1 Wednesday, 21 January 2009
2 [Appeals Hearing]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE MERON: Registrar, will you please call the case on the
7 Appeal Chamber's agenda.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in the courtroom.
10 This is case number IT-95-13/1-A, the Prosecutor v. Mile Mrksic
11 and Veselin Sljvancanin.
12 JUDGE MERON: Maybe now I'll check with Mr. Mrksic and
13 Mr. Sljivancanin if they can hear me and follow the proceedings in a
14 language that they understand.
15 Mr. Mrksic.
16 THE ACCUSED MRKSIC: [Interpretation] Your Honour, I can follow.
17 Thank you.
18 JUDGE MERON: Thank you, Mr. Mrksic.
19 Mr. Sljivancanin.
20 THE ACCUSED SLJIVANCANIN: [Interpretation] Good morning, Your
21 Honours. Yes, I can follow the proceedings.
22 JUDGE MERON: I will now call for appearances. For the
23 Prosecution, please.
24 MS. BRADY: Yes. Good morning, Your Honours. Helen Brady
25 appearing on behalf of the Prosecution. With me today are
1 Mr. Paul Rogers, Mr. Kyle Wood, Ms. Nicole Lewis, and our case manager,
2 Ms. Alma Imamovic. And just for the record, this afternoon we'll also be
3 joined by Ms. Kristina Carey, Mr. Marwan Dalal and Ms. Najwa Nabti.
4 That's for the Sljivancanin appeal.
5 JUDGE MERON: Thank you, Ms. Brady.
6 Now, appearances for Mr. Mrksic.
7 MR. VASIC: [Interpretation] Good morning, Your Honours. Good
8 morning to all in the courtroom.
9 Miroslav Vasic appearing for the Defence of Mile Mrksic, and my
10 colleague, Mr. Domazet. Thank you.
11 JUDGE MERON: Thank you, Mr. Vasic.
12 Appearances for Mr. Sljivancanin.
13 MR. LUKIC: [Interpretation] Good morning, Your Honours. Good
14 morning to all in the courtroom.
15 My name is Novak Lukic. Today, I appear for the Defence of
16 Mr. Sljivancanin together with Mr. Stephane Bourgon, who is my
17 co-counsel; our assistant, our legal assistant, Maja Dokmanovic is here
18 with us.
19 JUDGE MERON: Thank you, Mr. Lukic.
20 Now I will briefly summarise our agenda for today.
21 We are now involved in the appeal hearing in the case of the
22 Prosecutor against Mrksic and Sljivancanin. At the outset, I will
23 briefly summarise the appeals which are pending before the
24 Appeals Chamber and the manner in which we will proceed today.
25 The Appeals Chamber deals with Mr. Mrksic and Mr. Sljivancanin's
1 responsibility in relation to the events that took place at Ovcara Farm
2 on 20th and 21st November, 1991. During this time, 194 identified
3 persons from the Vukovar Hospital
4 to be prisoners of war, were mistreated, tortured, and eventually killed.
5 Mile Mrksic, Veselin Sljivancanin, and the Prosecution appeal
6 from the judgement rendered on 27 September 2007, by Trial Chamber II,
7 composed of Judge Parker presiding and Judges Van Den Wyngaert and
8 Thelin. The Trial Chamber found Mr. Mrksic guilty pursuant to Articles 3
9 and 7(1) of the Statute for aiding and abetting to murder of 194 persons
10 at the site near the hangar at Ovcara on 20 and 21 November 1991, count
11 4; aiding and abetting the torture of the prisoners of war at the hangar
12 at Ovcara, count 7; and cruel treatment for having aided and abetted the
13 maintenance of inhumane conditions of detention at the hangar at Ovcara,
14 count 8. The Trial Chamber acquitted Mr. Mrksic on all other counts.
15 The Trial Chamber sentenced Mr. Mrksic to a single term of 20 years'
17 The Trial Chamber found Mr. Sljivancanin guilty pursuant to
18 Articles 3 and 7(1) of the Statute for aiding and abetting the torture of
19 the prisoners of war held at Ovcara on 20 November 1991, count 7. The
20 Trial Chamber acquitted Mr. Sljivancanin on all other counts.
21 Mr. Sljivancanin was sentenced to a single term of five years'
23 I will now briefly summarise the grounds of appeal.
24 Mile Mrksic brings 11 grounds of appeal. In his first eight
25 grounds of appeal, Mr. Mrksic challenges numerous findings which he
1 claims were entered as a result of the Trial Chamber's failure to apply
2 the standard of proof beyond reasonable doubt. Under his ninth ground of
3 appeal, he argues that as a result of the errors alleged in his preceding
4 eight grounds of appeal, the Trial Chamber erred in law in convicting him
5 pursuant to Article 7(1) of the Statute for having aided and abetted
6 murder, torture, and cruel treatment under Article 3 of the Statute.
7 Under his 10th ground of appeal, Mr. Mrksic disputes certain
8 facts which he claims were not so important for the Trial Chamber in the
9 course of reaching its decision, but which are important to the Defence
10 and the position of the Yugoslav People's Army.
11 Under his 11th ground of appeal, he argues that the Trial Chamber
12 erred in assessing the aggravating and mitigating circumstances when
13 sentencing him to 20 years' imprisonment.
14 Now, if I may, before addressing Mr. Sljivancanin's grounds of
15 appeal, I will briefly touch upon a procedure matter. Given that this
16 concerns confidential filings, can I ask the Court Officer to make
17 arrangements so that we can go into closed session now, please.
18 [Private session]
4 [Open session]
5 THE REGISTRAR: Your Honours, we're back in open session.
6 JUDGE MERON: Thank you.
7 I am now turning back to the appeal of Veselin Sljivancanin. He
8 brings six grounds of appeal. Under his first ground of appeal,
9 Sljivancanin argues that the Trial Chamber erred in finding that he was
10 present at Ovcara on 20 November 1991
11 His second ground of appeal alleges that the Trial Chamber erred
12 in law and in fact in its reliance on aiding and abetting by omission.
13 Mr. Sljivancanin's third ground of appeal posits that the Trial
14 Chamber erred by finding that he was in charge of the evacuation of the
15 Vukovar Hospital
16 war at Ovcara.
17 In his fourth ground of appeal, Mr. Sljivancanin argues that the
18 Trial Chamber erred in finding that he must have witnessed the
19 mistreatment of the prisoners of war at Ovcara.
20 Mr. Sljivancanin's fifth ground of appeal posits that the Trial
21 Chamber erred by finding that his omission substantially contributed to
22 the commission of the crimes and that he must have been aware that
23 through his omission, he facilitated the commission of crimes.
24 Finally, in his sixth ground of appeal, he argues that the Trial
25 Chamber erred by imposing an excessive sentence.
1 The Prosecution brings four grounds of appeal. In its first
2 ground of appeal, it argues that the Trial Chamber erred in law by
3 excluding persons hors de combat from being victims of crimes against
4 humanity and requests the Appeal Chamber to reverse the acquittal of
5 Messrs. Sljivancanin and Mrksic under Article 5 of the Statute and,
6 therefore, first enter a conviction for torture as a crime against
7 humanity under Article 5 of the Statute against Mr. Sljivancanin and, 2,
8 enter convictions for murder, torture, and inhumane acts as crimes
9 against humanity under Article 5 of the Statute against Mr. Mrksic.
10 Under its second ground of appeal, it requests the
11 Appeals Chamber to overturn Mr. Sljivancanin's acquittal for murder and
12 enter a conviction against him under Article 3 of the Statute for having
13 aided and abetted the murder of 194 individuals killed at the grave-site
14 near Ovcara on 20-21 November 1991. As part of its arguments under this
15 ground of appeal, the Prosecution contends that the Trial Chamber erred
16 in finding that Mr. Sljivancanin's legal duty towards the prisoners of
17 war ended upon the withdrawal of the Yugoslav People's Army troops from
18 Ovcara. The Prosecution just submits that Mr. Sljivancanin had a
19 continuing legal duty under international humanitarian law even after
20 Mr. Mrksic ordered the withdrawal of the Yugoslav People's Army troops.
21 The Prosecution's third and fourth grounds of appeal seek to, 1,
22 revise and increase Mr. Sljivancanin's sentence in order to properly
23 reflect the gravity of his criminal conduct; 2, revise and increase
24 Mr. Mrksic's sentence in order to properly reflect the gravity of his
25 criminal conduct; and, 3, revise and increase Messrs. Sljivancanin's and
1 Mrksic's sentences in case the Prosecution's first ground of appeal
2 succeeds; and the Appeals Chamber enters new convictions under Article 5
3 of the statute.
4 During this appeal hearing, counsel may argue the grounds of
5 appeal in the order they consider most suitable for their presentation,
6 but I would ask them not to just repeat verbatim or to extensively
7 summarise what is in their briefs. I also wish to note that pursuant to
8 the addendum to the scheduling order of 12 December 2008, the
9 Appeals Chamber is inviting the parties to address specific issues during
10 this appeal hearing, issues that do not have to be restated here now.
11 The questions set out in the addendum have been posed, I want to stress,
12 without prejudice to any matter the parties or the Appeals Chamber may
13 wish to raise and in no way constitute an expression of an opinion on the
14 merits of the appeal.
15 I would now like to recall the standard of review applicable to
16 errors of fact and law alleged on appeal. The appeal is not the trial
17 de novo. It is not an opportunity for the parties to re-argue their
18 cases. Rather, in accordance with Article 25 of the Statute, the
19 appellants may limit their arguments -- must limit their arguments to
20 alleged errors of law which invalidate the trial judgement or alleged
21 errors of fact occasioning a miscarriage of justice. Additionally, it
22 should be recalled that the appellants have an obligation to provide
23 precise references to materials supporting their arguments on appeal.
24 I would now turn to the timetable for today's proceedings. This
25 hearing will proceed according to the schedule outlined in the decision
1 on Sljivancanin and Mrksic motions seeking additional time for the
2 presentation of supplementary submissions during the appeal hearing or an
3 alternative remedy and scheduling order for the appeals hearing issued on
4 25 November 2008
5 this morning for up to one hour and thirty minutes. Following a
6 15-minutes' pause, the Prosecution will then present its response for up
7 to one hour and thirty minutes. There will then be a one hour and thirty
8 minutes' break, after which counsel for Mr. Mrksic will reply for up to
9 30 minutes. Counsel for Mr. Sljivancanin will then present his appeal
10 for up to one hour and thirty minutes. Following a 15-minute pause, the
11 Prosecution will present its response for one hour and thirty minutes to
12 finish today's proceedings. The hearing will then continue on Friday,
13 starting with Mr. Sljivancanin's reply and continuing on to the
14 Prosecution's appeal.
15 I would note for counsels' benefit that the time-limits I have
16 mentioned are the maximums allowed. There is no requirement that they
17 use all the time that they are allowed.
18 It would be most helpful to the Appeals Chamber if the parties
19 could present their submissions in a precise and clear manner. I wish to
20 remind the parties that the Judges may interrupt them at any time to ask
21 questions, or they may prefer to ask questions following each party's
23 Having said this about the manner in which we will proceed today,
24 I would now like to invite counsel for Mr. Mrksic to present submissions
25 in support of his appeal.
2 MR. VASIC: [Interpretation] Thank you, Your Honour.
3 Your Honours, the Defence of Mr. Mile Mrksic fully abides by all
4 its 11 grounds of appeal. However, within its oral presentation within
5 the time-limits provided, it will focus only on the most important parts
6 of the appeal.
7 First of all, one should state that the judgement that is being
8 looked at here through the appeals of all parties in the proceedings is
9 the result of the decision made by the Trial Chamber to deviate from the
10 principle of establishing facts beyond reasonable doubt and decide to
11 make conclusions that are based on a sentence referred to in
12 paragraph 321 of the judgement, and that is: Such an order only could
13 have come from Mile Mrksic.
14 In addition to all the statements to the effect of what the
15 authority of the security organs was, and Captain Karanfilov belonged to
16 them and he conveyed the order on withdrawal, and they had a separate
17 line of command, and the Trial Chamber deals with that in paragraph 285
18 in the judgement, the mentioned conclusion on the responsibility of
19 Mile Mrksic for issuing an order to have the military police of the 80th
20 Motorised Brigade withdraw from Ovcara Farm seems controversial. It
21 seems to be based on the principle: Who was it if it wasn't him? There
22 is no evidence that would lead any reasonable Trial Chamber to reach such
23 a decision.
24 The Trial Chamber, as they tried to establish a logical
25 connection between such a conclusion and the adduced evidence, they had
1 to accept the statements of witnesses whom they, themselves, find not to
2 be telling the truth, and that is evident. These witnesses were
3 concealing their personal responsibility or the responsibility of their
4 friends and comrades-at-arms. I am referring here to the statements of
5 Witnesses Vojnovic, Vukosavljevic, Panic, Vukasinovic, Karanfilov, Vujic,
6 Susic, and Trifunovic.
7 The Trial Chamber, as they made such a decision, they had to
8 reject the logic of material evidence like Exhibits 371, 375, 419
9 [Realtime transcript read in error, "429"], 268 and 269 [Realtime
10 transcript read in error] respectively, as well as many others. They
11 concluded that witness statements were more reliable than documents that
12 were undeniably created at the time and at the place that is of relevance
13 here. Witness statements that the Trial Chamber refers to in this
14 context are precisely those that belong to the category that we discussed
15 a few moments ago.
16 In order for the conclusions on the guilt of Mile Mrksic to
17 subsist in this kind of a system of legal conclusions, the Trial Chamber
18 had to give up on the establishment of chronology and cause and
19 consequence, in terms of particular events.
20 In the judgement, in paragraph 321, the Trial Chamber, after the
21 proceedings were concluded, does not establish precisely who it was that
22 issued the order if it wasn't Mr. Mrksic. They don't know when the order
23 was issued, before or after the daily briefing, and at what time this
24 happened. They don't know for what reason the security was withdrawn.
25 This unrelenting game of questions cannot lead to the conclusion
1 that it's only Mrksic himself who knows the answer. The only thing that
2 the Trial Chamber establishes precisely is that the withdrawal took place
3 before 9.00 p.m.
4 Brigade, Exhibit 371, as for the 20th of November, 1991, it says that the
5 security detail withdrew at 2235 hours precisely. I just want to say
6 that it doesn't say that it says "2200 hours," "2230 hours," but, rather,
7 it says "2235 hours," so if someone were inventing things, would it be
8 that way? Would it be in such terms of time?
9 The Trial Chamber establishes that Mile Mrksic was commander of
10 Operations Group South and that all other units were subordinated to him.
11 However, that cannot be grounds -- or, rather, the only ground for
12 establishing that he issued the order on the withdrawal of the units of
13 the military police of the 80th Motorised Brigade from the hangar at the
14 Ovcara Farm because according to the principle which was applied in the
15 trial judgement, this order could have been issued by any officer from
16 the security line, the security chain all the way up to the top, or any
17 officer of the Command of the 80th Motorised Brigade.
18 Responsibility for the security of the area in which there is no
19 civilian authority, as was the case in Vukovar and the surrounding area
20 in November 1991, according to the decision of the Supreme Command and
21 the Command of the 1st military district, lay in the hands of the town
22 commands, which constituted the military authority in these regions and
23 that were established to protect the property and persons in these
24 territories as well as prisoners of war if they happened to be in these
25 areas. The responsibility of the commander of the town stems from the
1 authority vested in him in the Rules of Service in Article 72 and 78,
2 speaking of the tasks of the commands of garrisons and commands of
4 The Supreme Command was aware of the fact that it is only in this
5 way, by creating town commands at lower levels, can the safety and
6 security of property and persons be protected until civilian authority is
7 re-established. That is why Mile Mrksic, through his own order,
8 appointed the commander of the 80th Motorised Brigade to be the commander
9 of the area of Jakobovac, Ovcara, and Grabovo with all the duties
10 aforementioned resubordinating to him for these needs more than 1.000
11 soldiers and pieces of armoured equipment.
12 In addition to this, Exhibit 375 of the war diary of the 80th
13 Motorised Brigade shows that Lieutenant-Colonel Vojnovic was given the
14 task on the 19th of November, 1991, to prepare his unit for guarding
15 prisoners of war from the area of the hospital at Ovcara on the day of
16 the 20th of November, 1991. Bearing this in mind, the conclusion of the
17 Trial Chamber, as referred to in paragraph 316 of the judgement as some
18 kind of surprise of Commander Vojnovic and his unit, cannot be
19 established beyond reasonable doubt or would any reasonable trier of fact
20 and that this kind of order that was entered into the war diary could
21 have remained something unknown to the commander of the 80th Motorised
23 Finally, the Chief of Staff of the 80th Motorised Brigade,
24 Lieutenant-Colonel Danilovic testified to the fact that his unit had this
25 task and was preparing for it.
1 As for assessing what is written in the war diary, the Trial
2 Chamber in this case and in some other cases establishes that the entries
3 that were made in -- or, rather, at the time when the events concerned
4 happened are not updated, and therefore, the Trial Chamber does not
5 accept them as accurate. However, the party in charge of the accuracy of
6 the documents, and that is the Chief of Staff, Lieutenant-Colonel
7 Danilovic, he fully confirmed the correctness and the fact that the
8 documents of the 80th Motorised Brigade were kept up to date.
9 Finally, the documents that we're discussing here, the war diary
10 and the operations diary, were kept by two different persons. Both of
11 them were intellectuals and pedantic in terms of their work. One was the
12 manager of a company. The other one was a JNA major. The correctness of
13 these entries and the fact that the security organs were in charge of
14 triage and transport and that the 80th Motorised Brigade was given the
15 task to guard the prisoners at Ovcara is attested to by the fact that at
16 the moment when the buses started arriving in Ovcara, first and foremost,
17 there was Commander Vojnovic there, and the commander of Ovcara, and the
18 unit of the military police of the 80th Motorised Brigade, and the Chief
19 of Staff of Operations Group South, and Major Vukasinovic, who led the
20 convoy, and Captain -- and the captain who was in charge of the group of
21 prisoners of war from Mitnica on the 18th of November, 1991, and a large
22 group of security officers from the security administration, and members
23 of the counter-intelligence group from Sid.
24 The security organs were taking JNA soldiers out of the bus,
25 those who were of Croat ethnicity, and they testified here. They were
1 taken off the bus, and the commander of Operations Group South was not
2 questioned -- was not asked about this at all. There is a security
3 colonel with a car there and who was watching all of this, and also, the
4 men who were sent there by the chief of the security administration,
5 General Aleksandar Vasiljevic, were there too.
6 As for these facts, it is hard for any reasonable trier of fact
7 to conclude that Mrksic suddenly ordered a change of destination and that
8 he sent the prisoners of war to Ovcara rather than to Sremska Mitrovica.
9 That is referred to in paragraph 610 to 612 of the judgement. Mrksic did
10 not make such a decision because he was not in charge of dealing with
11 prisoners of war.
12 The Trial Chamber, in order to bring -- or to link Mile Mrksic
13 together with the fate of the prisoners of war, took the statement of
14 Witness Panic on his presence at the so-called government meeting. This
15 sequence of events and the statement by Witness Panic does not fit into
16 the time and events that took place on that day in Vukovar, so the Trial
17 Chamber also changes the timing of the events, although the material
18 events in Exhibits 268 and 269, representing the crucial material, it was
19 proved that at the time when the Trial Chamber found that the meeting
20 took place, Slavko Dokmanovic, who was present at the meeting, happened
21 to be with the delegation from Kladovo in Backa Palanka and later was on
22 his way to Vukovar. In the film which these exhibits are, 268 and 269,
23 you can see that this delegation arrived in the courtyard of Velepromet
24 sometime before 1400 hours.
25 Supporting these material facts or this material evidence, the
1 Prosecution -- well, you can also include the Prosecution exhibits which
2 were admitted under Rule 92 bis, and these are the statements of
3 ministers in the so-called government which confirmed the authenticity of
4 the film, but the problem is not just this but the fact that the
5 conclusions of the Trial Chamber based on the testimony of Witness Panic,
6 about whom the Chamber itself found that for the most part in his
7 testimony he did not speak the truth, and this is something that the
8 Defence dealt with in its paragraphs 201 to 224 of its appeal.
9 I would just like to emphasise one fact here, and that has to do
10 with this issue of what Mrksic said to Panic in respect of this meeting
11 of the government at Velepromet. First of all, there are no witnesses
12 for the telephone conversation, and the Trial Chamber here decided to
13 place its trust in Panic. Although this statement does not correspond to
14 the statement by Witness Vujic, which -- or who did not confirm that
15 Panic conveyed at the government meeting some sort of welcoming speech or
16 Mrksic's agreement; however, in a small notebook, which is Exhibit 852,
17 presented to the Trial Chamber, there is a note from the meeting in
18 Velepromet, which took place allegedly on the 20th of November, 1991,
19 which very briefly, in two or three sentences, allegedly records what
20 happened. But the witness who actually took those notes, Panic, claims
21 that the conclusions were adopted but that he did not actually record
22 them in these two or three sentences, as if they were not important to
23 him. Either they were not adopted or the whole event did not take place
24 at all, and this is something that the Mrksic Defence asserts.
25 It is interesting that this part of Panic's testimony and the
1 conclusion of the Trial Chamber can be viewed through the transcript from
2 page 14382 to 14384, where you can see clearly that Witness Panic, until
3 2001, takes the 21st of November, 1991, as the date that the meeting
4 actually took place, but the position of the Defence is if Exhibit 852,
5 the small notebook that I mentioned, were authentic and it was in the
6 possession -- and had it been in the possession of Mr. Panic, he would
7 not have been able to make such a crucial mistake because he could have
8 used it to remind himself had his notes actually been made on the 21st of
9 November, 1991
10 that actually these notes were written sometime later. That is why, when
11 we are considering this particular piece of evidence, we believe that the
12 conclusions of the Trial Chamber, which arise from these assertions by
13 Witness Panic, would not be taken by any reasonable trier of fact as
14 evidence beyond any doubt. However, the fact that the war prisoners were
15 not under the authority of Mile Mrksic can be seen from the order for the
16 evacuation of the hospital. This is Exhibit 419, where the categories of
17 persons that Mile Mrksic was authorised for are listed.
18 So it is completely illogical that the Trial Chamber concluded
19 that a part of an order for the same assignment was issued orally and a
20 part was issued in writing because this is something that does not happen
21 in practice. What is said in the order, which is Exhibit 419, is
22 actually the assignment being issued by Mile Mrksic, and that is the
23 evacuation of the wounded and sick persons from Vukovar Hospital
24 nothing to do or does not refer to any treatment of prisoners of war.
25 The security organs are in charge of taking care of prisoners of
1 war, which can be seen from Exhibit 819, as well as from the fact that
2 people for this operation were being sent by
3 General Aleksandar Vasiljevic, who was at the time the chief of the
4 Security Administration, and that the triage and evacuation of these
5 persons headed by the group led by Witness Vujic is being conducted by
6 this group, and this includes, also, the security organ, the security
7 organs received from Belgrade
8 hiding at the hospital, and they also received an order to see or find
9 out who these persons were and to detain them. What can Commander Mrksic
10 have had to do with that, pursuant to the conclusions of the Trial
11 Chamber? The organs of security communicated directly with
12 General Aleksandar Vasiljevic from the hospital, and the buses from the
13 hospital to the barracks were sent by Vujic and Sljivancanin, and nobody
14 informed Mrksic about this because there was no need for that because he
15 was not in charge of this category of persons.
16 Besides the order on the evacuation of the patients from the
17 hospital in the already-mentioned Exhibit 419, Mrksic again warned the
18 town commanders about their duty to protect the security of property and
19 persons in their areas of responsibility. So besides addressing all the
20 commands before to apply the provisions of international humanitarian law
21 and to establish town commands as commands that were in charge, Mrksic
22 again now warned about the duty to protect property and persons at all
23 places where military command was in power rather than civilian
24 authority, and this order went out on the 20th of November, 1991. Such
25 an order was also received by the commander of the 80th Motorised
1 Brigade, and he had to adhere to this order because besides his own unit,
2 he also had 1.000 attached soldiers who happened to be in the
3 Grabovo-Ovcara-Jakobovac sector. He also had a tank unit in Jakobovac,
4 which was less than 1.000 metres away from Ovcara, and anti-aircraft guns
5 and one tank who were located not far from the yellow house, just 200
6 metres from the hangar at Ovcara. You can see this location and the
7 yellow house in photographs that are part of Exhibits 378 to 380.
8 Witness P-014 arrived at the Command in the evening at around
9 2200 hours to see Lieutenant-Colonel Vojnovic with the request that the
10 military police should not withdraw from the Ovcara Farm. (redacted)
13 JUDGE MERON: Mr. Vasic, I will ask this to be redacted, and
14 whenever you need to refer to a matter which should not be referred to,
15 you can ask us to go into private session, a matter bearing on identity
16 of persons protected, but I hope that we will not have to do that.
17 You can continue now, Mr. Vasic.
18 MR. VASIC: [Interpretation] Thank you, Your Honour.
19 JUDGE MERON: Excuse me. Of course, our redaction will include
20 your own comments also.
21 MR. ROGERS: Of course.
22 JUDGE MERON: I think that we are now ready to proceed,
23 Mr. Vasic. Please do.
24 MR. VASIC: [Interpretation] Thank you, Your Honour.
25 I was speaking about the conclusion of the Trial Chamber from
1 paragraph 625 that members of the TO can overrule members of the JNA. I
2 consider that no reasonable trier of fact could come to such a conclusion
3 when Lieutenant-Colonel Vojnovic himself claimed that there were no more
4 than 40 members of the TO, and he had a force of several thousand men in
5 his own unit and also armoured equipment in the immediate vicinity of the
6 hangar. He also, as the commander of the 80th Brigade, had prepared his
7 unit because as we have already said, he received an assignment on the
8 19th to prepare for guarding and securing prisoners of war. In the
9 situation in which Lieutenant-Colonel Vojnovic said he found himself, he
10 had to, as an experienced officer and commander, to refuse to hand over
11 prisoners to anyone other than to the authorised powers. He should have
12 guarded them or should have asked for reinforcements if he didn't have
13 enough men, or to ask for buses and to transfer them to a different
14 location. If he were to be ordered to hand them over to a TO unit, for
15 example, he first had to make sure that the prisoners of war would not be
16 in any danger, and he could have carried out the order under this
17 condition only if he had received a written order and after inquiring in
18 detail about the consequences of this order. Otherwise, he had to have
19 refused the order and to address the immediately superior command. In
20 any case, he had to use forces that he had at his disposal, and to throw
21 out members of the TO from the hangar, and to prevent their further
22 presence in his area of responsibility.
23 Since Mrksic did not order anything - and this is what he said
24 himself, Lieutenant-Colonel Vojnovic, I mean - he tried to interpret
25 Mrksic's words. The duty of the commander -- of the town commander was
1 clear, and Vojnovic was evidently aware of it, but he acted differently.
2 Why he did this is something that the Trial Chamber did not establish.
3 They accepted the testimony of this witness as one of the key witnesses
4 to establish the guilt of Mile Mrksic.
5 The Trial Chamber did not establish either why the list that was
6 drafted of prisoners of war disappeared. These are the prisoners of war
7 who were at the hangar on the 20th of November, 1991, and which ended up
8 on the desk of the commander of the 80th Motorised Brigade,
9 Lieutenant-Colonel Vojnovic, in the evening of that day. It's quite
10 clear why this list was made; because this procedure was already applied
11 in the case of prisoners of war at Mitnica who were at Ovcara from the
12 18th to the 19th of November, 1991, who were also guarded by the military
13 police of the 80th Brigade.
14 It is odd that despite the presence of these many members of the
15 security services who were at Ovcara that day, as well as surprises from
16 the Supreme Command and the Command of the 1st Military District,
17 military and civilian investigators and forensic specialists who were
18 carrying out their work pursuant to orders of the military court from
19 Sid, how it happened that a large group of people disappeared, after
20 coming around all the locations in the centre of Vukovar, this group of
21 people disappeared, and this remained a secret for so many years.
22 According to the findings of the Trial Chamber, this secret was
23 created for reasons only known to himself by Colonel Mrksic, a commander
24 of one brigade or, if you prefer, the temporary military force called
25 "Operations Group South." If this is logical, acceptable, and if this is
1 something that can be asserted beyond any reasonable doubt, is something
2 for you to see. Somebody whose unit was sent to Vukovar overnight under
3 such circumstances did not have the power or the authority to do what I
4 mentioned earlier. This could not have been Mrksic because had he done
5 that, on the following day he would have had to be arrested by the
6 security organs whose task it is to discover the perpetrators of war
7 crimes and other crimes. Therefore, Mrksic could not have given the
8 order for security to withdraw from the Ovcara Farm, especially not
9 through the security officer, Captain Karanfilov, and then make sure that
10 all the JNA structures keep quiet about it.
11 Why the Defence is convinced that Mile Mrksic did not issue the
12 order on the withdrawal of the military police and on all the errors of
13 the Trial Chamber in drawing conclusions, this is something that my
14 colleague will address.
15 Thank you.
16 MR. DOMAZET: [Interpretation] Your Honours, before I move on to
17 my part of the arguments, I wish to draw attention to an error in the
19 On page 9, line 22, when referring to the exhibit my colleague
20 Mr. Vasic mentioned, the exhibit number is erroneously recorded as "429,"
21 whereas it should be "419," And Exhibits 268 and 269 are not recorded in
22 the transcript, but they were quoted by my colleague Mr. Vasic.
23 Who issued the order of the withdrawal of the military police of
24 the 80th Kragujevac Brigade and in what manner is one of the key facts in
25 this case. Had such an order really been issued by Mile Mrksic, as the
1 Trial Chamber erroneously concluded, not only would there have to be a
2 written trace of this in the documents of Operations Group South and the
3 reports to the higher command, but the order would also have had to
4 include the manner of its implementation, that is, to whom and how the
5 prisoners were to be handed over, as was the case with the prisoners from
6 Mitnica only two days previously. As these were not ordinary prisoners
7 of war but, rather, persons suspected of possible participation in war
8 crimes and participants in a rebellion, as the military judiciary
9 applying the then-valid legal provisions viewed these persons who were in
10 conflict with the JNA, Mrksic did not have the right to decide on handing
11 over these prisoners to anyone, nor was he authorised to do so.
12 These prisoners as suspects, suspected of war crimes against the
13 JNA, were within the purview of the security organs. Special teams
14 consisting of high-ranking security officers were sent from the highest
15 command in Belgrade
16 suspected of perpetrating war crimes against the JNA.
17 In addition to this, there was a clear order on prohibiting any
18 exchange of all prisoners of war, which has not been challenged, and this
19 certainly applied to these prisoners all the more so as they were
20 suspected of perpetrating war crimes.
21 The Trial Chamber failed to consider the possibility that if
22 Captain Karanfilov really did issue such an order to Vezmarovic, such an
23 order could only have arrived from the high security organs down the
24 security chain of command or line of command, which had nothing to do
25 with the line of command within the brigade and Commander Mrksic or the
1 officers of the brigade.
2 There is a completely separate issue, which is whether the 80th
3 Motorised Brigade, which was in charge of guarding and securing these
4 prisoners, was permitted on the basis of an oral order issued by a
5 security officer to abandon the security of the hangar and withdraw the
6 military police without any sort of hand-over of the prisoners. This is,
7 of course, included in this appeal because in the view of the Defence the
8 80th Motorised Brigade was not authorised nor could it have withdrawn its
9 military police from the hangar at Ovcara without a clear written order,
10 and they should have done this following the procedure of listing and
11 handing over the prisoners based on such an order. No reasonable trier
12 of fact would accept this conclusion which was drawn by the Trial
14 Had Mrksic issued such an order before the briefing, this would
15 certainly have been mentioned at the briefing, but no witness confirmed
16 this, that such a thing happened. On the contrary, at the briefing, in
17 addition to many other issues, the issue of security for the prisoners
18 was discussed in view of the fact that they might have been under threat
19 from the paramilitaries or civilians, but there was no mention of the
20 fact that anyone, including Mrksic, had already issued an order on
21 handing over the prisoners to anyone, including the TO, as the Court
22 erroneously concluded.
23 This same evidence excludes the possibility that Mrksic issued
24 such an order during the briefing because not only has no Prosecution or
25 Defence witness confirmed such a thing - I am referring to witnesses who
1 were present at the briefing - but there is no mention of this in any
2 written document, including the report from the briefing, the regular
3 report from the briefing. Such an order issued by the commander would
4 certainly have been recorded, and it would have been remembered by the
5 participants in the briefing.
6 Witness Vojnovic does not confirm this, either. Rather, he
7 attempts by his own interpretation of words allegedly spoken by Mrksic
8 and Mrksic's alleged actions, he tries to represent that such an order
9 existed, but it's something that only he understood, allegedly
10 understood. He at no point directly and simply asked his commander, Did
11 you issue the order on the withdrawal of the 80th Motorised Brigade, and
12 is that how I can understand your reply? Could any reasonable trier of
13 fact accept the interpretation that an officer as experienced as Vojnovic
14 was would make the decision -- such an important decision, as important
15 as the decision on withdrawing his unit, and allegedly convey to his
16 security officer, Vukosavljevic, without having received such an order
17 directly from his commander, Mrksic, or asking him directly whether such
18 an order existed.
19 Mrksic's Defence wishes to point out that not only was Mrksic not
20 allowed without an order from a superior command to decide on the fate of
21 the prisoners and that he was not competent to do so, but that he had no
22 reason whatsoever to do such a thing and allegedly hand over the
23 prisoners to the local Territorial Defence because, as my colleague has
24 already pointed out, not only was there no such order from the alleged
25 government, but there was also no request issued by the so-called
1 government either to the Command of Operations Group South or anyone
2 else, and all this is the subject of a separate part of our appeal.
3 Here, we wish to point out that the Trial Chamber failed to take
4 into account the testimony of a very relevant witness, Witness Jaksic,
5 who testified that he went to see Mrksic before this meeting in
6 Velepromet and that Mrksic categorically refused to discuss the
7 handing-over of the prisoners to anyone, including the Territorial
8 Defence or the so-called civilian authorities or the so-called
9 government, and it also failed to take into account his testimony as a
10 participant in that session to the effect that this issue was not
11 discussed at that session at all.
12 The Trial Chamber concluded or established that after the second
13 alleged meeting, Vojnovic and Mrksic were walking together, and Vojnovic
14 came back and issued the order to Vukosavljevic, his security officer, to
15 go to Ovcara and withdraw the military police of the 80th Motorised
16 Brigade. No reasonable trier of fact could have arrived at such a
17 conclusion. First of all, there was no such second meeting. It is
18 something that Witness Vojnovic and Vukosavljevic invented so that the
19 responsibility for the withdrawal of Ovcara would fall on Mrksic rather
20 than those who actually were responsible for this and who did this.
21 First of all, it should be kept in mind what Vojnovic testified
22 to in 1998 when not only was his memory much fresher and more objective,
23 because at that time no one had yet been accused, including Mrksic, and
24 this testimony before the military court in Novi Sad, when he testified
25 about the arrival of an officer from the 80th Brigade who was immediately
1 subordinated to Vojnovic, and he said that he came to see him at 2200
2 hours and spoke about Vezmarovic and Karanfilov. This indicates that in
3 these proceedings, Vojnovic was not telling the truth when he stated that
4 all this had been organised before 2000 hours. The time is very
5 important here because the Defence believes that the time entered in the
6 diary, 2235, is the correct time of the withdrawal of the military police
7 and that the attempts of some witnesses whom the Trial Chamber relied on,
8 who tried to represent this time as being a few hours earlier, is not
9 correct. The Trial Chamber should have taken into account that Witness
10 Vojnovic, in the course of his testimony before this Court, confessed
11 that never before in the course of his testimonies did he mention that
12 Vukosavljevic had been with him at the briefing on the 20th in the
13 afternoon. His response to that was that he had forgotten that
14 Vukosavljevic had been with him, but because he trusted Vukosavljevic, he
15 testified to this fact before this Trial Chamber, although he did not
16 remember it. But he accepted the fact because that's what Vukosavljevic
17 claimed in his testimony, and they discussed this before their
19 So all this indicates that these two witnesses were in collusion
20 before the testimony and they wanted their testimonies to corroborate
21 each other when testifying before the Trial Chamber. This is also
22 supported by other facts which these two witnesses tried to include in
23 their testimony, and this will be discussed in another part of the
25 In the meantime, in the Seselj case, the new testimony of
1 Vojnovic completely --
2 MR. ROGERS: This will relate to the confidential motion and
3 should not be dealt with at this stage. It's a matter Your Honours have
4 already raised with counsel at the outset, and this should not be a
5 subject of submissions, as I understand it. Anything from another case
6 that has not been made part of a motion to admit within these proceedings
7 is simply not on the record in these proceedings, and that's the end of
9 JUDGE MERON: Mr. Domazet, what do you say about this?
10 MR. DOMAZET: [Interpretation] Your Honours, what I am referring
11 to is the testimony of Witness Vojnovic before this Trial Chamber and not
12 any other testimony, including the one in connection with Rule 115, so
13 I'm now referring to the testimony before this Trial Chamber. I'm not
14 touching on any of his statements that he gave later on in connection
15 with 115.
16 So Vojnovic in this case testified that before going to the
17 briefing in Negoslavci, he sent Vukosavljevic to Ovcara to look at the
18 situation, as he said, and Vukosavljevic in these proceedings testified
19 that in Negoslavci, in front of the room where the briefing was held, he
20 waited for as long as an hour and a half, and this excludes one or the
21 other, especially bearing in mind Vojnovic's testimony before this
22 Chamber that he was late to the meeting, and it says:
23 "However, I was late to that meeting, and by the time I arrived,
24 the other officers were leaving already."
25 JUDGE MERON: Mr. Rogers, I see you have no further problems.
1 MR. ROGERS: Your Honours, no. Despite the clear record in the
2 transcript of the reference to the Seselj case, it appears that
3 Mr. Domazet does not intend to refer to the Seselj case, and of course, I
4 have no objections to that.
5 JUDGE MERON: Okay. Mr. Domazet, you can proceed, and you know
6 what are the rules with which you have to abide.
7 MR. DOMAZET: [Interpretation] Thank you, Your Honour. I'm not
8 touching upon the testimony in the case mentioned.
9 If that's how it was, Vojnovic could not have sent Vukosavljevic
10 to Ovcara in such a brief space of time, nor could he have come back and
11 waited for an hour and a half, because during that time Vojnovic spent
12 some 15 or 20 minutes at the most in the briefing room because as he
13 himself said, it all lasted a very short time. Because of this, we
14 consider that this alleged encounter of all three is invented, Mrksic,
15 Vukosavljevic, and Vojnovic after the briefing, and the testimony of a
16 relevant witness, Gluscevic, completely excludes this possibility, and
17 not only his testimony, but other testimonies as well. Vojnovic, who did
18 not remember at all that Vukosavljevic had been in Negoslavci during the
19 briefing as he himself said before the Court, as he trusted
20 Vukosavljevic, he not only remembered this later on but also this meeting
21 of the three of them. Had this meeting really taken place, Vojnovic
22 would have remembered it well and testified about it before and not only
23 at this trial after he had heard Witness Vukosavljevic say that he had
24 been at Negoslavci with him on that occasion.
25 Vojnovic testified that at the briefing, he spoke about the
1 threat to the prisoners, and admitted that he didn't even mention that a
2 security officer, that is, Vukasinovic, the security officer of the
3 Guards Brigade, was there. This is inexplicable. Also, when asked by
4 the Defence, he testified that while he was there, the prisoners were
5 separated by a rope and were not under any physical threat. This also
6 indicates that the testimony -- the present testimony before this Trial
7 Chamber was adjusted after him being in collusion with Vukosavljevic and
8 some others.
9 When asked by the Defence before this Trial Chamber, whether
10 before the investigating judge of the Special Court in Belgrade
11 [phoen], he told him that Mrksic had said that he had other obligations
12 and that he did not issue any orders regarding the situation at Ovcara.
13 He responded, I quote the words from the record in this trial:
14 [In English] "No, he didn't say that to me. He said that" -- "he
15 said that to Drago Vukosavljevic. To me, he said, 'Don't tell me
16 anything about it.' He didn't do anything else."
17 [Interpretation] Vojnovic then asserts that he didn't hear
18 something like this from Mrksic, and in some way he transfers this to
19 Vukosavljevic, and Vukosavljevic claims something completely the opposite
20 in his testimony. He says that allegedly Mrksic and Vojnovic went to one
21 side, spoke for a few minutes without his presence, and then Mrksic went
22 off in another direction, and Vukosavljevic approached Vojnovic and told
23 him to go to Ovcara and convey his order on the withdrawal of that unit.
24 For the record, my colleague says it's not entered in the record.
25 Before the judge of the special court, he said that Mrksic did not issue
1 any order to him regarding the situation at Ovcara. No reasonable trier
2 of fact could have concluded on the basis of such testimonies that Mrksic
3 issued the order on the withdrawal of the military police of the JNA from
5 If we take into account the testimony of Witness Trifunovic, a
6 witness relied on by the Trial Chamber, that not only did he not remember
7 that he saw Vojnovic at the briefing or immediately after, and this was
8 the witness who took the minutes, but Witness Trifunovic, and this is
9 especially important, remembers that Vojnovic did arrive, but much later
10 after the briefing, looking for Mrksic, who was then absent, although
11 according to Trifunovic's testimony, it follows that Vojnovic did not
12 find Mrksic there. Evidently, this is not about the alleged meeting at
13 the end of the briefing and this meeting never took place, but Witness
14 Vojnovic came much later that evening looking for Mrksic and evidently
15 failed to find him there, certainly because Mrksic had then already left
17 all or mention it in his testimony. Only -- well, why he didn't do so,
18 we can only assume that he wished to conceal something, and when he
19 failed to find Mrksic, he spoke to someone else.
20 With respect to Witness Trifunovic, one of the witnesses the
21 Trial Chamber relied on, although it did not believe him only when he
22 correctly stated, and he was the one who made the minutes, that the
23 briefings were held at 5.00 p.m.
24 concluded, and that reports were sent to the higher command usually at
25 6.00 p.m.
1 The Court believes this witness in respect of some other facts,
2 too, that he obviously misstated completely. The Defence actually
3 believes that he lied on purpose in order to remove responsibility from
4 some others and to pin it on Mrksic, who was already facing the Court,
5 and it's not only on the basis of his personal observations; rather, he
6 refers to transcript 8138 and the war diary. He says that Mrksic went to
8 not an error in terms of the entry made; rather, this is an
9 ill-intentioned entry that is erroneous and that was made by this
10 witness. He knows full well who made and signed the order of the 21st at
11 6.00. This is transcript Reference 8138, and he testified that he did
12 not recognise Mrksic's signature.
13 It is not only that this is not Mrksic's signature and order
14 because this order was made and signed by Lieutenant-Colonel Panic;
15 rather, this is a forgery and an attempt to hide or conceal something
16 through this order. That is why the witness tries to prove, as it were,
17 that he claims, as the one and only witness to do so, that Mrksic, as a
18 matter of fact, was in Negoslavci around midnight. In this way, he is
19 certainly helping the person who was standing in for the absent commander
20 to enter this forged order at 6.00 in the morning, however, without
21 Mrksic's signature because quite simply he was not there, and then
22 intentionally he makes the wrong entry because Mrksic left for Belgrade
23 by helicopter.
24 Unfortunately, Witness Trifunovic, together with those who
25 participated in this, managed with this false testimony to deceive even
1 the Trial Chamber and to channel the blame for the fate of the prisoners
2 at Ovcara to Mrksic rather than to have those who were the only ones who
3 could do this after Commander Mrksic went to Belgrade shoulder the blame,
4 and he went to Belgrade
5 In order to amplify this invented story of his before the Court,
6 he even invents a meeting at midnight
7 transcript Reference 8168:
8 "I later heard that Colonel Mrksic returned just before
10 It's not only that he's the only witness who says that and that
11 this is in total contravention of the testimony of many Defence
12 witnesses, but it is inexplicable where it is that Mrksic returned from,
13 and if Mrksic was in Negoslavci that night, why did he not personally
14 sign, the following morning at 6.00, the order that was entered in the
15 diary, and that is quite controversial anyway, as already stated, and if
16 he went to Belgrade
18 Perhaps the motive of the this witness can be seen or at least
19 gleaned - transcript Reference 8168 - when, in response to the
20 Prosecutor's question as to where Lieutenant-Colonel Panic was, he
21 testifies that on the 18th -- where Panic was on the 18th and 19th, but
22 in response to the direct question of the Prosecutor:
23 "And what about the 20th?"
24 [In English] "Even you didn't make note about it. Do you know
25 where he was on 20? Can you say or not?
1 A. I can't, I don't know."
2 [Interpretation] It is impossible that he cannot and that he does
3 not know where he was, especially when Mrksic was not in Negoslavci.
4 Obviously, it is not a question of him not being able to or, rather --
5 simply, it is a question of him not wanting to know that Panic made the
6 order and signed it on that morning.
7 It is impossible that this witness does not know where
8 Lieutenant-Colonel Panic is, his immediate superior, especially not that
9 night when he witnessed Panic in the absence of Mrksic was commander of
10 the entire Operations Group South. These are the untruths made by --
11 stated by this witness that were regrettably accepted by the Trial
12 Chamber and that are in total contravention of the adduced evidence made
13 in detail with regard to Mrksic's depart to Belgrade, and no reasonable
14 trier of fact would not accept this. Obviously, this testimony by
15 Trifunovic had, as its objective, to deny the evidence that Mrksic on
16 that evening of the 20th after the briefing went to Belgrade with Colonel
17 Coric by car.
18 The Defence analysed the evidence in its appeal, especially the
19 testimony of Colonel Coric, the former commander of the Guards Brigade
20 who, on that evening and in agreement with Mrksic, waited for him to
21 complete the briefing and go to Belgrade
22 testimony of Mrs. Mrksic, Mrksic's wife, who says that his sister arrived
23 from -- arrived in Belgrade
24 refugees from Borovo Naselje, and she was supposed to organise her
25 arrival; and finally the testimony of driver Renicje [phoen], who went to
1 pick up Mrksic's sister and brought her to Mrksic's apartment that same
2 evening, talked to him, and later on the following morning he came to
3 pick Mrksic up at his apartment, and he drove him to the Command of the
4 Guards Brigade in Belgrade
5 meet the helicopter from Negoslavci on which Major Tesic arrived, and
6 then he drove both of them to a reception hosted by the State Secretary
7 of National Defence, which is why he actually came to Belgrade.
8 In contravention of this clear and unequivocal testimony, it is
9 only Witness Trifunovic who testifies and who incorrectly or
10 intentionally falsifies the entry in the war diary, tries to portray
11 things as if Mrksic went to Belgrade
12 In the sixth ground, the Defence analysed this false testimony of
13 Witness Trifunovic, who, truth to tell, does not testify to having seen
14 any of this personally, the departure by helicopter, et cetera, but he
15 testifies on the basis of what he saw in the war diary, and it's obvious
17 Another lie that he stated was that he allegedly worked on some
18 map that night and that Colonel Pavkovic helped him in that. In these
19 proceedings, it was established that Colonel Pavkovic was in Sremska
20 Mitrovica that night and that he was engaged in a completely different
21 task, so this is yet another untruth stated by this witness, and in this
22 way he was trying somehow establish that Mrksic was in Negoslavci that
23 night. Why? We can understand why, I believe. On the other hand, it is
24 stated that a group of officers went by helicopter with Mr. Mrksic, but
25 it was only Tesic who went on that morning helicopter to Belgrade.
1 Mrksic had done that the previous night.
2 The Trial Chamber establishes that Mrksic's intention was not to
3 have the JNA hand over the prisoners of war to any other Serbian army,
4 and that is paragraph 610. This is a correct conclusion on the part of
5 the Trial Chamber, and later on the Trial Chamber changed that when they
6 established that at one point, Mrksic changed this decision of his.
7 Mrksic never changed his decision, and he never ordered that the
8 prisoners be handed over to any Serb military unit. The Trial Chamber
9 comes to this conclusion because they take into account and recognise
10 part of Panic's testimony, Panic being his deputy, about this night
11 between the 20th and 21st, and his false testimony that this was
12 allegedly discussed at the meeting of the so-called government in
13 Velepromet, and that what was stated was that prisoners of war should be
14 handed over to the civilian organs.
15 The Trial Chamber established that Mrksic ordered that the POWs
16 be handed over to -- sent to the barracks. That is not true.
17 Sljivancanin himself says that he personally ordered that from the
18 hospital, the buses should go to the barracks of the JNA, and also what
19 should be borne in mind is that Mrksic had the order to carry out an
20 evacuation at the hospital and did not consist only of the evacuation of
21 the prisoners of war but primarily of the ill and wounded.
22 Major Sljivancanin, according to the security chain and the tasks
23 that he got from the Security Administration of the JNA, rather, his
24 superiors, on the basis of this chain, not only had the task that was
25 related to prisoners of war -- I do apologise, but I have to repeat this
1 because this is important. I see that my -- my colleague says that this
2 is recorded differently in the transcript.
3 We claim that Mrksic had an order to have the evacuation at the
4 hospital carried out, that is to say, to have the sick and wounded
5 evacuated from the hospital, and all of those who are there, and that the
6 security organs were in charge of establishing who is not a sick or
7 wounded person, who was infiltrated, and who had simply changed their
8 clothing and were in the hospital and who were possible war crimes
9 suspects, and that was precisely done in the hospital, and this does not
10 pertain to authority or orders of Mile Mrksic.
11 Otherwise, Major Sljivancanin, as he testified himself, ordered
12 that the buses stop at the JNA barracks, and he did not ask Mrksic for
13 his approval, and he had no need to do that, and he did not inform him
14 about that. It is not only -- it is not only that he did not inform him
15 about that throughout that day, which was only logical because he was
16 engaged in work that was not carried out on the basis of orders of
17 Mrksic; rather, it was along the security chain, and these are -- and
18 this had to do with potential war crimes suspects and their selection at
19 the hospital. This is obvious from the testimony before the Court that
20 while Colonel Vujic and Major Sljivancanin were in the hospital, they had
21 this dilemma what to do. They did not call Colonel Mrksic; rather, they
22 called General Aleksandar Vasiljevic and General Tumanov, who were their
23 superiors along the security chain.
24 The conclusion is, on the basis of this kind of evidence, no
25 reasonable trier of fact could establish that Mile Mrksic had issued an
1 order on the withdrawal of the military police of the 80th Motorised
2 Brigade from the hangar at Ovcara or that the withdrawal took place at
3 any other time but 2235 hours as was precisely recorded in the diary of
4 the 80th Motorised Brigade.
5 MR. VASIC: [Interpretation] Thank you, Your Honours, and I would
6 like to proceed from this point where my colleague stopped, with your
7 permission. We have ten minutes left.
8 JUDGE MERON: Yes, you have ten minutes, and I think it would be
9 useful if you would devote part of the time available to you summarise
10 this argument that has been made, but ten minutes altogether, please.
11 MR. VASIC: [Interpretation] Thank you, Your Honour.
12 I would just like to use two or three minutes to deal with aiding
13 and abetting and inhuman treatment that our client was found guilty of,
14 and this is based on what is stated in paragraph 308 through 316 of the
15 judgement, that Panic, Vojnovic, Vukasinovic, and Vukosavljevic informed
16 Mrksic about what happened that afternoon at Ovcara and that there was no
17 reaction to these reports.
18 First of all, as regards the content of what Panic conveyed to
19 Mrksic in his own words, one may conclude that he had said that the
20 situation was under control, but Vojnovic should be consulted in terms of
21 whether he could provide for the security of the prisoners of war. The
22 credibility of this witness has already been discussed, and I would just
23 like to point out here that this witness cannot be a reliable one in
24 relation to any statement, including this one.
25 However, after 1600 hours in the war diary of the 80th
1 motorised -- sorry, the operations diary of the 80th Motorised Brigade,
2 there is an order on the reinforcement of the security of the
3 Ovcara Farm, so there was a reaction after all.
4 As for what Witness Vukasinovic said to Mrksic, that happened
5 after 1700 hours, according to what Vukasinovic said, because he first
6 got some rest and then he reported to Mrksic, which is to say that there
7 was nothing urgent going on, and since security had already been
8 reinforced, Mrksic said to him that he could go.
9 As for what Vojnovic conveyed about what had happened that
10 afternoon, Mr. Domazet referred to that in part, and also, you can partly
11 see that from the testimony of those who attended the briefing who do not
12 remember that Vojnovic referred to anything urgent, anything critical,
13 and he could not have made any such references because he left Ovcara
14 when there was full order there and control of the military police of his
16 After the briefing, we heard testimony that Mrksic called the
17 commanders of the APC
18 for securing the prisoners of war.
19 So this all shows all the things that Mrksic did before he went
20 to Belgrade
21 be responsible because had he ordered what the Trial Chamber found, he
22 would have ordered that down the chain of command, and that would have
23 been a normal thing. However, this order went down the security chain.
24 It is not logical that Mrksic issued this order, and he did not have any
25 authority for that kind of thing. Therefore, there is no omission in
1 what he did, as found by the Trial Chamber, and he cannot be responsible
2 for aiding and abetting in torture and inhumane treatment as found by the
3 Trial Chamber.
4 For that reason, on all counts that he was pronounced guilty, we
5 propose that Mile Mrksic be declared not responsible because there are no
6 elements that beyond a reasonable doubt prove that they're elements for
7 which he was sentenced.
8 As for the sentence, we believe that the Trial Chamber did not
9 take into account all the mitigating circumstances when they passed this
10 sentence, first of all, for the acts of aiding and abetting, and that the
11 sentence is too severe. Mrksic did not have any authority or any duties
12 for the triage, transport, or the security of the prisoners of war.
13 In the time that I have left, I would just like to move to
14 private session, Your Honours, because I would like to address one more
15 issue in two or three sentences that was the topic of the appeal, but it
16 relates to a protected witness, and for that reason I left it for the
18 JUDGE MERON: Registrar, we will go into private session.
19 [Private session]
25 [Open session]
1 JUDGE MERON: Yes. Private session is, of course, finished. We
2 are going into public session, and I will repeat that, in fact, the
3 Defence for Mr. Mrksic has completed its task for this morning, and we
4 will now have a 15-minute pause.
5 The Court will now rise.
6 --- Recess taken at 10.47 a.m.
7 --- On resuming at 11.02 a.m.
8 JUDGE MERON: Please be seated.
9 So it's you, Mr. Rogers, now?
10 MR. ROGERS: Yes, Your Honour.
11 JUDGE MERON: So please start your hour and a half.
12 MR. ROGERS: Your Honours, I'm grateful.
13 Your Honours, I have very much in mind the comments that you made
14 at the outset of the hearing today relating to not wanting to hear again
15 the submissions that are set out within our brief, and I'm also very
16 mindful that this is not a rehearing, although Your Honours may be
17 forgiving for having -- listening to the submissions from opposing
18 counsel that this was, in fact, a re-hearing.
19 The primary thrust of my early submissions this morning is that
20 most if not all of that you have heard from counsel representing
21 Mr. Mrksic has already been advanced, has been heard, tried - literally -
22 tested, and regrettably for Mr. Mrksic, rejected, and the function of
23 this Tribunal and this Chamber, of course, is not to revisit that unless
24 good cause and good reason can be demonstrated.
25 Your Honours, we've responded at length to Mr. Mrksic's appeal in
1 our response brief, to many if not all of the points that he has raised,
2 as he appears to really have just gone through them again, and I'm not
3 going to repeat those.
4 The order of our submissions will be this: First, I'll provide a
5 short overview. Then my co-counsel, Mr. Wood and Ms. Lewis, will address
6 some specific issues relating to Mrksic's appeal, which we had identified
7 to be those which were primarily advanced by counsel for Mr. Mrksic, that
8 is the withdrawal order, and to a lesser extent perhaps the security line
9 of command. Those will address Grounds 6, 7 and 8. Mr. Wood will deal
10 with those relating to Mr. Mrksic's role in the order to withdraw, and
11 Ms. Lewis will briefly address Grounds 1, 2, 3, and 8 relating to the
12 role of the 80th and local commands' security organs.
13 Your Honours, just, then, to turn to my overview, Your Honours,
14 the Trial Chamber reasonably and properly convicted Mile Mrksic of aiding
15 and abetting the murders of 194 protected prisoners of war, many of whom
16 were sick and wounded, when he ordered the withdrawal of the 80th
17 Motorised Brigade, the only protective force keeping the killers at bay.
18 In addition, they properly and reasonably convicted Mile Mrksic of aiding
19 and abetting the torture and cruel treatment of those prisoners. These
20 convictions were based on his failure to prevent the severe beatings and
21 appalling conditions of their detention during the afternoon and evening
22 of the 20th of November, 1991, until their eventual slaughter.
23 The Trial Chamber found, at judgement pages 627 and 628 --
24 paragraph 627 and 628 that his failures to act rendered both practical
25 assistance and encouragement to those at Ovcara seeking revenge --
1 THE INTERPRETER: Thank you for slowing down when reading.
2 MR. ROGERS: Slow down. Both practical assistance and
3 encouragement to those at Ovcara seeking revenge on those unfortunate
5 Your Honours, in order to understand Mile Mrksic's position of
6 authority, it is perhaps helpful to understand at the outset how
7 Operation Group South was organised. Your Honours, I've produced a small
8 Powerpoint -- I hope it won't be death by Powerpoint, but a short
9 Powerpoint setting out the structure.
10 The first slide, which I hope is on your screens now, shows at
11 the top "Operation Group South" and we've put in there the Guards
12 Motorised Brigade, the reason being that the command structure for the
13 relevant period of this indictment -- of the Guards Brigade and
14 Operation Group South was the same, Mile Mrksic being the commander and
15 Lieutenant-Colonel Panic being the Chief of Staff.
16 Do Your Honours have it on your screens? Yes.
17 The appointment of Mrksic was on the 8th of October, 1991, as
18 commander of Operational Group South, trial judgement paragraph 70, and
19 the significance is that all units serving in that zone of responsibility
20 were under his and the GMTBR's de jure command. Originally, the Vukovar
21 Hospital was under Operational Group North, but on the 18th of November,
22 and in our submission, a mark of the respect with which Mr. Mrksic must
23 have been held, the taking of that hospital was put into his zone of
24 responsibility, Operational Group South, and he was ordered to take the
1 Within the command structure of the Guards Motorised Brigade was,
2 of course, the security organ structure, and you'll see that the chief of
3 security for the Guards Motorised Brigade was Veselin Sljivancanin.
4 Therefore, because he -- they also formed the command structure of OG
5 South, he was also in that position of responsibility. His deputy was
6 Major Vukasinovic, and also, he had within that structure a security
7 officer, Captain Karanfilov. Your Honours, I mention those names in
8 order to just identify who they are and where they sit.
9 The other security organs from other chains of command, the Trial
10 Chamber found, would also be subordinate to him; so, for example, the
11 80th Motorised Brigade. That's trial judgement 127.
12 They also, security organs, had their own chain of command in
13 respect of counter-intelligence assignments, and that is what has been
14 alluded to by the Defence. I'll turn to that briefly later on.
15 Ms. Lewis will develop it. That's trial judgement 127.
16 Then for completeness, also within Operational Group South and
17 subordinated to it was the 80th Motorised Brigade, trial judgement 274,
18 and you'll see that the 80th has one company of military police under the
19 command of Captain Dragan Vezmarovic. Also, it has its own security
20 organ, Captain Vukosavljevic. Unusually, the Guards Motorised Brigade
21 also had two battalions of MPs at its disposal. I haven't shown them on
22 there because they're distracting, but unlike the 80th, which only had a
23 company maybe of 100 -- 60 to 100 men, the Guards had two whole
24 battalions, something like 4 to 5 times in each battalion the number
25 available within the 80th Motorised Brigade.
1 Your Honours, if I provided sufficient information with the
2 slide, I'll take it off the screen, if I may, so it doesn't become a
3 distraction, and proceed with my submissions.
4 Your Honour, to turn to our main argument, listening to the
5 submissions of Mr. Mrksic, essentially what he says is that the Trial
6 Chamber's conclusion was based upon an argument that, Who was it if it
7 was not him? In our submission, the effects of his arguments before this
8 Appeals Chamber is really to assert the complete reverse, which is that
9 it was anyone but him that was responsible for what happened. That is,
10 despite him being the commander of the Motorised Brigade, as the Trial
11 Chamber found: A, if not the premier unit of the JNA, trial judgement
12 paragraph 61, commander of the Operational Group placed in charge of the
13 politically sensitive evacuation of the civilian prisoners of war from
14 the Vukovar Hospital
15 eyes of the International Community and media, in the presence of
16 European monitors, the International Committee of the Red Cross,
17 high-ranking diplomats and many others, and despite the reliable evidence
18 of his continual involvement in the decision-making process relating to
19 the custody of the prisoners throughout the 19th and 20th of November,
21 Despite all this, he asserts that he was not responsible for the
22 care, security, or ultimately the deaths of those prisoners in any way.
23 This, he argues, was the responsibility of others.
24 In making his arguments, as is apparent from the submissions that
25 you've heard this morning, Mrksic consistently criticises the Trial
1 Chamber's approach to its decision-making by citing to other evidence in
2 the record, suggesting other conclusions should have been drawn from it.
3 He attacks the credibility of witnesses and exhibits, points to other
4 evidence and exhibits from which he says other conclusions could have
5 been drawn. But as Your Honours will appreciate, these submissions
6 fundamentally fail to understand the nature of these proceedings in this
7 Chamber. As you have already said, this is not a hearing de novo, nor is
8 it an opportunity to repeat again that which has already been said at
10 In order to unseat the Trial Chamber's conclusions on the facts
11 in this case, and its assessment of the evidence, the appellant must
12 demonstrate that the factual conclusions reached by the Trial Chamber, as
13 Your Honours know, were ones that no reasonable Trial Chamber could have
14 reached when assessing the totality of the evidence. Of course, the
15 Defence would -- they must attack individual pieces, but the Trial
16 Chamber very much had in mind those individual attacks. It took them
17 into account, and it looked at the whole picture.
18 The standards to be applied relate to both findings based on
19 direct evidence and such circumstantial evidence. Your Honours have
20 recently pronounced that again in the Martic appeal judgement at
21 paragraph 11, the footnote 23 there citing to the many other cases in
22 which that has already been established: Strugar, Hadzihasanovic,
23 Blagojevic, amongst many others.
24 So in this case, in relation to the circumstantial inference that
25 Mrksic must have ordered the withdrawal of the 80th Motorised Brigade
1 from Ovcara, it is our submission that the factual findings from which
2 that inference is drawn are left intact, as Mrksic cannot show that no
3 reasonable Trial Chamber could have made those individual findings, and
4 thus, he fails to show that the inference is one no reasonable Trial
5 Chamber could have drawn from the facts it found to exist.
6 In reaching its careful conclusions about this incident, which
7 itself only lasted two to three days, the Trial Chamber was entrusted
8 with the heaviest of responsibilities facing a decision-maker, that is,
9 to determine the criminal responsibility of the appellant. In doing so,
10 it weighed, sifted, reflected upon, and it's quite clear it did, and
11 assessed 188 days of oral testimony over this short 2- to 3-day time
12 frame. 84 witnesses gave live evidence. It considered 885 exhibits in
13 various forms: photographic, film, paper, and written statements. It
14 considered much of what my friends point to. For example, they refer, in
15 one of the few direct references during the course of their submissions,
16 to any testimony, exhibit, or trial judgement paragraph. They do refer
17 to Trifunovic at transcript 8168 as a snippet, but the Trial Chamber
18 considered it, and they footnoted it at Footnote 1289 in the judgement,
19 just showing how carefully they considered the evidence in this case.
20 He referred also to the differences between Vukosavljevic and
21 Vojnovic regarding the events at the briefing. At length, they were
22 developed before you as they were developed before the Trial Chamber, and
23 the Trial Chamber respecting that devoted six pages to assessing the
24 evidence relating to what occurred around that time; paragraphs 309 to
1 Every appellate court that does not conduct de novo hearings, as
2 this one does not, recognises that it cannot hope to perform again that
3 task which has been given to the Trial Chamber. What it can do is
4 supervise the decision-making process, but in so doing, properly
5 recognises the need to accord great deference to the actual fact-finding
6 tribunal, and we submit particularly in a case such as this, where there
7 was a lot of evidence to go through, that deference should be great
8 because the Trial Chamber was in a position to assess the witnesses live,
9 their demeanour, and ultimately their believability, and particularly in
10 this case where so much of the evidence that was given was live oral
11 testimony. It's not a case like it's a paper case, and Your Honours may
12 have some experience of trying fraud cases where perhaps you don't hear
13 many witnesses. You just look at mounds and mounds of paper. Perhaps
14 the same arguments can't be made about the assessment of demeanour,
15 believability, hearing the witnesses live. That's not the case here.
16 And as can be recognised in this Chamber - Tadic Appeal Judgement
17 64 - different decision-makers can reasonably reach opposite conclusions
18 upon the same totality of the evidence. This shows that the mere fact
19 other evidence exists which could create a different conclusion will not
20 mean that the conviction is wrong. What matters is how the Trial Chamber
21 assessed the evidence.
22 In this case, as a matter of law and in fact, the appellant has
23 failed to show any error on the part of the Trial Chamber in how it
24 assessed the evidence of witnesses or generally.
25 The Trial Chamber was very careful to express how it was going to
1 assess the evidence; trial judgement 11 to 16. It recognised that there
2 were conflicts and that it would need to resolve some but not all of
3 them. When it assessed witnesses, it gave explanations as to why it
4 accepted or rejected them. For example, in relation to the Chief of
5 Staff, Deputy Commander Lieutenant-Colonel Panic at trial judgement 297,
6 it said this:
7 "The Chamber notes that it has reviews the evidence of Panic with
8 great care, especially about the relevant events of the 19th and 20th of
9 November, 1991, and has considered it in the light of the other evidence
10 about these events. It has also carefully weighed its assessment of the
11 credibility of Panic, taking into account his demeanour as he gave
12 evidence, the events that are otherwise established to have occurred, and
13 the demeanour of those who gave differing accounts about these events."
14 In the Chamber's assessment, Lieutenant-Colonel Panic was
15 generally and in respect of most matters, an honest and reliable witness.
16 Compare that with the assertion of the Defence in this case that they
17 found his statement was in most part not believable. That's not right.
18 Another example, and I give a few, in relation to the witness
19 Susic at trial judgement 299 to 302, the Chamber devoted two and a half
20 pages of its judgement in recounting the concerns of the Defence,
21 addressing them, assessing the competing witness testimony, and reaching
22 its conclusions. In relation to the witness Vojnovic at trial judgement
23 321, they said this:
24 "The circumstances as disclosed by the evidence leave the issue
25 as contentious and unresolved. Because of this, the Chamber approaches
1 the evidence of Lieutenant-Colonel Vojnovic with extreme caution. The
2 Chamber observes, however, that when dealing with this issue, Vojnovic
3 gave a clear impression of being frank and honest in respect of the
4 questioning of reporting to Mile Mrksic as best his recollection of the
5 interviews and proceedings in 1998 allowed."
6 Other examples - and I will stop here - in relation to a conflict
7 between Vujic and the witness Korica at trial judgement 173, the Trial
8 Chamber again weighed, balanced, concluded, and gave reasons why it
9 preferred evidence where it did reject accounts or even partial accounts
10 of an individual witness.
11 In our respectful submission, therefore, it is very clear that
12 this Trial Chamber had very much in its collective mind the need to weigh
13 and assess the witnesses very carefully and to reach a proper considered
14 decision in relation to their individual reliability when necessary. It
15 didn't do it in every case, nor did it need to do so in every case, but
16 what is clear from their overall approach is how they dealt with this
17 assessment, and insofar as his challenges relate to the Trial Chamber's
18 approach to the assessment of evidence, therefore, and most of them do,
19 if not all, the way they are framed, his challenges must fail.
20 Mrksic seeks to blame in this case the local commands or the
21 Command of the 80th Motorised Brigade or the security organs for what
22 happened. In relation to the 80th, he refers to an exhibit, although he
23 doesn't give the exhibit reference, the 19th of November, which he says
24 shows they were expecting prisoners the next day. In our submission, it
25 doesn't show that. It shows that there was a discussion at the briefing
1 relating to the evacuation of the hospital but not about where prisoners
2 were going or who was to receive them. That was because, of course, that
3 hadn't been decided on the 18th-19th. So he seeks to create doubt about
4 who it was that made the order to withdraw. The Trial Chamber didn't
5 consider there was any reasonable doubt about that.
6 He doesn't dispute that he was the overall commander of
7 Operational Group South. He doesn't dispute that the hospital evacuation
8 was within his zone of responsibility. He doesn't dispute that he
9 ordered it. Instead, he seeks to confine his responsibility, you may
10 think confusingly, to simply the evacuation of civilians, hospital
11 workers, sick and wounded, and more, that that was delegated to
12 Veselin Sljivancanin. That's at paragraph 139 of his appeal brief. He
13 argues that Sljivancanin was delegated to do this because the
14 Security Administration was in charge of the evacuation of prisoners of
15 war and their security, and so he says he had no responsibility over
16 that. And he refers, Your Honours, in oral submissions to Exhibit 819,
17 which he relies upon to say that the security organ was in charge.
18 Well, Your Honours, in our submission, if you look at
19 Exhibit 819, which is a report dated the 12th of October, 1991, so many
20 days before, from the security organ of the GMTBR, what it refers to is
21 the assessment of security issues, the interviewing of suspects, and in
22 which -- in the body of the report the details of what have been carried
23 out is set out. It doesn't refer to the security of prisoners of war,
24 only to their interview. That's consistent with the triage that carried
25 out -- that was carried out. And interestingly, right at the very end,
1 the author of the report says this:
2 "The security organs are under great strain because they're
3 performing many tasks which do not fall under their jurisdiction."
4 In this case, the order to evacuate the hospital and to deal with
5 the prisoners of war came from Mile Mrksic, that the security of those
6 prisoners would not normally come, in our submission, within the
7 jurisdiction of the Security Administration. That would be a matter for
8 Mrksic, which is why Sljivancanin was tasked with the whole thing by him,
9 as the Trial Chamber found.
10 So, Your Honour, he argues that the obvious choice to cover the
11 civilian aspects was Sljivancanin, and I've explained why it's, in fact,
12 the other way around. And so he says the movement of the prisoners was
13 nothing to do with him. Whatever happened to them was down to others,
14 particularly Sljivancanin and the security organs; Appeal Brief
15 140 to 149. He also alleges that the crimes occurred in the zone of
16 responsibility of the 80th and suggests that because Mrksic had created
17 local commands, somehow they were responsible for what happened; Appeal
18 Briefs 25 to 102. But the Trial Chamber largely relied upon, and
19 correctly, in our submission, the evidence of Lieutenant-Colonel Panic,
20 his Chief of Staff, when it found that the 80th Motarised Brigade came to
21 be at Ovcara on Mrksic's orders - trial judgement 305 - and this was
22 because there had been an interim decision by Mile Mrksic as to what
23 should be done regarding the transport of prisoners - trial judgement
24 305 - following on from the government meeting.
25 Interestingly, Mrksic, in his appeal brief at 167, himself states
1 that Panic's role was "a deputy commander." Well, yes, we agree. He
2 then goes on to say this:
3 "He was in charge of supervising and providing the implementation
4 of commanders' orders. His role should be viewed in that light."
5 The Trial Chamber did consider Panic's role in that light, and
6 thus, it's no surprise, in our submission, that in the implementation of
7 Mrksic's various orders concerning the prisoners, Lieutenant-Colonel
8 Panic regularly appears. We see him present at the government
9 meeting - trial judgement 225, 296, and 305 - where the fate of the
10 prisoners was discussed. He's at the barracks of the JNA on the morning
11 of the 20th, where the prisoners were being held and mistreated - trial
12 judgement 296 - and later again, he turns up at Ovcara to where they were
13 transferred, beaten, and ultimately murdered; trial judgement 308. At
14 all points, Mrksic received reports from Panic as to his observations and
15 recommendations. He's reporting from the barracks; he's reporting from
16 the government session; he's reporting from Ovcara, where he sets out
17 what it is he has seen. Why should that happen if it is not Mrksic that
18 is responsible?
19 In addition, it's clear that Mrksic ordered Sljivancanin to carry
20 out the actual evacuation and deliver their prisoners to
21 Sremska Mitrovica; trial judgement 191 and 295. The roles of these two
22 men is not mutually exclusive. They simply reflect different aspects of
23 what was going on that day with Mrksic retaining overall responsibility.
24 The trial judgement found that Panic reported his observations of
25 the scenes at Ovcara to Mile Mrksic - trial judgement 308 - and in his
1 evidence at transcript Reference 14473, Panic says this, relating to what
2 it is he reported:
3 "I conveyed that they needed to check the security detail and
4 reinforce it, and I said that I thought that somebody ought to be sent
5 there whose specialty it was so that they could make appropriate
6 corrections, and I concluded the same with Vojnovic; namely, that
7 security needed to be reinforced.
8 "Q. And you state in paragraph 86, this is in reference to the
9 statement: 'As part of that that told Mrksic that you had doubts about
10 the safety of those prisoners at Ovcara?'
11 "A. Yes.
12 "Q. And you wanted someone to evaluate the situation' - if you
13 look at page 87 - 'to make sure that the safety of the prisoners was
14 guaranteed.' Those are your words? Paragraph 87.
15 "A. Yes."
16 And then he goes on at page 14474 to offer his view as to
17 explaining why he'd said what he'd said. He said this:
18 "Considering my feelings about the local Serbian TO and the fact
19 that Colonel Mrksic knew about the threat to the safety of the prisoners
20 posed by the local TO, he could have used units of the Guards Motorised
21 Brigade to neutralise or eliminate this threat. The local Serbian TO was
22 no match for the Guards Motorised Brigade."
23 And it was put to him, is that what he'd said in his previous
24 statement. He said yes.
25 "Is that what you said?"
2 Your Honour, in relation to Sljivancanin, the Prosecution adopts
3 its submissions concerning his role that it has made in its own appeal
4 and in response to Sljivancanin's appeal, and I don't intend to repeat
5 those submissions within Mrksic's appeal.
6 Mrksic was the ultimate decision-maker, in our submission, on the
7 fate of the prisoners, at least in Operational Group South's zone of
8 responsibility. It's interesting that Defence quote to what Jaksic --
9 the Defence witness Jaksic. The Defence's own witness, Jaksic, who was
10 previously the commander of the TO before he was -- local TO before he
11 was replaced by Mrksic, in fact, Jaksic said that he was asked on the
12 morning of the 20th of November by the so-called government to act as a
13 mediator - that's his word, "mediator" - between the government and
14 Mile Mrksic on that morning, and he says at transcript 11920 that it was
15 to Mrksic he went to ask if the prisoners, on behalf of the government,
16 could stay in the area, that is, not to be removed out to
17 Sremska Mitrovica, to be told firmly, No, they're going to
18 Sremska Mitrovica.
19 Your Honours, in our respectful submission, what is relevant
20 about that is that the local people, those in the know, as it were, those
21 who could be expected to know to whom it was they had to go to get a
22 decision, were not going to Veselin Sljivancanin or the security line of
23 administration to make this vital decision; they were going to
24 Mile Mrksic on the morning of the 20th of November. Why would that be,
25 if the truth was he had no responsibility?
1 Mrksic was informed about and made decisions relating to the care
2 of the prisoners that day on the 20th. He knew about the incidents at
3 the barracks. Susic and Panic told him - trial judgement 301 - and the
4 Trial Chamber found that these were incidents that Mile Mrksic would have
5 been told about because this was an issue, quote, "in which he had a very
6 direct concern and responsibility, just as he had a direct concern and
7 responsibility as to what should be done with the prisoners that day."
8 It was he that decided to divert the prisoners to Ovcara, he that ordered
9 the 80th to receive the prisoners at Ovcara. He knew that the problems
10 at Ovcara, and he chose to do nothing about them, then or later, in our
11 submission. When he did act, it was to withdraw the only security they
12 had and to consign them to their fate.
13 The presence of those prisoners and the political situation
14 regarding their treatment was in the forefront of the international mind
15 at the time. Delegations were being regularly received at Mrksic's
16 command post. Why would it be there if it was another that was
17 responsible? And in our submission, it is absurd to suggest that the
18 only concern Mrksic had was for civilians and that somehow the prisoners
19 within his zone of responsibility were actually outside of his concern
20 within that zone of responsibility.
21 He was the commander entrusted with the taking of the hospital
22 and its subsequent evacuation. It was to him as commander that others
23 turned to assistance be decisions about the movement of prisoners and
24 their security, and in our submission it is absurd, again, to suggest
25 that he would not have been involved in this process, given the
1 sensitivities at the time, the clear need for authority at the time, or
2 that anyone but him, in such a sensitive situation, could or would have
3 ordered the withdrawal of the 80th Motorised Brigade MPs.
4 The Defence have posited the question: "Well, surely he wouldn't
5 have done such a thing because others within the JNA chains of command
6 would have been alarmed at such an activity." But, Your Honours, that
7 doesn't reflect what may be the reality here, that others should also
8 have been before a tribunal, facing up to their criminal responsibilities
9 for what occurred. Your Honours, and the Court below were only trying
10 these defendants, and it may not have been able to answer precisely why
11 things happened. There are not always answers to everything, but in this
12 case, having sifted and weighed all of the evidence, the Trial Chamber
13 was satisfied that Mile Mrksic's criminal responsibility was established
14 in this case, and in our submission, the Trial Chamber's findings are
15 both logical and unassailable, and his appeal should be dismissed.
16 Your Honours, what I propose now to do is to hand over to
17 Mr. Wood to develop the submissions in relation to the order to withdraw,
18 unless there are any questions for me at this stage.
19 JUDGE MERON: No, no questions.
20 MR. ROGERS: Great. Thank you, Your Honours.
21 JUDGE MERON: Mr. Wood.
22 MR. WOOD: Your Honours, at the heart of Mile Mrksic's conviction
23 for aiding and abetting the murders of 194 people is the finding that he
24 ordered the withdrawal of the military police from Ovcara Farm on 20
25 November 1991. As Your Honours are aware, the Chamber concluded that
1 Colonel Mrksic ordered the Military Police Company of the 80th Motorised
2 Brigade to leave Ovcara that evening, an act which delivered the Vukovar
3 Hospital prisoners into the hands of the 300 murderous paramilitaries and
4 TO members who had gathered there. The Chamber concluded that Mrksic
5 knew this act would likely result in the murders of these men and women.
6 Mrksic has failed in his Grounds 6, 7 and 8 of his appeal to show that
7 this conclusion was one that no reasonable Trial Chamber could have made,
8 and his appeal should be dismissed.
9 Over the course of the next few minutes, I'll highlight the key
10 findings that the Trial Chamber made as it picked its way through this
11 extensive trial record to conclude that it was Mrksic who gave that
12 order. I'll walk the Appeals Chamber through the Trial Chamber's
13 significant findings to highlight the precision of the Trial Chamber's
14 analysis and to show that this finding was the only reasonable conclusion
15 available from the evidence.
16 Now, I'll start by building a little bit on what you've just
17 heard about the background of Mile Mrksic and his position and role in
18 the events of 19 and 20 November 1991.
19 The Chamber found that Mrksic was the key military commander in
20 relation to the Vukovar Hospital
21 that Mrksic was the man to whom all authorities turned when it came time
22 for decisions to be taken. For example, it was to Mrksic that
23 Dr. Vesna Bosanac, the director of the hospital, turned on 19 November
24 when it came time to arrange the evacuation. That's at trial judgement
25 137. It was with Mrksic that the ECMM monitors met on 19 November also
1 to discuss the evacuation. That's at trial judgement 139. It was with
2 Mrksic that a UN diplomatic and fact-finding mission met on 19 November
3 so that it could gather information about whether UN peacekeeping forces
4 should be sent there. Even men of the same rank acknowledged that it was
5 Mrksic who was the area commander; for example, when the three JNA
6 counter-intelligence officers that you've heard about today, Colonels
7 Vujic, Tomic, and Kijanovic, arrived from Belgrade in November, they
8 reported to Mrksic, the Chamber find; they don't order him. That's at
9 169 of the judgement. Once these colonels arrive at Velepromet on 19
10 November, they asked Mrksic for reinforcements. They don't order him to
11 provide them. That's at 173 of the judgement. And, finally, when these
12 colonels have seen enough at Velepromet, and the Chamber finds that they
13 saw there men who had been beaten and the colonels themselves were
14 threatened by the TOs who had gathered there, they tell Mrksic they won't
15 take any further part. That's at 172 of the judgement. One of them,
16 Colonel Vujic, tells Mrksic the situation is, quote, "an attack against
17 you as a commander." And that's at 174 of the judgement. This, Your
18 Honours, is an explicit recognition that it was Mrksic who was in charge
19 and that he was failing in his duty to protect the prisoners. Coming
20 just a day before the events of the 20th, his words proved prophetic.
21 Now, the evidence also showed that Mrksic was directly and
22 personally involved in every aspect of the prisoners' evacuation,
23 transportation, and security on the last day of their lives, and if I
24 could direct Your Honours' attention to the screens, that would display a
25 Powerpoint presentation.
1 And as you can see, Your Honours, at 6.00 a.m., Mrksic orders the
2 evacuation of the prisoners from the hospital. The night before, of
3 course, he had appointed his subordinate, Veselin Sljivancanin, to
4 evacuate the prisoners and to be responsible for their transport and
5 security. That's at 295 and 400 of the judgement.
6 At around 10.30, Mrksic sends his Chief of Staff, Miodrag Panic,
7 to a meeting of the SAO government. He tells Panic to instruct those
8 present that he would accept and act in accordance with the decision of
9 the government meeting as to what should be done with the prisoners.
10 After the evacuation from the hospital, Mrksic orders the
11 prisoners to be held at the JNA barracks in Vukovar, countermanding his
12 earlier order that they be sent to Sremska Mitrovica.
13 At 11.00 a.m.
14 Mrksic bolsters their security after hearing an alarming phone call from
15 Susic, a military police commander, and I'll explain a little bit about
16 that in a minute.
17 Finally, at around 2.00 p.m.
18 taken to Ovcara Farm. Then, as I'll explain, Mrksic makes the final
19 order of the day to withdraw the military police from the 80th -- of the
20 80th Motorised Brigade.
21 Now, this evidence shows and the Chamber found that Mrksic was
22 receiving constant updates from his subordinates, who were telling him
23 that the prisoners were being abused.
24 At 10.30 a.m.
25 JNA barracks, and, again, I'm not sure if Your Honours' attention is
1 directed to the screen, but there is another presentation. At
2 11.00 a.m.
3 commanders, Susic, also reporting from the barracks. Sometime after
4 3.00 p.m.
6 Sometime in the afternoon of the 20th, he hears from Vukasinovic
7 of his security organ, also reporting about Ovcara. He hears twice, once
8 during the briefing and once shortly after, from Vojnovic, the commander
9 of the 80th Motorised Brigade, also reporting about Ovcara. Finally,
10 after the briefing, Mrksic hears from Vukosavljevic. This is Vojnovic's
11 security chief from the 80th Brigade, also reporting from Ovcara, and
12 what he heard from these men was indeed alarming. From Susic, he hears
13 the safety and security of these people at the JNA barracks are in
14 danger. From Vukasinovic, reporting about Ovcara:
15 "I propose that we strengthen security detail there because I
16 have a feeling there might be some problems in the future ."
17 From Vojnovic, whom he hears from twice, Vojnovic testified and
18 the Chamber found that he told Mrksic:
19 "At Ovcara, there's a mess. I saw a man hit one of the prisoners
20 with a rifle-butt as he was passing through the gauntlet up to the
21 entrance of the hangar."
22 From Vukosavljevic, he hears, also reporting from Ovcara:
23 "A group of men at Ovcara were threatening the prisoners being
24 secured by the 80th Motorised Brigade, and the group of men contended
25 that the prisoners belonged to them and not to the 80th Motorised
2 The Chamber finds then that throughout this day, Mrksic was
3 involved in every major decision regarding the transport and security of
4 these prisoners and that he was given constant updates from his
5 subordinates about their safety. It is, therefore, illogical to believe
6 that Mrksic would not also have made the final decision of that day, to
7 leave the prisoners in the hands of the TO and the paramilitaries. The
8 only reasonable explanation is that the withdrawal order came from the
9 same man who gave each of the other important orders that day,
10 Mile Mrksic. But the Chamber did not rely, as the Defence indicates
11 today, solely on Mrksic's position of authority to conclude that he was
12 the one who issued the order. It also delved into the evidence of the
13 transmission of the order itself and came to the only reasonable
14 conclusion that it was Mrksic who issued that order.
15 Specifically, the Chamber found a line between Mrksic and the
16 withdrawal -- and again, I'm illustrating my point on a slide here, Your
17 Honours. First, Mrksic ordered Borce Karanfilov, one of Sljivancanin's
18 security officers, to withdraw the 80th Motorised Military Police Company
19 from Ovcara. That's at 293 and 329 of the Trial Chamber judgement.
20 Karanfilov, in the Chamber's finding, conveyed this order to Captain
21 Dragan Vezmarovic, who was the commander of the 80th Motorised Military
22 Police Company. That's at 277 and 321 of the Trial Chamber judgement.
23 Now, Vezmarovic says that this occurred about one and a half hours after
24 he arrived at Ovcara, which in his testimony was about 5.00 p.m. After
25 Karanfilov arrived at Ovcara, the Chamber found, he and Vezmarovic, the
1 commander of the Military Police Company who was then providing security,
2 had an extensive conversation. Karanfilov told Vezmarovic that the,
3 quote: "Vukovar TO was to take control of the security of the building"
4 - that is the hangar - "and the prisoners." Per arrangements made at a
5 meeting. That's at 277 of the Trial Chamber judgement.
6 Karanfilov then introduced the TO commanders to Vezmarovic and
7 told the military police commander that they would be the ones who would
8 take charge of the prisoners. Vezmarovic asked the commanders whether
9 they had enough men to perform all the security tasks. He was told that
10 they did, and he withdrew his policemen by 9.00 p.m. at the latest.
11 That's at 277 of the Trial Chamber judgement.
12 Other evidence corroborates both the timing and source of this
13 order, the Chamber found. The Chamber found that Milorad Vojnovic,
14 commander of the 80th Motorised Brigade, reported to Mrksic about what he
15 saw at Ovcara, again, twice that evening, first at the evening briefing -
16 that's at 315 of the judgement - and again shortly after it ended, and
17 that's at 316 of the judgement. During this second conversation, Mrksic
18 asked Vojnovic something along the lines of, What were you doing there?
19 That's at 281 of the judgement. This shows, in the Chamber's finding,
20 that Mrksic was surprised to discover that the military police were still
21 at Ovcara, and this, the Chamber finds, is because Mrksic had already
22 ordered the military police to withdraw from that place.
23 Vojnovic then turned to Drago Vukosavljevic, his security chief,
24 telling him to go to Ovcara and order the military police to leave.
25 That's at 281 of the judgement. Vukosavljevic arrived at Ovcara at about
1 8 p.m.
2 his policemen had already left the hangar and were preparing to leave the
3 area, and that's at 276. Now, this confirms, Your Honour, that the
4 military police had already received their marching orders from Mrksic
5 via Karanfilov. The evidence fits together.
6 Now, as Defence has pointed out, the evidence as to this order
7 was not without its contradictions. Karanfilov told the Chamber that he
8 had never had a conversation with Vezmarovic on the 20th of November,
9 1991. The Chamber was thus faced with a conflicting account. Resolving
10 this inconsistency ultimately boiled down to one essential question: Was
11 the Chamber to believe Karanfilov and throw out the testimony of
12 Vezmarovic, Vukosavljevic, and Vojnovic, or was the Chamber to believe
13 the latter three and reject the testimony of Karanfilov? In evaluating,
14 as it must, the credibility of each of these men, the Chamber found that
15 Karanfilov was not reliable and that the others were. The Chamber was
16 entitled to make these findings, and indeed, they were reasonable ones.
17 As to Karanfilov, the Chamber found he was personally biased - this is at
18 282 of the judgement - and that his testimony contained inconsistencies
19 which could not be rectified with other evidence, like whether and where
20 he spoke with Sljivancanin on 20 November, and I refer you to 282 of the
21 judgement for that. The Chamber also found Karanfilov not credible as to
22 other material aspects of his testimony, and rather than going into
23 those, I'll refer Your Honours to paragraphs 216 and 300 of the
25 On the other hand, the Chamber found that the testimony of the
1 other three men to be credible, and Vezmarovic in particular had no
2 personal interest in contriving a story, the Chamber found. If he had,
3 he probably would have come up with a better story, in the Chamber's
5 If I could draw your attention to the screen again. Now,
6 remember, Your Honours, that Karanfilov was the subordinate of
7 Veselin Sljivancanin. He worked for the security organ of the Guards
8 Motorised Brigade. Now, as Defence has pointed out, Vezmarovic was a
9 member of an entirely different unit, the 80th Motorised Brigade.
10 Vezmarovic normally reported to Vojnovic, the commander of that brigade.
11 The men had the same rank, that of captain, and in the Chamber's finding,
12 if Vezmarovic was in the business of making up stories, why would he
13 invent a story that contained such an unusual chain of command?
14 Receiving an order through his ordinary chain of command, the Chamber
15 found, would have been more likely to be believed and, if you're in the
16 business of making up stories, would also have the added benefit of
17 alleviating Vezmarovic for being on the hook for leaving Ovcara without
18 the proper order or approval of his commander, and the Chamber made this
19 analysis at 283 of the judgement.
20 Another piece of evidence has been raised in today's hearings,
21 Your Honour; that is, that of the war diary of the 80th Motorised
22 Brigade. Defence says that indicates the military police did not leave
23 until 2235, rather than sometime before 9.00 p.m., as the Chamber found.
24 Well, this argument ignores the fact that the Chamber considered this
25 evidence, and that's at 286 of the judgement, weighed it against all the
1 other evidence, and found that the entries could not be relied upon. The
2 Chamber considered this and made its determination based on the totality
3 of the evidence, as the Chamber must.
4 The Chamber also considers other possibilities in its arrival at
5 the conclusion that it was Mrksic who had issued that order. It asks:
6 Could Vezmarovic have been acting on his own? That is, Vezmarovic, the
7 commander of the Military Police Company. Could Vojnovic have been
8 acting on his own? Did Sljivancanin have a role in the transmission of
9 this order? The Chamber considered each of these questions and came to
10 the only conclusion reasonable from the evidence, that the order can only
11 have originated from Mrksic, and that's at 321. You've heard a little
12 bit about that line today as well.
13 Defence, at page 9, line 11 of today's hearing, seems to imply
14 that this conclusion, which is an indication of the circumstantial
15 aspects of certain parts of this evidence, cannot constitute proof beyond
16 a reasonable doubt, and this conclusion is obviously incorrect.
17 As to these particular witnesses, the Chamber rejects, based on
18 its evaluations --
19 JUDGE MERON: Excuse me, Mr. Wood. I just wanted to make sure
20 that at one point or another, you or your colleagues from the Prosecution
21 will address the questions which we listed on the Prosecution -- the
23 MS. BRADY: Perhaps, Your Honour, I'm best placed to answer that
25 The Prosecution will address all of the four questions that Your
1 Honours have posed, two of which relate directly to the Prosecution's
2 appeal and will be dealt with on Friday, and two of which -- actually,
3 excuse me, three of which are directed to the Prosecution's appeal and
4 will be dealt with on Friday, and one of which will be dealt with this
5 afternoon in relation to Sljivancanin's.
6 JUDGE MERON: Thank you very much, Ms. Brady. I just wanted to
7 make sure that this is on your schedule.
8 MR. WOOD: Yes. Thank you, Mr. President.
9 Now, again, getting back to the consideration of the credibility
10 of Vojnovic and Vezmarovic, I'll just refer Your Honours to
11 paragraphs 279 and 321 of the judgement for that. Essentially, the
12 important point is the Chamber made these assessments after seeing these
13 men testify and weighing their evidence against all the other evidence
14 and found that they were reliable, and of course, these are reasonable
16 As to Sljivancanin, the Chamber rejects the idea that this order
17 could have been transmitted through him, and I will refer Your Honours to
18 paragraph 661 of the Trial Chamber judgement, where the Chamber finds he
19 didn't arrive back until after 8.00 p.m., that is, back at Negoslavci,
20 whereas the Chamber found that Karanfilov, who is the agent for
21 transmission -- transmitting the order, could have been around Negoslavci
22 at the time the order was given.
23 And in answer to the Defence contention that it's illogical that
24 an order would have come from Mrksic to Karanfilov, the Chamber also
25 finds that it was not unusual for Mrksic to deal directly with his
1 security organs that day. It finds, for example, that he dealt with
2 Vukasinovic directly. That's at 285 of the judgement.
3 Against all of this, the Chamber considered the unique role that
4 Mrksic played with respect to the prisoners on this last day of their
5 lives. Mrksic, the Chamber finds, was directly concerned in dealings
6 that day between the JNA and the SAO government. This is at 285 of the
7 judgement. The Chamber found virtually, inevitably, Mrksic had a direct
8 responsibility in the making of decisions and their implementation in the
9 course of that process; again, at 285.
10 Based on a totality of the evidence, after hearing all of the
11 testimony, weighing that against all the other evidence, the Chamber
12 concludes the order could only have come from Mrksic. This was the only
13 reasonable conclusion available from the evidence.
14 Mrksic clearly disagrees with this finding, and he makes his
15 opinion plain in submissions today. He fails, however, to show how this
16 essential finding, that is, that he was the one who gave that order, was
17 one that no reasonable Trial Chamber could have made. As the Prosecution
18 has pointed out in its response brief, Mrksic's attacks on appeal and
19 what you've heard today are either re-arguments of his case at trial or
20 subject to summary dismissal, per Brdjanin and other appeals case. Each
21 fails its essential burden to show that the Chamber's findings were those
22 that no reasonable Chamber could have made. The Chamber was entitled to
23 make this conclusion, Your Honours. More importantly, the Chamber was
24 right to make this conclusion. Mrksic's arguments should be dismissed.
25 And I'll turn the floor over now to my colleague, Ms. Lewis.
1 JUDGE MERON: Ms. Lewis, please.
2 MS. LEWIS: Thank you, Your Honours.
3 I will be addressing Grounds 1, 2 and 8 of Mrksic's appeal, in
4 which he argues that the Trial Chamber erred in convicting him for the
5 crimes committed at Ovcara because responsibility in fact lay with the
6 security organs and the local command. I will firstly address Ground 2,
7 in which he argues that it was the security organs who were responsible
8 for the evacuation because this function was within their remit and chain
9 of command. Consequently, he argues, they were responsible for the
10 crimes. I will then address Grounds 1 and 8, in which he argues that it
11 was the local command who were responsible.
12 To turn, then, to Ground 2, Your Honours, this argument fails for
13 two reasons. It fails firstly because, as my co-counsel Mr. Wood has
14 argued, the Trial Chamber found that the evacuation of the prisoners was
15 ultimately within Mrksic's command and control and that he made each of
16 the critical decisions which led to the order to withdraw and the crimes
17 against the prisoners. In view of the fact that Mr. Wood has dealt with
18 this fully, I won't address it further. I will, however, address the
19 second basis on which this argument fails, which is that it fundamentally
20 misunderstands the counter-intelligence function of the security organs;
21 in particular, that in relation to the evacuation, the security organs
22 would have had primary responsibility for the counter-intelligence
23 component of this operation, the triage of the prisoners, and that for
24 this component they would have been responsible to their superior
25 security organs, but that for the other component of the evacuation, the
1 operational components, the actual securing and transport of the
2 prisoners, they would have been subject to Mrksic's command.
3 THE INTERPRETER: Could the counsel please slow down. Thank you.
4 MS. LEWIS: Your Honours, the Trial Chamber found that for
5 counter-intelligence functions, the security organ was responsible to
6 their superior security organs, but that for all other functions, they
7 were subject to the unit commander.
8 In relation to OG South, the Trial Chamber found, therefore, that
9 the subordinate security organs would have reported to Sljivancanin and
10 that he would have had the ability to direct, coordinate, and guide their
11 work, but that he could not command them; trial judgement paragraphs 127
12 and 398. For this conclusion, the Trial Chamber relied on a number of
13 pieces of evidence. Firstly, it relied on Exhibit 107, the Rules of
14 Service of the security organs, in particular, paragraphs 16 and 18.
15 Paragraph 16 provides that the security organ is directly subordinated to
16 the commanding officer of the unit, in this case, Mrksic. Paragraph 18
17 provides that the security organs of the superior command provide
18 assistance to those organs and organise, direct, coordinate, and
19 supervise their work; trial judgement paragraph 128. The Trial Chamber
20 also relied on the testimony of Theunens, the Prosecution's military
21 expert, who testified that in an establishment unit, security organs
22 exist only with respect to counter-intelligence activities, and the
23 reference is 10867 to 868, and trial judgement paragraph 129.
24 Your Honours, Theunens testified further that the relationship
25 between the security organs of a higher and a lower command was not one
1 of command and control in the military sense but, rather, one of
2 specialised guidance. Whilst the security organs reported to the
3 security chain and received guidance, they were subordinated to the unit
4 commander; 10725 and 10858. This testimony was confirmed by the
5 testimony of Sljivancanin himself, who described the relationships
6 between security organs of a higher and lower level as a management
7 relationship and not one of command. Sljivancanin testified that there
8 was no dual chain of command, that security organs, like any other
9 officer, were subordinated to their unit commander, but that in relation
10 to their counter-intelligence functions, because of the confidential
11 nature of these functions, they received guidance and advice from within
12 the structure of the security organs.
13 THE INTERPRETER: Please slow down. Thank you.
14 MS. LEWIS: I apologise.
15 And the reference is 13440 to 41 and 13434 to 36, and trial
16 judgement paragraph 127.
17 Your Honours, these -- this finding was confirmed by the
18 testimony of other witnesses to whom the Trial Chamber also referred:
19 the testimony of Colonel A gotic in the Slobodan Milosevic trial, which
20 was admitted in this case as Exhibit 75 at page 23271; the testimony of
21 Vojnovic, the commander of the 80th Motorised Brigade at 8827;
22 Vukosavljevic, the security chief of the 80th at 8651 to 8652; and Karan,
23 a security officer subordinated to Sljivancanin at 15539 to 40, and
24 again, the reference to the judgement is paragraph 127.
25 So, Your Honours, if we consider the evacuation operation against
1 the background of the reporting and command structure of the security
2 organs, it becomes clear, one, Mrksic's argument fails; the evacuation
3 operation had two components. We know that it had a counter-intelligence
4 component, the triage, identifying which of the prisoners had been
5 members of the armed forces and had committed crimes during the
6 hostilities. This function fell -- was the primary responsibility of the
7 security organs, and we see that from the testimony of Major Pringle, an
8 expert military witness for the Prosecution at 11101 and again from the
9 testimony of Captain Karan at 15555. Major Pringle testified that in
10 view of the essential nature of this component of the evacuation, it was
11 not surprising and one would have expected that the security officers
12 would have been present at the various locations throughout the day.
13 Your Honours, it is for this reason that the Appeals Chamber
14 should reject my learned colleague from the Defence Mr. Vasic's
15 suggestions that there was something sinister in this. To the contrary,
16 it was fully consistent with the Trial Chamber's findings regarding the
17 role of the security organs on that particular day.
18 So, Your Honours, for the other components of the evacuation
19 operation, the operational components, the actual securing and the
20 transport of the prisoners, the security organs would have been subject
21 to the command of Mrksic.
22 Your Honours, I'm not going to deal in detail with the arguments
23 that Mrksic raises in his brief. Our response to this is fully canvassed
24 in our response brief. I will, however, touch on two of the specific
25 arguments that he made today.
1 In his submissions, Mr. Vasic argued that the testimony of Vujic
2 and Sljivancanin show that the security organs were acting under the
3 command of the Security Administration. To the contrary, Your Honour,
4 the testimony of these witnesses merely confirm the Trial Chamber's
5 findings; that whilst they would have been receiving direction from the
6 superior security organs for the counter-intelligence aspect of the
7 evacuation, the triage, for all -- in all aspects, they acted subject to
8 Mrksic's command, and the relevant references are 4626 to 27 and 4521 to
9 22, that's for Vujic, the testimony of Sljivancanin to which I have
10 already referred, as well as the following references: 13991 to 92 and
12 Your Honours, the Appeals Chamber should therefore reject
13 Mrksic's submissions with regards to the security organs, and I will now
14 proceed to address his arguments regarding the role of the local command.
15 Mrksic has argued that as the local command, it was Vojnovic who
16 was responsible for the crimes at Ovcara, either because he failed to
17 adequately secure the prisoners, or because he permitted the withdrawal,
18 or, alternatively, for having himself issued the order to withdraw. This
19 argument should be rejected because it ignores critical findings of the
20 Trial Chamber. In particular, Your Honours, it ignores the fact that
21 Mrksic was ultimately found responsible for his own positive conducts.
22 He was found responsible for having issued the order for the 80th
23 Motorised Brigade to withdraw. That's trial judgement paragraphs 321 and
25 Furthermore, Your Honours, this argument ignores the fact that
1 the Trial Chamber found that at the relevant time on the 20th and 21st of
2 November, Vojnovic and the 80th were subject to Mrksic's command.
3 Therefore, as my co-counsel Mr. Rogers has argued, even if they were in
4 their own duties, they were at all times under Mrksic's command, and the
5 ultimate responsibility vested with him; trial judgement paragraphs 69 to
6 73, and 111 to 113.
7 Under Ground 8(a) of his submissions, Mrksic argues that after he
8 departed to Belgrade
9 again vested with Vojnovic. Once again, Your Honours, this argument
10 fails because it ignores the Trial Chamber's findings that Mrksic was
11 held responsible for his own conduct for withdrawing the 80th Motorised
12 Brigade, and that at the relevant time the local command was subordinated
13 to OG South and ultimately to Mrksic, and again, the references are
14 paragraphs 69 to 73 and 321 to 329.
15 To conclude, Your Honours, the Appeals Chamber should reject
16 Mrksic's arguments that it was Sljivancanin and the security organs and
17 Vojnovic and the local command, in effect, everyone and anyone but him,
18 who were responsible for the crimes at Ovcara. This ignores the Trial
19 Chamber's findings. It ignores the fact that Mrksic, a commander of, if
20 not the, then a premier unit of the JNA, had been specifically tasked
21 with carrying out the evacuation, that Mrksic had issued each of the
22 critical decisions which culminated in the crimes against the prisoners.
23 Mrksic ordered Sljivancanin to carry out the evacuation. It was Mrksic
24 who ordered Panic to attend the meeting of the SAO government and
25 communicate that he would act upon their wishes. It was Mrksic who
1 ordered the prisoners to be held at the barracks to await this decision,
2 and it was Mrksic who ordered the prisoners to be transferred to Vukovar.
3 In addition, it was to Mrksic that everyone turned with their concerns
4 about the threat that was presented by the TO to the security of the
5 prisoners. His Chief of Staff, Panic; the commander of one of his
6 military police battalions, Susic; Vojnovic; and Vukosavljevic, the
7 commander and the security chief of the 80th; and the security officers
8 from Belgrade
9 Mrksic, and despite these repeated warnings, despite being told over and
10 over and over about the threat presented by the TOs and the
11 paramilitaries, Mrksic did not act to increase the security and remove
12 this threat. Instead, he withdrew the only protection that the prisoners
13 had, which culminated in their cruel treatment, torture, and ultimately
14 their murder.
15 Your Honours, we request the Appeals Chamber to reject Mrksic's
17 JUDGE MERON: Counsel, could you tell us, when did Sljivancanin
18 learn of Mrksic's order to withdraw?
19 MS. LEWIS: Your Honour, the Trial Chamber found that Mrksic
20 communicated the order to Sljivancanin, the oral order, on the afternoon
21 of the 19th, the day before -- I'm sorry, Your Honours, I may have
22 misunderstood the question.
23 [Prosecution counsel confer]
24 MS. LEWIS: No, Your Honours, I apologise. I misunderstood the
1 The general answer is that it was around 8.00 p.m. on the 20th,
2 but this will form a part of Ms. Brady's submissions, and she will deal
3 with it in full.
4 JUDGE MERON: So Ms. Brady will return to this?
5 MS. BRADY: Yes, Your Honour. I will be spending a fair amount
6 of time on this question on Friday, in which I will set out the evidence
7 and the findings that we rely on to show that the only reasonable
8 conclusion that must be drawn from the totality of the evidence is that
9 when Mr. Sljivancanin returned to Negoslavci at about 8.00 p.m.
10 have learnt then that Mrksic had ordered the withdrawal of the JNA -- the
11 remaining JNA units at Ovcara. But I think it might be better to hear my
12 submissions, which are fairly lengthy on this point, on Friday.
13 JUDGE MERON: Thank you so much.
14 MS. BRADY: Thank you.
15 MS. LEWIS: Your Honours, if there are no further questions, that
16 concludes our submissions.
17 JUDGE MERON: Thank you.
18 [Appeals Chamber confers]
19 JUDGE MERON: Since there is only ten minutes to the time we have
20 fixed for the ending of this morning's session, I will not ask at this
21 stage the appellant to reply, but we will have our break now and resume
22 at 1400 hours sharp, 2.00 sharp.
23 We will now rise.
24 --- Luncheon recess taken at 12.19 p.m.
25 --- On resuming at 2.01 p.m.
1 JUDGE MERON: Please be seated.
2 We are now about to start the second half of the proceedings
3 today, and before we do so, I would like to inform my colleagues and the
4 parties of a slight change in the schedule for the presentation of their
5 arguments because we are informed by the Court officers that we are all
6 able to sit in court for one hour and forty-five minutes at a time;
7 otherwise, we risk running out of tape and the proceedings won't be
8 audio-recorded. I have slightly adjusted the schedule for this
9 afternoon. My colleagues will find in front of them the corrected
10 schedule, and I would ask the Registrar kindly to circulate this amended
11 timetable to the parties.
12 We will start from reply by the appellant Mrksic, who will have
13 30 minutes to complete his case of the appeal for Mr. Mrksic.
14 MR. VASIC: [Interpretation] Thank you, Your Honour.
15 My learned friends from the Prosecution in response to our appeal
16 tried to plead in relation to the orders that were issued by Colonel
17 Mrksic as commander of Operations Group South and to base on that their
18 assertion that, therefore, he must have issued the order on the
19 withdrawal of the military police. On the one hand, this has to do with
20 orders that he had to make as commander, which is only natural, and the
21 withdrawal of the police is something that he's being charged for in
22 terms of individual responsibility, and there is not a shred of evidence
23 to that effect in the case file. You will not find a single witness
24 having stated that Mile Mrksic said that he had issued an order to
25 withdraw the forces from Ovcara. Even Vojnovic doesn't say that. He
1 says unequivocally that he had not said that to him; rather, that that is
2 how he understood his question, What are you doing there?
3 However, this is happening precisely because in the judgement,
4 material evidence is being superseded, material evidence such as diaries
5 and orders. It is superseded by formal statements of witnesses, and
6 therefore, the Trial Chamber has a problem in terms of resolving timing
7 issues. They conclude that what is written in material evidence is not
8 correct and that what witnesses like Panic and Vojnovic state is correct.
9 The former remembered only in 2001 that the evacuation of the hospital
10 happened on the 20th of November, rather than the 21st, and the latter
11 only after 1998 remembered that on the 20th of November, he did see Mile
12 Mrksic after all.
13 I have to remind my learned friends and the Appeals Chamber of
14 the fact that the prisoners of war went to Sremska Mitrovica on the basis
15 of a regular procedure. You will see that from the judgement where the
16 Trial Chamber asserts that on the 18th of November, a group from Mitnica
17 went to Sremska Mitrovica. When the group went to Sremska Mitrovica,
18 when they arrived in Ovcara, they spent the entire night there, and lists
19 were made and a triage was carried out, but Mile Mrksic had nothing to do
20 with that whatsoever. I believe that that is not even being challenged.
21 That is to say, going to Mitnica via Ovcara is something that was
22 established by the organs who dealt with this matter.
23 My learned friends say that the 80th Brigade did not have orders
24 to prepare for guarding prisoners of war at Ovcara on the 20th of
25 November. I believe that that is not the case and that we should look at
1 Exhibit 375, the entry of 1800 hours on the 19th of November; also,
2 Exhibit 891 that my learned friends invoked in the sense that --
3 THE INTERPRETER: Interpreter's correction: 819.
4 MR. VASIC: [Interpretation] This does not infringe upon the
5 position of the POWs. I don't believe that that was dealt with properly
6 because what is stated here is that they were interrogating potential
7 crime suspects, war crime suspects, and then they decided whether they
8 would hand them over to other organs without consulting the command and
9 the commander.
10 THE COURT REPORTER: I'm sorry, Your Honour. There seems to be a
11 problem with the LiveNote feed.
12 JUDGE MERON: The problem is with what?
13 THE COURT REPORTER: With the LiveNote feed. It has stopped and
14 we have to --
15 JUDGE MERON: Can we start now even if you fill in later the --
16 it's working now? It's working now, right? Okay. We will now resume,
17 and if you have to fill in later a few missing words, you'll do that.
18 Okay, Counsel.
19 MR. VASIC: [Interpretation] Thank you, Your Honour. I'm going to
20 continue from where the transcript stopped.
21 So my learned friends say that the Command of the 80th Brigade
22 had not been informed that on the 20th of November, POWs from the
23 hospital would be transferred to Ovcara. I believe that that is not
24 right. Therefore, we should see 375, Exhibit 375, the entry for 1800
25 hours on the 19th of November.
1 As for Exhibit 819, I believe that it clearly demonstrates that
2 the security organs are in charge of triage and uncovering perpetrators
3 of war crimes and crimes in general. In practice, after interrogating
4 these persons, they decided on their further processing or handing them
5 over to other organs without consulting the Command or the commander of
6 the unit about that.
7 I have already referred to Exhibit 419 and the order of
8 Mile Mrksic for the evacuation of civilians and the sick and wounded from
9 the hospital, and the fact that when an order is issued concerning an
10 assignment, it is not issued in two parts as is determined by the Trial
11 Chamber but in a single part, and that is precisely what we have in
12 writing in the case file.
13 The decision on the establishment of a town command on Ovcara was
14 not made by Mile Mrksic because of the transfer of prisoners of war but,
15 rather, on the basis of an order issued by the Command of the 1st
16 Military District and the Supreme Command. I've already spoken about
17 that; namely, this was meant to ensure the safety of civilians and their
18 property in areas where there were no functioning civilian authorities.
19 Also, I have to say that my learned friends tried to tell us that
20 Colonel Mrksic was actually a person who was asked about everything. As
21 a commander, he was supposed to be asked about most things. However, the
22 evidence does not show this, and this is what we say in our response to
23 the appeal, and that is that he received the representatives of the EC
24 Monitoring Mission
25 few minutes that he received even Cyrus Vance. It was a question of
1 protocol, just receiving him for a courtesy call for a few moments, and
2 that basically it was Colonel Pavkovic and the officers from the 1st
3 Military District that were in charge of this.
4 As for Vujic, Tomic, and Kijanovic, it was not established in the
5 evidence that they asked Mrksic for some kind of reinforcement with
6 regard to Velepromet. I think that the fact that Witness Jaksic came to
7 Mrksic at the request of the minister of justice does not lead us to
8 infer that Mrksic was a person who was asked about POWs. That is what my
9 learned friends are trying to suggest. Rather, it was a consequence of
10 the fact that the government of Eastern Slavonia, Baranja, and Western
11 Srem, on the 20th of November, 1991, came to Vukovar for the first time
12 ever since the war conflicts had broken out and that they were not aware
13 of the situation on the ground at all, and they did not know who was in
14 charge of what.
15 Further on, the essence of the problem was, when we look at the
16 trial judgement, is the timing, the time-frame that the Trial Chamber
17 tried to fit into the witness statements of those witnesses who they
18 trusted. If this was not confirmed by material evidence and the
19 statements of other witnesses or with the fact that Mile Mrksic between
20 7.00 and 8.00 p.m. on the 20th of November went to Belgrade, they needed
21 to deal with the time-frame in the following way: They moved the
22 government session to an earlier point in time, although we have 268-269,
23 that's the exhibit number of the video footage showing that the session
24 could not have started before 2.00 p.m., and the judgement says that it
25 started between 10.00 and 11.00 a.m.
1 in the yard of the barracks while the session was still on because they
2 were already in Ovcara by 1.30, and the session started only at 2.00 p.m.
3 Then, also, there is a move in terms of time when the briefing
4 started. Trifunovic claims that it started at 5.00 p.m., and he's the
5 chief operations officer of the Command, and that time is moved to 1800
6 hours, whereas 1800 hours is actually the time when reports are sent to
7 the higher command. This is done in order to move time ahead and to
8 establish that Mile Mrksic could have issued an order to have the
9 military police withdrawn before he went to Belgrade.
10 Finally, perhaps a crucial matter in this entire judgement is the
11 withdrawal of the military police, which according to the operations
12 diary of the 80th Brigade took place at 2235 hours; that is to say that
13 this particular point in time was confirmed by the Chief of Staff of the
14 80th Motorised Brigade, and he is in charge of the accuracy of the
15 documents of the unit. If this is correct, and it is correct, then the
16 Trial Chamber made the wrong conclusion when they concluded that the
17 withdrawal took place by 2100 hours. Then that would have been reflected
18 in terms of the fact that that kind of order for withdrawal could have
19 come only half an hour earlier, and by then Mile Mrksic had been in
21 kind of order.
22 This also has to do with the assertion made by my learned
23 colleagues in relation to Captain Karanfilov. We heard their explanation
24 today in terms of who's telling the truth, he or the witnesses from the
25 80th Brigade. However, even today, I did not hear and I did not find in
1 the judgement any proof indicating that Karanfilov was in Negoslavci at
2 the time when the Trial Chamber found that allegedly Mile Mrksic issued
3 an order on the withdrawal of the military police. The Trial Chamber
4 does not give an explanation to that effect, and it does not explain how
5 this kind of conclusion is supported. Therefore, I believe that this
6 conclusion cannot be beyond a reasonable doubt, and I don't think that
7 any reasonable trier of fact could conclude that Captain Karanfilov
8 received the order precisely in Negoslavci, and precisely from
9 Mile Mrksic, and precisely at the Command of Operations Group South.
10 Quite simply, there is not a shred of evidence attesting to that.
11 This conclusion is actually amplified by what my learned friends
12 said in their response to the appeal. If you recall, they said that this
13 order, as established by the Trial Chamber in the judgement, is an
14 unusual chain of command rather than the regular chain of command and
15 that something that happened there was a situation that was out of the
16 ordinary. In order for a reasonable trier of fact to make a conclusion
17 beyond any reasonable doubt, there would have to be proof justifying this
18 unusual conclusion, that is to say, one that deviates from the rule, from
19 everyday practice.
20 We have an unusual situation here, and there is not a shred of
21 evidence to the effect that this had actually happened. That is the main
22 problem with regard to this judgement. So it would have been normal for
23 orders to be issued down the chain of command, or if it involves security
24 organs, to go down the security line. Here, the Trial Chamber finds that
25 the commander, through the security officer, issued an order. There is
1 no evidence to prove that, and, on the other hand, there are no evident
2 reasons why such a thing might occur.
3 My learned friends also stated that within the scope of his
4 activities, the security organs also engaged in counter-intelligence
5 work, the detection of crimes and criminals, but not the transport and
6 security of prisoners of war. I must draw the Appeal Chamber's decision
7 to paragraphs 124 and 127 of the appeal, where a part of a telephone
8 conversation is paraphrased. This conversation took place between
9 Mr. Sljivancanin and Tumanov -- or, rather, General Vasiljevic, and here
10 Tumanov says:
11 [In English] "You know routine, send them to Sremska Mitrovica
12 for interrogation, and that was the end of the conversation."
13 [Interpretation] Commenting on the conversation with
14 General Vasiljevic:
15 [In English] "We briefly discussed the telegram, as well, that I
16 received from him. I said that without any interview, We shall send also
17 suspects to the prison in Sremska Mitrovica, and that there were organs
18 there that would further investigate these persons."
19 [Interpretation] So the movement of these persons is clearly
20 agreed upon along the security line.
21 Another attempt by my learned friends was evident today to
22 present Mile Mrksic as the only person who might issue such an order,
23 thus supporting the decision reached by the Trial Chamber, and that
24 attempt consisted in their saying that the unit he commanded was a unit
25 established as such units should be established and not a chaotic unit.
1 Orders are not issued to well-organised units in unusual ways as
2 seems to have been the case here. We cannot consider a unit to be
3 orderly when we wish to consider it to be orderly and to be disorderly
4 when it serves our purpose to be viewed as chaotic.
5 As regards the situation, I think it is clear to everyone here
6 that there were many representatives of the highest military organs
7 present at Ovcara, both security and others, and I really think that the
8 conclusion we presented in our oral arguments, that it would have been
9 impossible for Mile Mrksic to issue an order which would then remain a
10 secret to all for such a long time, especially as we heard before the
11 Chamber that the security organs on that same night -- the night sent to
12 [indiscernible] Colonel Petkovic and Babic and later to
13 General Aleksandar Vasiljevic information about this. So it is
14 impossible to believe the conclusion of the Trial Chamber that the
15 brigade commander could ensure such secrecy concerning the event which
17 To this day, we do not know when this order was issued because
18 it's neither in the judgement, nor have my learned friends been able to
19 tell us this today. The Chamber left open two options before or after
20 the briefing because it also left open Mrksic's departure for Belgrade
21 However, my colleague explained today why it was impossible for such an
22 order to be issued either before or after the briefing. If it has been
23 established beyond reasonable doubt and if it is the result of
24 testimonies of officers of the 80th Brigade, why, then, did
25 Lieutenant-Colonel Vojnovic come to Operations Group South if his units
1 had been ordered to withdraw from Ovcara? And this is stated by Witness
2 Trifunovic, a Prosecution witness.
3 So to conclude, I believe that there is not a shred of evidence
4 to show that Mile Mrksic issued the order on the withdrawal of the
5 military police of the 80th Brigade from the Ovcara Farm either to
6 Captain Karanfilov or to Lieutenant-Colonel Vojnovic, and I therefore
7 submit that his guilt in -- that his culpability has not been established
8 beyond reasonable doubt.
9 Thank you, Your Honours.
10 JUDGE MERON: Thank you, and thank you for completing your
11 presentation on time. We appreciate that, and we will now move on to the
12 appeal of Mr. Sljivancanin. Will that be Mr. Lukic, Mr. Bourgon?
13 Mr. Lukic.
14 I apologise. My distinguished colleague Judge Guney has a
15 question. You will have to wait.
16 JUDGE GUNEY: Counsel, you alleged that the Chamber concluded
17 that the order for withdrawal just before -- or just after the regular
18 daily briefing in Ovcara, so Mrksic's argument failed to show why no
19 reasonable trier of fact could have reached this same conclusion. Could
20 you develop on that?
21 MR. VASIC: [Interpretation] Your Honours --
22 JUDGE GUNEY: In addition, of course, Vukasinovic twice informed
23 Mrksic about the events of Ovcara, and the other inform of Vukasinovic at
24 Ovcara on 20 November 1991
25 Thank you.
1 MR. VASIC: [Interpretation] Thank you very much.
2 The Trial Chamber established the alternative, that Mile Mrksic
3 issued the order on the withdrawal of the military police either before
4 or after the regular briefing. Before the regular briefing, he would
5 have issued this order to Captain Karanfilov, but he could not have done
6 so before the regular briefing because at the briefing itself, had such
7 an order been issued, it would have been mentioned. Mile Mrksic would
8 have reported this. He would have said that his unit was supposed to
9 withdraw from Ovcara, and there would have been no logic in him doing it
10 through the security officer when he would have the commander of the unit
11 with him at the meeting and he could have issued the order in the regular
12 way. None of the numerous witnesses who attended that briefing said that
13 that was the topic or a topic discussed at the briefing.
14 Furthermore, none of the witnesses say that Lieutenant-Colonel
15 Vojnovic informed Colonel Mrksic about the critical situation at Ovcara.
16 Witnesses Trifunovic, Gluscevic, Panic, say nothing about what Vojnovic
17 said to Mrksic at that meeting. Vojnovic himself up to 1998 never said
18 he said anything to Mrksic concerning the events at Ovcara.
19 After the briefing, it would not have been possible for this
20 order to be issued because Witnesses Gluscevic, Sljivancanin, and Coric
21 concluded a series of meetings that Mrksic had in the Command before
22 leaving for Belgrade
23 waiting for him in front of the building, so he had no opportunity to
24 issue the order to Captain Karanfilov. He had no time to see
25 Lieutenant-Colonel Vojnovic, either, after the briefing because -- and
1 the Defence submits that they did not meet as Lieutenant-Colonel Vojnovic
2 himself said up to 1998. After the conversation with Vukosavljevic, as
3 we heard today from my colleague, he heard that Vukosavljevic had
4 allegedly been at Negoslavci, and as he believed Vukosavljevic, he
5 accepted this story that they had been there together. This story, in
6 fact, in the view of the Defence is evidence which cannot be accepted
7 beyond reasonable doubt and which is contradictory to other evidence
8 which the Trial Chamber accepted in the alternative. They accepted that
9 Mrksic may have left Belgrade
10 As regards the activity concerning the security at Ovcara, that
11 was the command of the -- the town command of the 80th Motorised Brigade,
12 and they were supposed to provide security, and Mrksic resubordinated
13 more than a thousand soldiers to that unit. But from the operations log
14 of the Motorised Brigade, Exhibit 371, we see that there is an order on
15 reinforcing that unit, and between 1700 and 1800 hours Mrksic called the
16 office of the motorised APCs, and he ordered that this unit be given to
17 Lieutenant-Colonel Vojnovic and to be at his disposal if needed.
18 I don't know if I have answered your question.
19 JUDGE GUNEY: [Interpretation] Thank you very much.
20 JUDGE MERON: Thank you, Judge Guney.
21 We shall now move back to Mr. Lukic.
22 MS. BRADY: Excuse me, Your Honour.
23 Before Mr. Lukic starts his submissions for the Sljivancanin
24 appeal, with your indulgence, if I could ask you to give us a couple of
25 minutes while Mr. Wood, Ms. Lewis, and Mr. Rogers leave the courtroom,
1 and in fact, new counsel are coming in in relation to the Sljivancanin
2 appeal: Ms. Carey, Mr. Dalal, and Ms. Nabti.
3 JUDGE MERON: Yes, we will wait.
4 MS. BRADY: Thank you.
5 MR. LUKIC: [Interpretation] [No interpretation]
6 JUDGE MERON: No, no, just one second. I believe Ms. Brady wants
7 her new team to be present.
8 MS. BRADY: That would be helpful, Your Honour.
9 JUDGE MERON: The new cast is present, I take it.
10 MS. BRADY: They're all here and accounted for, Your Honour.
11 JUDGE MERON: Thank you.
12 Mr. Lukic.
13 MR. LUKIC: [Interpretation] I just wanted to use the break to
14 introduce another member, and we have Marie Claude Fournier joining us
15 for this second part of the hearing.
16 Before I begin, I just want to say that it is our idea for me to
17 talk about the introductory part, and I'm also going to discuss the first
18 ground of the indictment, and then Mr. Bourgon is going to provide his
19 arguments for the other counts of the indictment and also respond to
20 certain questions that you have put and to tell you that the response to
21 issue number 3 that you put earlier to the Prosecutor, we will also be
22 leaving for Friday because it's logical then that that be part of the
23 themes that we will be discussing on Friday.
24 Your Honours, the Defence of Mr. Sljivancanin at the very
25 beginning would like to emphasise its position. The Trial Chamber
1 judgement, in relation to the findings on the basis of which his criminal
2 responsibility was established, is based on important errors which have
3 brought us to a miscarriage of justice. In our appeal, we would like to
4 show that the only possible decision which can come out of that is an
5 exonerating sentence, or an acquittal, or a retrial. We would like to
6 point out the most significant positions to indicate, also, the way of
7 the -- the best and the easiest way to understand the position of the
8 Defence, and we would like to leave no matters that are unclear or any
9 dilemmas after our discussion.
10 The Defence of Mr. Sljivancanin, from the beginning of the trial,
11 was not a passive part and did not wait for the Prosecution on whom lies
12 the burden of evidence, and we did not wait for them to present their
13 case and make all the assertions. The Defence understood this trial as
14 the way to reach the full truth of Ovcara -- about Ovcara and not a trial
15 about the counts in the indictment.
16 By carefully analysing the judgement, we have established that
17 the Trial Chamber established key facts on events at Ovcara on the basis
18 of the presentation of evidence of the Defence of Veselin Sljivancanin,
19 and in many parts of its judgement it affirmed the positions of his
21 Can you please see how much the Prosecutor refers to today to the
22 testimony of Witness Panic, even though the Prosecution and Mr. Mrksic's
23 Defence did not actually call him as a witness, even though he was on
24 their list, and who happened to testify on behalf of Sljivancanin.
25 From the beginning of the trial, we emphasised that we believed
1 that the key moment of that entire tragic 20th of November, 1991, was the
2 government meeting of the SAO Krajina, and after that the change of the
3 evacuation plan of the prisoners of war instead of taking them to the
4 prison in Mitrovica, to take them to Ovcara, and this is the point from
5 which everything else proceeded in the wrong direction or it all went
7 Another key event, according to the judgement, is the decision to
8 withdraw the security detail from Ovcara. This decision had as its
9 direct consequence the unimpeded access to the prisoners by members of
10 the TO and the paramilitaries, which, as the Court established, led to
11 their killing. The participation of Sljivancanin in these events did not
12 exist in any form. His defence in relation to these facts was consistent
13 and clear.
14 Your Honours, Sljivancanin decided to sit in the witness chair
15 right at the beginning of his defence, and he was directly cross-examined
16 for 16 hours both by the OTP and by Mr. Mrksic's Defence team. In many
17 parts of his testimony, the Trial Chamber relied on his testimony and
18 based its findings on that testimony. However, some parts of his
19 testimony and his defence were not accepted by the Trial Chamber. This
20 refers to the assignment and the role he had in the hospital evacuation
21 operation, but as it will turn out in the end in the judgement, also on
22 the fact which became key in terms of his responsibility and his
23 testimony that he was not at Ovcara at any point on that day, the 20th of
24 November, 1991.
25 Your Honours, Veselin Sljivancanin was not at Ovcara or in the
1 barracks on the 20th of November, 1991. We assert this, and we did so
2 from the very first beginning of the presentation of our case. This was
3 stated in our pre-trial brief, in our opening statement, and that was
4 also our theory or thesis throughout the whole presentation of evidence
5 during trial.
6 When you carefully review our appeals from the first ground of
7 our appeal, it will not be necessary, Your Honours, to analyse more,
8 either Sljivancanin's appeal or the position of the Prosecution in terms
9 or in respect of his responsibility.
10 The Sljivancanin Defence is aware of the practice of
11 Appeals Chambers, which is very restrictive in re-evaluating the
12 established factual matters from the actual trial, giving precedence to
13 the Trial Chamber in its assessment of evidence. But when these
14 conclusions do not satisfy the standard "beyond any reasonable doubt,"
15 then they inevitably lead to a miscarriage of justice. So in its written
16 arguments, and we are going to present a part of that orally today, the
17 Defence showed that the Trial Chamber committed errors when it concluded
18 that Sljivancanin was at Ovcara on the 20th of November, that he could
19 have seen the beatings of the prisoners, and that he was aware of prior
20 criminal conduct by members of the TO, and that it was his duty to
21 prevent further assaults or attacks on the prisoners.
22 After these errors in their factual conclusions, the Trial
23 Chamber reached erroneous legal findings that by his omission to act, he
24 significantly contributed to further crimes of torture in the afternoon
25 of the 20th of November, 1991. All the facts on the basis of which the
1 Trial Chamber established the responsibility of Mr. Sljivancanin can only
2 all together lead to the conclusion of his responsibility as established
3 by the Trial Chamber. If the Appeals Chamber finds that the Trial
4 Chamber erred in any factual conclusion on which it relies on for
5 Sljivancanin's conviction, that inevitably must lead to acquittal.
6 In case the Appeals Chamber establishes that the appellant was
7 not aware of charges for aiding and abetting by his omission to act and
8 that such a form of criminal liability does exist and which we assert
9 that the Prosecutor articulated only in his final brief, only a new trial
10 with a very precise indictment could be in the interests of justice.
11 And, finally, at the end of this introduction, just a few more
12 words about the assertions from Mr. Mrksic's appeal.
13 The Sljivancanin Defence spent a long time considering whether it
14 should address the Appeals Chamber with a request that it was responding
15 to this appeal. The thesis of Mr. Mrksic's Defence to a considerable
16 degree is based on the responsibility of Mr. Sljivancanin, and we did
17 provide arguments in our final brief about that particular theory of
18 Mrksic's defence because that was the first time we encountered it in
19 their final brief. This theory that is articulated in their final brief
20 and is being repeated throughout their appeals brief is based on their
21 own evaluation of evidence and by referring to some theories which were
22 not articulated in the course of the trial itself and were not
23 substantiated by evidence. The Trial Chamber or the Appeals Chamber
24 reaches decisions on the basis of their own assessment and not on the
25 basis of somebody else's interpretation of the evidence. This is our
1 only comment.
2 Now I'm going to move to arguments that relate to Ground 1 of our
4 The presence of Sljivancanin at Ovcara, as this was established
5 in the judgement, has become a fundamental question of fact in terms of
6 establishing his responsibility. In the event that the Trial Chamber did
7 not conclude that he was in front of the hangar at that time, it would
8 not have established the existence of his criminal responsibility. The
9 Trial Chamber exclusively on the basis of the testimony of one witness,
10 P-009, established that Sljivancanin was at Ovcara on the 20th of
11 November, 1991. When a certain fact which in many aspects is crucial for
12 the establishment of possible responsibility of the accused can be
13 established by the Trial Chamber from the testimony of only one witness,
14 the Court must approach that task with particular caution, especially if
15 that evidence contradicts a large number of other evidence on the same
17 The Trial Chamber in the judgement referred to some standards for
18 which it said that it applied in the assessment of those key facts, and
19 these are paragraphs 11 to 16 of the judgement. The essence is that in
20 view of the contradictory facts, motives, and a large passage of time
21 from those events, the Trial Chamber approached its evaluation of
22 evidence with particular care. The strategy of the Defence in disputing
23 this assertion from the indictment was clear: to ask each, I underscore,
24 each and every witness who testified that he was at Ovcara at the same
25 time and at the same place as asserted by P-009 was to ask whether he saw
1 Sljivancanin there. According to the understanding of the Defence, if
2 this simple analysis is applied to such an important question in the
3 judgement, the question which presents the crux of possible criminal
4 responsibility, precise arguments must be provided. No reasonable trier
5 of fact can be left in a dilemma about the possibility of the existence
6 of a different conclusion.
7 The Trial Chamber as cited in the appeals brief in reference to
8 this conclusion, the presence of Sljivancanin at Ovcara, committed
9 important errors. Among them, they are: One, did not compare the
10 testimony of Witness P-009 with testimony of other witnesses who
11 testified contrary on this particular matter, that they did not see
12 Sljivancanin at Ovcara. In reference to the group of witnesses who were
13 prisoners from the bus, the Trial Chamber in paragraph 382 refers to only
14 two who did not see Sljivancanin. Besides these two, at the trial P-031,
15 P-011, Cakalic, Karlovic, and Dodaj said the identical things during the
16 trial. Dodaj, P-011 -- yes, I mentioned that, and Dodaj. And we are
17 going to provide some explanations in reference to Dodaj.
18 Two, the Trial Chamber erred by mentioning in the judgement
19 erroneous conclusions about the reasons why they did not accept evidence
20 from other witnesses who claimed the opposite and which the Trial Chamber
21 analysed. We referred to this in our appeal in paragraphs 155 to 169.
22 Three, erroneously evaluating evidence that relates to the
23 circumstances in which Witness P-009 allegedly previously saw
24 Sljivancanin, which constituted the basis of recognising him in the first
25 place. We refer to this in paragraphs 83 to 117 of our appeal brief.
1 Further, by stating contradictory conclusions, the Trial Chamber
2 erred because in reference to the key fact, Sljivancanin's presence at
3 Ovcara, after evaluating the evidence, it relied on two witnesses who
4 actually speak completely opposite things about that fact, and we refer
5 to this in our paragraphs 63 to 81, and then also erred by not
6 considering the inconsistencies in the testimony of P-009 with other
7 conclusions of the Trial Chamber and his motives to conceal the facts,
8 and these are our paragraphs 131 and 145. And the Trial Chamber also did
9 not pay attention to their own relevant conclusions about the presence of
10 Sljivancanin in that period in the hospital, and these are paragraphs 147
11 to 145 of our appeal. This erroneous approach and erroneous evaluation
12 of the evidence led to conclusions that no reasonable trier of facts
13 would reach, especially not as the only possible conclusion. Some of
14 these errors we are going to dwell on in more detail now.
15 By relying on the evidence of Witness P-009, the Court
16 established that P-009 saw Sljivancanin at Ovcara at around 1430 or 1500
17 hours on the 20th of November. Witness P-009, in the findings of the
18 Trial Chamber previously, stood in front of the hangar, observed the
19 beating, and then went behind the hangar, returned some 15 to 20 minutes
20 later, and then saw Sljivancanin passed by him and entered the hangar.
21 According to him, at that point in time the prisoners were already inside
22 the hangar. This is paragraph 377 of the judgement.
23 The location and the timing that the Court concluded, on the
24 basis of this testimony, are quite precise.
25 In its further analysis of the reliability of the testimony of
1 this witness, the Trial Chamber had a clear and responsible task: to
2 compare that evidence with other evidence, primarily with statements of
3 other witnesses who asserted that they did not see Sljivancanin there.
4 Probably, any witness, including P-009, is something about which the
5 Trial Chamber had to ask itself the following question: Was the witness
6 in a position to observe the area in front of him? Was he convincing?
7 Did he have any reason to be insincere, and what can be reliably
8 established on the basis of the testimony of each particular witness?
9 A considerable number of witnesses on which the Court relied
10 about facts surrounding the hangar at the time that P-009 refers to was
11 so convincing for the Trial Chamber that on the basis of their testimony,
12 they established facts. They were, thus, credible. Besides describing
13 what they saw happen, in which the Court relied on their testimony and
14 the Court trusted them, they also said that they did not see Sljivancanin
15 at that time.
16 The Trial Chamber also reaches a contradictory conclusion in its
17 conclusion in paragraph 382, when it says that Witnesses Berghofer and
18 P-030 in view of the circumstances were unable to observe all the
19 officers in front of the hangar, and thus, they reach a conclusion which
20 is contradictory to their other conclusions. The Court trusted these
21 same witnesses in its conclusions when it -- when they described who
22 participated in the beatings; paragraphs 938, 939, 932, and 931.
23 The Prosecution's assertion in its response --
24 JUDGE MERON: My distinguished colleague Judge Guney has a
1 JUDGE GUNEY: Counsel, you -- [microphone not activated]
2 I repeat. You argue that only the willful failure to discharge a
3 duty which imply the culpable intent of the accused can lead to the
4 individual criminal responsibility. If you maintain this view, I would
5 like to know, what is your position vis-a-vis the multiple jurisprudence
6 and development which based on the commission by omission? So I would
7 like to know, what is your position on the commission by omission
8 vis-a-vis the development and multiple jurisprudence?
9 Thank you.
10 MR. LUKIC: [Interpretation] Your Honour, Mr. Bourgon is prepared
11 to deal with this topic in detail, so I would like to leave the answer to
12 your question to him. If you are not satisfied with his explanation, we
13 can supplement our explanations later on.
14 JUDGE GUNEY: Okay. [Interpretation] Okay.
15 MR. LUKIC: [Interpretation] Thank you, Your Honour.
16 The assertion by the Prosecution in its response that the
17 prisoners in the bus were afraid and thus focusing on their survival
18 cannot be the basis for accepting their testimonies when other relevant
19 facts are established based on the testimonies of these same persons who
20 described in details officers, their ranks, and their uniforms.
21 When Sljivancanin's Defence got the reply from all the people who
22 were on the bus that they did not see Sljivancanin at Ovcara, the
23 Prosecution did not ask any of them in redirect about what is now being
24 asserted in the appeal. They want to avoid it being stressed that these
25 witnesses were in such a situation that they were unable to observe
1 everything that was in front of the hangar.
2 Did these witnesses have any reason to conceal Sljivancanin's
3 presence at the hangar? No. They testified in great detail to
4 Sljivancanin's appearance and his physical description when he was in
5 front of the hospital, and they did not conceal their animosity and their
6 hostility towards him.
7 The Trial Chamber did not obtain an answer from the witnesses to
8 the effect that they were unable to observe the area in front of them, so
9 all this is based on supposition, not on evidence, and this constitutes
10 an error.
11 Another group of witnesses who did not see Sljivancanin in front
12 of the hangar at that time are three JNA officers: two Prosecution
13 witnesses, P-014 and Lieutenant-Colonel Vojnovic, and also
14 Lieutenant-Colonel Panic. The Trial Chamber gave its reasons why it's
15 possible that these witnesses did not see him. These are paragraphs 378,
16 381, and 380. But the Trial Chamber made an error here when explaining
17 why the testimonies of Colonel Panic and P-014 do not cast doubt on the
18 testimony of Witness P-009. The reasons for their rejecting their
19 testimony about this fact contradict other conclusions reached by the
20 Trial Chamber on the presence of these witnesses at Ovcara at the same
22 In another paragraph of the judgement, paragraph 309, the Trial
23 Chamber states that Vojnovic and Panic were talking in front of the
24 hangar and that they were seen doing so by P-014; paragraph 254. If the
25 Court relied on Witness P-014 and believed that he was there while the
1 beatings before the hangar were going on and he left while the beatings
2 were still going on, it could have reached only the following conclusion,
3 that Colonel Panic arrived while the process of bringing the prisoners
4 into the hangar was still ongoing, and then the other conclusion cannot
5 be sustained, the one from paragraph 380, that Panic didn't see
6 Sljivancanin because he arrived later on.
7 On the other hand, if the Trial Chamber established that P-014
8 saw Panic and then believed Panic that he arrived when the process of
9 taking the prisoners into the hangar was already finished, as they did in
10 paragraph 258, then Witness P-014 was at Ovcara even after the prisoners
11 were taken into the hangar. Then the reason from paragraph 381 as to why
12 the Court did not give credence to Witness P-014 cannot be sustained, and
13 we gave a detailed explanation of this in paragraph 36 of our response.
14 I do understand that this is rather complex.
15 The issue of the credibility of these witnesses has to be
16 evaluated. Vojnovic and P-014 and Witness Panic, the first two being
17 Prosecution witnesses, did they have any reasons to be partial?
18 Certainly not. None of them could have a motive for concealing the fact
19 if Sljivancanin had really been there. In fact, they would have welcomed
20 that. If possible, they, in a situation where they were discussing the
21 security of prisoners of war in the area, would it have been possible for
22 them not to notice a person such as Sljivancanin? No reasonable trier of
23 fact could reach the conclusion reached by the Trial Chamber.
24 And, finally, an error which completely brings into question the
25 conclusion regarding the reliability of the testimony of Witness P-9 is
1 the testimony of Witness Dodaj Hajdar, the evaluation of that testimony
2 and the failure to compare that testimony with the claims of P-009.
3 Witness Dodaj, a Prosecution witness, a prisoner from the bus, according
4 to paragraph 236 of the judgement, left the bus before last, did not go
5 into the hangar, and stood there in front of the hangar with another
6 three prisoners who had been separated off and several JNA officers. The
7 Court mentions two lieutenant-colonels and one captain. In paragraph 70
8 to 74 and paragraph 129 of the appeal, we provide detailed references to
9 his testimony, which we feel are very important and to which the Trial
10 Chamber also refers.
11 Dodaj states that he, as he stated in his testimony, stood there
12 observing the beatings and the other events and the people in front of
13 the hangar for one or two hours, and he responded when asked directly
14 that he did not see Sljivancanin at Ovcara. Before that, he observed him
15 for more than half an hour from very close by in the hospital, and in
16 relation to his testimony about that fact, that he did not see
17 Sljivancanin at Ovcara, the Trial Chamber gives credence to that
18 testimony saying that it is persuasive in paragraph 386.
19 So, Your Honours, we have two testimonies about the same fact
20 occurring at the same time in the same place. One witness claims to have
21 seen Sljivancanin at Ovcara - that's P-009 - and the Court gives him
22 credence in that, and the other one who says he did not see
23 Sljivancanin - Witness Dodaj - but the Court believes this witness also.
24 The Prosecution is trying to mitigate this error made by the Trial
25 Chamber by arguing that Dodaj was afraid and was thus unable to observe
1 properly the area in front of him. However, the Court has established
2 that this witness was convincing and that he did not see Sljivancanin.
3 The Prosecution could have asked Dodaj whether he was in such a state
4 that he was unable to fully observe the area in front of him, but the
5 Prosecutor did not ask him that question, him or any other witness, for
6 that matter.
7 In spite of his fear, the Court believed Dodaj and considered his
8 testimony to be persuasive. The Prosecutor has no arguments to argue
9 that this is an error made by the Trial Chamber, and then the Trial
10 Chamber erred in not comparing two persuasive testimonies which it had
11 before it. When it had before it two such testimonies, both of them
12 persuasive, the Trial Chamber should not have left this hanging in the
13 air. The Trial Chamber did not explain on what it based its conviction
14 that Witness P-009 was persuasive, in spite of the fact that it's so
15 contradictory to the other findings of the Trial Chamber.
16 Witness P-009 claims that he passed by Sljivancanin and entered
17 the hangar and that there were no other people there, either soldiers or
18 officers, in the area in front of the hangar. Contrary to this, the
19 Trial Chamber established that when the prisoners were leaving the bus
20 and immediately after they entered the hangar, both Vojnovic and Panic
21 and two lieutenant-colonels who questioned Dodaj and his group were
22 there; Vojnovic and Panic, according to paragraph 258, and the two
23 lieutenant-colonels in paragraph 236. P-009 completely contradicts the
24 finding of the Chamber that he did not see the beatings in the hangar
25 when he went in. He entered the hangar almost immediately after the POWs
1 were brought in, and after a certain time he took out Witness P-030 and
2 6287. But the Court, in spite of the testimony of Witness P-030, made
3 its finding about the beating in the hangar in paragraph 237, and I refer
4 you to paragraphs 952, 953, 954, and 956 of the judgement. These all
5 refer to the testimony concerning the beatings by Witness P-009, who was
6 in the hangar at the same time. This shows beyond any doubt that P-009
7 was not telling the truth in his testimony because he was trying to
8 mitigate his own participation in the events.
9 Could we please move into private session so I can make a
10 reference, please.
11 JUDGE MERON: Registrar, we will move to private session for a
13 [Private session]
2 [Open session]
3 THE REGISTRAR: We are back in open session, Your Honours.
4 JUDGE MERON: Thank you, Registrar.
5 We are in open session. Please proceed.
6 MR. LUKIC: [Interpretation] This witness, who was at Ovcara as a
7 member of the TO and before that in the barracks at Velepromet on the
8 19th of November and everywhere, he was seen with weapons, recognised by
9 witnesses, did he have an answer to be partial? Any reasonable trier of
10 fact can only give an affirmative answer to this. So the testimony of
11 this witness should have been treated with special caution, and he was
12 the only witness who claimed that Sljivancanin had been in the barracks
13 on that day. The witness should have been [as interpreted] asked whether
14 he saw Sljivancanin on that day. But regardless of the fact that all
15 these witnesses are Prosecution witnesses, they had a hostile attitude
16 towards Sljivancanin considering him to be the person who separated them
17 off at the hospital, they were all very precise in their statements.
18 A correction to the transcript, pages -- page 25, they were
19 asked: The witnesses were asked whether they had seen Sljivancanin on
20 that day.
21 In paragraph 369, the Trial Chamber analyses the testimonies of
22 only three of these witnesses. Apart from these three witnesses, all the
23 other witnesses from the bus, another six witnesses, said they hadn't
24 seen Sljivancanin at the barracks, but the Trial Chamber does not mention
25 them. These were all Prosecution witnesses, and we refer to them in
1 paragraphs 98 --
2 THE INTERPRETER: 99, interpreter's correction.
3 MR. LUKIC: [Interpretation] -- and 88 of our appeal brief.
4 The Trial Chamber found that these witnesses were unable to
5 describe in detail all the events in front of the bus because of the
6 conditions in which they found themselves, but this again contradicts the
7 finding where such witnesses were given credence when establishing the
8 events concerning the bus; paragraphs 216 to 217 of the ...
9 At the barracks, just like at Ovcara, only P-009 did not see what
10 the Trial Chamber established from the testimony of all other witnesses,
11 a key event, and that was when the prisoners were being transferred to
12 the sixth bus. That was the only time when there was physical contact
13 and abuse of the prisoners, and this is on transcript page 6279.
14 The Prosecutor makes their analysis of evidence by asserting that
15 it's possible that P-009 arrived after these persons were moved to the
16 sixth bus and before the bus left in the direction of the hospital, but
17 there is a trap there because this collides with the conclusions of the
18 Trial Chamber, which found that 30 minutes after the arrival of the bus,
19 the TO members were taken away from the barracks, were removed from the
20 barracks. So how can P-009 then testify about so many events at the
21 barracks if he was only there for a few minutes? This is impossible. He
22 had to have been there much earlier, and then he could not have failed to
23 see when more than ten prisoners were beaten in the way that the Court
24 established in paragraph 217. Thus, the Court believed the witness which
25 was the only one to see Sljivancanin of all the witnesses who were there,
1 when none of them saw them, and who was the only one who did not see the
2 beating at the barracks and at the hangar at Ovcara, which was something
3 that all the others did happen to see. Is that a witness on whose
4 testimony exclusively the Trial Chamber based its conclusion about the
5 responsibility of Sljivancanin?
6 If the key conclusion of the Trial Chamber in the judgement of
7 Sljivancanin is based on the testimony of only one witness, then the
8 Trial Chamber must prove the reliability and credibility of that
9 testimony. These two categories cannot be accepted a priori as arising
10 from what the Trial Chamber only said, that they believed somebody and
11 they did not believe someone else. If the conviction of the Trial
12 Chamber about the credibility and reliability of the testimony cannot be
13 checked and evaluated as being the only possible conclusion, then that
14 brings into question the need for an appeals proceedings in general.
15 Your Honours, we expect that you will, in the role of a
16 reasonable trier of facts, will in detail and comprehensively evaluate
17 the credibility and reliability of this testimony and evaluate the errors
18 committed by the Trial Chamber in establishing key facts on the basis of
19 his statement.
20 And, finally, the Trial Chamber makes one more mistake in which
21 the conclusion about Sljivancanin's presence in the barracks cannot be
22 believed as credible. If Sljivancanin was seen in that area of the
23 barracks and spent there all the time, as described by P-009, before the
24 sixth bus left for the hospital - paragraph 371 - how is it possible that
25 Sljivancanin waits for that bus at the hospital as was the testimony of
1 witnesses from that bus - this is T-660, and these are Witnesses P-012,
2 487, Witness Wilhelm, and transcript 2826, Bucko - and question them?
3 Which reasonable trier of fact could conclude that Sljivancanin could
4 have been at Ovcara in front of the hangar at 14, 13, or 1500 hours if in
5 the judgement the Trial Chamber previously establishes that Sljivancanin
6 was at the hospital at the time of the departure of the convoy with the
7 civilians at 1400 or 1430 hours; paragraph 376. Even though the
8 Prosecutor responds to the Prosecution -- to the appeal, suggests that
9 this was a small distance that Sljivancanin could have covered within
10 that time-frame, the Trial Chamber established differently. According to
11 the Trial Chamber, the buses needed half an hour to go from the barracks
12 to Ovcara. These are paragraphs 222 and paragraph 234. From the
13 hospital where Sljivancanin happened to be between 1400 and 1430 hours,
14 as established by the Trial Chamber, this could have been a much longer
15 road, and we would like to ask you to look at Exhibit 156. This was a
17 And I would like to conclude with the following: Your Honours,
18 the Trial Chamber in its evaluation of evidence, in reference to the
19 presence of Sljivancanin at Ovcara, committed a number of errors which
20 led to the conclusion that no reasonable trier of facts could reach, thus
21 resulting in a miscarriage of justice for which reasons we believe that
22 the judgement cannot stand.
23 Thank you very much. If there are no questions, my colleague
24 will cover our other grounds of appeal.
25 MR. BOURGON: Good afternoon, Mr. President. Good afternoon,
1 Your Honours.
2 My name is Stephane Bourgon, and I will continue the presentation
3 of our arguments this afternoon on appeal from the judgement that was
4 rendered in this case.
5 It is my understanding that my colleague used up 44 minutes of
6 our time and that accordingly I have 46 minutes left. I will try to
7 speak for 30 and then take the break, and according with the new schedule
8 issued by the Presiding Judge at the beginning.
9 Mr. President, I will begin by saying a few words concerning our
10 submissions on omission liability, which is Ground 2 in the appellant's
11 brief. I will also answer question 4, which is found in the addendum to
12 the scheduling order for this appeal, and then I will move on to Grounds
13 3, 4 and 5.
14 Regarding omission liability, it is our submission as argued in
15 our brief that this specific form of omission liability as identified by
16 the Trial Chamber in the judgement does not exist. That is not to say,
17 Mr. President, even if we take into consideration the fact that before
18 the International Criminal Court the situation appears to be entirely
19 different, we are not saying that an accused cannot be found guilty for
20 an omission pursuant to the Statute of this Tribunal. Nonetheless, it is
21 important to note that the International Criminal Court paints an
22 entirely different position with respect to omission, and that tells us
23 that this is a very special and exceptional form of criminal liability
24 and that it is of the utmost importance when dealing with omission
25 liability to precisely identify the parameters of this type of liability
1 before it can be applied to any situation.
2 In the Prosecutor versus Tadic, the Appeals Chamber has
3 recognised that a person may be found guilty for a culpable omission in
4 the presence of a positive duty to act if there was a deliberate failure
5 to fulfill this duty. This refers, Mr. President, to omission as a
6 principal perpetrator and not as an accomplice, and it requires the proof
7 that the accused shared the mens rea of the perpetrators. In other
8 words, it must be shown that the accused intended the consequences of the
9 crime being perpetrated or that he must have been aware of the
10 consequences and consented that they would occur.
11 Although the Trial Chamber in this case did refer in its
12 reasoning to the fact that Sljivancanin had a duty to act, it did not
13 find him guilty for a culpable omission as a principal perpetrator.
14 Another type of omission liability found or recognised in the
15 Statute of this Tribunal can be found, as we know, in Article 7(3), which
16 deals with the responsibility of commanders and other superiors.
17 Pursuant to this article, a commander can be found criminally responsible
18 for a violation committed by a subordinate over whom he exercises
19 effective control if he has reason to know or if he knows that this
20 subordinate is about to commit a crime or is committing a crime and he
21 fails to take the necessary and reasonable measures to prevent him from
22 doing so. When I talk about identifying the parameters of omission
23 liability, this is what I am referring to.
24 In the light of general principles of criminal law, this type of
25 omission liability, Mr. President, the command responsibility, is
1 exceptional. Normally, a person can only be found guilty of a crime by
2 being involved in some way in the commission of that crime and, of
3 course, by having the necessary intent. If we look at Article 7(3) of
4 the Statute, the commander is not involved in the commission of the
5 crime, and it need not be shown that he shared the mens rea of the
6 perpetrator. Nonetheless, because responsible command is one of the
7 foundations of international humanitarian law and because if there is one
8 person who can prevent a crime committed by a subordinate, it is his
9 commander, for this reason, this exceptional type of liability is
10 accepted and recognised.
11 That being said, Mr. President, command responsibility is framed
12 very precisely with a view to avoiding any type of strict liability.
13 Firstly, it would have to be shown that there was a
14 superior-to-subordinate relationship which existed between the commander
15 and the perpetrator. Secondly, the commander, knowing that the
16 subordinate is about to commit a crime or is committing a crime, will
17 only be found guilty if he fails to take the necessary and reasonable
18 measures to prevent his subordinate from committing this crime. The
19 words "reasonable" and "necessary" are important here, and that is with a
20 view to avoiding what I mentioned earlier, strict liability.
21 It must be noted, finally, with respect to Article 7(3), that the
22 responsibility of the commander pursuant to this article focuses on
23 preventing a subordinate from committing a crime and not on preventing a
24 crime from being committed.
25 It is our submission, Mr. President, that these are the only two
1 types of omission liability which are recognised pursuant to the Statute
2 of this Tribunal: a culpable omission as a principal perpetrator or
3 command responsibility pursuant to Article 7(3).
4 There is, of course, another type of responsibility, which
5 although it looks like omission liability, in fact, it is not, and this
6 is what has been referred to by the approving spectator or the bystander.
7 Indeed, if a person is present at the scene of the crime, and the mere
8 presence of that person provides encouragement or moral support to the
9 perpetrators of the crime, then it is accepted and it is recognised that
10 this person may be found guilty as an accomplice if the person knows that
11 his presence is indeed assisting the commission of the offence by
12 legitimising in the eyes of the perpetrator, which is very important, the
13 commission of the crime. This is not, Mr. President, in our submission,
14 omission liability because the presence of the accused in such a scenario
15 at the scene of the crime assisted the perpetrators. It had an effect on
16 the illegal acts of the perpetrators and contributed to the commission of
17 the crime.
18 A question was put to my colleague earlier concerning commission
19 by omission. This is exactly what we refer to. It looks like omission
20 liability, but it is not. It is commission by omission.
21 In our written pleadings, we referred to one author, but there
22 are many others, Michael Dutweiler. He explained the difference between
23 omission proper and commission by omission. For commission by omission,
24 it is necessary for the person to have a material ability to do
25 something, but by failing to do what the person has the material ability
1 to do, he actually participates in the crime. Encouragement, providing
2 encouragement is exactly commission by omission.
3 For us, to have commission by omission, it has even to go further
4 than the normal criteria for aiding and abetting, although there are
5 different positions, we recognise, in the case law of this Tribunal and
6 that of the International Criminal Tribunal for Rwanda.
7 Mr. President, in this case the question is the duty of the
8 person. Is it relevant that the approving spectator had or did not have
9 a duty to prevent? What we are saying, Mr. President, that in such a
10 case it is not necessary for the approving spectator to have a duty to
11 prevent the subordinate from committing a crime or to commit [sic]
12 anybody from committing that crime. That is not to say that the duty
13 will not become a relevant consideration. The duty may be a relevant
14 consideration if the perpetrator, for example, is aware that the person
15 would normally stop him from committing the crime. Then it may be a
16 relevant consideration because in the eyes of the perpetrator, he will
17 say, This person has a duty to stop me, I know the person has a duty to
18 stop me, and the person is not stopping me; therefore, I can continue in
19 full impunity. However, the duty is not a prerequisite.
20 The difficulty in this case, Mr. President, is that the Trial
21 Chamber used a mix of culpable omission liability, of aiding and
22 abetting, as well as some notions of command responsibility. Indeed, the
23 Trial Chamber found that the accused had a duty to act, that he was
24 present on the scene, that he saw a crime and did not take action, that
25 the crime was not committed by his subordinates, and that the
1 perpetrators did not see him and did not know him and were not encouraged
2 in any way by his presence.
3 In our submission, on the basis of these facts, the Trial Chamber
4 could not have found the accused guilty of any type of omission
5 liability, whether it be called culpable omission or aiding and abetting
6 by omission, and there was no -- any type of encouragement provided to
7 the perpetrators.
8 Does the Trial Chamber find the accused guilty pursuant to a form
9 of omission liability which, in our submission, does not exist? In fact,
10 it amounts to strict liability. Indeed, if the presence of Sljivancanin
11 did not provide encouragement or moral support, the fact that he had a
12 duty to protect the prisoners of war at Ovcara, if he did, and that
13 having seen the beatings, he did not take action, is not sufficient for
14 him to incur criminal liability, unless, of course, the culpable omission
15 be proven.
16 In this regard, the nature of the duty to protect prisoners of
17 war, which is not a duty which implies that prisoners will automatically
18 be safe if the duty is not fulfilled or is fulfilled, the nature of that
19 duty must be considered. The extent to which the duty was or was not
20 fulfilled must also be considered. In other words, if we accept that
21 type of omission liability, what about if the duty was partly fulfilled?
22 How do we analyse? We cannot under the model or under the mode of
23 liability identified by the Trial Chamber.
24 It cannot be, Mr. President, that a person having a duty to
25 protect, who fails to act pursuant to this duty, in all or in part, will
1 be automatically -- or will automatically incur criminal responsibility.
2 There's another reason why this type of omission liability does
3 not exist. In fact, it would render Article 7(3) of the Statute
4 obsolete. In all cases where the commander had a duty to protect
5 prisoners of war, there would be no requirement to use Article 7(3), and
6 therefore, the Prosecutor will be dispensed from proving the
7 superior-to-subordinate relationship. If we accept what the Trial
8 Chamber used as a mode of liability - that means that for aiding and
9 abetting, the person has a duty to protect, the perpetrators were not the
10 subordinate of the accused, the person did not provide moral
11 encouragement to the perpetrators, but the person nonetheless failed to
12 take action - we cannot do away with Article 7(3) of the Statute,
13 considering its importance for international humanitarian law.
14 I now come to question 4 in the addendum to the scheduling order.
15 In this question, the Appeals Chamber requests the Defence to clarify the
16 following: If the Appeals Chamber recognises aiding and abetting by
17 omission in the specific form which was used by the Trial Chamber in this
18 case, and if the Appeals Chamber concludes it is a valid mode of
19 liability, then what is the extent to which - and the question is quite
20 precise - if at all the concrete influence and the decisive effect
21 criteria, which we advance in our written pleadings, are relevant to the
22 assessment of an actus reus
23 First, Mr. President, it should be mentioned that both criteria,
24 the decisive effect criteria and the elevate degree of concrete influence
25 criteria, were mentioned by -- the first one by the Trial Chamber in the
1 Blaskic case, and then it was mentioned again by the Appeals Chamber, and
2 the second one, the elevated degree of concrete influence, by the
3 Appeals Chamber in the Oric case. In both instances, the Appeals Chamber
4 was discussing omission liability but did not pronounce and did not
5 identify the essential elements thereof, and the Appeals Chamber was
6 quite clear, leaving open the possibility that actus reus of aiding and
7 abetting could be fulfilled by an omission. That's the first
9 Secondly, in our view, Mr. President, the Appeals Chamber -- if
10 the Appeals Chamber does recognise aiding and abetting by omission in the
11 specific form identified by the Trial Chamber in the judgement, then the
12 crux of the matter becomes the following question: Everything will lie
13 in the meaning to be given to rendering practical assistance, which has a
14 substantial effect on the perpetration of a crime, which as we know is
15 the applicable criteria for actus reus
16 case law of this Tribunal.
17 In this regard, it is our submission that the criteria, decisive
18 effect and the elevated degree of concrete influence, which of course we
19 took from decisions rendered by the Appeals Chamber, they are relevant in
20 that they are illustrations of the fact that the omission must have
21 assisted the perpetrators, it must have had an effect on the illegal acts
22 of the perpetrators, and it must have contributed substantially to the
23 commission of the crime.
24 We could describe omission liability or this link, this
25 relationship between the omission and the perpetrators in many ways.
1 What we do know is that a cause-to-effect relationship is not required
2 and that the omission cannot be a precondition or, to use the words of
3 the Appeals Chamber, a condition precedent to the commission of the crime
4 as set out in -- it was in the Blaskic Appeals Chamber judgement. What
5 is important is that the assessment, whether the omission had a
6 substantial effect on the commission of the crime, it must be conducted
7 from -- by looking at the crime which was committed and not at the
8 omission itself. In other words, from the point of view of the
9 perpetrators, did the omission of the accused assist them or have an
10 effect on their illegal acts or contribute substantially to their
11 committing the crime?
12 Another way to look at this is that if the omission did not
13 change or alter the conduct of the perpetrators, then it cannot be said
14 to have had a decisive effect on the commission of the crime or a
15 concrete influence on the perpetrators. This, of course, requires a
16 careful fact-based inquiry because there may well be external factors to
17 the omission itself which will help in determining whether such omission
18 had or did not have a substantial effect on the commission of a crime.
19 As argued in our submissions related to Ground 5, which I will
20 come to in a minute, it is our submission that in this case, even if the
21 Appeals Chamber recognises aiding and abetting by omission as identified
22 by the Trial Chamber in this case, that even though Sljivancanin would
23 have been present and would have taken no action, this had no effect
24 whatsoever on the perpetrators in this case.
25 I now move to Ground number 3, which as you know, Mr. President,
1 concerns the alleged error committed by the Trial Chamber in finding that
2 Sljivancanin had a legal duty to protect the prisoners of war held at
4 It is our respectful submission in this regard that on 20
5 November 1991, Sljivancanin did not at any time have a legal duty to
6 protect the prisoners of war held at Ovcara. This ground of appeal,
7 which includes five sub-grounds and which is directly related to part of
8 the Prosecution's second ground of appeal, which will be argued on
9 Friday, we rely almost entirely on our written pleadings, which are quite
10 lengthy and detailed. Accordingly, my submissions today will be limited
11 to a few specific issues.
12 It is our submission that the duty to care for prisoners of war,
13 the origin of the duty comes from the Geneva Conventions, more
14 specifically, Geneva Convention 3, Articles 12 and 13. This
15 responsibility is imposed on states on the high-contracting parties. The
16 states have this responsibility, and the duty is triggered when they have
17 prisoners of war in their custody. States delegate this responsibility
18 to their agents. When a military unit holds prisoners of war in its
19 custody, the de jure agent of the state is the commander, in this case,
20 the OG South commander or the 80th Motorised Brigade commander when the
21 prisoners were in Ovcara.
22 Now, to fulfill this duty or responsibility, the commander uses
23 the resources at his disposal, including his officers, but the commander
24 cannot absolve himself of this responsibility or does not delegate this
25 legal duty by issuing tasks and orders. Accordingly, whatever order or
1 task was given to Major Sljivancanin did not impose on him a duty or
2 responsibility which may give rise to his criminal responsibility any
3 more than any of the officers of Operational Group South involved in the
4 events related to the prisoners of war as a result of the measures taken
5 by Commander Mrksic for this purpose. Should the Appeals Chamber
6 conclude otherwise and hold that there was a specific duty imposed on
7 Sljivancanin on 20 November in relation to the prisoners of war at
8 Ovcara, because this is where the crimes were committed, then it is our
9 submission that this duty was at an end immediately after the meeting of
10 the SAO government where the plan was changed entirely. Whereas the
11 prisoners of war were supposed to go to Sremska Mitrovica, the plan was
12 changed, and Sljivancanin was kept out of the loop.
13 Sljivancanin was not involved in the transmission and the
14 implementation of the order to send the prisoners of war from the JNA
15 barracks to Ovcara. Had the Trial Chamber found that he was, we believe
16 that this finding cannot stand.
17 Firstly, the Trial Chamber found no direct evidence of the
18 involvement of Sljivancanin in the giving or implementation of this
19 order. Secondly, the Trial Chamber's conclusion in this regard - that
20 was at paragraph 659 of the judgement - rests on eight other findings
21 which it made, such as the presence of Sljivancanin at the barracks on
22 the morning of 20 November, and all of these findings, in our submission,
23 constitute either unreasonable inferences or were adopted on the basis of
24 circumstantial evidence having little or no probative value. In these
25 circumstances, it is our submission that the Trial Chamber's findings
1 related to the involvement of Sljivancanin in the transmitting and the
2 implementation of the order to send the prisoners to Ovcara cannot stand.
3 Significantly, if Sljivancanin was not involved in the implementation of
4 this order, any duty he might have had at the time to protect the
5 prisoners of war was at an end.
6 Some of the findings that we have to look at in this regard
7 include the fact that when Sljivancanin directed the triage at the
8 hospital, he did not know that prisoners of war would be taken to Ovcara;
9 judgement 657. He did not know, either, about the meeting of the SAO
10 government, which is something he learned much later. The decision to
11 keep the buses at the JNA barracks waiting for the outcome of the meeting
12 of the SAO government was taken by Mrksic; judgement 300. The decision
13 to send MPs from the 80th Motorised Brigade at Ovcara to be ready to
14 secure the prisoners was also given by Mrksic through his command staff
15 with no involvement from Sljivancanin; judgement 305.
16 Veselin Sljivancanin, as demonstrated by my colleague, was not
17 present at the JNA barracks in the morning. Veselin Sljivancanin was not
18 present at Ovcara on 20 November. In these circumstances, it is our
19 submission that after the meeting of the SAO government, it terminated,
20 at the latest, Sljivancanin was excluded from the task related to the
21 prisoners of war. Veselin Sljivancanin completed his task related to the
22 evacuation of the civilians at the hospital, and we know from there where
23 he was on the basis of his testimony.
24 We know that Sljivancanin was not involved in any way with the
25 withdrawal order. The Trial Chamber judgement found that.
1 I have one more sentence.
2 JUDGE MERON: Excuse me. You are slightly over time, and we have
3 to stop now for 15 minutes, and then you may continue.
4 MR. BOURGON: Thank you, Mr. President. I will stop. I had one
5 more sentence before breaking.
6 JUDGE MERON: Okay, let's have that.
7 MR. BOURGON: Simply to say that he did not have any duty
8 bestowed on him by Mrksic who handling and directing this undertaking of
9 OG South related to the prisoners of war addressed and was addressed by
10 other officers than Sljivancanin from that point on.
11 Thank you, Mr. President.
12 JUDGE MERON: We will now have a 15-minute break and then we will
13 resume [microphone not activated].
14 --- Recess taken at 3.50 p.m.
15 --- On resuming at 4.05 p.m.
16 JUDGE MERON: Please be seated.
17 Mr. Bourgon, I must tell you today I am troubled by your vision
18 of -- very formalistic vision of the 3rd Geneva Convention. I'm afraid
19 that if your suggestions were taken seriously, duties of states would be
20 greatly diluted.
21 You know the famous statement in the Nuremberg trials that states
22 acts through individuals, and if Sljivancanin was given certain
23 responsibilities for the evacuation and for caring for POWs, wouldn't his
24 duties continue under the 3rd Geneva Convention until he could hand those
25 duties over to someone else who could assume responsibility for the POWs?
1 Can you abandon POWs at one point in time to a programme awaiting for
2 them outside? What happens when there is no formal delegation at all of
3 power on the part of the state, but there are POWs -- soldiers who
4 surrender to another unit? Under certain notions of the 3rd Geneva
5 Convention, that unit has to assume welfare and the responsibility for
6 those agents. I must say that I am very troubled by those implications,
7 what you are telling us about this possibility of bing, bang, ending
8 responsibility, just leaving them out to be murdered.
9 MR. BOURGON: Maybe I can clarify -- I appreciate your question,
10 Mr. President, and maybe I can clarify my position.
11 Prisoners of war cannot be abandoned at any time, so if this is
12 what comes out of what I said, then I apologise because this is not what
13 I meant at all.
14 What I meant, Mr. President, is that the duty to protect
15 prisoners of war, it belongs to the person in whose custody prisoners of
16 war are, and with respect to the matters and to the facts of this case,
17 the prisoners of war were in the custody of Operational Group South, and
18 the commander of Operational Group South is Mile Mrksic. So --
19 JUDGE MERON: Was Sljivancanin given by Mrksic certain
20 responsibilities or not?
21 MR. BOURGON: Then, Mr. President, what we say is that if he was
22 given -- we say -- we, of course, in our brief, we argue that he wasn't.
23 JUDGE MERON: Now assume for a moment that he was --
24 MR. BOURGON: We argue, but assuming that he was given, then
25 argument, Mr. President, if he was given some taskings to accomplish, he
1 can be, of course, found to have failed in his duty to accomplish a task
2 given to him by his commander. But unless you will find this duty was a
3 culpable intent with respect to the prisoners of war, he cannot be found
4 guilty of a crime. That's what we are saying. On the other hand, Mr.
5 President, the commander who had those prisoners in his custody because
6 they were in the custody of the unit, then it's a different matter
7 because the duty belongs to him at the time, the de jure responsibility.
8 JUDGE MERON: But the most immediate and direct responsibility
9 pertained to Sljivancanin as the head of the military police unit, who
10 was given -- assuming he was given responsibilities by Mrksic.
11 MR. BOURGON: I thank you for this observation. It is very
12 important because one way which an officer within the military unit which
13 has the custody of the prisoners of war could, by his attributions, be
14 responsible for the prisoners. He could have responsibility for the
15 prisoners, but we heard the Prosecution this morning say that the
16 security officer did not have this responsibility for prisoners of war,
17 and Sljivancanin was not the head of the military police; far from it.
18 All the evidence on the record clearly showed that he was not -- he did
19 not -- he did not exercise command over the military police. If one
20 person exercised command over the military police, it was Mile Mrksic,
21 and not Sljivancanin.
22 JUDGE MERON: I'm sure we will hear comments from the Prosecution
23 on this point.
24 MR. BOURGON: Thank you, Mr. President.
25 If I go on -- I'm moving on, Mr. President, Your Honours, to I
1 Ground 4 dealing with our submissions that there was no omission on the
2 part of Sljivancanin, simply because if he was in Ovcara, contrary to our
3 arguments, then he did not see the beatings and the crimes being
4 committed there, and if he did not see those crimes, then there cannot be
5 any omission on his behalf.
6 Mr. President, on the basis of the lack of evidence on the record
7 as to what Sljivancanin did or did not do at Ovcara, this, in our view,
8 is the reasonable conclusion. Of course, Mr. President, we maintain that
9 Sljivancanin was never at Ovcara on 20 November 1991, and we insist on
10 this. As demonstrated by my colleague, there's just too many hoops which
11 the Trial Chamber went through to arrive at this conclusion.
12 So now I find myself arguing in the abstract, what if he was
13 there? Does that make him guilty of a crime? Firstly, our submission in
14 this regard should not be considered in any way as recognising that
15 Sljivancanin was there. Moreover, it is critical in our assessment that
16 the responsibility of Sljivancanin must be assessed precisely on the
17 basis of the evidence on the record. Why is this important? Because the
18 Trial Chamber found Sljivancanin guilty because he had seen and not taken
19 action. That's basically the reason why he was found guilty by the Trial
21 Now, of course, in order to trigger his duty to protect, in the
22 sense of triggering an omission, he must have seen the beatings taking
23 place, and he must have been aware, and he must have failed to take
25 The Trial Chamber in this case did not find that Sljivancanin saw
1 the mistreatment. The Trial Chamber said he must have seen the
2 mistreatment, which is quite different. In order for the Trial Chamber
3 to conclude that he must have seen the mistreatment, it must be the only
4 reasonable conclusion based on the totality of the evidence. As
5 demonstrated in our written pleadings, this is not the case. The Trial
6 Chamber firstly found that he did not enter the hangar, which means that
7 the only mistreatment he could have seen is that which took place outside
8 when the prisoners were taken out of the buses, went through the
9 gauntlet, and entered the hangar. This is very important because my
10 colleague demonstrated that the only witness who saw Sljivancanin there,
11 who would have seen Sljivancanin there, he said that when he saw
12 Sljivancanin, the buses were gone and everybody is in the hangar. So
13 what could Sljivancanin see? He did not see the beatings, Mr. President.
14 He could not see the beatings -- the prisoners going through the
16 Now, there are two findings of the Trial Chamber in this regard,
17 at paragraph 380 and 663, and then those two findings are contradictory
18 to its own finding regarding what it accepted from Witness P-009. The
19 question becomes, Mr. President: How long was Sljivancanin at Ovcara, if
20 he was there? The problem is we have no evidence. When did he arrive?
21 We don't know. When he left, we don't know. What he did see, we don't
22 know. What he did, we don't know. How did he travel to Ovcara? We
23 don't know. Was he accompanied by anyone? Did he have a driver? Did he
24 speak to anyone? We know absolutely nothing concerning the involvement
25 of Sljivancanin at Ovcara. That's the crux of the matter, Mr. President.
1 For each of these questions, not one iota of evidence, and the
2 Prosecution can point to now.
3 Now, we compare that to the testimony of Sljivancanin, who made
4 it clear that he was not there. It follows in these circumstances that
5 the -- by inference, we cannot say that Sljivancanin was there for 1, 2,
6 5, or 15 minutes, so we must rely on what's there, and what's there is
7 that when P-009 would have seen him, the buses are gone, and everybody is
8 in the hangar, and he did not look into the hangar. That's what we have
9 to rely on in part of the evidence, so thus, no reasonable trier of fact
10 could conclude beyond a reasonable doubt that he must have seen the
11 mistreatment of the prisoners.
12 One last argument is very important in this regard because it
13 also goes with our first ground of appeal, is that if we accept that he
14 was in Ovcara and that he did not do anything, it leads to a completely
15 absurd result. This means that he would have travelled to Ovcara
16 immediately one minute after finishing up his duty with the civilians in
17 the proper way. He arrives at Ovcara; nobody sees him. Upon arriving at
18 Ovcara, he sees the prisoners of war being mistreated; he sees the
19 commander of the 80th Motorised Brigade; he sees the Chief of Staff, two
20 senior officers to him; he doesn't go into the hangar to see what's
21 there; he doesn't interact with anybody in Ovcara; he leaves the area
22 with no one seeing him; having left the area, doesn't say a word to
23 anybody the whole day. Basically, he ran away, completely disregarded
24 the duty which might have been given to him or bestowed on him by his
25 commander. At night, he meets Vukasinovic, and he would pretend that he
1 wasn't aware of Ovcara. He meets his commander. He would have avoided
2 to speak of Ovcara. This leads to an entirely absurd result, accepting
3 the fact that either he was in Ovcara, which was our Ground 1, or that he
4 must have seen the beatings.
5 I move to Ground number 5, and --
6 JUDGE MERON: You have five minutes, you know.
7 MR. BOURGON: I thought I had ten, Mr. President, based on my
8 estimate, but if I -- I will accelerate. I only have Ground 5 left,
9 which is -- I will address only two sub-grounds and not the third one,
10 the first one being that, in our submission, he did not have the
11 necessary substantial contribution, if you accept aiding and abetting,
12 simply because his acts had no effect whatsoever on the actions of the
13 perpetrators, and that's very important. Why this act? Because the
14 Trial Chamber found that there was no encouragement or moral support and
15 because when we look at the situation and the totality of the evidence,
16 what is in the mind and what is -- what are the perpetrators doing, the
17 fact that Sljivancanin shows up there has no input whatsoever or no
18 implication or effect on their actions.
19 The argument to the contrary, saying that because he did not take
20 action, they acted with impunity, is misconceived. That's not the way to
21 assess aiding and abetting. The way to assess this argument is by
22 looking at the effect on the perpetrators. The perpetrators saw those
23 senior officers present. The perpetrators saw those people in the JNA
24 taking action trying to stop them. The perpetrators did also -- were the
25 same people who were at the JNA barracks the previous morning when the
1 JNA took action to stop them, so they know that if they are going to be
2 stopped, the people who can stop them are there. What does the presence
3 of Sljivancanin change in these circumstances, duty or no duty? It
4 changes absolutely nothing, and there is no substantial contribution.
5 The second part of the fifth ground deals with the fact that in
6 his mind, did Sljivancanin know that he was going to assist the
7 perpetrators? And the answer to this question is, absolutely, no. Could
8 Sljivancanin reasonably believe that his commander was taking action --
9 not his commander, sorry, the Chief of Staff of OG South who was there
10 was taking action? Could Sljivancanin reasonably believe that the
11 commander of the 80 Motorised Brigade was taking action? Could he
12 believe that all the members of the JNA who were there were taking
13 actions? When you look at the totality of the evidence, of course he
14 could reasonably believe that before he left Ovcara, if he was ever
15 there. Did any of these people, were their duties modified by the fact
16 that Sljivancanin would be in Ovcara? It had no impact whatsoever on the
17 duty of the commander of the 80 Motorised Brigade, no impact whatsoever
18 on Panic, no effect whatsoever on the members of JNA who are there
19 acting, doing what they could -- what they can in the circumstances to
20 stop the beatings, albeit insufficiently. We know that today. But at
21 the time, they are taking action. Sljivancanin shows up there. We don't
22 know for how long. We don't know what he sees, but we know that he could
23 have seen that the situation was being handled. Officers senior to him
24 are handling the situation. How can Sljivancanin ever believe that by
25 leaving, he is going to assist the perpetrators? He can't and did not
1 have the mens rea for aiding and abetting, even if you maintain aiding
2 and abetting.
3 Conclusion, Mr. President. There are two things in this case
4 that need to be said. The first one is: When we look at the trial
5 judgement, from a first look, it appears to be well constructed and there
6 are many findings, but when we look at each of those findings, the way
7 they were made, and the interaction between the findings, there are just
8 too many contradictions, too many ifs, and too many questions left
9 unanswered, and too many findings made by inference, that at the end of
10 the day we don't know exactly what happened, and for this reason
11 Sljivancanin should be acquitted.
12 Just to use one example, the Trial Chamber uses the fact that he
13 would have been present at Ovcara to say that he's involved in the order,
14 and then it uses the fact that he was involved in the order to show that
15 he was in Ovcara. We have to make a choice. Which one is the first one,
16 and on which of these two facts do we build the responsibility of the
17 accused? We can't in this case.
18 Mr. President, the second thing I'd like to say has to do with
19 the omission liability which was used by the Prosecution. The
20 Prosecution started this case. It was joint criminal enterprise. It was
21 ordering. It was instigating. It was insisting. It was aiding and
22 abetting. It was everything --
23 JUDGE MERON: You really have two minutes at the utmost, please.
24 MR. BOURGON: I'll be done in two minutes, Mr. President.
25 It was everything but omission liability, and the case was
1 conducted not on the basis of omission liability; it was conducted on the
2 basis of the Prosecution's theory. At the end, the Trial Chamber
3 unfortunately accepted this form of liability. We ask you to say that
4 type of liability does not exist. Even if you say it does exist, there
5 was substantial prejudice. We describe this prejudice in our pleadings,
6 but I'll add one more.
7 It is important to ask ourselves, why is it that we have so
8 questions left open concerning what happened at Ovcara and what were the
9 doings of Sljivancanin? Because the case was not conducted on the basis
10 of omission liability, and on this basis we ask you to order a new trial,
11 at the minimum. Either we acquit Sljivancanin and he goes home, or we
12 have a new trial so he has the opportunity to make his case knowing what
13 the Prosecution's case is all about.
14 Thank you, Mr. President.
15 JUDGE MERON: Thank you, Mr. Bourgon.
16 The Prosecution, you have one hour and a half. And as I
17 indicated this morning, you don't have to use the entire time if you
18 don't need to.
19 MS. CAREY: Good morning, Your Honours.
20 I'm Kristina Carey. I'll be presenting the Prosecution's
21 submissions in response to Ground 2, relating to whether aiding and
22 abetting by omission is a mode of liability, and Ground 5, relating to
23 the Trial Chamber's application of the elements of aiding and abetting to
24 the facts of this case. During my submissions, I will also respond to
25 question 4 regarding the degree of contribution required for aiding and
1 abetting. I'll be followed by my co-counsel, Mr. Marwan Dalal, who will
2 present the Prosecution's submissions in response to Ground 3, relating
3 to Sljivancanin's delegated authority. Then Ms. Najwa Nabti will present
4 the Prosecution's submissions in response to Grounds 1 and 4, relating to
5 Sljivancanin's presence at Ovcara and what he witnessed there.
6 For your reference, written submissions for the grounds that I
7 will be speaking about, sub-grounds 2(a) and 2(c) and 5(a) and 5(b), are
8 found in the Prosecution's supplemental response brief. All other
9 written submissions for Grounds 2 and 5 are contained in the
10 Prosecution's consolidated response brief.
11 When the Trial Chamber found that Sljivancanin, a very senior
12 officer, delegated with the responsibility for the evacuation of Vukovar
13 Hospital by Mile Mrksic, had breached his duty of care to protect the
14 prisoners of war that were taken from the hospital and had knowingly
15 assisted the TOs and paramilitaries in their torture of these prisoners
16 by doing nothing to protect them, despite the considerable resources at
17 his disposal, the Trial Chamber correctly characterized Sljivancanin's
18 criminal conduct as aiding and abetting.
19 The Trial Chamber's conclusions were sound because aiding and
20 abetting is a mode of liability under the Statute and is criminalised in
21 international law. Having applied the correct law, the Trial Chamber
22 then correctly identified the elements of this mode of liability and
23 properly applied the law to the facts.
24 The Chamber was also correct in its conclusion that the trial was
25 fair because Sljivancanin had notice of this theory of liability and was
1 able to prepare a defence against it.
2 The issue of whether aiding and abetting by omission exists in
3 the Statute is a settled question. The Appeals Chamber, in both Oric and
4 Brdjanin, has indicated that this mode of liability exists. The fact
5 that the Appeals Chamber did not choose to set out the elements of aiding
6 and abetting precisely in either Oric or Brdjanin's appeal judgements is
7 not evidence that the mode doesn't exist under the Statute. Because the
8 factual findings in those cases precluded entering a conviction on the
9 basis of aiding and abetting by omission --
10 THE INTERPRETER: Would you be so kind as to slow down when
11 reading. Thank you.
12 MS. CAREY: I apologise. The issue had not ripened in either
14 Moreover, in Oric, the Appeals Chamber stated that:
15 "At minimum, an aider and abetter's conduct would have to meet
16 the basic requirements of aiding and abetting."
17 Sljivancanin's argument regarding the Appeals Chamber's language
18 in Oric defies common sense in that it presumes that the Appeals Chamber
19 speculated in a written judgement on the possible elements of a mode of
20 liability that it did not believe actually existed.
21 The Blaskic appeals judgement shows that conduct like that of
22 Sljivancanin's in this case is criminalised and is, at the least, aiding
23 and abetting. In Blaskic, the Appeals Chamber found that Blaskic had a
24 duty to protect the prisoners in his custody, he knew of that duty, and
25 was aware that the crimes were taking place. The Appeals Chamber
1 inferred Blaskic's knowledge from the fact that he was present at the
2 Hotel Vitez at the time that the crimes were unfolding. The fact that he
3 took no action to discharge his duty in light of this knowledge gave rise
4 to his criminal liability.
5 Sljivancanin's arguments about culpable omission do not assist
6 him, and in answer to Judge Guney's question earlier regarding commission
7 by omission, the Prosecution submits the following: All modes of
8 liability that include omission require that the omission be a culpable
9 one. Culpability means only that the individual has a duty to act, knows
10 of this duty, and fails to discharge the duty voluntarily and with the
11 mens rea appropriate for the specific mode. For aiding and abetting, the
12 mens rea is knowledge, which must be understood as the awareness of a
13 probability that a crime would be committed and that the omission would
14 assist or facilitate the commission of the crime.
15 Sljivancanin attempts to blur the lines between culpable
16 omission, a requirement in any mode - that includes omission - and
17 commission by omission. This issue is settled by the Ntagerura appeals
18 judgement. In paragraph 338, the Appeals Chamber distinguished between
19 commission by omission, which it identified as leading to a conviction as
20 the principal perpetrator of the crime and, quote, "aiding and abetting a
21 crime by encouragement, tacit approval, or omission, amounting to a
22 substantial contribution to the crime." So as you can see, both modes
23 exist, and both require proof of a culpable omission.
24 The Appeals Chamber has already considered the issue of the
25 legality principle and has concluded that this mode existed under
1 customary international law. Therefore, it is not necessary for it to
2 take up this issue now. However, it is clear that Sljivancanin's conduct
3 in this case, as found by the Trial Chamber, resulted in criminal
4 liability under international law at the time that the conduct was
5 committed. The Trial Chamber found that Sljivancanin had a duty to the
6 prisoners of war, a duty to protect them from soldiers or from anyone
7 else while they were in his care. This duty arose under the Laws and
8 Customs of War.
9 The Trial Chamber further found that Sljivancanin knew that he
10 had this duty and what it involved. The Trial Chamber found that
11 Sljivancanin witnessed the TOs and paramilitaries beating the prisoners
12 without any intervention by the JNA forces under his command after
13 knowing of the TOs' and paramilitaries' desire revenge themselves
14 violently upon these prisoners, a desire they had acted upon the night
15 before at the Velepromet facility and earlier that day at the JNA
16 barracks. The Trial Chamber found that Sljivancanin did nothing.
17 The Trial Chamber found that Sljivancanin had considerable
18 measures at his disposal to protect the prisoners or stop the criminal
19 acts that he saw unfolding before him, yet despite knowing that he was
20 the officer with the greatest responsibility for these prisoners, a
21 responsibility that had been delegated directly from Commander
22 Mile Mrksic to him, the Trial Chamber found that Sljivancanin did
23 nothing. So was this conduct criminalised under international law in
24 1991? Of course it was.
25 World War II cases make clear that culpable omissions give rise
1 to criminality. The World War II cases do not specifically identify the
2 mode of liability on which these convictions are based, unlike the ICTY
3 Statute, which does distinguish between modes of liability. So in order
4 to determine whether the mode was criminalised, it's necessary to look to
5 the facts and holding of the case in question and then determine whether
6 the conduct described would fall within a mode of liability in the ICTY
8 Key World War II cases demonstrate that Sljivancanin's conduct
9 gave rise to criminal liability. In the Essen lynching case, the
10 accused, members of the German military, had custody of Allied airmen.
11 They marched these airmen, prisoners of war, through an area that was
12 populated by civilians who these members of the military knew were in a
13 state of rage against the prisoners. The accused knew these civilians
14 would likely take revenge against the captured prisoners should they be
15 given the opportunity to do so. Despite being under a duty, the accused
16 stood by and did nothing when the crowd attacked the prisoners.
17 The Essen
18 similar to those of this case, makes clear that this conduct was criminal
19 at the time and is criminal now. This criminalised conduct can at least
20 be characterized as aiding and abetting under the ICTY Statute.
21 Similarly, in the Synagogue Fire case, a member of the SS was
22 found to have aided and abetted a crime against humanity. The Court
23 found that the accused was liable for failing to intervene while an
24 individual in his custody was beaten and seriously injured. The Court
25 found that the accused was liable because having the individual in his
1 custody gave rise to a duty to protect the person from being attacked and
2 to prevent such attacks. This was a duty that he willfully breached by
3 taking no action to protect the individual or deter the attacks. Again,
4 this conduct could be characterized in our Statute at least as aiding and
6 Sljivancanin's attempts to escape the obvious implications of
7 these cases by arguing --
8 JUDGE MERON: Sorry, was this a duty under the 3rd Geneva
10 MS. CAREY: In the cases -- in those individual cases, no, they
11 were not. However, the duty -- there is an ongoing duty to protect -- to
12 treat prisoners humanely, and if Your Honours would like, I can take you
13 through submissions with respect to the state of customary international
14 law on that.
15 JUDGE MERON: So why wasn't this directly governed by the 3rd
16 Geneva Convention?
17 MS. CAREY: I believe in one case, the instrument that was found
18 in the case was not the 3rd Geneva Convention, but in each case the -- I
19 could be wrong about that, Your Honour, but my understanding, the cases
20 each related to a duty to protect prisoners from harm, and the duty can
21 stem or has existed - you are correct - in Article 3 of the Geneva
22 Conventions, but it has -- the duty to treat prisoners humanely has been
23 recognised in the Lieber Code, the Brussels Declaration, the Oxford
24 Manual, and codified in The Hague Regulations. So whether or not the
25 individual instrument in that case was the same, the duty as clearly
1 existed in customary international law.
2 And if that answers Your Honour's question, I will continue.
3 JUDGE MERON: So we are not speaking directly to the case at
4 point now but to the history?
5 MS. CAREY: If I may confer with my colleague for a moment.
6 JUDGE MERON: Are you now talking about Sljivancanin or
7 historical cases?
8 MS. CAREY: No. In the present case, the 3rd Geneva Convention
9 certainly applies.
10 JUDGE MERON: Well, this is what I wanted to hear from you one
11 way or another.
12 MS. CARY: I'm sorry. I misunderstood your question,
13 Your Honour.
14 JUDGE MERON: So, in fact, the duties were governed by the 3rd
15 Geneva Convention?
16 MS. CAREY: Yes.
17 JUDGE MERON: And how would those duties come to an end, if at
19 MS. CAREY: I believe, Your Honour, if you would be so kind, my
20 colleague Marwan Dalal will be answering that substantially.
21 JUDGE MERON: That would be fine, thank you.
22 MS. CAREY: Sljvancanin's argument about the different sources of
23 the duty is equally flawed. In each of these cases, the duty towards
24 prisoners of war is the same.
25 I, therefore, move now to the Prosecution's submissions on the
1 Trial Chamber's articulation of the elements of this mode of liability.
2 THE INTERPRETER: Please slow down. Thank you.
3 MS. CAREY: Yes. The Trial Chamber committed no error when it
4 set out the elements of aiding and abetting by omission. The Trial
5 Chamber found that Sljivancanin had a duty to protect the prisoners of
6 war that was imposed upon him by the Laws and Customs of War, both as
7 part of his remit as security organ of Operations Group South and as a
8 result of the specific authority vested upon him through Mrksic's
9 delegation. This was a duty to act that stemmed from the rule of
10 criminal law, in the sense that the breach of the duty results in
11 criminal responsibility.
12 As Blaskic makes clear, the breach of a duty to protect prisoners
13 of war imposed by the Laws and Customs of War is criminalised both under
14 international and domestic law, and I take Your Honours to the Blaskic
15 appeals judgement, footnote 1384.
16 The Trial Chamber also found that Sljivancanin had the ability to
17 act. It found that he was in a position to take measures to stop the
18 mistreatment of prisoners. It found that the JNA generally had
19 sufficient resources and organisation to control the TOs and
20 paramilitaries at all times relevant to the indictment, and it found that
21 Sljivancanin was authorised to use, quote, "as many military police as
22 necessary to escort the prisoners and ensure their safe passage," and
23 that's trial judgement paragraph 396. I note as well that the Trial
24 Chamber found that in the -- that the Guards Motorised Brigade had two
25 battalions of military police that would have been at Sljivancanin's
2 The Trial Chamber, therefore, correctly found that Sljivancanin's
3 failures to act had a substantial effect on the crimes. The Trial
4 Chamber found that Sljivancanin's failure to take any steps to protect
5 the prisoners to whom he owed a duty of care, despite his position as the
6 senior-most officer delegated with the responsibility and authority of
7 Commander Mrksic himself, and despite the fact that he witnessed crimes
8 unfolding before him, had a substantial effect on the commission of the
9 crime. Sljivancanin has failed to show how this conclusion is one that
10 no Chamber could have reached -- I'm sorry, no reasonable Chamber could
11 have reached.
12 And I come now to Your Honour's fourth question. The term
13 "concrete influence" is synonymous with the requirement that the
14 Prosecution prove the omission had a substantial effect on the commission
15 of the crimes. Contrary to Sljivancanin's submissions, the Prosecution
16 is not required to prove the existence of a cause-and-effect
17 relationship, and I apologise. Actually, that is -- he did clarify that
18 point. It must show that the omission had a substantial effect on the
19 crime in the sense that the crimes would have been substantially less
20 likely had the accused acted. This was proved in this case.
21 And, finally, the Trial Chamber applied the correct mens rea. As
22 one can see in the Dinda-ba-hizi appeals judgement, paragraph 122, the
23 mens rea for aiding and abetting is knowledge, which must be understood
24 as awareness that a crime will probably be committed and that the
25 omission will assist or facilitate the crime. In this case, however, the
1 facts found by the Trial Chamber easily meet the standard that
2 Sljivancanin argues for. It found that Sljivancanin knew that he had the
3 ability to act, he knew he had the resources at his command to allow him
4 to act effectively, and he was aware of the essential elements of the
5 crimes that were ultimately committed by the TOs and paramilitaries.
6 Therefore, the Trial Chamber drew the only reasonable inference to be
7 drawn from his failure to act, given his awareness of his own ability to
8 act, which was that Sljivancanin chose not to act.
9 I'll turn now to Sljivancanin's arguments with respect to Ground
10 5. My co-counsel, Ms. Nabti, will be addressing challenges to some of
11 the factual findings that do relate to this ground. For all other
12 responses to challenges by the Trial Chamber's factual findings, we rely
13 upon our response brief. My submissions, therefore, are based on the
14 Trial Chamber's findings.
15 The Trial Chamber's findings on each of these elements were
16 correct and represented the only reasonable conclusions available on the
17 evidence. The Trial Chamber correctly found that Sljivancanin's failure
18 to take any actions to protect the prisoners of war under his care and
19 protection had a substantial effect on the commission of tortures at the
20 Ovcara hangar. Sljivancanin's argument incorrectly presumes that the act
21 or omission of the aider and abetter must necessarily be known to the
22 principal perpetrator and, thus, encourage them. This erroneous
23 conclusion is highlighted by the fact that encouraging presence is only a
24 subset of the forms that aiding and abetting can take. In fact, contrary
25 to his submissions, the inactions and passivity of other individuals
1 stands to make the impact of a forceful and effective action all the more
2 likely to obstruct criminal conduct. He's failed to demonstrate how the
3 inactions of other JNA personnel at Ovcara renders the Trial Chamber's
4 conclusions about his own failure to act unreasonable.
5 His argument that the presence of other JNA would have rendered
6 any action that he could have taken futile disregards the Trial Chamber's
7 findings, which were reasonable.
8 The Chamber, in paragraph 670, found that there were steps
9 available to Sljivancanin that would have obstructed the perpetrators'
10 ability to commit the crimes. It found that Sljivancanin could have
11 given clear direction to the military police at Ovcara. He could have
12 called for more military police to come and assist at Ovcara, and he
13 could have prevented the military police who were at Ovcara from
14 departing when the buses departed or have called them back. These
15 findings make clear that the fate of the prisoners did not rest solely on
16 the competence of members of the 80th Motorised Brigade. Sljivancanin's
17 assertions that calling upon other resources would have, quote, "taken
18 too much time," simply has no foundation in the evidence.
19 The Trial Chamber found that Sljivancanin, through the authority
20 delegated to him by Mrksic, had all of the resources of Operations Group
21 South, including multiple MP battalions, at his disposal to protect these
22 prisoners. The Trial Chamber also found in paragraph 89 that the JNA had
23 adequate manpower, resources, and organisation to control the TOs and
24 paramilitary threat at all relevant times. Clearly, it was objectively
25 possible to control the criminal element at Ovcara. Sljivancanin chose
1 not to. He argues instead that because other JNA present abdicated their
2 responsibility or failed in their attempts to remedy the problem, he was
3 absolved of any requirement to act. The implication of this argument is
4 that the wholesale abdication of a duty imposed by the Laws and Customs
5 of War is justified by the criminality, negligence, or incompetence of
6 others. It must be rejected.
7 The Trial Chamber's conclusion that Sljivancanin's omission
8 facilitated the commission of the crimes was also reasonable and based on
9 the evidence. First, the Trial Chamber found that Sljivancanin witnessed
10 the mistreatment. This finding is going to be dealt with in greater
11 detail by my co-counsel Ms. Nabti in response to the fourth ground of
12 appeal. In light of this finding, all of Sljivancanin's remaining
13 arguments rely upon evidentiary speculation, which this Chamber need not
14 engage in. However, even Sljivancanin's further speculations are at odds
15 with the facts found by the Trial Chamber.
16 The Trial Chamber found that during the time that Sljivancanin
17 was present, the JNA was taking no steps to protect the prisoners or
18 restrain the TOs and paramilitaries. The Trial Chamber found that the
19 presence of the TO and paramilitaries placed the prisoners at grave risk,
20 a risk that Sljivancanin appreciated given his knowledge that these same
21 TOs and paramilitaries had beaten prisoners bloody at the JNA barracks,
22 requiring that the prisoners be removed from the barracks to Ovcara in
23 order to protect them from further harm.
24 The Chamber found that the other JNA present, such as Vojnovic,
25 reported what they saw to Mrksic himself. However, Sljivancanin, the
1 officer that Mrksic had entrusted with the care of these POWs, did
2 nothing. There's no need to speculate as to whether Sljivancanin would
3 have known and appreciated the potential value of his actions.
4 Sljivancanin testified as to what should have been done in such a
5 situation. And I take you now to his testimony at transcript reference
6 13749 through 13750, and I quote:
7 "If he should learn that in the zone of OG South, which is a
8 large zone, any crimes are being committed, he should order first the
9 commander of the zone where such criminal offences are being perpetrated,
10 be it the brigade, what measures are to be taken in order to prevent such
12 Sljivancanin then stated:
13 "We have agreed that it is this duty to intervene and request
14 from the specific person responsible for the zone where the crime is
15 being committed to take measures; if he cannot, to help him. If he
16 cannot help him, to seek further assistance from the superior command.
17 I think that I have been clear."
18 Yet the Trial Chamber found that when Sljivancanin was at Ovcara
19 and throughout the remainder of the day, despite having specific
20 responsibility for the prisoners' safety, a duty which required that he
21 protect them from all possible harms, whether from soldiers or other
22 elements, and despite having all of Mrksic's own powers and authorities
23 at his disposal to deal with the criminal threat that was so clearly
24 posed by the TOs and paramilitaries, Sljivancanin did nothing.
25 In light of these findings, the Trial Chamber's conclusion that
1 Sljivancanin must have been aware that his omissions facilitated the
2 commission of the crimes was reasonable.
3 With respect to the issues raised by my learned colleague with
4 respect to the indictment, the Prosecution will rest on its submissions
5 which are contained in its brief, and this, therefore, concludes my
6 submissions on the second and fifth grounds of appeal, and unless Your
7 Honours have questions, I will turn the podium over to my co-counsel,
8 Mr. Dalal.
9 Thank you.
10 JUDGE MERON: Please proceed. I don't see any questions.
11 MR. DALAL: Good afternoon, Your Honours. My name is
12 Marwan Dalal, and I will be presenting the Prosecution's submissions in
13 response to Sljivancanin's Ground 3.
14 But before going into my submission, two brief comments, one in
15 response to my learned colleague's proposition that only the
16 representative of a state bears the legal duty to protect prisoners of
17 war. Of course, we oppose this submission: Prisoners of war and the
18 Geneva Conventions in general are too important to interpret such an
19 important duty narrowly. We think that the legal duty to protect
20 prisoners of war exists wherever prisoners of war are, and on --
21 definitely not only the representative of the state or the head of the
22 group that have custody of the prisoners of war bears the duty to protect
23 prisoners of war, in this case, Mile Mrksic.
24 The legal duty and its breach is determined by the interaction
25 with the prisoners of war and the level of awareness of violations that
1 are being committed to prisoners of war and conduct and omission in
2 relation to this awareness.
3 As to the second question, when would a legal duty end, this is
4 relevant in our context to the appeal -- to the Prosecution appeal, to
5 the awareness of Sljivancanin and his responsibility for the murders
6 later on the 20th-21st November, and my co-counsel Ms. Brady will deal at
7 length on Friday when the Prosecution will submit its submission and rest
8 its appeal on this question.
9 I turn now to the issue of Sljivancanin's entrusted
10 responsibility that Mrksic conferred on him on the 19th of November in
11 the afternoon. In this regard, Sljivancanin argues that he had unlimited
12 assignments ordered or tasked by Mrksic to him, limited to the vicinity
13 of the hospital. Sljivancanin is wrong, in our submission, and we have
14 answered extensively in our written brief this proposition. I will
15 highlight several issues relating to this -- to this matter.
16 Sljivancanin was entrusted by Mrksic on the afternoon of 19
17 November 1991 with the responsibility to evacuate the Vukovar Hospital
18 the following day and transport the prisoners of war from there and be in
19 charge of their safe passage. For this purpose, Mrksic empowered him,
20 Sljivancanin, to use as many military police as necessary. Mrksic
21 announced Sljivancanin's responsibility the same day during the 6.00 p.m.
22 daily briefing at OG South Command in Negoslavci. In this,
23 Sljivancanin's responsibility --
24 THE INTERPRETER: Thank you for slowing down.
25 MR. DALAL: I will slow down.
1 Indeed, Sljivancanin's responsibility was not limited to the
2 hospital. He was also in charge of providing safe passage to the
3 prisoners of war.
4 Sljivancanin acknowledged in his testimony Mrksic's order and
5 that his responsibility in relation to the prisoners of war went beyond
6 the hospital. The Appeals Chamber is respectfully referred to
7 paragraphs 191, 192, 390, 396, and 400.
8 Sljivancanin followed the path of the prisoners of war. He was
9 at the hospital during their selection. He was at the JNA barracks when
10 they stopped there with the buses, and he eventually was at Ovcara
11 shortly after they arrived with the buses, the prisoners of war. The
12 only reason for him, in our submission, to follow the prisoners of war is
13 his responsibility to transport them safely.
14 Both Mrksic and Sljivancanin are responsible for the crimes
15 committed against the prisoners of war in Ovcara and before that with
16 regard to Mrksic. Mrksic was the overall commander and was engaged with
17 critical decisions relating to the prisoners of war. He was aware of
18 their increasingly terrible situation in the hands of his subordinates.
19 Sljivancanin was in charge for the entire evacuation operation as
20 just mentioned. This entrusted responsibility by Mrksic empowered
21 Sljivancanin to use military police as required both at the hospital and
22 in order to transport the prisoners of war safely from there. Selection,
23 transportation, and safety of prisoners of war were indeed inherent to
24 the responsibility conferred on Sljivancanin by Mrksic.
25 In this submission, I want to highlight key findings and pieces
1 of evidence that demonstrate Sljivancanin's entrusted responsibility.
2 Four elements will illustrate the soundness of the Chamber's finding in
3 this regard. The first element is Sljivancanin's status and experience
4 with a similar evacuation operation only two days before the evacuation
5 operation in question; the second element is Sljivancanin's preparations
6 for this operation; the third element is Sljivancanin's conduct and
7 interaction with others at the hospital on the morning of 20 November
8 1991; and the last element, the fourth element, is Sljivancanin's
9 presence at the JNA barracks that morning and at Ovcara as well as his
10 interaction with his subordinates.
11 The first element: Sljivancanin's status and similar operation
12 on the 18th of November. Your Honours, at the relevant time,
13 Sljivancanin was the senior officer, a major in the JNA. He was the
14 chief of security organs within the OG South, which was commanded by
15 Mrksic. Part of his responsibility as a security organ was detecting and
16 preventing hostile activities against the armed forces. The
17 responsibility for prisoners of war was not strange to Sljivancanin;
18 paragraphs 115 and 668.
19 Sljivancanin was responsible for a similar operation relating to
20 the Croatian forces who had surrendered on 18 November 1991 at Mitnica.
21 The destination of this group was Sremska Mitrovica, and they passed
22 through Ovcara. Sljivancanin was the officer in command during the
23 transport of these prisoners of war from Mitnica to Ovcara;
24 paragraph 151. Sljivancanin's senior subordinate, Karanfilov, took a
25 leading role in this operation. He gave instructions to and was reported
1 to by the military police, the 80 MTBR, who secured the prisoners at
2 Ovcara; paragraph 153, 155, and 668.
3 Moving to the second element, Sljivancanin's preparations toward
4 the evacuation operation. On the evening of 19 November, around
5 7.00 p.m.
6 for the entire evacuation operation, Sljivancanin held a briefing for his
7 subordinates. Sljivancanin's deputy, Vukasinovic, and other senior
8 subordinates of Sljivancanin, namely Karanfilov, and Karan attended this
9 briefing. At this briefing, Sljivancanin ordered Vukasinovic with the
10 organisation of transport of persons from the hospital by buses. He was
11 to ensure the transport by buses. Shortly after 6.00 a.m. on 20
12 November, Vukasinovic departed from Negoslavci for Vukovar Hospital
13 following his superior's orders the previous day; paragraph 192 and
14 paragraph 198.
15 Further, at around 2.00 a.m.
16 with a senior JNA colonel -- officer, Colonel Vujic, outside the command
17 post in Negoslavci. Colonel Vujic had arrived from Belgrade to assist in
18 handling the prisoners of war. Vujic testified, and the Trial Chamber
19 accepted his testimony, that Sljivancanin announced at this meeting that
20 he, Sljivancanin, would be in charge of the evacuation of the hospital
21 the following day, paragraph 395, the evacuation of the hospital and not
22 limited assignments at the hospital.
23 It is clear that from the outset, Sljivancanin -- Sljivancanin's
24 responsibility, as understood by him, was not limited to the vicinity of
25 the hospital but extended well beyond it and included the safe
1 transportation of prisoners of war to their final destination.
2 The third element, Sljivancanin's conduct and interaction with
3 others at the hospital on the morning of 20 November. Sljivancanin's
4 conduct at the hospital clearly shows that he was in charge of the entire
5 evacuation of the hospital. He arrived at the hospital at around
6 7.00 a.m.
7 the man in charge and the one who would be issuing orders. Colonel Vujic
8 was also at the hospital. His accepted evidence is that Sljivancanin was
9 giving orders to the military police present there. The accepted
10 evidence of many witnesses at the hospital who saw Sljivancanin and
11 interacted with him attest to his status and role; paragraph 401.
12 Sljivancanin was the one to say who could leave the hospital compound and
13 who could get off the buses. He was the one giving orders, and others
14 were obeying him. The soldiers coming to him were addressing him Major,
15 sir, or Major Sljivancanin. Everything basically transpired under his
16 control and on his orders.
17 The fourth element: Sljivancanin's presence at the JNA barracks
18 and at Ovcara as well as his interaction with his subordinates.
19 Sljivancanin's conduct and responsibility extended well beyond the
20 hospital. From the hospital, he went to the JNA barracks when the buses
21 with the prisoners of war were there. He was present at the JNA barracks
22 at around 11.00, 11.30 in the morning. His presence there was not a
23 coincidence. He went there as part of his responsibility to safely
24 transport the prisoners of war; paragraph 372. Sljivancanin continued to
25 exercise control over the prisoners at the JNA barracks. Prisoners
1 listed by him were removed from the buses and returned to the hospital.
2 There, he questioned them. Those who were thought to have participated
3 in the fighting on the Croatian side were returned to the barracks;
4 paragraphs 221 and 373. Sljivancanin received reports from senior
5 subordinates of his about the deteriorating security situation of the
6 prisoners of war at the JNA barracks to show that it was not only
7 selection, his responsibility, but also security.
8 His deputy, Vukasinovic, reported to him about the violent
9 conduct of the TOs against the prisoners of war at the JNA barracks.
10 Karanfilov also reported to Sljivancanin about what happened at the JNA
11 barracks. Unfortunately, Sljivancanin said to Karanfilov that everything
12 is okay. They did so, his subordinates, for one reason: Their
13 commander, Sljivancanin, was the person in charge of safely transporting
14 and securing the prisoners of war from the hospital; paragraphs 374 and
15 375. Sljivancanin's deputy, Vukasinovic, had a leading role in this
16 operation. His role is another clear illustration of the scope of
17 Sljivancanin's responsibility, which transcended the hospital vicinity
18 and included the safe transportation of prisoners of war.
19 Vukasinovic led the buses to the hospital from Negoslavci early
20 on 20 November, following Sljivancanin's order the night before;
21 paragraph 198. He, Vukasinovic, led the buses from the hospital to the
22 JNA barracks at around 10.00 a.m.
23 Vukasinovic arrived with the buses and the prisoners of war to Ovcara
24 at -- and this is at paragraph 259.
25 Indeed, Your Honours, look for Vukasinovic, and you will get a
1 clear idea about the scope of Sljivancanin's responsibility.
2 Further, Sljivancanin was directly involved in the communication
3 and implementation of the order to transfer the prisoners from the JNA
4 barracks to Ovcara and to secure them there. This order, in the
5 Chamber's finding, facilitated the commission of crimes at Ovcara that
6 day, and this finding is solid, in our submission, and relies on other
7 findings that are not less solid, of course. This is at paragraph 659.
8 Indeed, Your Honours, Sljivancanin's presence at Ovcara at about
9 2.30, 3.00 p.m.
10 buses there from the JNA barracks, is only because he was responsible for
11 the transportation and security of the prisoners of war. Sljivancanin
12 was at the hospital, at the JNA barracks, and at Ovcara. Securing the
13 safety of the prisoners of war was his responsibility, a responsibility
14 that he manifestly failed to carry out that fatal day; paragraph 383.
15 In conclusion, Your Honours, and based on the totality of the
16 evidence, which I have highlighted some of it today, the only reasonable
17 conclusion is the one reached by the Trial Chamber. Sljivancanin was
18 ordered by Mrksic to be in charge of the entire hospital evacuation,
19 which included necessarily the transport of the prisoners of war and
20 securing their safe passage.
21 Your Honours, if you have no questions on this submission, I'll
22 turn to my co-counsel, Ms. Najwa Nabti, to present the Prosecution's
23 response to Sljivancanin's Grounds 1 and 4 of his appeal.
24 MS. NABTI: Good afternoon, Your Honour.
25 Good afternoon, Your Honours. I will address Grounds 1 and 4 of
1 Sljivancanin's appeal, which challenge the Trial Chamber's factual
2 findings that Sljivancanin was present at Ovcara on 20 November 1991 and
3 that he must have witnessed the mistreatment of prisoners there. These
4 findings were reasonable in light of all the evidence, not just Witness
5 P-9's identification of Sljivancanin at Ovcara, but also the timing of
6 events on 20 November and Sljivancanin's responsibilities that day.
7 I will not respond today to each of Sljivancanin's arguments
8 witness by witness, which we addressed fully in our response brief. I
9 will instead focus on a couple of main challenges he makes to the Trial
10 Chamber's findings in Grounds 1 and 4.
11 First, the alleged inconsistency between P-9's sightings of
12 Sljivancanin and time-line of events on 20 November and, second, the
13 reliability of P-9's identification of Sljivancanin at Ovcara based on
14 Witness P-9's prior sightings of Sljivancanin and the accounts of other
15 witnesses who did not see him. I will then turn briefly to
16 Sljivancanin's remaining argument in Ground 4 regarding what he observed
17 at Ovcara.
18 On each of these main points, Sljivancanin fails to meet the
19 standard of review on appeal. As his submissions today demonstrate, he
20 is seeking to substitute his own assessment of the evidence for that of
21 the Trial Chamber, disagreeing with its credibility assessments and
22 rearguing evidence anew. This falls far short of the burden required to
23 establish that no reasonable Chamber could have found the challenged
24 facts, and his arguments should be rejected.
25 Now, before getting into the specific's of P-9's sighting of
1 Sljivancanin at Ovcara on 20 November 1991
2 context for the events of that day, particularly since Sljivancanin
3 argues that he could not have been seen at Ovcara or the JNA barracks by
4 P-9 because he was somewhere else at the time.
5 The Trial Chamber's findings make it clear that P-9's sightings
6 of Sljivancanin on 20 November are, in fact, consistent with the
7 estimated time-line of events that day, taking into account
8 Sljivancanin's presence at other locations and the distances between
9 those locations. The Defence referred to Exhibit 156, which is a map,
10 and that confirms that the distance between Vukovar Hospital
11 barracks is less than four kilometres. The distance between the hospital
12 and Ovcara is less than ten kilometres. The Trial Chamber found that
13 these locations were not far apart at paragraphs 222 and 223, and while
14 it may have taken a convoy of five buses of prisoners a half an hour to
15 get from the JNA barracks to Ovcara, it wouldn't necessarily take
16 Sljivancanin that same amount of time. But even so, it would still be
17 consistent with the Chamber's findings on the time-line of events.
18 With that in mind, I turn first to the events of the morning of
19 November 20, 1991
20 morning, five buses of prisoners from Vukovar, the Vukovar Hospital
21 arrived at the JNA barracks. Around this same time -- around the same
22 time, Sljivancanin met international monitors at Vukovar Hospital
23 having blocked them at a nearby bridge while the buses of prisoners
24 departed the hospital. About 20 minutes later at the barracks, a group
25 of 12 to 15 prisoners identified as hospital employees or family members
1 were transferred to an empty military bus, referred to as the sixth bus,
2 which then returned to the hospital after some time. At around 11.00 or
3 11.30, Sljivancanin was seen at the barracks shortly before this sixth
4 bus departed, and before noon
5 screen the passengers from the sixth bus together with TO Commander
6 Vujovic, who had also just been at the JNA barracks.
7 Moving to the afternoon, around 1300 or 1400, Sljivancanin was
8 interviewed in front of Vukovar Hospital
9 1430, five buses of prisoners arrived at Ovcara, and they were unloaded
10 one by one, each taking about 15 to 20 minutes. Around 1400 or 1430,
11 Sljivancanin was at the hospital when the last buses of civilians
12 departed. And at around 1430 or 1500, Sljivancanin was seen standing
13 down the road from the hangar at Ovcara.
14 This time-line is not only consistent with the relatively short
15 distances involved; as the Chamber found at paragraph 372 and also as my
16 co-counsel, Mr. Dalal, has highlighted, it makes sense that Sljivancanin
17 would check on the status of the evacuation of these prisoners, given his
18 responsibilities that day. Indeed, Sljivancanin knew that TOs and
19 paramilitaries had attacked this group of prisoners that was transferred
20 at the barracks in the morning, and this was despite the presence of JNA
21 officers and military police; trial judgement paragraph 375.
22 Even by Sljivancanin's own account, Vukasinovic warned
23 Sljivancanin that he, quote, "had problems in the barracks because
24 members of the Territorial Defence think that you are releasing the most
25 notorious Ustashas and that you did that last night at Mitnica too."
1 Sljivancanin transcript pages 13656 to 13657. So Sljivancanin was aware
2 that unlike the previous evacuation of Croat prisoners from Mitnica to
3 Sremska Mitrovica, this time the TOs knew about and were violently
4 opposing the evacuation of prisoners. He, therefore, had reason to check
5 on the status of the evacuation that afternoon, particularly once the
6 buses of civilians left the hospital.
7 To sum up, the Trial Chamber's estimated time-line of events on
8 20 November 1991
10 I'll now address the Defence's challenge to P-9's identification
11 of Sljivancanin at Ovcara based on P-9's prior sightings of Sljivancanin
12 and the accounts of other witnesses.
13 Despite what the Defence has argued, the Trial Chamber did
14 address the reliability of P-9's identification and noted, in particular,
15 that P-9 had seen Sljivancanin up close on two previous occasions; the
16 day before at Vukovar Hospital
17 Sljivancanin was indeed a memorable figure. P-9 recalled his
18 distinctively different appearance and his commanding presence, which
19 left a strong impression on P-9. So when P-9 saw Sljivancanin for a
20 third time at Ovcara, there is no question that this was the same JNA
21 officer; trial judgement paragraphs 367 to 368, 377, and 383.
22 Indeed, as another witness confirmed, Sljivancanin, quote, "was
23 so striking that I don't think it's possible to forget a man like that."
24 Berghofer, transcript page 5278.
25 As addressed fully in our response brief, the Chamber's findings
1 on P-9's previous sightings of Sljivancanin were also reasonable.
2 Although I'll touch further on Sljivancanin's presence at the JNA
3 barracks when addressing Sljivancanin's argument about the observations
4 of other witnesses, for now I'd like to point out that the Trial Chamber
5 carefully analysed and explained why it found other witnesses'
6 testimonies did not contradict P-9's sighting of Sljivancanin at the JNA
7 barracks on 20 November, and this is in paragraphs 369 to 372.
8 P-9's sighting of Sljivancanin at Vukovar Hospital
9 was likewise reasonable and consistent with other witnesses' evidence
10 that Sljivancanin was there that afternoon; Trial Chamber judgement
11 paragraphs 183 and 367.
12 I'll turn now to the Defence's challenge to the Trial Chamber's
13 reliance on P-9's evidence based on the testimonies of other witnesses.
14 The thrust of his argument is that because other witnesses didn't see
15 Sljivancanin at the JNA barracks and Ovcara and P-9 did, the Chamber's
16 reliance on P-9's testimony must be unreasonable. This argument also
17 lacks merit. The Trial Chamber looked at all the evidence about P-9's
18 sightings of Sljivancanin on 20 November. It made detailed findings
19 about what other witnesses saw and didn't see, considering the different
20 times and locations from where these witnesses' observations were made.
21 For example, at the JNA barracks, at paragraphs 296 to 298 and 370, the
22 Trial Chamber canvassed the different times and locations that various
23 JNA officers were at the barracks on the morning of the 20th and
24 explained why they may not have seen Sljivancanin in light of their
25 differing accounts. The Chamber further considered, at paragraphs 216
1 and 369, that the prisoners at the barracks were being threatened by TOs
2 and paramilitaries surrounding the buses and were not in a position to
3 recognise all persons near the buses at some time. Further detail is
4 provided in our briefs.
5 Regarding the witnesses at Ovcara, the Trial Chamber provided
6 more than ten pages of analysis, addressing the various accounts of the
7 JNA officers, including P-14, Vojnovic, and Panic. The specific
8 arguments are addressed in our response brief, but for each of them the
9 Chamber addressed when they were at Ovcara, for how long, where they
10 were, whether they went inside the hangar, what they were doing, and who
11 they saw. The Chamber then reasonably explained why these testimonies
12 did not call in question the evidence of P-9, based on their differing
13 locations, timing, and perspectives. In particular, several of them were
14 only at Ovcara for only a short time, and others went inside the hangar;
15 trial judgement paragraphs 254 to 274 and 378 to 383.
16 The Trial Chamber further considered that the prisoners at Ovcara
17 were not in the position to notice the presence of all JNA officers
18 outside the hangar. The Chamber also considered the effects of fear and
19 the chaotic situation on these witnesses; trial judgement paragraphs 234,
20 236 to 238, and 382.
21 Indeed, at the time that Sljivancanin was found to be at Ovcara,
22 they were either being beaten in the gauntlet or already inside the
23 hangar. The testimonies of these witnesses as cited in our response
24 brief confirm this, and they leave no doubt that their primary focus was
25 on survival and avoiding the beatings at this time.
1 I would like to respond to one point made by the Defence today,
2 which requires us to move briefly into private session, Your Honours.
3 JUDGE MERON: Registrar, private session, please.
4 [Private session]
17 [Open session]
18 THE REGISTRAR: Your Honours, we're back in open session.
19 MS. NABTI: Thank you, Your Honours.
20 Sljivancanin has dwelt at some length on the alleged
21 inconsistency between the evidence P-9 and Hajdar Dodaj, a JNA deserter
22 who was pulled off one of the buses at Ovcara, but as their testimonies
23 make clear, the different perspectives of these two witnesses show that
24 their testimonies are not contradictory and that the Trial Chamber was
25 entitled to rely on both. P-9 testified that he saw Sljivancanin
1 standing on the road leading to the hangar, whereas Dodaj testified that
2 he and other JNA deserters stood to the right of the hangar -- hangar's
3 entrance, with the hangar's door and the gauntlet in between. Each
4 witness marked a photograph of Ovcara to show their locations on 20
5 November, and I'd like to pull those up for you now, Your Honour.
6 Just as a side note, the red markings on this exhibit were made
7 by the witnesses, and the white markings were added for emphasis by us.
8 The first exhibit is 282, marked by Witness P-9. He used the
9 letter "B" to show where the buses unloaded, and the two lines mark the
10 gauntlet leading to the hangar's entrance. After arriving at Ovcara, P-9
11 went to the back of the hangar for about 15 to 20 minutes and stood in
12 the spot marked "C." As he returned to the front of the hangar, he saw
13 Sljivancanin standing on the road in the place marked with a "D." Those
14 explanations are given by P-9 at transcript pages 6176 to 6177.
15 The next exhibit, number 238, was marked by Witness Dodaj to
16 reflect where he was standing in relation to the hangar's entrance.
17 Number "1" marks the place where he and other JNA deserters were standing
18 until they left Ovcara. The "2" marks where he and the last bus -- where
19 he saw the last bus unloading in front of the hangar. Those explanations
20 are given in Dodaj's testimony at pages 5661 to 5663.
21 Now, clearly, these two witnesses had different vantage points.
22 Remember that even following the gauntlet armed with TOs and
23 paramilitaries continued to go in and out of the hangar's entrance,
24 between where Dodaj was standing and the place where P-9 saw
25 Sljivancanin. The Trial Chamber considered these different vantage
1 points and also expressly considered Dodaj's testimony that he did not
2 see Sljivancanin at Ovcara in evaluating the evidence of another JNA
3 deserter who was standing right next to Dodaj at the time. Those
4 findings are at trial judgement paragraphs 384 to 385.
5 These exhibits and testimony leave no question that these
6 witnesses had different vantage points. Indeed, the Trial Chamber's
7 detailed findings show that it carefully evaluated the testimony of all
8 these witnesses, who are also engulfed in a chaotic situation. It was
9 not unreasonable to find that these testimonies did not undermine P-9's
10 sighting of Sljivancanin at Ovcara. Indeed, the Trial Chamber considered
11 the very factors this Chamber found relevant in assessing witness
12 testimony in the Nata-Kiru-Timana appeal judgement of 13 December 2004.
13 At page 286, the Appeals Chamber found:
14 "The fact that several witnesses were in the same general area
15 does not necessarily mean their observations about the identity and
16 location of those present have to be identical for the witnesses to be
17 considered credible. The difference in their respective statements can
18 be explained by the place from where these witnesses made their
19 observations as well as the fact that witnesses did not give exact times
20 for their observations."
21 In addition to these factors, the Trial Chamber reasonably
22 explained why it could not fully accept the testimony of some witnesses,
23 including Sljivancanin's direct subordinates, Vukasinovic and Karanfilov,
24 and those findings with respect to Vukasinovic are at paragraphs 192 and
25 259 to 260, and 379, and for Karanfilov, at paragraphs 216, 278, 282, and
2 All of the testimony the Defence relies on today and in its
3 briefs was before the Trial Chamber and was duly considered. In short,
4 the Defence has not shown that the Trial Chamber's reliance on P-9's
5 identification of Sljivancanin at Ovcara is one that no reasonable
6 Chamber could have made.
7 I'll turn finally to respond to Sljivancanin's main challenge in
8 Ground 4. The Defence argues that there was no omission because the
9 Trial Chamber erred in finding that Sljivancanin must have witnessed the
10 mistreatment of prisoners in the gauntlet at Ovcara. This is phrased as
11 a challenge to the finding of an omission, but it's clear that
12 Sljivancanin is really challenging the Chamber's mens rea findings.
13 As my co-counsel Ms. Carey has mentioned earlier, the Trial
14 Chamber found that Sljivancanin had the necessary mens rea. He knew the
15 beatings and tortures would occur based on a number of factors considered
16 together, at paragraphs 663 to 666, including that Sljivancanin knew of
17 prior reports that local TOs and paramilitaries in Vukovar killed and
18 mistreated Croatian prisoners and committed sadistic abuse and acts of
19 revenge. He knew of the attack on the prisoners at the JNA barracks
20 earlier in the day, and he witnessed the TOs and paramilitaries beating
21 the prisoners in the gauntlet at Ovcara and further observed their free
22 access to the prisoners in the hangar. These findings make clear that
23 Sljivancanin's witnessing of the gauntlet was only one of the factors
24 proving Sljivancanin's knowledge of the torture and mistreatment at
25 Ovcara, and this makes sense. It can't be right, as Sljivancanin argues,
1 that an accused who had this level of knowledge would not realise that he
2 had a duty to act unless and until he actually saw the prisoners being
3 beaten before his very eyes.
4 So what did Sljivancanin observe at Ovcara? First, the Trial
5 Chamber reasonably found that the gauntlet was still happening at the
6 time Sljivancanin arrived at Ovcara, so he would have witnessed the
7 unrestrained beating of the prisoners. It found that P-9 arrived at
8 Ovcara when the last two buses of prisoners were unloading. While this
9 unloading was still in progress, P-9 went to the back of the hangar.
10 That's at trial judgement 377 and P-9 transcript page 6163. When P-9
11 returned from the back of the hangar about 15 minutes later, he saw
12 Sljivancanin looking on the road towards the hangar, looking very
13 angry -- I'm sorry, standing on the road, looking very angry. There were
14 no more prisoners entering the hangar at that time; trial judgement
15 paragraphs 377 and 383.
16 It was reasonable for the Chamber to conclude that Sljivancanin
17 witnessed the beatings in the gauntlet. It's highly unlikely that
18 Sljivancanin instantaneously appeared only for the moment that P-9 saw
19 him. Prisoners were still unloading when P-9 went to the back of the
20 hangar, and each bus took 15 to 20 minutes to unload, and Sljivancanin
21 had every reason to be there. He was the person in command of the
22 evacuation of these prisoners and vested with the responsibility for
23 their security.
24 Another important detail is that Sljivancanin looked very angry,
25 the obvious inference being that he was reacting to seeing something
1 other than a peaceful and secure situation in front of the hangar.
2 Indeed, Sljivancanin had a similar reaction earlier that day when a group
3 of TOs confronted him at the hospital. In Sljivancanin's own words,
4 they, quote, "expressed their revolt" to the removal of a few prisoners
5 from the buses at the barracks. Sljivancanin had to instruct TO
6 Commander Vujovic to, quote, "warn his people not to behave toward me in
7 an unsoldierly way." Sljivancanin transcript pages 13656 to 13657.
8 At Ovcara, the TOs and paramilitaries were again out of control.
9 On all the evidence, the Chamber's finding that Sljivancanin
10 witnessed the gauntlet beatings was reasonable. In any event, even if
11 Sljivancanin did not personally witness this as he alleges and as he
12 alleges that he arrived after the prisoners were already in the hangar,
13 the Trial Chamber's findings about what was occurring at Ovcara leave no
14 doubt that he still must have known the prisoners were being mistreated.
15 Your Honours, picture the scene that he was confronted with. The
16 Chamber found at paragraph 235 that there was no intervention by the
17 military police on the buses before they left, nor by the 15 to 20 JNA
18 soldiers in front of the hangar, to try to stop the beatings. At this
19 time, as the Chamber found, the freedom of the TOs and paramilitaries to
20 freely enter the hangar was too obvious. In other words, anyone present
21 at Ovcara would have seen this and would have also seen that many of
22 these men were armed and had heightened emotions; Trial Chamber
23 paragraphs 309 and 663.
24 The beatings of the prisoners did not stop with the gauntlet,
25 either. They continued relentlessly for some time after the prisoners
1 entered the hangar. They were so severe that the cries of prisoners
2 being beaten could be heard from outside the hangar; trial judgement
3 paragraphs 237 to 235. Also at this time, the Chamber found at
4 paragraph 238 that TOs and paramilitaries were moving in and out of the
5 hangar as they took turns beating the prisoners in intervals, and the
6 security outside the hangar was also plainly obvious -- plainly
7 insufficient. Even from the outside, anyone could see that there was a
8 disproportionately large number of TOs and paramilitaries compared with
9 the relatively small number of JNA soldiers; trial judgement paragraphs
10 245, 309, and 625.
11 The point is, this evident lack of security and beatings by TOs
12 and paramilitaries continued well after the unloading of the prisoners
13 through the gauntlet, which would undoubtedly cover the time that P-9 saw
14 Sljivancanin on the road in front of the hangar, and even if this was
15 only for a moment, it would have been enough for Sljivancanin to take in
16 this scene and understand its meaning.
17 In these circumstances, there's no question that Sljivancanin
18 knew that the prisoners were being mistreated and tortured and that these
19 crimes would continue unless he intervened, whether or not he witnessed
20 the gauntlet.
21 In conclusion, the Chamber's findings that Sljivancanin was
22 present at Ovcara on 20 November and must have witnessed the mistreatment
23 of prisoners there are reasonable on all the evidence. Based on
24 everything that Sljivancanin saw and knew at that time, he was clearly
25 aware that prisoners would be mistreated and tortured at Ovcara unless he
1 took action. His arguments in 1 and 4 should be -- in Grounds 1 and 4
2 should be dismissed.
3 Unless there are any questions, Your Honours, those are my
5 JUDGE MERON: At 10 to 6.00, we have to end, Ms. Brady. You
6 better hurry.
7 MS. BRADY: Your Honour, it can also be added that that concludes
8 the Prosecution's response to Mr. Sljivancanin's appeal, so --
9 JUDGE MERON: You're finished?
10 MS. BRADY: We are done.
11 JUDGE MERON: I thought that you were planning to speak today.
12 MS. BRADY: Not until Friday, not for the Prosecution's appeal.
13 JUDGE MERON: So we will then rise, and we will meet on Friday
14 morning at 9.00 sharp.
15 --- Whereupon the hearing adjourned at 5.39 p.m.
16 to be reconvened on Friday, the 23rd day of
17 January, 2009, at 9.00 a.m.