the Prosecutor in their paragraph

12 225 of the final brief.

13 Yes, Mr. Moore, Sljivacanin did say to the representatives of the

14 European Monitoring Mission that those people had been separated and taken

15 to prison.

16 Mr. Moore, did you ask your witnesses, Kypr and Schou, who

17 confirmed this fact, did they inquire about where these people had been

18 taken? Did they ask to go and write down their names? No, you didn't ask

19 them that. However, Sljivacanin told them clearly about this fact.

20 Just how much did you distance yourself by your position in

21 paragraph 225 from the participation of Sljivacanin in the joint criminal

22 enterprise? The Prosecutor particularly highlights the civilian status of

23 victims at Ovcara, and perhaps now I'll touch upon the question that will

24 be later dealt on with the -- by the Trial Chamber. Now I will refer to

25 the status of victims themselves.

Page 16273

1 First of all, I wish to say that I fully support the final brief

2 of the Defence of Mr. Radic, paragraph 71 to 128. They spoke in detail

3 about this fact. We know very well just how much Mrs. Tapuskovic and

4 Ms. Dokmanovic analysed this issue, especially Mrs. Tapuskovic.

5 I have to mention the following: The documents and testimonies

6 clearly speak of the status of the victims. The following is also

7 important: Out of 200 bodies exhumed from the grave at Ovcara, eight were

8 never identified. Out of 192 remaining bodies, for some reason the

9 Prosecutor never included two persons in the annex of the indictment. Out

10 of 190 remaining bodies, four families never accepted the results of the

11 identification, and these people are still listed as missing. Finally,

12 out of 186 bodies, the Defence teams conducted a very detailed comparative

13 analysis of the documents provided by the Prosecution. 452, Exhibit 452,

14 Strinovic; Exhibit 544, which is Grujic's testimony; then the documents

15 provided by Dr. Bosanac, Exhibits 345 and 346, as well as autopsy records,

16 Exhibit 462.

17 These documents, unfortunately I'm speaking of dry facts here own

18 though this involves individual human lives, show us that among the

19 exhumed there are at least 155 members, reported members, of Croatian

20 armed paramilitary formations, many of whom had nothing to do at the

21 hospital, especially if we take into account the fact that they disguised

22 themselves. For example, record OVC 181 indicates that the number is even

23 higher. I definitely do not wish to question the pain of the families or

24 to minimise the tragedy at Ovcara. I also do not wish to deny the status

25 of the wounded combatants who are entitled to protection under

Page 16274

1 international standards. However, this protection does not prevent the

2 JNA from separating those persons whose status is disputed at that point

3 in time. Even Borsinger, the representative of the ICRC, in his talk with

4 Pavkovic, Exhibit 335 and 336, says: "The role of the Red Cross is not to

5 help the fighters to disguise and to -- civilians and be evacuated from

6 the hospital." Then several seconds later, once again Borsinger says, "I

7 will never prevent you from doing your job." He says that to Colonel

8 Pavkovic. Please look at that exhibit.

9 In the interests of justice, we have to underline what is

10 necessary in establishing material facts of a crime, that we cannot say

11 that the majority of the victims here were civilians and had the status of

12 civilians. This is based first and foremost on the facts provided by the

13 families of the victims as well as by the administration of the Vukovar

14 Hospital and autopsy reports.

15 Now I'm going to move on to a key issue in this trial on which you

16 will have to render your final judgement, honourable Tribunal, for our

17 benefit, and that is who was it and at whose orders that actually withdrew

18 the security unit of the 80th Motorised Brigade from Ovcara and which is

19 very important as a fact for our defence, whether evidence, whether proof

20 has been offered that Sljivacanin had anything to do with that obviously

21 misguided decision.

22 You have heard and read two assertions. According to Mr. Moore it

23 was only Karanfilov who would have transmitted that order which could --

24 then could have only been issued by Mrksic, but it is logical, says he,

25 there is no other proof in the Prosecutor's rationale except that it is

Page 16275

1 logical that that went through Sljivacanin.

2 According to Mr. Vasic, that was also what Karanfilov did.

3 According to that contingent, both Panic and Sljivacanin waited for Mrksic

4 to leave for Belgrade because they knew that he, Mrksic, would never have

5 allowed it so that they transmitted an order to Razmanovic [phoen] to

6 withdraw via Karanfilov. The objective was to divert attention by this

7 crime from the Croatian crime in Gospic and for General Vasiljevic to get

8 his captured collaborators from the Labrador Operation and then, in

9 return, Croatia international recognition.

10 Distinguished Bench, as I have indicated in the beginning, your

11 task here is not to establish a criminal liability for so grave a crime on

12 the basis of logic, imagination, or construction, but on the basis of

13 proof and facts, on the basis of evidence to which you shall lend credence

14 or not. That is the basis of your assessment and your conclusion and

15 ultimately the mandate entrusted to you by the international community.

16 In its final brief the Defence team of Mr. Sljivacanin has

17 analysed in detail the evidence which is solely and exclusively of the

18 essence for your conclusions, and the evidence, primarily Exhibit 371,

19 clearly states that the security unit assigned to the hangar at -- was

20 assigned to the hangar at 16 hours on the 20th by Lieutenant Colonel

21 Vojnovic, the only person who could legitimately do so, and also then that

22 security unit was withdrawn at 2230 hours by the only person who could

23 legitimately do so, the one who had ordered it and who was able to retract

24 his decision. And it was only Commander Vojnovic who could issue such an

25 order to his unit and none other.

Page 16276

1 In JNA there existed the principle of singleness of command, and

2 Vojnovic, too, clearly testified that he had sent Vukosavljevic to relay

3 his order to Vezmarovic, and Vukosavljevic also went to Ovcara. He did

4 not rule out the possibility that he had relayed that order to

5 Vezmarovic. That is at 8803 in the transcript. And Vezmarovic himself

6 testified that perhaps Vukosavljevic had relayed to order to him. That's

7 8589 in the transcript.

8 And I should like to underline Vukosavljevic testified that after

9 that he informed the person who had issued him the order, Lieutenant

10 Colonel Vojnovic, and that's at page 8805.

11 I should also like to know that Vukosavljevic himself expressed

12 doubts when he heard the assertion about the alleged appearance of

13 Karanfilov for the first time, and that was in 2003. And, as he put it,

14 it was some sort of a variant of the description of the incident of the

15 event that Vezmarovic talked about, and that's at 8812. That's logical,

16 as my learned colleague Mr. Moore would put it, for Vukosavljevic to have

17 thought that because there, at Ovcara, he could see Karanfilov nowhere.

18 These are facts, and these are evidentiary assertions that both

19 Mr. Moore and Mr. Vasic are steering clear off. Doubtlessly Vojnovic sent

20 Vukosavljevic to relay the order to Captain Vezmarovic to withdraw his

21 unit. It is indubitable that Vukosavljevic and Vezmarovic returned alone

22 together and informed Vojnovic thereof, and that was entered in the war

23 log of the 80th Brigade.

24 That evening, no one at all noted in the war log that the

25 withdrawal had been executed outside the chain of command, and it is quite

Page 16277

1 clear that also on the 18 -- that on the 18th of November as well

2 Karanfilov had no command authority whatsoever over Vezmarovic. You can

3 consult the testimonies of Vojnovic, Mr. Moore's favourite witness, on

4 page 9085. He did not order that to Vezmarovic. And then look at

5 Danilovic's statement, and who is the favourite witness of the Defence of

6 Mr. Mrksic, and that's at transcript 12367. The commander of the camp,

7 Danilovic, claims it was impossible for the command of the military police

8 to receive any orders without him being involved, but Karanfilov needed to

9 be discredited as much as possible in order to obfuscate the so-clear path

10 to the truth. That is why his earlier statements were used in order to

11 disrupt what he had claimed from the -- from his first statement and he

12 has given -- he gave eight of them. On the day Karanfilov was not at

13 Ovcara and Vasiljevic was not at Negoslavci. And Vesna Bosanac and Marin

14 Vidic were not at the examination, the interrogation in Negoslavci on the

15 20th of November, but on the 19th of November, and you have heard a number

16 of testimonies and they're all consistent in this regard. In fact, Vesna

17 Bosanac herself at 688, and Karan, that is 15557, and Sljivacanin, 13596,

18 and Karanfilov, at 15418, all say the same thing. And Karanfilov who

19 was -- who they wanted so much to mix up the dates clearly described how

20 after eight statements he was shown for the first time during the proofing

21 for this testimony the necessary documentation, video clips, and

22 documents, and that is at transcript 154358, of so many investigators all

23 throughout these 15 years, no one wished, and they were able to, to show

24 the -- the witness any document. It seems that this was all in pursuit of

25 the objective that I've already referred to.

Page 16278

1 And then when the entire sequence of events from the adoption of

2 the decision on the setting up of the security unit up to their withdrawal

3 clearly and only functioned in compliance with rules and regulations upon

4 the principles of unity of command; according to precise chain of command,

5 that chain needed to be severed and another one made up. And then, of

6 course, the command authority of Karanfilov needed to be established,

7 which is impossible on the basis of regulations, and also impossible on

8 the quite clear testimonies of Vojnovic and Danilovic.

9 So Karanfilov did not have command powers at -- in any single

10 moment and Vezmarovic could not nor dared act according to his alleged

11 orders. No. Vezmarovic exclusively and solely acted according to the

12 decisions of the person who issued him the order according to the

13 regulations and in actual practice to come to Ovcara and to then withdraw

14 from Ovcara, and that was Lieutenant Colonel Vojnovic. That is what we

15 heard from him.

16 The evidence is inexorable. Sljivacanin has nothing whatsoever to

17 do with that decision nor has a single piece of evidence been presented

18 that would not only be beyond any doubt but associate Sljivacanin with

19 that decision in any way.

20 I will now draw your attention to several contentions of the OTP

21 regarding the JCE. Not so much from a legal aspect, which, actually,

22 Mr. Moore did not explore that much, but just some factual underpinnings

23 of his contention. What Mr. Moore has offered us is stated in paragraph

24 362, in which he adds new members of the JCE by name and surname. All

25 those who actually are adulterated by their testimonies, his contention,

Page 16279

1 as it were, to the effect that in that enterprise, the pursuit of a joint

2 plan, there also had to be the arch scoundrel, the compliment, actually,

3 that Mr. Moore paid to the witness, Vukasinovic. And that was a witness

4 which according to accounts -- at whom, according to accounts, TO members

5 had pointed their guns three times that day and who on arrival at the

6 hangar managed to personally expel all those persons from the hangar.

7 Vojnovic, who is -- who also opposes and takes on those

8 territorials is, according to the Prosecutor, a hero. And Vukasinovic who

9 does the same is, in his book, a member of the JCE, with a number of

10 insults into the bargain.

11 It is obvious that Panic's and Karanfilov's testimony do not

12 soothe the OTP and we have seen why; that is why they need to be

13 anathemised.

14 Both Mr. Moore and Mr. Vasic claim that organs of security could

15 have discharged duties outside their remits, and they invoke Exhibit 374

16 on the appointment of Vukasinovic as town commander to support that. They

17 seem to forget what actually happened, what was in Negoslavci. Let me

18 remind them. It was the command post of the Guards Brigade and of the

19 command post of the OG South. I should like to remind them also of the

20 fact that one of the basic tasks from the remit of the OB and -- is the

21 organisation of the security of the command. According to Article 7 of

22 the rules of service of the OB and there cannot be a more suitable

23 commanding officer to control and organise security than the actual

24 commanding officer of the OB unit. The appointment of Vukasinovic of town

25 commander was Commander Mrksic's decision within the remit of OB and I

Page 16280

1 think beyond it. If it was outside his ambit, as my learned colleague

2 asserts, then a written decision on it only demonstrates what kind of a

3 form is necessary to issue orders to an officer of security outside his

4 remit.

5 I shall just say a few words about the proposed sentence. In our

6 brief we didn't see anything about extenuating or aggravating

7 circumstances, and we now consider that to be deeply on a collision course

8 with our proposal, but we did deal with a part which refers to the

9 character of Mr. Sljivacanin. That's in paragraphs 892 to 908. That

10 person, his character, his person of a professional soldier, his conduct

11 in war, his desire for the war operations to stop, his human care for

12 civilians, not only as a human being but -- not only as an officer but as

13 a human being, but also his attitude when it came to the deaths of his

14 soldiers, ordinary troops, but we can also say observed from the aspect of

15 the JNA, heroes, is something that you must bear in mind to establish --

16 in establishing his liability.

17 I can only wonder whether the Prosecutor is proposing this

18 sentence due to -- to his impotence to impress the Court with his proof.

19 Is it only on formalism that he bases his perception of Sljivacanin's

20 liability when he proposes this sentence? Sljivacanin decided to take the

21 stand first in his evidentiary procedure. During the trial he wished to

22 actively contribute to the efficiency of the proceedings, also when he was

23 in hospital for treatment.

24 Your Honours, we cannot say whether we have been helpful to you in

25 establishing the truth. We did our best in professional terms, and we

Page 16281

1 have also followed clear instructions from Mr. Sljivacanin. We did not

2 speculate or toy around with evidence. We tried to bring such witnesses

3 before the Trial Chamber as could provide reliable answers to many

4 questions, as were raised throughout this trial.

5 This trial has gone on for a year and a half. What we now leave

6 behind us are times filled with stories of evil, pain, crime, and wounds

7 that cannot heal. It is the truth that must crush all prejudice

8 accumulated over the years among the public. One of the greatest

9 prejudices is the role purportedly played by Sljivacanin in Vukovar. An

10 executioner, a Chetnik, a Commie, and an arrogant liar.

11 Sljivacanin was in no way involved in this crime and in no shape

12 or form did he have any share in this or in the subsequent responsibility.

13 Sljivacanin's sole crime was that he had faith in a country, in a flag,

14 and in an oath. It is because of this faith, it is for the sake of him

15 and everybody else who had had the same faith, that you must crush

16 prejudice by establishing the truth. A part of that truth is your own

17 verdict by which you will establish that Veselin Sljivancanin is not

18 guilty of the crimes that were committed at Ovcara.

19 Your Honours, this is the end of my closing argument. I would

20 like to use up another minute or two to say this: I would like to express

21 my gratitude, and I think I'm speaking on behalf of all three Defence

22 teams, to all those who have contributed to this trial running as smoothly

23 as it has. We wish to thank the Detention Unit, who showed particular

24 care and affection for our clients when their health was at stake. I also

25 wish to thank the interpreters, and I wish to thank them for their work

Page 16282

1 today. I wish to thank the Victims and Witnesses Protection Unit in a

2 very special way. I also wish to thank my own team as well as all the

3 witnesses who appeared on behalf of Mr. Sljivacanin, raising no objection

4 whatsoever and having no regard to their own personal interest and

5 benefit. I wish to thank them all.

6 Finally, I wish to thank the Chamber for giving me an opportunity

7 to appear before this Court, which has been a great honour for me. As my

8 learned friend Mr. Borovic has said, we have tried here to cross swords

9 with the OTP, and I believe that a trace will remain of our legal efforts

10 here in the history of international law. Some of the experiences that we

11 have had throughout our time here will no doubt prove of value back in our

12 own countries.

13 Thank you.

14 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Lukic.

15 Now the question is, will there be argument in rebuttal and in

16 rejoinder.

17 Mr. Moore. The answer is yes?

18 MR. MOORE: The answer is in the following way: May I endorse my

19 learned friend's thanks to all parties and may I additionally thank the

20 Defence for the courtesy to which they have applied -- applied to us

21 through this trial.

22 With regard to the rebuttal matter, I will not deal with any

23 issues that have been raised except the point that Your Honour has already

24 mentioned by way of the definition of "civilian."

25 JUDGE VAN DEN WYNGAERT: Thank you very much. Okay. Then I think

Page 16283

1 we can proceed to that point now. Very well.

2 MR. MOORE: I didn't know whether Your Honour wished to see

3 whether the defendants had anything to say prior to this or for

4 subsequent -- or subsequently.

5 JUDGE VAN DEN WYNGAERT: We were thinking of having that at the

6 very end of this hearing.

7 MR. MOORE: Certainly.

8 The Court has posed an interesting question which has exercised

9 many minds. The question clearly concerns the point of law, and if I

10 may just read again into the record the question that Your Honour has

11 posed. "Is the question whether the victims of a crime against humanity

12 where civilians are not relevant to the applicability of Article 5. In

13 other words, is the general condition of the civilian status of the

14 targeted population that is required for a chapeau requirement identical

15 to the condition of the civilian status of the victims of the underlying

16 crime?"

17 I hope I read it correctly.

18 May I deal with it in this way: The Trial Chamber has asked us

19 whether Article 5 requires proof that the victims of the underlying crimes

20 were civilians and whether the civilian status requirement in the chapeau

21 of Article 5 is identical to that required for the victims of the

22 underlying crimes. May I begin by giving a brief summary of our answer,

23 and then I hopefully will explain it in a little more detail and address

24 the Tribunal's existing case law on that matter.

25 There will be two parts to my answer. The first is this: That

Page 16284

1 all of the victims of the crimes pleaded under Article 5 in the present

2 case qualify as civilians under Article 5. They were either persons who

3 had never participated in hostilities, or they were persons who were hors

4 de combat, and so were no longer participating in hostilities. Our

5 position is that the scope of protection afforded by Article 5 is broad

6 and broad enough to encompass both of these categories of persons.

7 The second aspect of my reply is as follows: Because your

8 question also appears to raise an issue that goes beyond the facts of the

9 present case, namely can victims of crimes against humanity include those

10 who participate in hostilities, for example, combatants. The answer to

11 this hypothetical question is that such persons could be considered as

12 victims of a crime against humanity even though they do not qualify as

13 civilians by definition. This would be so in the circumstances where they

14 are targeted in a manner that is unlawful under IHL. However, if

15 combatants are targeted in a manner that is lawful under IHL, then clearly

16 no crime has been committed and quite simply the matter ceases there.

17 May I just move on and deal with the -- the victim of an Article 5

18 crime and the definition of civilian under Article 5. As I've already

19 indicated in brief outline the definition of "civilian" under Article 5 of

20 the Statute includes all persons who are not participants hostilities. In

21 other words, a civilian under Article 5 is anyone who is not the lawful

22 object of attack under IHL. This includes persons who are hors de combat,

23 for example, through sickness or through being detained by an opposing

24 party. In this way the term "civilian" under Article 5 does not have an

25 identical meaning to the term "civilian" in Additional Protocol I

Page 16285

1 regulating international armed conflicts in Additional Protocol I persons

2 who are classified as hors de combat are a separate category of analysis

3 and are not subsumed in the term "civilian." However, under IHL, persons

4 hors de combat and civilians are nevertheless on the same footing. They

5 are accorded substantially similar protections. More significantly or

6 most significantly, neither category of persons can be the object of

7 attack, only combatants participating in the hostilities can be the object

8 of an attack. So it is the principle of distinction between combatants

9 and non-combatants which is the key under IHL regardless of the labels

10 used.

11 This is reflected in the IHL principles regulating internal armed

12 conflict. For example, in Common Article 3 and Additional Protocol II,

13 the only distinction drawn is between persons taking no active part in

14 hostilities or persons who do not take a direct part or who have ceased to

15 take part in hostilities, and those who do take part in hostilities.

16 Common Article 3 expressly places persons hors de combat in the category

17 of persons who take no active part in the hostilities and who may not be

18 attacked.

19 In our commission, the reference to civilians in Article 5 is

20 intended to reflect the same distinction as set out in Common Article 3.

21 The protection stemming from the civilian status extends to anyone not

22 taking an active or a direct part in hostilities, including persons who

23 are hors de combat.

24 The operation of IHL as lex specialis does not, in our submission,

25 prevent such a conclusion. It does not require that the term "civilian"

Page 16286

1 in Article 5 be given precisely the same definition as under IHL,

2 regulating international armed conflicts consistent with the Blaskic

3 appeal judgement at paragraph 110. The definition of civilian under IHL

4 is relevant in defining that term under Article 5. However, there is

5 nothing to mandate that the terms must be defined in identical terms.

6 What is required is that the term "civilian" in Article 5 cannot be

7 interpreted in a manner that undermines IHL. In particular, the

8 term "civilian" under Article 5 cannot be defined to include persons who

9 are lawful objects of attack under IHL. That, however, does not prevent

10 the approach that we submit is appropriate here, that is based on the

11 distinction drawn in IHL itself between persons who do not take part in

12 hostilities it and so may not be attacked and those who do, who may

13 legitimately be attacked.

14 The definition of civilian under Article 5 that we advocate is

15 supported by a number of Tribunal authorities; for example, the Rule of 61

16 decision in this case, which held that persons hors de combat may fall

17 within the definition of civilians under Article 5. The Chamber on that

18 occasion reviewed the indictment pursuant to Article 61 -- to Rule 61,

19 held that although according to the terms of Article 5 of the Statute of

20 this Tribunal, the combatants in the traditional sense of the term cannot

21 be victims of a crime against humanity. This does not apply to

22 individuals who at one particular point in time carried out acts of

23 resistance. May I refer the Bench to paragraph 29 of that decision.

24 Secondary, may I direct Your Honours' attention to the Akayesu

25 trial judgement in paragraph 582. There it held that members of the

Page 16287

1 civilian population are people who are not taking any active part in the

2 hostilities, including members of the armed force who lay down their arms

3 and those persons placed hors de combat. The Trial Chamber in that case

4 noted in a footnote that this definition assimilates the definition of

5 civilian with the categories of persons protected by Common Article 3.

6 The Tadic trial judgement there, the Trial Chamber asked which

7 individuals could be considered as civilians for the purposes of Article

8 5. After surveying a number of sources, the Trial Chamber concluded that

9 a wide definition of civilian population, as supported by these sources,

10 is justified. Thus the presence of those actively involved in the

11 conflict should not prevent the characterisation of a population as

12 civilian and those actively involved in a resistance movement can qualify

13 as victims of crimes against humanity. And in that it also referred to

14 the Mrksic rule where it actually used it as an authority in the following

15 way: Although crimes against humanity must target a civilian population,

16 individuals who at one point in time performed acts of resistance may in

17 certain circumstances be victims of crimes against humanity.

18 In the context of that case, patients in a hospital, either

19 civilians or resistance fighters who had laid down their arms were

20 considered crimes against humanity. Of course that is this case.

21 Finally, may I refer Your Honours to a case decided by this very

22 Trial Chamber. That was the Limaj trial judgement. In that case Your

23 Honours held in paragraph 186 when discussing the term "civilian

24 population," in Article 5 that, and I quote: "The presence within a

25 population of members of resistance armed groups or former combatants who

Page 16288

1 have laid down their arms does not as such alter its civilian nature."

2 Importantly, Your Honours went on to observe, "as a result, the

3 definition of a civilian is expansive, and includes individuals who at one

4 time performed acts of resistance, as well as persons hors de combat when

5 the crime was committed.

6 May I deal then, please, with the Blaskic appeal judgement. Would

7 Your Honour wish me to deal with that?

8 JUDGE VAN DEN WYNGAERT: Yes, please. Go ahead.

9 MR. MOORE: The Blaskic appeal judgement does not preclude this

10 approach. The Blaskic Appeals Chamber dealt with the issue of who may

11 constitute a civilians for the purpose of Article 5. Our submission is

12 that the Blaskic appeal judgement does not preclude the approach we

13 advocate -- or advocate and which is reflected in the case law that we

14 have cited. The Appeals Chamber focused on the following comment made by

15 the Blaskic Trial Chamber, and I quote: "It also follows that the

16 specific situation of the victim at the moment the crimes were committed,

17 rather than his status, must be taken into account in -- in determining

18 his standing as a civilian." That's at paragraphs 109, 108, and 114.

19 The Appeals Chamber was of the view or expressed the view that

20 this statement may be misleading. The Appeals Chamber then extracted a

21 passage from the ICRC commentary to Protocol I, which dispels the notion

22 that there is a category of part-time combatant status, that a person

23 could be considered a combatant by day and a peaceful civilian by night.

24 The key point is that if that person is targeted at night, when the person

25 was no longer engaged in combat, this does not mean that the individual is

Page 16289

1 no longer a combatant and has immunity from attack. Under IHL a person

2 who is not considered as a person who is no longer actively participating

3 in hostilities just because at a given point in time he is not engaged in

4 combat. For that reason, the Appeals Chamber concluded that the specific

5 situation of the victim at the time the crimes were committed may not be

6 determinative of his civilian or non-civilian status.

7 We submit that is correct. Under IHL, a person who is a combatant

8 but who happens not to be engaged in combat at a particular moment in

9 time, may still be lawfully attacked. However, the Blaskic Appeals

10 Chamber did not focus on the situation that we are concerned about in this

11 case. For that reason, the Blaskic case is distinguishable, in our

12 submission. The hors de combat victims in the present case were no longer

13 participating in any hostilities at all for the time that they had that

14 status, and we submit that this is confirmed by the language of Article

15 3. Under IHL, they could not be the lawful object of attack, and that is

16 the key distinction and is the basis for our submission that the Blaskic

17 appeal judgement does not preclude extending the term "civilian" to

18 encompass persons who would be considered hors de combat.

19 May I pose then the following question? It's simply this: Can

20 combatants be considered as victims of Article 5 crimes? The broader

21 issue raised by Your Honours' question whether persons participating in

22 the hostilities could ever be considered as victim of Article 5 crimes

23 does not, as I say, arise on the facts of this case. However, we would

24 submit that the combatants can be considered victims of a crime against

25 humanity if they are victimised in a way that is unlawful under IHL.

Page 16290

1 IHL's status as lex specialis imposes limitations on the extent to which

2 combatants can be considered victims of the Article 5 crimes. In

3 particular, the death of a person in lawful combat activity under IHL

4 logically could not become unlawful and a crime against humanity under

5 Article 5. Beyond this kind of scenario, however, it is possible that a

6 combatant who is targeted in a way that is unlawful under IHL could be

7 counted among the victims of a crime against humanity.

8 There are various authorities which I can refer to in relation to

9 the Supreme Court of Germany in the British occupied zone following World

10 War II entered convictions for crimes against humanity in at least three

11 instances where the victims were regular soldiers, and in one of those

12 cases the judgement concluded that, "whoever notes the expressly

13 emphasised character of the instances and classes of instance mentioned

14 there cannot come to the conclusion that action between soldiers may not

15 constitute crimes against humanity."

16 So I respectfully repeat and stress that this question does not

17 arise on the facts of this case since, as we have already submitted, the

18 victims here were hors de combat and no longer participating in the

19 hostilities.

20 We have endeavoured to deal with the matter as expeditiously and

21 as neatly as we can. If, however, and it is a complex matter and I think

22 everyone understands that, if the Court would wish any further explanation

23 or expansion of our position, we would be willing and happy to do so in

24 written form with that will assist the Court.

25 JUDGE VAN DEN WYNGAERT: Thank you very much, Mr. Moore.

Page 16291

1 Now we will hear the submissions for the Defence.

2 Mr. Vasic.

3 MR. VASIC: [Interpretation] Good afternoon. Thank you. I will

4 try to respond also to the question raised by the Chamber as well as to

5 the question raised by Mr. Moore.

6 I would like to say something before I start and before I provide

7 an answer to that question. All three of our Defence teams have made

8 clear our positions on the existence or non-existence of essential

9 elements for the application of Article 5 of the Tribunal's Statute. We

10 think the elements have not been met to prove that an attack like that was

11 carried out against the JNA, an attack against civilians at the period of

12 time covered by indictment.

13 I would like to focus on something that my learned friend Mr.

14 Moore has said in his own closing argument about this. It's about Exhibit

15 312 and Exhibit 305. This is an exhibit which he refers to as the Babska

16 declaration. We can see that on page 663 of the transcript, the exhibit

17 was introduced through Witness Kypr. Kypr didn't know where the exhibit

18 came from. It wasn't something that he obtained himself. The Defence at

19 the time raised doubts as to the authenticity of the document purportedly

20 showing that there was an ultimatum given to the civilian population, to

21 the citizens of Babska to hand over their weapons lest they were

22 flattened, as this -- or razed to the ground, as this handwritten document

23 appears to suggest. Its authenticity was never proved.

24 The other exhibit I'm talking about is 312. Again, this is about

25 the attack against civilians. It was introduced through Witness Kypr.

Page 16292

1 This was a document that was drafted during The Hague Conference, and the

2 Defence claims that it was a form of political pressure put on the

3 Yugoslav authorities. The transcript reference is 6702 through 6704. We

4 see there clearly that Kypr knows nothing about who produced that

5 document. As to the most important portion of this document, which is

6 something especially raised by my learned friend, the attack against

7 civilians, he only seems to know about Lovas, and that's the only place he

8 mentions, and we do know for a fact that there was no attack by the JNA in

9 Lovas. What occurred there was people being killed as a result of actions

10 taken by a group led by the self-styled commander, Ljuban Devetak. So

11 that is the premise that I wish to establish before I launch into my

12 principal subject, which is attacks against civilians.

13 Unlike my learned friend, the Defence believes that in order to be

14 able to apply Article 5, victims need to be civilians, and this is

15 something that has been established in the Kunarac sentence and the

16 Krnojelac sentence, in previous trials before this Tribunal. We believe

17 there is no dilemma at all about that. What my learned friend is pleading

18 today, we believe, cannot be applied in relation to Article 5. There are

19 other norms of international humanitarian law addressing the issue.

20 It is quite clear that we have a final sentence, a final ruling

21 here, the sentence in the Blaskic case which clearly defines and accepts a

22 comment made by the Red Cross, in fact, a comment about how the category

23 of civilians should be defined. Bearing in this mind, we can say that the

24 provisions of Article 30 of the Additional Protocol of the Geneva

25 Conventions defined the status of civilians. This is a negative

Page 16293

1 definition of what is envisaged under Article 4(A), items 1, 2, 3 and 6 of

2 the Geneva Conventions and Article 43 of the first Protocol. This

3 encompasses all the persons who were taken out of the hospital on the

4 morning of the 20th of November. That is what the Defence teams are

5 saying. We believe there were no civilians among those people. All those

6 who on the morning of the 20th of November were taken away were

7 combatants.

8 We do agree, however, that their civilian status cannot be

9 challenged if we have a group of civilians their civilian status cannot be

10 challenged just because there happens to be the occasional fighter among

11 them. But we do believe that in this group there were people who had not

12 laid down their weapons, and there was not a civilian majority in this

13 group. This is clearly demonstrated by what we have presented as a

14 conclusion after questioning the members of the committee for missing

15 persons, Croatia's committee for missing persons. We looked through

16 documents that they had been working on for years, and we saw what the

17 figure regarding the active fighters was. I think about 155. I think

18 that's what my learned friend has said.

19 We also need to bear in mind the fact that in addition to the

20 active fighters belonging to the National Guards Corps and the MUP, there

21 was an involvement also by the volunteers and the civilian protection. In

22 my closing argument, I pointed out that most of its members were involved,

23 most citizens of Vukovar, especially after the mobilisation had taken

24 effect.

25 That is precisely this provision defining what sort of group can

Page 16294

1 be considered as a civilian group and what sort of group can be considered

2 combatants stems from the terms provided by the International Red Cross.

3 At page 515, paragraph 1676, it says that no group taking part in combat

4 or carrying weapons can be considered as a civilian group. The status of

5 such a group and their protection can only be ensured in -- in the case of

6 wounding under the first and second Geneva Conventions and when taking

7 prisoners under the provisions of the third Geneva Conventions, and not

8 under the provisions Article 5 of the Statute granting protection only to

9 a group of civilians that is attacked.

10 What is essential here is that the group raised in the indictment

11 is a group that was separated from all the wounded patients or any other

12 civilians who had either been transferred to Velepromet or were hospital

13 staff and left on the convoy that left Vukovar on the 20th at half past

14 3.00. So this group that was kept there in the morning was made up of

15 those persons alone who had been a party to the hostilities, had been

16 involved in the hostilities. They were combatants; therefore, their

17 status could not additionally have been changed into that of civilians as

18 Mr. Moore seems to have pleaded.

19 Therefore, my position is that, as concerns any crime under

20 Article 5 of the Statute, victims must have a civilian status. The

21 conclusion therefore is the victims in this case the victims refer to in

22 the indictment had no such status.

23 Thank you.

24 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Vasic.

25 Mr. Borovic.

Page 16295

1 MR. BOROVIC: [Interpretation] Thank you, Your Honours. I shall

2 just add to what colleague Vasic has said on our joint behalves. As

3 regards the status of victims referred to by the OTP in their final

4 briefs, they pointed that these were the sick and the wounded and under

5 the first Geneva Convention applied and the corresponding provisions of

6 Additional Protocols 1 and 2 thereto, which refer to the sick and wounded;

7 however, in the indictment, I believe I said so yesterday, the persons

8 from the hospital are defined as detainees, patients, and captured

9 persons. And then the OTP also in another spot defines them as evacuees.

10 Today we heard that all the persons who ceased participating in the

11 hostilities, including combatants who had lay their arms, could acquire

12 the status of a civilian person, and they were the victims of a crime.

13 If we speak about specific matters we know from the evidence that

14 was presented when it refers -- in so much as it refers to the combatants

15 who lay their arms, that does not apply to this case. The combatants who

16 were found in the Vukovar hospital had not laid down their arms. It was

17 the Mitnica group that had done so and therefore it acquired the status

18 which entitles it to protection under the Geneva Convention.

19 I believe that this is a matter of substance. I'm not going to go

20 into explaining the correlation between the objectives of assaults on this

21 or that group of civilian population. This is something, it has to be a

22 primary objective, as we know, but that would already be an assessment of

23 evidence. So we do have a joint position on the civilian status of

24 victims which is that in this case they were not civilians. Thank you.

25 JUDGE VAN DEN WYNGAERT: Thank you very much, Mr. Borovic.

Page 16296

1 Mr. Lukic.

2 MR. LUKIC: [Interpretation] Very briefly with the reservation that

3 during these two days I did not focus much on your question, but we of

4 course discussed it and I fully subscribe to Mr. Vasic's and Mr. Borovic's

5 words. I should like to say that in respect of the category of civilian

6 population, we wrote about that in paragraph 767 to 774 of our brief and

7 that is how we perceive civilian population as a necessary condition for

8 Article 5 of the Statute.

9 Let me just add that I oppose Mr. Moore's thesis that the verdict

10 in the Brdjanin -- sorry, in the Blaskic case is not relevant to our

11 case. I believe that it is exceptionally relevant, and in terms of our

12 concrete case, we know that that is a second instance and final verdict.

13 As regards the civilian or non-civilian status, we actually invoked that

14 judgement in both our pre-trial and final briefs, and I'm going to read it

15 and.

16 THE INTERPRETER: Will counsel please slow down.

17 MR. LUKIC: [Interpretation] Paragraph 114 of the second instance

18 of the appellate jurisdiction in the Blaskic case, the Appellate Chamber's

19 conclusion says: "Because of that, the specific situation of the victim

20 in the moment of the commission of the crime does not necessarily

21 determine its civilian versus not civilian status. If he is indeed a

22 member of an armed organisation, the fact that he is unarmed or does not

23 participate in combat at the time of the commission of the crime does not

24 give him, does not accord him civilian status."

25 To me this is it. This is the end of the discussion. There is no

Page 16297

1 dilemma at all for a legal conclusion which for us here in this courtroom

2 is the source of law.

3 As Mr. Borovic says -- said, this is not people -- persons who had

4 laid down their arms but these are and the assilerate [as interpreted]

5 that, persons who had concealed their weapons of course that is up to the

6 procedure of evidence proving but this is -- this position from the

7 Blaskic judgement is extremely important and relevant; that is why we

8 invoked it in both our briefs. These victims who did not have their arms

9 a that moment were not therefore civilians according to that judgement.

10 Thank you.

11 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Lukic.

12 I'm looking at the time. At this moment in time we -- the Trial

13 Chamber has been told that both Mr. Mrksic and Mr. Sljivacanin want to

14 address the Trial Chamber. I suggest that we have a break and that we

15 resume and then the parties will let us know.

16 I'm sorry. So we could still go for 45 minutes. Can -- okay.

17 [Trial Chamber confers]

18 JUDGE VAN DEN WYNGAERT: So does Mr. Mrksic want to address the

19 Court?

20 THE ACCUSED MRKSIC: [Interpretation] Good afternoon, Your Honours.

21 Thank you for giving me an opportunity to address the Court at the end of

22 this trial.

23 I have every confidence in your work. I have seen you follow the

24 trial closely, and I trust that you will bring a just verdict. I have

25 been listening to the lawyers as well. There have been certain

Page 16298

1 disagreements.

2 I would like to say a couple of words. I'm not going to the

3 merits of the case, of course, but I want to say something about some of

4 the things that the Prosecutor said yesterday.

5 They started their closing argument by putting forward a theory to

6 the effect that I was creating officers in the Guards Brigade who were

7 brutal, who in terms of their demeanour and behaviour caused fear among

8 other people, fear and a climate of intolerance. I do wish to say one

9 thing. It is generally known what sort of officers are required for any

10 Guards Unit, and I believe the same applies to the unit that Mr. Moore

11 served in himself in England.

12 We did everything within our power for our officers to be

13 athletic, cultured, clean-shaven, nice looking, and clear in their

14 approach. I said this to Mr. Vance. He was quite satisfied at the time.

15 I don't know how the theory came about that I struck anyone at all as an

16 arrogant - I'm not sure exactly what they said - an arrogant person,

17 someone to be feared. Mr. Moore said that, and later he concluded based

18 on this that there was some sort of a joint criminal enterprise.

19 What I'm trying say is this: No such people could remain in the

20 Guards Brigade. No such people could have ever become members of the

21 Guards Brigade. No brutality was tolerated, to other soldiers or indeed

22 to their wives even. If their wives came over and complained about these

23 soldiers, I would have had them transferred. Each of our officers had to

24 be well-liked, well-loved by all other officers. That's what our officers

25 were like, and that's why in combat a lot of our officers were killed in a

Page 16299

1 bid to protect their own soldiers.

2 If any of our officers at all ever said anything about any other

3 ethnicity, statements that weren't in the spirit of the principles of the

4 Guards Brigade, these soldiers had to be transferred. If anyone at all

5 said they would have wronged any other ethnicity in any way, they would

6 never have been taken on by the Guards Brigade. We built up our

7 relationships on brotherhood and unity, on our traditions dating back to a

8 time when Comrade Tito was still alive, and even earlier traditions. Any

9 stories saying that we wanted to create a joint criminal enterprise and

10 expel the Croats are stories that I can't accept. My officers never could

11 possibly have conceived of anything like that, and that is why I refute

12 this.

13 I have many questions myself why certain things happened in a

14 certain way. Sometimes things were unclear. When the fighting started I

15 didn't understand myself why I had to remain in Vukovar all the time.

16 Mr. Moore was right when he said that it was a new Stalingrad. Who knows

17 in whose interest this was? I had the Bogdanovci three metres behind me

18 in my own combat disposition.

19 I was shown that image of the destruction of Vukovar 15 years

20 later. I realise who this served, towns and cities are laid siege to and

21 sometimes they just fall. There's no need to destroy towns and cities.

22 However, these were political and military decisions and our job was to

23 carry them out.

24 Cui bono, who stood to profit from this? This is something I

25 leave to historians, and I think analysts on Croatian TV are talking about

Page 16300

1 this publicly. Why were the civilians returned to Vukovar? In order to

2 make the defenders as firm, as strong as possible, and in order for the

3 Vukovar defenders to crush and defeat the very spearhead of the JNA, the

4 Guards Brigade. The divisions and other brigades were scattered all over

5 Srem. By the time we arrived in Vukovar there were tanks but no soldiers,

6 artillery weapons but no soldiers, armies abandoning their positions,

7 deserting, that sort of thing. There was chaos all over the place.

8 People were coming up with ideas like, "Stop. Give it up." But still we

9 were the Guards Brigade. We got our mission, and we would complete our

10 mission. We would see to it that our mission was completed.

11 When we faced a crisis when our reservists abandoned us, we still

12 remained. We did our best. We fought hard. We tried to restore order

13 and discipline even under those conditions, and we were to some extent

14 successful. As long as the fighting was still going on, we had no trouble

15 at all. They won't surrender. Marin Vidic calls me. I talk to him. I'm

16 offering everything. He wants to see what the leaders will say. They

17 don't want to surrender. They want to take that path that I left open out

18 of Vinkovci. I didn't want to suffer any losses myself or inflict any

19 losses on them at this point in time since Vukovar had already fallen.

20 And then there was a lot of commotion. Why weren't the prisoners there?

21 And then the telegram came, the one that was mentioned, and so on and so

22 forth.

23 And then the new assignments came up. Fill up, don't let them

24 pull out. Where are they? Why are they there? And then all the other

25 things that turned up. Whoever surrendered to us eventually surrendered.

Page 16301

1 This was done in compliance with all regulations and the same would have

2 been the case vice versa, and I was personally involved in this to make

3 sure that the rules were complied with.

4 After the conversation with Vesna Bosanac, there was this sudden

5 change and indifferent delegations kept arriving. The security delegation

6 from Sid, the delegation from the 1st Military District, the men from the

7 cabinet, and what do I know? A whole lot of officers, anyway. Too many

8 cooks spoil the broth. You know the old saying, and that's what happened

9 in the end.

10 My officers will hear me, I'm sure. I would like to take this

11 opportunity to thank them for their -- for their courage, to thank them

12 for the honourable way in which they fought. It was thanks to our

13 excellent relationships that we were successful in carrying out our task

14 and completing our mission. I also wish to recognise the effort made by

15 the defenders of the time who had suffered a great many casualties. I

16 don't know what they got from it in the end. So many lives were lost.

17 I'm sure the problem could have been resolved in a different way.

18 Finally, what I wish to say is this: I am sorry for my own

19 officers, for my own COs, for my troops, all those who fought in the

20 area. They were volunteers there and all sorts of other units as well.

21 I am sorry for the common folks who lived in the area. I am sorry for the

22 citizens of Vukovar, their defenders, their own citizens, people that I at

23 one time lived with. I lived there for four years when I still went to

24 school. I first fell in love there, of all places. My officers knew

25 that. They respected the fact.

Page 16302

1 It's a been a long time and now I realise that all of this was

2 just a pure act of madness that should never have happened.

3 The one essential issue that needs to be raised is this, and this

4 is something that we've been discussing all along: Why did Ovcara occur?

5 I'm asking the question now. I'll still be asking the question once this

6 trial is over. Who stood to profit from this? Why did this have to

7 happen, and so on and so forth. All I can say is, I am sorry it ever

8 happened. If I'd known that it would happen, I would have prevented it.

9 I wouldn't have left for Belgrade. I would have stuck around. I would

10 have dealt with it.

11 Nonetheless, this is just proof that there was no sort of joint

12 criminal enterprise at all. It was never our intention for this to

13 happen. When I say "we," I mean the three of us sitting here now as well

14 as those back in Belgrade. Who is behind it is something that remains a

15 mystery to me.

16 Once again, I wish to thank the Honourable Chamber for lending me

17 your ears. I think eventually the most important thing for a man is to

18 be at peace with himself. One thing I do know is that I did not give that

19 order. I didn't know that this would ever happen. It's not like I knew

20 and did nothing to prevent it. Regardless of the eventual sentence, what

21 I think is really important is this, that I can still live with myself in

22 the knowledge that I knew nothing about this.

23 Once again, thank you, Your Honours, for lending me your ears.


25 [Trial Chamber and registrar confer]

Page 16303

1 JUDGE VAN DEN WYNGAERT: And Mr. Radic also wants to say

2 something. Mr. Radic.

3 THE ACCUSED RADIC: [Interpretation] Your Honours, just a couple of

4 words. It was through my Defence team that I expressed my regret for the

5 victims. I denied my involvement in any of the crimes that occurred

6 there. I wish to thank the Chamber once again for hearing me out when I

7 took the stand myself. I can only again say that I was in no way involved

8 or responsible for any of the crimes that occurred.

9 Thank you for everything. This is all I wish to say.

10 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Radic.

11 Mr. Sljivacanin?

12 THE ACCUSED SLJIVANCANIN: [Interpretation] Your Honours, I don't

13 have much to say. My team has already put forward all of my own positions

14 on my behalf. I told you about how I perceived the break-up of

15 Yugoslavia, my country, the sufferings of people who were innocent, and

16 the large-scale tragedy of young JNA soldiers. I took the stand. I told

17 my story. I remained on that stand for eight days. I answered all of the

18 questions that were asked.

19 I invited honourable and responsible officers of the JNA and the

20 Guards Brigade to testify here. They were eyewitnesses to everything that

21 in those evil times I was compelled to do in Vukovar and what I eventually

22 did. Unfortunately, on Wednesday we heard from Mr. Moore and on Thursday

23 from Mr. Vasic, I'm not sure based on what, that all those men were liars,

24 that they were trying to pin the blame on someone else.

25 No, gentlemen. Those men were here for the truth, and they were

Page 16304

1 not intimidated by the threats made by the Prosecution to include them in

2 the joint criminal enterprise.

3 Once again, I have to remind you of this: On the 21st of

4 November, 1991, on the evening of the 21st, I parted ways with

5 Mr. Borsinger as friends. I felt this way then, and I still feel that

6 way. I wish you had called him, Mr. Moore, to check what I am saying. I

7 believe that everyone in this courtroom and all honourable and sincere

8 people just want to know the truth. All I have done has been for the

9 truth to finally come out about the tragedy that occurred in 1991. There

10 can be no greater punishment for me or to anyone than to lose my own

11 country, the Socialist Federative Republic of Yugoslavia, than to witness

12 the suffering of my own people, young soldiers and officers, to face

13 enormous media pressure directed against my person. But believe me, what

14 I have been hearing over the last two days spelt the end of me. Those

15 were accusations and slander based on not a single fact.

16 I am certain that I have fulfilled my promise from the opening

17 statement, from the introduction, that my truth will be your truth at the

18 end of this trial, Your Honours. I wasn't raised to discriminate along

19 ethnic or racial lines. I was not raised to hate my own people. I was

20 not raised to destroy my own country. Croats, too, were my people.

21 Croatia, too, was my country at the time.

22 It wasn't before I came here that I found out from the OTP that

23 the distinction that had been drawn at the time was Serbs and non-Serbs.

24 I don't understand where in this great scheme of things we have place for

25 Montenegrins, like me, for example.

Page 16305

1 Serbs, non-Serbs, Croats and everybody else who lived in

2 Yugoslavia shared the same country, the same home, Yugoslavia. The world

3 knew us. The world remembered us. However, history was not kind to

4 them. A whirlwind came and blew them all away. Moves made by

5 politicians that were impossible to explain brought these peoples to the

6 brink of existence. This was their destiny. It was the destiny of their

7 souls, but there was also a legal provision in the constitution of the

8 Socialist Federative Republic of Yugoslavia, which I will now quote: "The

9 armed forces of the Socialist Federative Republic of Yugoslavia must

10 protect the freedom, independence, sovereignty, and territorial integrity

11 of the country."

12 Thank you. In this dark realm, in this tragical archetype, one

13 thing that was demonstrated was this: If you comply with the constitution

14 of the SFRY, you will be sorry; if you fail to comply, you will be sorry

15 too. I fail to understand Mr. Moore or Mr. Vasic, what exactly they base

16 their theories and what occurred in Vukovar on. I regret this.

17 Gentleman, you can go on making things up any way you like, but you can

18 never erase the truth about my humanitarian, about my readiness to

19 sacrifice myself for the sake of the good, for the sake of the truth, nor

20 can you do anything to sway my love for Yugoslavia and all of its

21 peoples.

22 I've done that in my introduction, but I have to do it again. I

23 would like to express my deepest regret to all the victims of the Vukovar

24 tragedy. I categorically condemn all those who occurred, such a heinous

25 and atrocious crime thereby inflicting an intolerable wrong on their own

Page 16306

1 people and inflicting grief on the families of those killed or maimed.

2 Your Honours, I have every confidence that this Trial Chamber will

3 rule in a just way. I expect a verdict from you that will be founded on

4 facts and that will be founded on evidence, evidence of the sufferings at

5 Ovcara. The truth is needed by all those who are not afraid of the truth.

6 The truth is badly needed by the families of the victims, the families of

7 the soldiers who were killed. It is also the Guards Brigade that needs

8 the truth. All honourable, honest, and sincere people of Yugoslavia need

9 to know the truth, especially the people of Serbia and the people of

10 Croatia. I need the truth. My family needs the truth. And so do my

11 friends. I expect a just verdict to clear my name and to clear the names

12 of the honourable officers of the Guards Brigade.

13 I served the Guards Brigade honourably. I acted in accordance

14 with the laws and the oath which I have taken. Please don't hold it

15 against me. I think it was by an act of omission that my lawyer forgot to

16 say this: I would like to thank the staff at Bronovo hospital and the

17 university clinic at Leiden who treated me and thereby enabled me to see

18 this trial through to its conclusion.

19 Thank you.

20 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Sljivacanin.

21 This brings this trial to an end. The Trial Chamber also on

22 behalf of Judge Parker wishes to thank counsel for the care with which

23 they have prepared their cases, for the good spirit in which these

24 proceedings have been conducted, which has also allowed us to proceed more

25 speedily and more efficiently. So we are very grateful to everyone for

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1 that.

2 I also want to express my appreciation to all those who have been

3 working behind the scenes, the many people who have supported this trial.

4 I think of the interpreters, I think of registry, I think of the

5 translators, I think of the stenographists, and maybe I am still

6 forgetting other persons.

7 We will adjourn now and we will deliver our judgement in due

8 course.

9 --- Whereupon the hearing adjourned at 5.35 p.m.