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Page 198

1 MR. BOURGON: Good morning, Mr. President. I will have the

2 honour of beginning this morning on behalf of Mr. Sljivancanin. However,

3 before I do so, there's a matter which was brought to my attention.

4 On Wednesday, when we were arguing, my colleague here beside me,

5 Ms. Marie-Claude Fournier, was in the courtroom, and we did introduce

6 her. However, it was brought to my attention there might be some

7 difficulty because she's not officially assigned to the case. However,

8 Mr. President, there is a confidentiality undertaking on her behalf

9 between everything she learns while she works with me, and I kindly ask

10 for leave that she can be attending the proceedings, even though there

11 might be some parts of the session which might be heard in closed

12 session, Mr. President.

13 JUDGE MERON: Thank you.

14 [Appeals Chamber confers]

15 JUDGE MERON: I take it Ms. Brady has no objection.

16 MS. BRADY: No, we have no objection, Your Honour.

17 JUDGE MERON: Thank you.

18 Permission granted. You can proceed.

19 MR. BOURGON: I thank you very much, Mr. President. Thank you,

20 Your Honours, and I thank my colleagues from the Prosecution.

21 Good morning, Your Honours. Good morning to all my colleagues in

22 the courtroom.

23 Mr. President, the first issue I would like to address this

24 morning, on behalf of Mr. Sljivancanin's further reply to the Prosecution

25 response, relates to our third ground of appeal, and that is the notion

Page 199

1 of duty. Having read the transcript, including what my colleague

2 mentioned on Wednesday - and that was at pages 174 and following - as

3 well as your own observations, Mr. President, at pages 151 to 153, I wish

4 to ensure this morning that I don't leave the Appeals Chamber with the

5 wrong impression concerning the requirement that prisoners of war be well

6 treated at all times. That being said, I would like to confirm and

7 clarify our position on this issue, which is as follows:

8 Mr. President, pursuant to Article 13 of the Geneva Convention 3,

9 prisoners of war must be treated at all times humanely. This implies, of

10 course, that they must be protected, particularly against acts of

11 violence. Pursuant to Article 12 of Geneva Convention 3 as well as

12 pursuant to the commentary to the same convention, the responsibility for

13 the treatment and the protection of prisoners of war is a dual

14 responsibility. This responsibility rests, of course, on the state which

15 holds prisoners of war as well as on agents of that state.

16 All members of the military within a state are agents of the

17 state. Accordingly, it can be said that all members of the armed forces

18 of a state have an obligation to treat prisoners of war humanely, and in

19 some circumstances, Mr. President, a specific duty to protect them. For

20 the state, the duty is triggered as soon as prisoners of war are in the

21 custody of the state. For members of the armed forces, that duty to

22 protect can be triggered in two ways: Firstly, if a member of the armed

23 forces captures a prisoner of war and has a prisoner of war in his

24 custody, then definitely he has a duty to protect that prisoner of war.

25 Secondly, a member of the armed forces may be entrusted by his

Page 200

1 commander, who is the de jure person having the authority or the

2 responsibility, and he can give that duty to the member of the armed

3 forces within his unit. The best example of this, Mr. President, is that

4 of soldiers who are assigned specifically as guards within a prisoner of

5 war facility. Now, how can a soldier be entrusted with that

6 responsibility or a member of the armed forces? This can happen in two

7 ways. A member of the armed forces may have a duty to protect by virtue

8 of the position they hold in the unit. Members of the armed forces may

9 also have a duty to protect pursuant to the orders and the tasks issued

10 to them by their commander.

11 It is our position, Mr. President, that the responsibility which

12 stems from the duty to protect that a member of the armed forces might be

13 entrusted with is limited to one of two things; the specific attributions

14 which goes with the post being held by that member, or the specific

15 limitations of the orders and tasks issued to him by his commander.

16 In this case, prisoners of war were in the custody of Operational

17 Group South, which implies that the commander of that unit, by virtue of

18 his position, had the de jure -- as the de jure person, having the duty

19 to protect them.

20 As for Mr. Sljivancanin, in his capacity as security organ of

21 Operational Group South, it is our position that he did not have any

22 specific duty to protect the prisoners of war. That's a proposition the

23 Prosecution agrees with, as we have heard on Wednesday.

24 It follows in our submissions that if Mr. Sljivancanin had a duty

25 to protect prisoners of war on 20 November 1991, it is limited, as we

Page 201

1 heard on Wednesday, to what -- to that responsibility which was bestowed

2 on him specifically by his commander, Mile Mrksic. Consequently,

3 Mr. President, it is our position that at best, Mr. Sljivancanin had a

4 duty to protect the prisoners of war at the Vukovar Hospital and while

5 directing the triage at the Vukovar Hospital.

6 At paragraph 391 of the judgement, contrary to our third ground

7 of appeal, the first sub-ground, the Trial Chamber found the following:

8 The Trial Chamber said Mr. Sljivancanin's responsibility extended to

9 ensuring that the war crimes suspects were transported to the prison at

10 Sremska Mitrovica, whereas the civilians were to go to Sid in Serbia or

11 to the Croatian border. In either case, pursuant to the finding of the

12 Trial Chamber, Mr. Sljivancanin was to transport them to their

13 destination.

14 Our position, Mr. President, is that if the Appeals Chamber

15 confirms this finding, contrary to our ground of appeal, once the

16 prisoners of war were at the JNA barracks and the plan was changed

17 whereas instead of going to Sremska Mitrovica, Mile Mrksic decided to

18 send them to Ovcara, at that time Mr. Sljivancanin no longer had any duty

19 or any specific duty to protect the prisoners of war. From that moment

20 on, Mr. President, Mr. Sljivancanin was kept out of the loop, and it is

21 his commander who was responsible, as the Trial Chamber found at

22 paragraph 300, who was responsible for the transport of the prisoners of

23 war, their security, and their ultimate decision as to where they would

24 go -- destination, sorry.

25 The commander of Operational Group South was issuing orders to

Page 202

1 other officers and receiving information in relation to what was

2 happening to the prisoners of war through other officers. From that

3 moment on, there was no more specific responsibility bestowed on

4 Mr. Sljivancanin.

5 I would now like to address the Prosecution's submissions --

6 JUDGE MERON: Mr. Bourgon, does this really make sense, in terms

7 of simple common sense, a unit or an officer is entrusted with

8 responsibility for POWs? The first destination is a, and then the

9 destination is changed to B. This officer can say, Goodbye, goodbye, I

10 have finished my responsibilities, I can leave those people without

11 caring for their minimum needs or when there are paramilitaries around

12 particularly, who are screaming for blood. In time of war, surely there

13 is some kind of flexibility in terms of destinations of transfer. Those

14 things change constantly, according to tactical situations.

15 So can you just say, My job is done, I can now start reading "The

16 New York Times" and relax? You know, counsel, we need common sense in

17 interpreting international humanitarian law, and there are certain

18 objects which are deeply rooted in the Geneva Conventions, and the idea

19 is that there is a very fundamental duty of care and that basically you

20 have to perform those duties until you hand those duties over to somebody

21 who could take care of the welfare of POWs.

22 MR. BOURGON: I thank you for your observation, Mr. President,

23 and I'm glad that you mention both two things; first of all, the

24 flexibility of wartime conditions and tactical conditions, as well as the

25 fact that once a duty has been removed from a person, that person no

Page 203

1 longer has that duty.

2 Now, in the facts of this case, this is what happened:

3 Mr. Sljivancanin had some kind of tasking and responsibility in respect

4 of the triage in the Vukovar Hospital, and from that point on the buses

5 left, and he knows where the buses were going, and the facts establish

6 that his deputy is sitting on that bus. So at that point on, there's no

7 problem. However, once that duty is removed from him because that duty

8 is given to somebody else for a different reason, this is what the facts

9 of this case establish, that from the moment that there was a decision,

10 those people would not be going to Sremska Mitrovica, but they would be

11 handed over to members of the TO and paramilitaries over at Ovcara. From

12 that point on, Mr. President, when that decision was made, the

13 responsibility was removed from Mr. Sljivancanin. It's not that he

14 ignored the responsibility. He was at the hospital, as the facts

15 relieve. He was handling the care of all the civilians who were there.

16 He was acting according to the responsibilities which he was entrusted

17 with by taking care of those civilians, and he did that until 2.30 in the

18 afternoon. At that point on, he had lost that responsibility. It was

19 given to somebody else. Thank you, Mr. President.

20 I would now like to address the Prosecution's submissions in

21 relation to Ground 2 of our appeal, and Ground 2 raises the question, of

22 course, whether aiding and abetting by omission, in the specific form

23 recognised by the Trial Chamber, is recognised under the Statute of this

24 Tribunal.

25 The Prosecution at page 163 does exactly what we respectfully

Page 204

1 submit the Trial Chamber did. It confuses omission liability as a

2 principal perpetrator for a culpable omission and aiding and abetting by

3 providing moral encouragement or moral support to the perpetrators of a

4 crime; that is, by being present at the scene of a crime. That is

5 exactly what we ask the Appeals Chamber, Mr. President, to address.

6 In our submission, omission as a principal perpetrator requires

7 three things; that the accused had a duty to act, pursuant to criminal

8 law; that he deliberately failed to act -- fulfill his duty; and that he

9 intended the consequences or was aware of the consequences arising from

10 his failure to act, and he accepted them.

11 In this case, even if the Appeals Chamber was to confirm that

12 Mr. Sljivancanin had a duty to protect the prisoners of war at Ovcara,

13 there is no evidence that he intended the consequences or that he was

14 aware of the consequences and that he accepted them. Consequently, the

15 Trial Chamber could not, in our view, Mr. President, find him guilty for

16 an omission as a principal perpetrator, and it is also our respectful

17 submission that the Appeals Chamber could not, on the basis of the

18 evidence, of course, change the Trial Chamber's verdict from aiding and

19 abetting by omission to a culpable omission.

20 On the other hand, Mr. President, there is commission by

21 omission, where the accused provides encouragement and moral support, and

22 this requires the following, that the accused be present or very close to

23 the scene of a crime; that the presence of the accused at the scene or

24 very close; provides encouragement or moral support to the perpetrators

25 in the sense that it contributes substantially to the commission of the

Page 205

1 crime by them; and, finally, that the accused knew that by being present

2 at the scene or close to the scene of a crime, that he was assisting the

3 perpetrators in the commission of a crime.

4 It must be noted regarding commission by omission pursuant to

5 moral encouragement that it is not necessary, in our view, that the

6 accused have a positive duty to act, although as I explained Wednesday,

7 this may become relevant.

8 In this case, the Trial Chamber rightly found that

9 Mr. Sljivancanin did not provide any encouragement or moral support to

10 the perpetrators of the mistreatment of prisoners of war at Ovcara.

11 Consequently, the Trial Chamber could not find him guilty for commission

12 by omission, and it is our respectful submission that the Appeals Chamber

13 could not, again, on the basis of the evidence on the record, change the

14 Trial Chamber's verdict from aiding and abetting by omission to that of

15 commission by omission.

16 In support of these submissions, we respectfully refer the

17 Appeals Chamber to pages 162 and 163, where my colleague from the

18 Prosecution referred to the Blaskic case as being a situation which was

19 similar in every respect to the facts of the present case. This is

20 certainly not the case, Mr. President. Firstly, the Trial Chamber in

21 this case made it clear that the facts had to be distinguished from that

22 of Blaskic. That's the judgement at paragraph 667, referring also to

23 paragraphs 553 and 554. Secondly and more importantly, when Blaskic

24 omitted to take action in respect of civilians who were used as human

25 shield, the persons committing the offence were his direct subordinates.

Page 206

1 The civilians detained in front of his headquarters were in his immediate

2 custody. His failure to do anything relates only to himself as well as

3 to his direct subordinates. All he had to do was to issue one order to

4 his subordinates or to cancel his own order and send the civilians back

5 to their village. There was no action to be taken in respect of a third

6 party trying to hurt those civilians. This is why, in these

7 circumstances, his failure to take action was considered by the

8 Appeals Chamber, in our respectful submission, as a deliberate and

9 intentional omission because when he left his headquarters on that day,

10 he must have seen the civilians held by his subordinates in front of his

11 headquarters. He knew already that the offense of human shields, of

12 using civilians as human shields, was being committed or, if not, already

13 consumed, and all he had to do to protect those civilians was to cancel

14 his own order, which was within his prerogative. He left without doing

15 so.

16 To the extent that Blaskic may have been convicted for aiding and

17 abetting, which in the view taken by the Trial Chamber in this case,

18 based on the indictment, of course, that's not clear, then it can only be

19 that he provided moral encouragement and support to his own subordinates

20 guarding the civilians because his subordinates knew he was there, and he

21 condoned their actions. Both scenarios, Mr. President, are unrelated to

22 the situation of Mr. Sljivancanin.

23 Lastly, with respect to aiding and abetting, my colleague from

24 the Prosecution referred to the Essen lynching case as being a case which

25 was strikingly similar to the present case. That was at page 165. It is

Page 207

1 our submission, Mr. President, that the Essen lynching case deals with

2 culpable omission and/or a case of inciting, both of which do not find

3 application here.

4 The next issue I'd like to address --

5 [Defence counsel confer]

6 MR. BOURGON: I will stop here, Mr. President. I'm short of

7 time. My colleague will take over for the remainder of the reply this

8 morning.

9 Thank you, Mr. President.

10 MR. LUKIC: [Interpretation] Thank you very much, Your Honours.

11 Good morning to Your Honours. Good morning to all participants

12 in the proceedings.

13 In response to the first ground of appeal concerning the error of

14 the Trial Chamber when they established the presence of Sljivancanin at

15 Ovcara, the OTP did not present any arguments challenging the very

16 essence of the Sljivancanin appeal, and those are the errors made by the

17 Trial Chamber. Instead of that, the OTP, for the most part, repeats the

18 arguments of the Court from the judgement without referring to the

19 allegations from the appeal at all.

20 The OTP, further on, gives their own assessment and

21 interpretation of the evidence, and that is most obvious when they

22 compare the testimony of Dodaj and P-009. Claiming that they were at

23 different places and that they had a different perception of events is

24 something that the Prosecutor could not and should not do, saying that

25 that is the only thing that the Court could establish.

Page 208

1 The testimony of Witness P-009 is untenable because the Court did

2 not establish a comparison between the testimony of these two witnesses,

3 and that is the error that concerns the convincing quality of this

4 testimony.

5 We are aware of the fact that it is not the duty of the Trial

6 Chamber to deal with each and every piece of evidence, but it is exactly

7 the standard from the appeal judgement in Kvocka, paragraph 23, that we

8 invoked in paragraph 76, confirms our position that that is the

9 obligation of the Court when the evidence is clearly relevant.

10 THE INTERPRETER: Interpreter's note: Could the speaker please

11 slow down. Could he please read slower. Thank you.

12 MR. LUKIC: [Interpretation] What evidence can be more relevant

13 than this kind of testimony, a witness who is there at the same time, as

14 we see that the Prosecutor accepts, and on the other hand he doesn't see

15 Sljivancanin.

16 Speaking of the conclusion for the appeal decision in

17 Nata-Kira-Timana shows the importance of this assessment that was

18 established by the Court in that case but not here.

19 If we look at the transcript from Wednesday, page 190, the

20 Prosecutor claims that the Trial Chamber bore in mind these different

21 vantage points, and that cannot be found in the judgement, so how could

22 the OTP come to that conclusion?

23 The two sketches that were shown to you, namely, Exhibits 238 and

24 282, only confirm the thesis of the Defence on the inaccuracy of the

25 testimony of P-009. He had to pass by Dodaj and three other deserters

Page 209

1 and two high-ranking officers of the JNA, whereas he testified that he

2 had not seen them. He states unequivocally that there and then, there

3 weren't any officers or a group of prisoners, including Dodaj. That is

4 what he decidedly said; transcript reference 6283.

5 The Prosecutor refers to the testimony of Berghofer and many

6 others about the appearance of Mr. Sljivancanin. Could this kind of face

7 that cannot be forgotten, as Berghofer said, be imperceptible in an area

8 that you saw on these sketches from the vantage point where Dodaj stood

9 for over one hour? In addition to the beatings that he observed, he also

10 testified that the colonels that he stood with showed him the fields in

11 front of the hangar - page reference 5537 - the ignition of the bulldozer

12 - on the same page - the arrival of officers in a jeep; 5539. He also

13 said that he saw the departure of the buses; page reference 5540. He

14 confirmed that he did not see any kind of digging of a hole in front of

15 the hangar or on the other side of the road; that is to say that he

16 observed a great deal of things, and he testified about that inter alia

17 in response to Prosecution questions.

18 The Prosecutor claims that the testimony of P-009 is consistent

19 with the sequence of events on that day, which should confirm the

20 credibility of his testimony. To be quite clear, we do not claim at all

21 that P-009 was not in these places that are mentioned. We claim that he

22 could not see Sljivancanin there because Sljivancanin at that time could

23 not have been at those places. The fact that one witness, an

24 eye-witness, testifies in that way in order to -- and we see that this

25 fits into the sequence of events that are established by the Court, can

Page 210

1 certainly not be an argument that supports his credibility.

2 Look at the testimony of P-022, who is also in different places,

3 that the Court established, including the executions, but he was not

4 credible enough in order to establish the responsibility of Captain

5 Radic.

6 P-009 was present and active at these places when the crimes were

7 committed. We are not saying that he was a participant in the commission

8 of crimes, but he claims that he did not see the crimes of beatings in

9 the hangar; transcript reference 6284. He had an interest in terms of

10 not telling the truth; Dodaj, no.

11 In relation to all other errors of the Trial Chamber that the

12 Defence indicated in the first ground of appeal, the OTP in their oral

13 response only repeated the findings of the Court. The OTP did not give

14 any specific answer to the paragraphs of the appeal. Instead of that,

15 they decided to quote the paragraphs of the judgement that are being

16 challenged. You can see that on transcript page 186-187.

17 Thank you, Your Honours. We have completed this part of our

18 submissions. I would kindly ask if Mr. Bourgon could deal with another

19 subject just for another five minutes, with the permission of the

20 Appeals Chamber.

21 JUDGE MERON: For five minutes, certainly, but please do not

22 exceed the time.

23 MR. BOURGON: Thank you very much, Mr. President. I will not --

24 I just wish at this time to briefly address Ground 5, which the

25 Prosecution commented upon in its response.

Page 211

1 Mr. President, it was our submission, as a ground of appeal, that

2 it is reasonable to infer, on the basis of the totality of the evidence

3 on the record, that if Mr. Sljivancanin was at Ovcara on 20 November 1991

4 and left without taking action, he did so and that he had no -- he did

5 not know that by doing so he was assisting the commission of a crime.

6 I mention the first reason for this, and that was the actions

7 taken already in Ovcara which he must have seen, actions taken by both

8 the Chief of Staff of Operational Group South and the commander of 80

9 Motorised Brigade, who was -- who were present. But it is our submission

10 that the Trial Chamber should also have considered that Sljivancanin's

11 knowledge on that day and at that time, and his knowledge, what he knew,

12 is that as long as the prisoners of war were under the security and

13 authority of the JNA, any attempts by members of the TO to commit crimes

14 could be stopped and the situation placed under control. It happened

15 that same morning at the JNA barracks, even though it is our submission

16 that Sljivancanin was not there. Another example took place two days

17 earlier. Under the security of the JNA, a group of prisoners of war was

18 accommodated at Ovcara before being transferred to Sremska Mitrovica,

19 without any incident.

20 Moreover, the Trial Chamber found at paragraph 672 something that

21 is very relevant. The Trial Chamber concluded that since the prisoners

22 of war remained under the security and authority of the JNA at Ovcara,

23 Sljivancanin could reasonably have believed in the circumstances that the

24 TOs and paramilitaries would be unlikely to resort to killings. If he

25 did not see, as we say, the beatings, he could also reasonably believe

Page 212

1 that the situation was under control.

2 Thank you very much, Mr. President. This concludes our

3 submissions in reply to the Prosecution response.

4 JUDGE MERON: Thank you, Mr. Bourgon.

5 Do any of my distinguished colleagues have questions? No. So we

6 will now turn to the Prosecution.

7 You have one hour, as you know.

8 MS. BRADY: Thank you.

9 JUDGE MERON: So you will be addressing the Court now, Ms. Brady?

10 MS. BRADY: I'm addressing the Court now, Your Honours.

11 I'd like to give, firstly, a brief outline of how we will be

12 addressing this morning the Prosecution's appeal.

13 As you know, we have four grounds of appeal; Ground 1, which

14 relates to the application of Article 5, crimes against humanity to this

15 case; Ground 2, relating to Mr. Sljivancanin's acquittal for murder; and

16 Grounds 3 and 4, which relate to the manifest inadequacy, in our

17 submission, of the sentences of 5 years and 20 years, respectively, given

18 to Mr. Sljivancanin and Mr. Mrksic.

19 Now, in light of the time, because we have one hour and we want

20 to use our time efficiently and appropriately, we won't this morning be

21 making submissions on sentence on Grounds 3 and 4, on Mr. Sljivancanin or

22 Mr. Mrksic's sentence. We rest entirely on our briefs for those two

23 appeals. What we will be making submissions on this morning are Ground

24 2, relating to the acquittal for murder, and Article 5. I anticipate

25 that the majority of this morning's first hour will relate to that

Page 213

1 acquittal for murder - and this is Ground 2 - and I'll be making

2 submissions on behalf of the Prosecution. At the same time, Your

3 Honours, I will be answering both questions that Your Honours have posed

4 in the addendum relating to this ground of appeal; firstly, the question

5 about whether his duty continued and, secondly, whether he knew of or

6 learned of Mrksic's order to withdraw the JNA troops. After that,

7 Mr. Dalal, my co-counsel, will briefly answer Your Honour's question

8 concerning Article 5, and in particular its application to the facts of

9 this case.

10 So if I could begin, then, on my submissions on Ground 2 relating

11 to his acquittal for -- Mr. Sljivancanin's acquittal for aiding and

12 abetting murder.

13 Veselin Sljivancanin was convicted for aiding and abetting the

14 torture of some 200 prisoners of war held at Ovcara on the 20th of

15 November, 1991, and on the first day of this hearing, we demonstrated why

16 this conviction, his conviction for these crimes, must be upheld. But in

17 our submission, his criminal responsibility should not have ended there.

18 Sljivancanin should have been convicted not only for the torture endured

19 by the prisoners that fateful afternoon, but also for their murders later

20 that night, the murder of 194 people, 194 people whom he was duty-bound

21 to protect, and despite his ample powers and authority, he took no steps

22 to prevent their impending fate, and that is what our appeal is about.

23 In our submission, the only reasonable conclusions are the

24 following: Firstly, that Sljivancanin knew from the time he was at

25 Ovcara that without taking further action to protect the prisoners, the

Page 214

1 violence that he saw being unleashed upon the prisoners by the Serb TOs

2 and paramilitaries was very likely to escalate to murder.

3 Second, once he returned to the command post at Negoslavci that

4 evening, his knowledge of murder escalated upon learning that the last

5 vestiges of this security, the remaining JNA, were to be withdrawn, and I

6 will be spending time on this in my submissions, and I'll develop this

7 further today, especially when I answer Your Honour's third question.

8 The third only reasonable conclusion: Sljivancanin was under a

9 duty that day to protect the prisoners, a duty that remained on him

10 throughout the course of the day and the night, and here, of course, I'm

11 talking about the period after 9.00 when they were murdered, and in this

12 regard I will be developing today in some detail this argument when I

13 answer Your Honour's second question.

14 Finally, by failing to take any steps to protect the prisoners

15 from harm that afternoon and evening, Sljivancanin substantially

16 contributed not only to their beatings and tortures, but also to their

17 murders later that night.

18 The Trial Chamber's reasons for acquitting Sljivancanin for the

19 murders were, in our submission, unreasonable. Very briefly, firstly, it

20 failed to find that he knew at the time of his visit to Ovcara that

21 killings would be committed because in their reasoning, then the

22 prisoners were then under JNA guard. This is its finding in relation to

23 mens rea at paragraph 673, and in this respect, it factually erred. And

24 having factually erred in this regard, the Trial Chamber then disregarded

25 the entirety of his culpable omissions in the afternoon, afternoon to

Page 215

1 early evening period, that is, before the JNA withdrew, as being a

2 substantial contribution to their later murders.

3 The second way the Trial Chamber erred is that since the murders

4 occurred after the JNA soldiers withdrew from Ovcara, an event which they

5 found terminated Sljivancanin's delegated authority from Mrksic, the

6 Trial Chamber said it could not be -- it could not be said that he failed

7 to discharge any legal duty to the prisoners. This is their error in

8 relation to the actus reus of the offence at paragraph 673, and in this

9 it legally erred.

10 Finally, Your Honours, the Trial Chamber simply failed to make

11 any findings regarding his state of knowledge from 8.00, 8.00 p.m., when

12 he returned to Negoslavci. Now, the relevant place it would have done

13 this would have been -- we would have seen it in the judgement in

14 paragraph 389, but there's no finding about whether he knew that they had

15 been ordered to withdraw the JNA -- excuse me, there's no finding that he

16 knew that the JNA had been ordered to withdraw, and this becomes relevant

17 to the Trial Chamber's error in relation to duty because we're asking

18 this Appeals Chamber to find that the Trial Chamber legally erred in

19 finding that the duty had expired. Then, having found that the duty

20 continued, having found the Trial Chamber committed legal error, they

21 should have found the duty continued, you should apply this correct legal

22 standard to the evidence in the trial record and find that he did know,

23 at least from that point onwards at 8.00 p.m., that the prisoners would

24 be murdered. And, indeed, as I'll show you today, it's the only

25 reasonable conclusion.

Page 216

1 I'll turn first to the Trial Chamber's error regarding the

2 mens rea. We call this in our brief "the knowledge error." Picture the

3 scene that Sljivancanin must have witnessed, that the Trial Chamber found

4 Sljivancanin must have witnessed at Ovcara that afternoon. Prisoners,

5 many of whom were already sick or wounded, were being unloaded from the

6 buses in groups, and then after being questioned and stripped of their

7 valuables and identification, they were then forced to pass between two

8 rows of TOs and paramilitaries with some 10 to 15 people on each side,

9 all the while being beaten by the TOs and the paramilitaries using

10 sticks, rifles, poles, chains, and other such implements. As an isolated

11 event, this vicious scene would have been very alarming for even a casual

12 observer, but the point is this was not an isolated event, and

13 Sljivancanin was not a casual bystander.

14 And I think first it's important to look at who Sljivancanin was.

15 At the time, he was a major in what could be regarded as the most elite

16 unit of the JNA, itself a highly-efficient and disciplined army. Mrksic

17 had put him in charge that day of evacuating and transferring the

18 prisoners from the hospital, including securing their safety and

19 security, and he'd been authorised to use as many military police he

20 needed to accomplish this mission.

21 And now consider, if you will, Your Honours, what he already knew

22 when he was witnessing this violent scene unfold in front of him at

23 Ovcara. As the Trial Chamber found, he already knew of the violent

24 behaviour and propensity of the TOs, but the Trial Chamber also found

25 that he could have reasonably believed that they weren't in danger of

Page 217

1 being killed because at that stage they were under JNA guard, and it's

2 this finding in paragraph 672 that was wholly unreasonable when you

3 consider this: He knew in the preceding months that Serb TOs and

4 paramilitaries had been increasingly antagonistic towards persons they

5 perceived as Croat defenders. He said he'd read some of these reports of

6 sadistic abuse and killings. He knew that only the night before at

7 Velepromet, and despite, despite some regular JNA soldiers, that is, in

8 the form of the Guards Motorised Brigade, military police guarding

9 prisoners, Serb TOs and paramilitaries had not only been mistreated but

10 killed Croat victims held there.

11 What else did he know at that point in time while he's watching

12 this scene unfold? He knew that that very day, in fact, just a few hours

13 earlier, regular JNA soldiers had been present at the JNA barracks, these

14 military in the form of the military police of the Guards Motorised

15 Brigade, and yet still the TOs and the paramilitaries had been able to

16 harass and violently beat prisoners from this group that were being held

17 at the barracks en route to Ovcara. Most significantly, as Sljivancanin

18 himself saw, again, the TOs and the paramilitaries have turned up at

19 Ovcara, and despite the regular -- the presence of regular JNA soldiers,

20 the TOs and the paramilitaries were able to savagely beat the prisoners

21 as they were being unloaded, and, indeed, I note paragraph 235 of the

22 judgement, which notes that the evidence is that some may even have

23 joined in.

24 I also note, in that paragraph, that there are findings that the

25 JNA military police, who had provided security on the bus, stayed on the

Page 218

1 bus while this savage beating was going on, and the 15 to 20 JNA soldiers

2 who were there apparently to secure the area, the military police of the

3 80th Motorised Brigade, failed to stop the violence.

4 Now, we acknowledge that at times, as my learned colleague has

5 pointed out, at times the regular JNA had been able to maintain and

6 restore some degree of order and security; for example, eventually at

7 Velepromet when they loaded -- the night before when they loaded the

8 prisoners onto the buses. Likewise, eventually at Ovcara -- at the JNA

9 barracks, even for short periods at Ovcara. But at best, the security

10 situation can be described and would have appeared to Sljivancanin as

11 highly fragile, highly volatile, despite some briefs -- some brief lulls

12 in the violence. The totality of the evidence demonstrates that on the

13 whole, JNA military police and other regular JNA units had been largely

14 ineffective in the face of Serb TO and paramilitary determination to seek

15 revenge and harm Croat prisoners, and this was something he well knew.

16 So by the time he was at Ovcara, Sljivancanin knew not only that

17 Serb TOs and paramilitaries were capable of killing - that's the Trial

18 Chamber finding at paragraph 672 - most critically and contrary - this is

19 where we disagree with the Trial Chamber's findings - he knew that the

20 mere presence of a relatively small group of JNA soldiers without proper

21 instruction or leadership offered but a veneer, a veneer of protection

22 for the prisoners, and that if left unchecked, if no action was taken to

23 get the situation firmly under control, not only would beatings and

24 tortures continue, but there was a real likelihood that the violence

25 would escalate just as it had done at Velepromet the night before and

Page 219

1 that the TOs and the paramilitaries would succeed in fully satisfying

2 their revenge and kill the prisoners, whether or not some JNA soldiers

3 were present.

4 Now, so far, Your Honours, I've been speaking about

5 Sljivancanin's state of knowledge in the afternoon, and that's been

6 important to develop because it sets the scene for what I'm about to say

7 on his knowledge later that evening.

8 Now, what about his knowledge when he returned to Negoslavci in

9 the evening? And this brings me now to answer Your Honour's third

10 question that you've asked: When did he learn about Mrksic's order to

11 withdraw the JNA from Ovcara? The only reasonable inference that can be

12 drawn from the totality of the evidence is that when Veselin Sljivancanin

13 returned to the command post at Negoslavci that evening, he must have

14 learned of Mrksic's order to withdraw the remaining JNA from Ovcara. It

15 is simply inconceivable, based on his assigned role, based on JNA

16 military doctrine, and based on his specific discussions that he had with

17 the prisoners -- sorry, excuse me, specific discussions that he had about

18 the prisoners with his two subordinates, Vukasinovic and Vukosavljevic

19 and his commander Mrksic, upon his return, it is inconceivable that he

20 was not so informed.

21 Let me take you through that evidence, and I want to start, if I

22 may, with Sljivancanin's own testimony about the conversations -- the

23 discussions he had upon his return to Negoslavci, and I start first with

24 Vukasinovic, his discussion with Vukasinovic, and what he says

25 transpired, and he gives this evidence at transcript page 13663. And

Page 220

1 according to Sljivancanin, Vukasinovic told him that the prisoners had

2 been taken to Ovcara that day and that he, Vukasinovic, had observed

3 violent behaviour by the TOs and the paramilitaries to the prisoners, but

4 he'd managed to regain order and that the prisoners went into a hangar

5 secured by the military police of the 80th Motorised Brigade, and

6 Sljivancanin said that at this point, he was surprised to learn that

7 they'd been taken to Ovcara.

8 Now, of course, we know this is something the Trial Chamber did

9 not believe him on, this surprise that the route had changed, because

10 they found he was at Ovcara in the afternoon and that, in fact, he had

11 been involved in that transmittal of that order for them to go to Ovcara.

12 Now, the second conversation he has when he gets back to

13 Negoslavci is with his subordinate Borisavljevic, and according to

14 Sljivancanin, Borisavljevic told him that there had been a meeting of the

15 so-called SAO government, and at this meeting, and I quote from

16 Sljivancanin's testimony at transcript page 13664, at this meeting:

17 "The decision had been taken for the prisoners who had been taken

18 from the hospital to be handed over to the government so that they could

19 be exchanged for captured Serbs."

20 So having had these two conversations, what next does

21 Sljivancanin do? Well, he says he went to report to Mrksic, and he was

22 asked, Why did he go at this point to report to Mrksic, and he gives his

23 answer at transcript page 13986. These are his reasons:

24 "You asked me why I went to see Mrksic, and that's precisely what

25 I am trying to explain, because of what he" - Vukasinovic - "told me,

Page 221

1 when he told me about those people going to Ovcara and not Mitnica, and

2 also because of what Vujic had told Borisavljevic, that someone from

3 higher up had given orders for those people to be taken over or

4 surrendered to the government, so I went to see the commander to see

5 whether that was in fact true."

6 Now, just to take it in chronological order, what did

7 Sljivancanin say Mrksic told him? Now, we have to recall, by this stage,

8 as the Trial Chamber found, Mrksic had already -- on the Trial Chamber's

9 finding, Mrksic had already given his order for the remaining JNA, in the

10 form of the military police of the 80th Motorised Brigade, to leave

11 Ovcara, and on the Trial Chamber's findings, he had conveyed that order

12 through Sljivancanin's own deputy, Karanfilov.

13 So with that in mind, what does Sljivancanin say that Mrksic told

14 him? And again, I'm quoting from Sljivancanin's testimony, transcript

15 page 13665. This is what he says that Mrksic told him:

16 "We have completed our missions. The Guards Brigade is pulling

17 out to get some rest. All the commitments in this area will be taken

18 over by the 80th Motorised Brigade and the Vukovar TO --"

19 THE INTERPRETER: Thank you for slowing down when reading.

20 MS. BRADY: I apologise to the interpreters:

21 "Today, a government meeting was held at Velepromet. They will

22 now start setting up civilian authorities. They also took charge of a

23 group of suspects from the hospital who had been brought to the barracks

24 in order to later be exchanged for captured Serbs."

25 Now, having had all this information come to him, what did

Page 222

1 Sljivancanin think? Well, when asked in cross-examination, he said -- he

2 concluded that -- he concluded that the --

3 JUDGE MERON: Excuse me.

4 [Appeals Chamber confers]

5 JUDGE MERON: Please continue.

6 MS. BRADY: Yes, thank you.

7 So having heard all this information, what did Sljivancanin

8 think? Well, he concluded that the, quote, "security would now be taken

9 over by a fresh, well-rested unit. They were in charge of the area, and

10 there could be no further riots or anything there."

11 So what did Sljivancanin do at this point? He didn't pursue the

12 matter about the prisoners any more with his commander, Mrksic. He

13 didn't ask any follow-up questions about their fate or their destination.

14 Instead, he went to call General Vasiljevic, his boss in the SSNO, about

15 an unrelated matter concerning some documents, and then, after that, he

16 went and watched some television that evening because he heard there was

17 going to be some footage about Vukovar that day on the TV and that there

18 might be some footage of him on it.

19 So, Your Honours, imagine this: He'd specifically gone to see

20 Mrksic to voice concern about the prisoners having been taken to Ovcara

21 and to brief him on reports of violence and to see if it was true that

22 they were going to be handed over to this so-called government, a

23 government that he -- a government that he had difficulties seeing was a

24 legitimate government. Mrksic then confirms, indeed, that this hand-over

25 to the government was -- had taken place or was going to take place. In

Page 223

1 Sljivancanin's mind, this could only have meant that the situation for

2 the prisoners was getting even more precarious. He asked no follow-up

3 questions about the prisoners, and he instead, in his own words,

4 concludes that, quote "people were safe." That's at transcript 13982.

5 Apparently, he says on the basis of being told, that the 80th Motorised

6 Brigade was there in the area.

7 Sljivancanin's testimony that he believed that the military

8 police of the 80th Motorised Brigade was looking after this situation is

9 clearly a lie, just like his testimony that he did not go to Ovcara that

10 day. This is a further example of lies that he has told in this case to

11 distance himself and to down-play his knowledge of the events that day.

12 It is simply inconceivable that Mrksic, in the course of a specific

13 conversation with Sljivancanin about the prisoners, in which he confirmed

14 that the prisoners now had custody -- were now in the custody of the

15 government, would not only omit telling Sljivancanin this highly relevant

16 piece of information, that he had ordered the JNA to withdraw, but would

17 actively mislead Sljivancanin into thinking that the JNA, the 80th, would

18 remain in Ovcara when he, in fact, had already ordered their removal.

19 And when Mrksic himself already by this stage, on the Trial Chamber's

20 findings, had already sternly questioned Vojnovic when he came to him

21 that evening on why his units of the 80th were still there, it is equally

22 inconceivable that Sljivancanin, who had been specifically entrusted by

23 Mrksic with the transfer and security of this group of prisoners - and

24 that's a Trial Chamber finding - and even though he knew that the TOs

25 were beating and torturing the prisoners that day - another Trial Chamber

Page 224

1 finding - and even though he was aware of an order from the 1st MD,

2 military district, on the 19th of November, 1991, forbidding the exchange

3 of prisoners - that's Exhibit 442 - he did no follow-up with Mrksic about

4 the prisoners, even though it was an inherent part of his duty that day.

5 Sljivancanin's account simply defies military doctrine. He was

6 in command of the evacuation. As such, he should have known at all times

7 what his units were doing while they were carrying out the evacuation,

8 including the military police, and I --

9 JUDGE MERON: Ms. Brady, supposing that we separate for a moment

10 the question of Sljivancanin's reason to believe that prisoners would be

11 killed prior to his learning of the order to withdraw, now you argue

12 regarding -- you argued and answered our question regarding when did

13 Sljivancanin learn of Mrksic's order to withdraw. Would you clarify for

14 us, what does from this conclusion regarding -- what would be the

15 conclusion from that argument you made regarding the time when

16 Sljivancanin learned of the order to withdraw concerning the mens rea

17 component of aiding and abetting, so a view related to mens rea, possibly

18 mens rea of Sljivancanin.

19 And, secondly, I'm still looking forward to you specific argument

20 regarding Sljivancanin's ongoing legal duties despite, despite the order

21 of Mrksic to withdraw the JNA forces.

22 MS. BRADY: Your Honours, yes, I will deal with both. I'll

23 turn to directly answering your question about how this then fulfills,

24 assuming he knows, on the basis that he knows that the order, how it

25 fulfils the mens rea, and rest assured, Your Honours, I will be coming in

Page 225

1 some detail to the question of the continuation of his duty in just a

2 moment. I have to do it in order, and we chose to do knowledge first and

3 then duty, so that's our plan this morning.

4 Our submission is quite simple. Once he learnt that the JNA had

5 been ordered to withdraw, he must have then known that the prisoners'

6 murders were all but a certainty, and this is because he then knew that

7 their last hope, the last vestige of their protection - insufficient as

8 we say it was, but it was something - that last vestige of protection was

9 to be removed, leaving the prisoners completely exposed to the

10 unrestrained violence of their revenge-seeking Serb enemies, and that's

11 how the mens rea is fulfilled upon him learning of this order, and we say

12 in the afternoon, he knew of the likelihood of murder. By the evening,

13 when he learns of the order to withdraw, the knowledge must be at the

14 level of certainty by that stage.

15 Those, Your Honours, are our submissions on why the Trial

16 Chamber's findings about his mens rea were unreasonable and should be

17 overturned. I'd like to now get to the second part of the equation, as

18 it is, on why the Trial Chamber acquitted him, and that is that they

19 found that his duty to protect the prisoners had expired by the time they

20 were killed, and so he could not be criminally liable for failing to

21 prevent their deaths.

22 Now, we've highlighted -- we've developed this argument quite in

23 full in our briefs, and in our submission, there are two aspects of this

24 actus reus finding that are incorrect, that the Trial Chamber erred on.

25 Firstly, this finding completely disregards Sljivancanin's earlier

Page 226

1 inactions, what he did not do earlier in the day that afternoon and

2 evening, and here I'm talking about the time before the JNA withdrew. It

3 simply failed to consider those as substantially contributing to the

4 murders, and we've labelled that in our brief, for clarity's sake - I

5 hope it is clear - the contribution error.

6 The second error which Your Honour Judge Meron had expressed

7 concern about in these proceedings is concerning the duty that he had,

8 and in our submission, even if his special delegated authority for Mrksic

9 terminated upon the JNA withdrawal, which the Trial Chamber -- happens

10 about 9.00 p.m., his duty to the prisoners did not expire. This duty

11 continued even after the JNA withdrew, and upon learning of the

12 withdrawal order, meaning the prisoners were now in the sole custody of

13 the TOs, he still did not -- he still did nothing to protect them, and

14 this failure to discharge his legal duty substantially contributed to

15 their murders.

16 Now, again, if I may take this -- I think it's easier for the

17 flow of things if I take this somewhat chronologically. I'd like to take

18 the second issue about the duty in a moment, when I will also answer

19 Your Honour Judge Meron's -- Your Honour's question number 2 which you've

20 posed to the parties. I would like to say before I do that a few brief

21 words, however, on the contribution error, as we have called it, because

22 it's apparent when you look at paragraph 673 that the Trial Chamber only

23 examined whether he did, in fact, breach his legal duty and thereby

24 contributed to the murders at the point in time -- at that moment onwards

25 from when the murders occurred, and in our submission, this approach was

Page 227

1 both artificial and wrong because his contribution to the murders began -

2 and I'm talking about his culpable omissions - his contributions began

3 from that time he was at Ovcara and continued up until and then

4 throughout the time that they were killed after 9. The Trial Chamber

5 disregards that it was his failure to act to discharge his legal duty to

6 the prisoners throughout the afternoon and early evening, the omissions

7 before the JNA withdrew, that did contribute substantially to the later

8 murders. And this is why his complete inaction from about 3.00 p.m.,

9 2.30 or 3.00 p.m., on the Trial Chamber's findings, when he was there,

10 for the next five or six hours, not only meant that beatings and tortures

11 continued unabated; most importantly, it meant that an environment of

12 criminality and impunity developed and escalated at Ovcara, in effect

13 setting the stage for the TOs and the paramilitaries to take their

14 brutality to its ultimate conclusion. And Your Honours will recall that

15 throughout that afternoon, he had full powers and authority for Mrksic,

16 and he could have done a number of things to prevent the situation from

17 getting out of control. I won't repeat them. They're in our brief. I

18 won't repeat them in detail, but just to state: Look at all the things

19 he could have done. He could have taken the prisoners to a place of

20 safety. He could have given proper direction to the military police

21 present. He could have greatly increased the numbers of military police.

22 He could have removed once and for all the Serb TOs and paramilitaries.

23 But not once did he take any of those basic steps. This inaction meant

24 that over the course of the afternoon, Ovcara turned into a prelude to a

25 killing field.

Page 228

1 Now, we are aware the Trial Chamber found no evidence that the

2 perpetrators perceived Sljivancanin's presence as some kind of tacit

3 approval or encouragement, but our point is different; his abject failure

4 to meet his duties to the prisoners that afternoon, in the afternoon,

5 meant that Ovcara became an environment increasingly conducive to

6 unchecked violence. Let's not forget that it was during the afternoon

7 that the beatings and the tortures continued, that the hole for the mass

8 grave was dug, that the numbers of TO went from 30 to 300. It was just a

9 matter of time before that violence spiraled so out of control that

10 killings became the reality, and that's exactly what happened. So that's

11 the first error on the actus reus finding in paragraph 673, not

12 considering his inactions in the afternoon.

13 Finally, Your Honours, the Trial Chamber made a second error in

14 paragraph 673; put simply, that his duty to the prisoners expired when

15 the JNA withdrew by 9.00, and he had no further duty to them after that

16 point in time during which they were killed, and in this regard, in this

17 finding, the Trial Chamber legally erred.

18 And finally, Your Honours, I would like to answer your question,

19 number 2 in the addendum. You've asked: Should the Appeals Chamber find

20 that Sljivancanin was under a duty to protect the prisoners of war,

21 pursuant to international humanitarian law, did this duty continue, and

22 on what basis?

23 In our submission, as the person entrusted by Mrksic with the

24 custody and control of the prisoners and with their -- with

25 responsibility for their safety and security, Sljivancanin was obliged

Page 229

1 under the Laws and Customs of War to protect the prisoners from harm, and

2 this duty to protect the prisoners continued even beyond Mrksic's order

3 to withdraw the JNA. That's our basic proposition, which I'll develop.

4 Mr. Bourgon this morning pointed to a finding of the Trial

5 Chamber - I think it was paragraph 391, if I'm not mistaken - essentially

6 to the effect that his entrusted duty only went so far as

7 Sremska Mitrovica. Your Honours, this is a way-too-narrow reading of the

8 Trial Chamber's findings, and I point you to paragraph 4667 to 668. It

9 is clear from those findings that the entrusted responsibility was not

10 and was not read as narrowly by the Trial Chamber, that he was to be

11 responsible, in fact, for the transport, including the security and

12 safety of the prisoners to their destination, and that's what

13 paragraph 400 says, and that's the Trial Chamber's finding.

14 And I think Your Honour's -- Judge Meron's question about

15 flexibility and a common-sense interpretation must apply here. It

16 couldn't be so fixed that it is simply to Destination A, and if

17 Destination A changes to B, that it could not also include Destination B.

18 And that's clearly the Trial Chamber's finding, that Destination B, i.e.,

19 Ovcara, was encompassed within the scope of his entrusted authority.

20 There can be no real question that, as the Trial Chamber found,

21 Sljivancanin was under a duty earlier that day to protect the prisoners

22 of war. If I -- I understand that the Defence does not take issue with

23 the basic proposition that there is a duty to protect prisoners who are

24 in your custody and control. He made that submission more clear this

25 morning.

Page 230

1 We -- on the first day of this hearing, we did not say that

2 Sljivancanin did not have a duty. In fact, our position is he did have a

3 duty. We acknowledge that it may not have fallen within the normal

4 security organ function to be the repository of being the person who has

5 the control and custody of prisoners. However, in this case he was

6 entrusted specifically by Mrksic with this job, as it were. He had this

7 specifically entrusted on him.

8 Now, to clarify where the duty stems from, the duty, as has been

9 discussed here, stems from Article 13 of the 3rd Geneva Convention, the

10 duty to humanely treat prisoners of war at all times and to protect them

11 from violence and intimidation, and Article 12 of the 3rd Geneva

12 Convention, the duty not to transfer the prisoners of war to a lawless,

13 hostile, and violent party. And we note, Your Honours, that these duties

14 were reflected in the JNA regulations, Exhibit 396, in particular

15 regulation 202 and 210, as well as other applicable JNA guide-lines. In

16 particular, I point Your Honours to Exhibit 856, paragraphs 255 to 261,

17 and Exhibit 581.

18 The Blaskic appeals judgement at paragraph 663 as well as the

19 Oric trial judgement at paragraph 304 have recognised that a failure to

20 discharge such a duty may incur criminal responsibility under

21 Article 7(1), and this indeed accords with the World War II cases that

22 we've heard something of on the first day, where accused were held

23 criminally liable for failing to protect prisoners in their custody and

24 control, including when they permitted prisoners to fall into the hands

25 of others -- other people who harmed them.

Page 231

1 The real issue in this case is what became of that duty once his

2 specific delegation for the prisoners' custody and control terminated

3 upon the withdrawal of the JNA from Ovcara. In our submission, this duty

4 continued still based on the original sources of his duty; in other

5 words, as a residue of his duties under Articles 12 and 13 of the 3rd

6 Geneva Convention, and I note in this connection that the Defence

7 concedes, in its response brief at paragraph 254, that Article 12 of the

8 3rd Geneva Convention regarding transfer of prisoners may be relevant by

9 analogy for the transfer of prisoners of war between military authorities

10 within the same armed forces. So I won't develop that particular point

11 right now. Of course, if Your Honours have questions about that, I could

12 try and assist you on that.

13 But our basic proposition, our basic proposition is that a

14 military officer in whom control and custody of prisoners of war is

15 invested must ensure a safe transition for those prisoners, a hand-over

16 to safe custody, even if he is not physically responsible for the

17 transfer. When he learns that they will no longer be humanely treated

18 and that their lives were endangered, he remains under duty to take

19 reasonable steps that are within his power to correct the situation, and

20 allow me, if I may, to develop this a little bit further and to relate it

21 to the present facts.

22 Firstly, Your Honours, we need to consider the nature and scope

23 of his duties under Articles 12 and 13. Now, as I've mentioned, during

24 the afternoon, when Sljivancanin was acting pursuant to his delegated

25 authority over the prisoners, he was under a duty in Article 13 to

Page 232

1 humanely treat the prisoners of war and ensure they were protected from

2 violence. This is a fundamental guarantee of the Geneva Conventions.

3 In addition, Article 12 required that he be satisfied of the

4 ability and willingness of any transferee party to apply the Geneva

5 Conventions to the prisoners, and based on what he saw and knew about the

6 TOs, a person in Sljivancanin's position could not have been so

7 satisfied, and, again, I am talking about the afternoon or the earlier

8 part of the day.

9 Now, we tie this in. After the prisoners were transferred, that

10 is, after the JNA withdrew by 9.00 p.m., and thereby leaving them in the

11 sole custody of the TOs, these obligations that he had, his obligations

12 under Articles 12 and 13, do not automatically expire. As the person

13 having had custody and control of the prisoners, he continued to have

14 residual duties to them. The fundamental starting point is this: It is

15 a fundamental rule of customary international law that prisoners must at

16 all times be treated humanely and protected from murder and other forms

17 of violence. This is such an axiomatic rule that I hardly need to quote

18 authority on it, but if you look at Rules 87, 89, and 90 of the ICRC,

19 Customary International Law Rules, it confirms this point that I have

20 just made.

21 It is equally clear from the Geneva Conventions and their

22 interpretation in the commentary to those conventions that there cannot

23 be a gap in that protection for prisoners of war and other protected

24 persons, and as the commentary to Article 45 of the 4th Geneva Convention

25 makes clear, when dealing with a very similar provision related to

Page 233

1 protected persons - we realise that the 4th Geneva Convention applies to

2 civilians, but it's in very similar terms to Article 12 of the 3rd Geneva

3 Convention - and I quote from the commentary to that on page 268:

4 "The power which has transferred the protected persons must not,

5 however, cease to take an interest in their fate. Although they are no

6 longer 'in its hands,' it remains responsible for them insofar as the

7 receiving power fails to fulfill its obligations under the Convention in

8 any important respect, provided that it is notified of such failure by

9 the protecting power."

10 In other words, our submission is that pursuant to the duty under

11 Article 12, the transferor bears a contingent responsibility for the

12 prisoners of war which will be triggered upon learning that the

13 transferee is failing to fulfill its obligations in any important

14 respect. Once the transferor is notified, it's then obliged to take

15 effective measures to correct the situation, or if these measures prove

16 ineffective, it must request the return of the prisoners. This is in the

17 commentary at page 138 to 139.

18 JUDGE MERON: Ms. Brady, you are arguing this is -- if I

19 understand you correctly, that this is a situation where there is a

20 conflict between the obligations resulting from the 3rd Geneva Convention

21 and the order of Mrksic to withdraw. So what in this situation is the

22 scope of obligations of Sljivancanin?

23 MS. BRADY: I will answer your question immediately, Your Honour.

24 In our submission, a member of the military who is in charge of

25 protecting prisoners of war remains under a duty to protect them when he

Page 234

1 knows that they would otherwise not be protected, and in this case,

2 bringing it back to the facts of this case, it's clear that this

3 contingency was satisfied. Sljivancanin knew that the prisoners would

4 not be humanely treated in accordance with Article 13. Indeed, he knew

5 that the prisoners had been beaten and tortured by the TOs all afternoon.

6 He knows now that their lives are in serious danger if left with this

7 group.

8 At 8.00 p.m., as I've argued previously, he learns that the JNA

9 were leaving, so as Your Honour has said, there is this conflict now

10 between the duties under the 3rd Geneva Convention and this order that he

11 has heard about that Mrksic gave them to leave to Ovcara, and upon

12 learning that, he must have known that this condemned the prisoners to

13 almost certain death, and this is enough, that we say, that should have

14 engaged his responsibility to take effective measures, and I note,

15 Your Honour, that even Sljivancanin himself testified that had he known

16 of the danger the prisoners were to face, he could and should have acted

17 to protect them. That's at transcript page 13751 to 13759.

18 And just to answer the second part of Your Honour's question, and

19 this relates, in fact, to what effective measures he should have taken at

20 this stage, now we acknowledge that what measures, what powers may have

21 been available to him, may have altered, may have changed somewhat, given

22 that he was now no longer -- at that moment that the order was given, he

23 was now no longer acting under Mrksic's specific delegated authority with

24 all of its additional powers and authorities that he was given. However,

25 Your Honours, at least, at the very least, he should have reported

Page 235

1 through his chain of command -- let's not forgot he's got his parallel

2 reporting structure up to the SSNO. He should have reported the real

3 likelihood that murder would occur if the JNA were to withdraw and the

4 prisoners left in the sole custody of this revengeful group, and yet he

5 took no steps. In that critical hour before the executions began and

6 then throughout that night, he could have done a number of things to

7 reverse their fate. I've already mentioned that he could have reported

8 to General Vasiljevic in the SSNO, and let's not forget, as an addition

9 to that, that detecting and reporting crime was an inherent part of his

10 duties as a security organ. Even he admitted that at transcript 13742,

11 and Exhibit 107 also suggests this. But he didn't even mention it to

12 Vasiljevic. He could have persuaded Mrksic not to withdraw, and again,

13 Your Honours, I point you to JNA regulations paragraph 21, which in fact

14 is a very far-reaching provision of the JNA regulations imposing personal

15 liability on an officer for violations of the laws of war if he knew or

16 could have known not only that units subordinate to him were committing

17 crimes or about to do so, but that other units or individuals were

18 planning the commission of such violations, and if there was still time,

19 it was still possible to prevent their commission.

20 But what did he do? Well, Your Honour used the example of the

21 New York -- is it right that you can go and read "The New York Times."

22 Well, it's not much different here. He went to watch TV.

23 Endorsing the Trial Chamber --

24 JUDGE MERON: Just to he remind you, you have about ten minutes.

25 MS. BRADY: Thank you, Your Honour. I'm obliged.

Page 236

1 Endorsing the Trial Chamber's rigid approach would leave a

2 significant gap in protection for prisoners of war and is inconsistent

3 with the tenor of the protections in Articles 12 and 13 of the 3rd Geneva

4 Conventions. It would subvert the purpose of international humanitarian

5 law if this withdrawal of authority acted like some kind of guillotine to

6 cut off Sljivancanin's duties to the prisoners, and in this case, the

7 injustice of the Trial Chamber's rigid approach is evident. The very act

8 which condemned the prisoners to their ultimate fate, the withdrawal of

9 the JNA, was also the act absolving him of criminal liability. The

10 guarantee of humane treatment for prisoners of war would be rendered

11 nugatory if this finding were allowed to stand.

12 In conclusion, Your Honours, the only reasonable conclusion is

13 that Sljivancanin had a continuing duty to the prisoners throughout that

14 day and night. He could have taken a number of steps in the afternoon

15 before the JNA withdrew, but he did not. Again, in the evening, after he

16 learned of the withdrawal, he could have done a number of things, but he

17 did not. His complete abdication of duty throughout that day and night

18 substantially contributed to the murders, and he was well aware of this.

19 We ask Your Honours to reverse the Trial Chamber's findings and

20 to convict Sljivancanin for aiding and abetting the murders of 194

21 prisoners at Ovcara, and we submit that the gravity of this crime demands

22 that a sentence of no less than 30 years be imposed.

23 Those complete my submissions. If Your Honours have any further

24 questions, I'd be happy to assist.

25 JUDGE MERON: I see there are no questions.

Page 237

1 MS. BRADY: Thank you, Your Honours.

2 I note the time. I believe we have about five minutes left.

3 Mr. Marwan Dalal will now briefly set out the Prosecution's position on

4 Article 5 and answer Your Honour's question in that regard.

5 Thank you.

6 JUDGE MERON: Mr. Dalal, please start.

7 MR. DALAL: Good morning, Your Honours. As Ms. Brady has just

8 mentioned, I will briefly state the position of the Prosecution with

9 regard to our first ground of appeal relating to entering convictions for

10 crimes against humanity against the accused.

11 Two issues I will mention. First, the issue of the status of the

12 individual victims of Article 5, underlying crimes. The Trial Chamber

13 did not enter a conviction for crimes against humanity against the

14 accused because it found that the victims -- the individual victims in

15 this case did not qualify as civilians, and this was at paragraphs 463

16 and 481 of the trial judgement.

17 The Prosecution submits that this issue has been resolved by the

18 Martic appeal judgement. The Appeal Chamber in Martic has provided a

19 detailed discussion of the law and concluded that also hors de combat

20 qualify as victims of crimes against humanity, provided, of course, all

21 other conditions of Article 5 are met, and this is at paragraphs 303 to

22 314 of the Martic appeal judgement.

23 Second, in relation to Your Honour's question or invitation,

24 you've invited the parties to discuss the evidence on the trial record

25 related to; (a), the requirement of a widespread and systematic attack

Page 238

1 against a civilian population, especially in relation to the events in

2 Vukovar and, (b), the nexus between the acts of the accused and such an

3 attack.

4 With regard to the widespread and systematic attack portion of

5 your invitation, we refer Your Honours to paragraphs 465 until 472 of the

6 trial judgement. At paragraph 472, the Chamber concluded that:

7 "At the time relevant to the indictment, a widespread and

8 systematic attack by the JNA and other Serb forces directed against the

9 Croat and other non-Serb civilian population in Vukovar and its

10 surrounding indeed took place."

11 We also refer you respectfully to paragraphs 17 to 59 of the

12 trial judgement.

13 With regard to the nexus requirement between the acts of the

14 accused and the widespread and systematic attack, it is also satisfied,

15 in our submission. Both accused were aware of the attack, as they took

16 part in it, starting from October 1991. This is at paragraph 465 of the

17 trial judgement.

18 Objectively, the crimes were part of the attack. The same crimes

19 were committed, also, against civilians by the same group of

20 perpetrators, TO and Serb volunteers, as part of the attack; see, for

21 example, paragraph 47 and Exhibits 312 and 636. The punishment theme is

22 common to the perpetrated crimes and to the widespread and the systematic

23 attack against the civilian population; paragraphs 471, 532, 535, and

24 510.

25 In addition, both Sljivancanin and Mrksic were aware of the

Page 239

1 violent and lawless conduct of the TO and volunteers which was directed

2 against civilians and prisoners of war during the attack against Vukovar

3 and its surrounding. This conduct included the killing and brutal

4 treatment of civilians and prisoners of war, as well as looting and other

5 violent and lawless conduct. For Sljivancanin's awareness, see

6 paragraph 664 of the trial judgement. For Mrksic's awareness, see

7 paragraph 621 and reports received by him as commander of the GMTBR

8 within the 1st Military District of the JNA, Exhibits 718, 823, 636, 819,

9 415, and 847.

10 JUDGE MERON: Mr. Dalal, were any crimes against civilians - I

11 emphasise "civilians" - committed at Ovcara?

12 MR. DALAL: In the Vukovar area?

13 JUDGE MERON: No, I did not ask about Vukovar. I ask about

14 Ovcara.

15 MR. DALAL: Ovcara?

16 JUDGE MERON: Any crimes against civilians specifically in

17 Ovcara?

18 [Prosecution counsel confer]

19 MR. DALAL: Your Honour, to answer specifically your question, a

20 group of victims - and the Trial Chamber left this open - could well have

21 been, indeed, civilians. They were not necessarily -- did not

22 participate in the fighting -- with the Croatian fighting formation in

23 the fighting that took place in Vukovar. So, indeed, at least on this

24 issue, we can say that crimes against civilians were committed in Ovcara.

25 JUDGE MERON: Well, the Trial Court was not very clear on that,

Page 240

1 but let me restate the question. Were any crimes committed at Ovcara

2 aimed at civilians? Do you have any support for that in the trial

3 judgement?

4 MR. DALAL: Not necessarily, Your Honour, but our submission is

5 that it is not necessary in order to establish the requirement that the

6 crimes were part of the widespread and systematic attack against the

7 civilian population, and --

8 JUDGE MERON: You have that with regard to Vukovar, but it has

9 not been quite demonstrated that because of geographical proximity,

10 without more, this is true with regard to Ovcara, and Ovcara, the record

11 would indicate that the crimes were committed, well, almost exclusively,

12 if not exclusively, against POWs.

13 MR. DALAL: But the location is very close to Vukovar, and

14 it's --

15 JUDGE MERON: No, I am aware of that.

16 MR. DALAL: The law does not require that the attack and the

17 crimes be in the same place, as long as we can establish a connection

18 between them, and the connection could be established by the location, by

19 the perpetrators, by the theme that was underlying against the attack and

20 the crimes committed. So the fact that even if we assume for our

21 purposes that at Ovcara crimes against -- attacks against civilians did

22 not intentionally took place, it does it not mean that the crimes in

23 question were not part of the widespread and systematic attack, and

24 I think the law of the Tribunal established that -- establishes that.

25 JUDGE MERON: So, in fact, you are arguing on the basis of

Page 241

1 proximity alone?

2 MR. DALAL: No, proximity and perpetrators. The TO and

3 volunteers participated in the attack and committed the crimes.

4 JUDGE MERON: Here we have an attack in Vukovar, which is assumed

5 an attack against the civilian population. A group of POWs, and it would

6 appear only POWs, is transported to Ovcara. There are additional crimes

7 in Ovcara. I would like to see more of a -- sort of a demonstration that

8 this is the same attack --

9 MR. DALAL: Yes --

10 JUDGE MERON: -- against the civilian population.

11 MR. DALAL: The purpose of my short presentation is for time

12 constraints. In my reply, I can read from exhibits that show that there

13 is a pattern by the same perpetrators during the attack, attacking both

14 civilians and people who were in custody of JNA. I can read from the

15 exhibits.

16 JUDGE MERON: Okay. I will not pursue that anymore because there

17 is no time.

18 Have you completed your presentation?

19 MR. DALAL: For the purposes of this short presentation, yes,

20 Your Honour.

21 JUDGE MERON: Thank you.

22 We will now have a pause, I believe, of 15 minutes, so 5 to

23 11.00, please.

24 --- Recess taken at 10.37 a.m.

25 --- On resuming at 10.55 a.m.

Page 242

1 JUDGE MERON: Please be seated.

2 Okay, we will now have response by the counsel for Mr. Mrksic.

3 One hour and thirty minutes.

4 MR. VASIC: [Interpretation] Thank you, Your Honours.

5 I think that we will not use up all the time we have at our

6 disposal, so that perhaps the proceedings will be very expeditious today.

7 JUDGE MERON: That is good to hear.

8 MR. VASIC: [Interpretation] Thank you, Your Honours.

9 I will respond to question number 1 concerning liability under

10 Article 5 of the Statute, and my colleague, Mr. Domazet, will deal with

11 some other issues and circumstances which are important for sentencing.

12 As regards the elements for the existence of a crime against

13 humanity, we submit that all five elements have not been met in this

14 case, as required by international customary law. We must conclude that

15 the Trial Chamber had the task of establishing beyond reasonable doubt

16 that any attack which may have taken place was such that it was primarily

17 directed at the civilian population; further, it had to establish beyond

18 reasonable doubt that there was a nexus between the actions of the

19 accused and the attack on the civilian population, so that the

20 consequences of his action would constitute an objective part of the

21 attack and the accused knew that there was such an attack and that his

22 actions were part of it.

23 After the 18th of November, 1991, on the territory of Vukovar,

24 there were no longer any combat activities or any other activities which

25 might be termed an attack. This can be concluded indirectly from

Page 243

1 paragraphs 55 and 465 of the judgement which deal with the period from

2 the 18th -- or, rather, from August to the 18th of November, 1991. In

3 paragraph 472 of the trial judgement, the Trial Chamber has in mind a

4 limited period of time, and in the view of the Defence, it follows from

5 this that after the 18th of November, 1991, there were no attacks in this

6 area, especially not attacks directed at the civilian population.

7 These submissions by the Defence are supported by certain

8 exhibits, that is, the report of the EU Monitoring Mission. That's

9 Exhibits 314, 316, 320, 321, and 322; then the reports of the Commission

10 for monitoring the cease-fire, the implementation of the cease-fire,

11 Exhibits 331, 332, 333, 334, and 865; the reports of the Command of

12 Operative Group South, Exhibits 416, 417, 418, and 421; and the reports

13 of the Command of the 1st Military District, Exhibits 423 and 425.

14 The fact that there were no longer any attacks going on is also

15 demonstrated by the presence of the European Union Monitoring Mission,

16 the arrival of the special envoy of the Secretary-General of the UN,

17 Mr. Cyrus Vance, and the negotiations on the implementation of the

18 arrival of peacekeeping forces in this area. Had there been any ongoing

19 attacks at that time, none of these activities would have been

20 undertaken.

21 Although the previous activities in this area, especially in

22 Vukovar, have to be viewed through the lens of the special situation

23 there, reflecting the tactics used by the Croatian armed forces in which

24 President Tudjman introduced his order that civilians, women and

25 children, must not leave Vukovar - that's Exhibit 844 - and throughout

Page 244

1 these combat activities there were civilians in Vukovar because of this

2 order issued by President Tudjman, and among these civilians was a large

3 number of Serbs, the fact that these operations might have been conducted

4 differently is also indicated by the fact that in the night between the

5 6th and -- the 16th and 17th of November, the members of the command of

6 the defence of Vukovar were able to leave the town without any fighting

7 or any other problems.

8 After the end of combat activities, there were no further armed

9 activities in the area, but civilians were separated off from persons who

10 had participated in the combat and who were suspected of perpetrating war

11 crimes, and most of the persons falling in this category had gathered in

12 the Vukovar Hospital. As the Trial Chamber established in its judgement,

13 their task was to try to conceal themselves and leave Vukovar together

14 with the convoy of the wounded and civilians, and this can be seen from

15 the testimony of many witnesses, including Vesna Bosanac.

16 The order issued by the Operative Group South Command, that's

17 Exhibit 419, clearly defines what the treatment of civilians, the wounded

18 and the sick should be, and this is mentioned by the Trial Chamber in

19 paragraph 474 of the trial judgement. This column was headed by Colonel

20 Pavkovic, and this convoy reached its destination.

21 Another group of persons separated off by the security organs, in

22 order to be interrogated and either prosecuted or exchanged as suspects

23 suspected of perpetrating war crimes, took a different path, and in

24 paragraph 476 of the trial judgement, we can see the conclusion regarding

25 this separating off. The persons who separated off the potential

Page 245

1 perpetrators of war crimes from the civilians and wounded in the hospital

2 and those escorting the column and guarding it later on, as well as those

3 who later on perpetrated this crime, were acting under the conviction

4 that their actions were directed against persons who were members of the

5 Croatian armed forces and potential perpetrators of war crimes who had

6 been deprived of their liberty. In part, this conclusion is based by the

7 Trial Chamber -- or, rather, is set out in paragraph 480 of the trial

8 judgement. Those acting against these persons acted in the conviction

9 that they were acting against members of the Croatian armed forces. And

10 in paragraphs 480 and 481, the Trial Chamber concludes that no reasonable

11 trier of fact could have concluded that the perpetrator had to know that

12 his actions were aimed against the civilian population of Vukovar.

13 The Defence, therefore, considers that the Trial Chamber

14 concluded rightly that the perpetrators could not have known that there

15 was a systematic and widespread attack on a civilian population because

16 there was no such attack and that it cannot be established that the

17 accused knew that their actions were part of such an attack or that there

18 was a risk that their actions should be part of such an attack.

19 According to the findings of the Trial Chamber, applying

20 Rules 51(A) of the --

21 THE INTERPRETER: Could counsel please slow down.

22 MR. VASIC: [Interpretation] -- because it included members of

23 various structures of the defence forces of Vukovar, which was proved

24 based on the documentation which was presented here by the Croatian side

25 before the Trial Chamber. These are Exhibits 345, 346, and 554, and my

Page 246

1 learned friend, Mr. Stephane Bourgon, will be saying more about this.

2 Bearing all this in mind, we submit that no reasonable trier of

3 fact could have found that there was a nexus between the actions of the

4 accused and the attack or, rather, an attack on a civilian population,

5 nor that the actions at Ovcara were part of such an attack, nor that the

6 accused had reason to know that there was such an attack and that their

7 actions could be linked to the activities mentioned by the Trial Chamber

8 in paragraph 472 of the judgement.

9 We therefore consider that there are no elements to establish the

10 liability of the accused Mrksic for the crimes mentioned in Article 5 of

11 the Statute.

12 Your Honours, if you have any questions, I have concluded my part

13 of the arguments.

14 JUDGE MERON: Thank you, Mr. Vasic. So the response -- your

15 response --

16 THE INTERPRETER: Microphone, please.

17 MR. VASIC: [Interpretation] I apologise, Your Honours. I have

18 finished with my section that has to do with Article 5, and now

19 Mr. Domazet will address --

20 JUDGE MERON: Your colleague will speak for roughly how long?

21 MR. VASIC: [Interpretation] Ten to fifteen minutes, not longer

22 than that.

23 JUDGE MERON: So I would invite you to start.

24 MR. VASIC: [Interpretation] Thank you, Your Honours.

25 MR. DOMAZET: [Interpretation] Your Honours, I am going to analyse

Page 247

1 the section that has to do with the sentence, and I'm also going to

2 review some factual matters.

3 The appeal of the OTP contests the decision on the sentence of

4 Mile Mrksic, which they believe to be too mild, not only because the

5 Prosecution considers that the accused should have been pronounced guilty

6 cumulatively, also, from acts of Article 5 of the Statute, but they also

7 consider the sentence overall to be too mild.

8 The Mrksic Defence responded to this appeal with its submissions

9 of the 18th of June, 2008, and especially in paragraphs 56 to 87 of the

10 reply, and it does not wish to reiterate their positions stated in that

11 response. But we will deal with some of the arguments that the Trial

12 Chamber also considered and that are the topic of the Prosecution's

13 appeal.

14 When we are talking about sentencing arguments, according to laws

15 of the former Yugoslavia - this is paragraph 59 of the judgement - it

16 should be said that not only the longest prison sentence provided for

17 that kind of crime in the former Yugoslavia was a sentence of 15 years

18 imprisonment, with the exception of the existence of the death sentence,

19 which was in force at the time, and possibly substituting the death

20 sentence for a 20-year imprisonment, the most important thing is that the

21 aiders and abetters, as is the case here, are sentenced much less

22 severely than the actual perpetrators of the crime or, as is the practice

23 and the terminology here, the articles of joint criminal enterprise. The

24 Trial Chamber did not even differentiate between the punishment for

25 co-perpetrators and the participants of a joint criminal enterprise,

Page 248

1 which was not established in Mrksic's case, and as pertains to the

2 sentencing for aiding and abetting for which the accused Mrksic was found

3 guilty.

4 I am going to refer now to a generally-known fact, and that is

5 that before the Special Court in Belgrade is at the moment trying a large

6 group of those who are the direct perpetrators of the crime at Ovcara and

7 who were sentenced to a sentence of over 200 years imprisonment

8 altogether, but none of the individual perpetrators were sentenced to a

9 sentence higher than 15 years' imprisonment only because the Court found

10 that that was the maximum sentence provided for under the laws in force

11 at the time. The sentence was quashed for some formal reasons and a

12 retrial is underway, and a judgement is expected to come quite soon, and

13 now the sentences are somewhat higher because some perpetrators in the

14 meantime have been arrested and are being tried with those who were tried

15 in the first trial.

16 When we're talking about the sentence of 20 years pronounced on

17 Mrksic, the Defence will not repeat the arguments that it stated in its

18 appeals submissions, and those are that they believe that the sentence is

19 too severe and too high, and it would be severe even for much more

20 serious charges than the ones that Mrksic was found guilty of, and that

21 is aiding without the desire or intention that these persons be killed.

22 Even if the position of the Prosecution regarding cumulative charging

23 would be accepted for these events, that is, for a larger number of

24 crimes, according to Article 5 of the Statute, the sentence that would

25 reflect the overall conduct of the accused, the participation and

Page 249

1 attitude towards the executed crime, the sentence passed on my client of

2 20 years of imprisonment is not too mild; it is actually too severe and

3 too high.

4 First of all, Mile Mrksic was pronounced guilty for aiding and

5 abetting, and according to findings of the Trial Chamber, because of

6 significant practical assistance to members of the TO and the

7 paramilitary, and at the same time the Trial Chamber found that it was

8 not established that Mile Mrksic was guilty of ordering the perpetration

9 of those crimes and that it was not found that he had participated in the

10 joint criminal enterprise, whose common goal would be the perpetration of

11 these crimes. This part of the Trial Chamber's decision was not part of

12 the Prosecution's appeal, but even in spite of that, their appeal does

13 request a higher sentence, and the Mrksic Defence believes that such a

14 request is without grounds and it is untenable because in a real --

15 realistic review of all the facts presented to the Court would not lead

16 to such a sentence. The Trial Chamber itself established that the

17 sentence cannot be arbitrary or excessive. This is paragraph 683 of the

18 judgement.

19 When talking about the gravity of the crimes, the Trial Chamber

20 states that the sentence must reflect the inherent gravity or the overall

21 punishable conduct of the accused, with due attention being given to the

22 specific circumstances of the case as well as the form and degree of

23 participation of the accused. This is paragraph 684 of the judgement.

24 The correct application of these principles, in view of the fact

25 that Mrksic learned about the endangerment and harassment of the

Page 250

1 prisoners after the fact, and that beside ordering that security be

2 stepped up as needed, there is no evidence that after that any violence

3 or mistreatment of prisoners occurred until the time after 2235 hours

4 when the paramilitaries and members of the TO who were present started

5 killing them.

6 If because of awareness of this violence upon entering the hangar

7 and the mistreatment of prisoners Mrksic should be held responsible for

8 aiding and abetting, then the sentence for this aiding and abetting would

9 have to be much lower than the one that was passed on him. The Trial

10 Chamber established that in the morning, he omitted to prevent the

11 further commission of crimes of cruel treatment and torture at Ovcara, on

12 which he was informed, and the Trial Chamber finds him responsible on two

13 counts of the indictment. The Trial Chamber established that he was

14 informed by Lieutenant-Colonel Panic and Major Vukasinovic about these

15 facts. According to the positions stated in the judgement, he was

16 informed about this by 5.00 p.m. Vukasinovic did this by 5.00 p.m.

17 However, if Mrksic had not been informed about torture and cruel conduct

18 but only about the fact that the civilians and the TO were endangering

19 the safety of the prisoners, and this had occurred later in the

20 afternoon, sometime by 5.00 p.m., he nevertheless undertook steps so that

21 this would not happen anymore, and the statement of Witness Vezmarovic,

22 the -- whose testimony the Trial Chamber gave credence to, asserts that

23 from the time when he took control with his military police until the

24 end, until he left the hangar, there was no mistreatment or torture of

25 the prisoners or any contact of the paramilitary soldiers or the TO and

Page 251

1 the prisoners because the TO and the paramilitary members were removed

2 from the hangar. I refer to transcript 8428, from line 8; to 8480; 8498,

3 from line 10; 8501; and 8504. If from that point of time on, which from

4 the transcript seems to be around 5.30 when Vezmarovic took over complete

5 control, no torture or mistreatment of the prisoners actually occurred

6 until the end, and there was no killing either. This is something that

7 this witness is very decisive about.

8 It is clear to the Defence, thus, that the Trial Chamber

9 pronounced the sentence because it found that Mrksic issued the order on

10 the withdrawal of the military police from Ovcara, thus committing aiding

11 and abetting in murder, but Mrksic really did not commit such an act

12 because he never issued such an order to anyone, not even Captain

13 Karanfilov, who did not -- whom he did not see on that day at all, and no

14 evidence was presented on this, that there was any contact between the

15 two of them on that day. The Trial Chamber established, however, that

16 Mrksic conveyed or issued an order directly to Karanfilov.

17 At the time when someone did make this decision and made it

18 possible for happen [as interpreted] what unfortunately did happen, these

19 are the killings at Ovcara, Mrksic was no longer in Negoslavci, and that

20 is why he really cannot bear responsibility for possible aiding or

21 abetting. If his responsibility could have been established for what he

22 found out about the mistreatment at Ovcara, and I repeat, they occurred

23 upon the prisoners' arrival, entry in the hangar, and immediately

24 afterwards, and this is what he was informed about only after the fact

25 and not to the degree that actually happened because what he was informed

Page 252

1 about by the soldiers was more the actual endangerment and the need for

2 reinforcements rather than telling him fully what the prisoners

3 experienced when they arrived at the hangar and immediately after that.

4 In all of this the Trial Chamber, in the opinion of the Defence, did not

5 evaluate all the mitigating factors and did not evaluate or give proper

6 weight to the impeccable life conduct of Mrksic, professionally and

7 personally; prior to that, his years of service, his family

8 circumstances, and the fact that he voluntarily surrendered to the

9 Tribunal as soon as the law on the cooperation with The Hague Tribunal

10 was adopted in Serbia.

11 Especially, they did not take into account his state of health,

12 since he had open-heart surgery and the procedures that that involved

13 during his time here in the Detention Unit of the United Nations.

14 Finally, the Mrksic Defence proposes that if the Appeals Chamber

15 were not to accept the appeal and does not acquit Mrksic of

16 responsibility pursuant to all counts of the indictment and does find

17 that he is guilty for aiding and abetting, either pursuant to all the

18 counts of the indictment on which he was pronounced guilty or only for

19 some of them, we suggest that in that case, he be sentenced to a much

20 lower prison sentence.

21 MR. VASIC: [Interpretation] Your Honours, this completes the

22 response of the Mrksic Defence to the Prosecution appeal.

23 Thank you very much. If you have no additional questions, then

24 we have completed our presentation.

25 JUDGE MERON: Thank you very much for completing your

Page 253

1 presentation ahead of time. This means that we will now be able to move

2 on right away to the response by counsel for Mr. Sljivancanin. They have

3 altogether one hour and forty-five minutes. They can use now forty-five

4 minutes, and one hour we will use after lunch.

5 I also wanted to draw the attention of the parties, please, and

6 the Registry that since we are likely to complete our hearings today

7 earlier than planned on the amended timetable, I will hold the status

8 conference earlier than envisaged. We will just hold the status

9 conference, say, 10 or 15 minutes after the end of the hearing, simply to

10 enable for tapes to be inserted and so on, but we will not wait until the

11 time I have indicated for the status conference.

12 Mr. Bourgon.

13 MR. BOURGON: Thank you, Mr. President.

14 I will be presenting the first part of our response to the

15 Prosecution appeal, and I will be submitting arguments for Ground

16 number 1, crimes against humanity. And I will, of course, be answering

17 the question that was put forward by the Appeals Chamber, which was

18 suggested to us that we should answer. My colleague will answer -- this

19 afternoon will respond to the second ground of appeal, and, time

20 permitting, we will end our submissions with some remarks on sentencing,

21 which is the third ground of appeal of the Prosecution.

22 Mr. President, I move immediately to the first ground of appeal

23 from the Prosecution dealing with crimes against humanity.

24 As a result of the Appeals Chamber judgement in the Prosecutor v.

25 Martic, the Prosecution normally had two sub-grounds of appeal and has

Page 254

1 withdrawn its second sub-ground. The second sub-ground was related to

2 the definition of "civilian" in Article 50 of Additional Protocol I and

3 the applicability of that definition to crimes against humanity pursuant

4 to Article 5 of the statute.

5 Accordingly, this morning the Prosecution has limited its

6 arguments to one issue, and that was, namely, whether Article 5 of the

7 Statute requires individual victims to be civilians, and they limited

8 their arguments on this issue to saying that the Appeals Chamber decision

9 in Martic resolves the issue.

10 My submissions this morning will be presented as follows: I will

11 first address the judgement rendered by the Appeals Chamber in the

12 Prosecutor v. Martic, which deals with the same issue as that raised in

13 the Prosecution's first ground of appeal. This will allow me to briefly

14 set out our position in respect of this issue. I will then focus the

15 majority of my submissions this morning to the Appeals Chamber's question

16 related to the evidence on the trial record concerning the requirement of

17 a widespread and systematic attack against a civilian population and, as

18 the Appeals Chamber put it, especially in relation to the events in

19 Vukovar, and of course the nexus between the acts of the accused and such

20 an attack.

21 Moving on immediately to the Appeals Chamber judgement in the

22 Prosecutor v. Martic, at paragraph 302 of its judgement, the

23 Appeals Chamber found that the definition of "civilian" contained in

24 Article 50 of Additional Protocol I does reflect the definition of

25 "civilian" for the purpose of applying Article 5 of the Statute. The

Page 255

1 Appeals Chamber also found that the term "civilian," in the context of

2 Article 5 of the Statute, does not include persons hors de combat.

3 Mr. President, this corresponds to one of our main arguments set out in

4 our response brief, and we of course fully agree with both of these

5 findings by the Appeals Chamber, which we maintain are important for the

6 adjudication of this case.

7 That being said, Mr. President, the Appeals Chamber went on to

8 consider, and that is at paragraph 303 of the Appeals Chamber judgement,

9 whether the chapeau of Article 5 of the Statute, namely, that the attack

10 be directed against a civilian population, whether that chapeau also

11 requires that all victims of each individual crime under Article 5 have

12 civilian status. With respect to this issue, the Appeals Chamber

13 concluded at paragraph 307 that there was nothing in the text of

14 Article 5 of the Statute or in previous authorities of the

15 Appeals Chamber which requires that victims of crimes against humanity be

16 civilians. The Appeals Chamber went on to state at paragraph 303 that a

17 person hors de combat may thus be a victim of an act amounting to a crime

18 against humanity, provided, of course, that all other necessary

19 conditions are met; in particular, that the act in question, or the

20 crime, must be part of a widespread or systematic attack against any

21 civilian population.

22 Mr. President, for the reasons set out in the judgement under

23 appeal as further expanded upon in our response brief, we respectfully

24 disagree with this finding of the Appeals Chamber. We submit, as found

25 at paragraphs 102 and 120 of our response, that for the purposes of

Page 256

1 Article 5 of the Statute, the victims of the underlying crimes must be

2 civilians as defined in Article 51 of Additional Protocol I, which

3 specifically excludes, as we know, soldiers, members of resistance

4 groups, former combatants who have laid down their arms, and/or

5 combatants who are now hors de combat. Consequently, Mr. President, we

6 respectfully ask the Appeals Chamber to revisit its judgement in the

7 Martic case in light of the additional arguments set out in our response.

8 That being said, with a view to focusing on the question put to

9 us by the Appeals Chamber this morning, we will not expand further on

10 this issue, and I will move right away to that question.

11 The question was at follows: First of all, the question takes,

12 as a premise, that the Appeals Chamber judgement in Martic will hold;

13 namely, that a person hors de combat may be a victim of a crime against

14 humanity, provided that all other necessary conditions are met, and in

15 particular that the act in question be part of a widespread or systematic

16 attack against any civilian population. In answering the Appeals Chamber

17 question, I will first set out what our position is as to whether the

18 chapeau requirement for Article 5 is met in this case. I will then

19 expand on the underlying legal principles which must be considered, and I

20 will follow by highlighting the evidence on the record which supports our

21 position.

22 Our position, Mr. President, can be summarised as follows:

23 Firstly, on 20 November 1991, when crimes were committed at Ovcara by

24 members of the TO and paramilitaries, there was no widespread and

25 systematic attack directed on the civilian population on that day.

Page 257

1 Accordingly, in our view, this is sufficient for the chapeau requirements

2 not to be met and for the verdict of acquittal, which was returned by the

3 Trial Chamber for Counts 1, 2, 3, 5, and 6, to stand.

4 Secondly, should the Appeals Chamber hold on the basis of the

5 evidence on the record that there was a widespread or systematic attack

6 directed at the civilian population on 20 November 1991, then we say that

7 the acts committed by the perpetrators were not part of the widespread

8 and systematic attack directed at the civilian population on that day

9 and, of course, that there was no nexus between the acts committed by the

10 perpetrators and this attack. Consequently, the chapeau requirements of

11 Article 5 would not be met, and once again, this would justify that the

12 verdict of acquittal returned by the Trial Chamber for Counts 1, 2, 3, 5,

13 and 6 to stand.

14 Finally, Mr. President, the third step, should the

15 Appeals Chamber hold on the basis of the evidence in this case on the

16 record that there was a widespread or systematic attack directed at the

17 civilian population and that there was the necessary nexus between the

18 acts of the perpetrators and this attack, then it is our submission that

19 the perpetrators either did not know that their acts constituted part of

20 a pattern of widespread or systematic crimes directed at a civilian

21 population, nor did they know that their acts fitted into such a pattern.

22 Consequently, the mens rea requirement, pursuant to Article 5 of the

23 statute, would not be met, and once again, the verdict of acquittal

24 returned by the Trial Chamber for these counts should stand.

25 In this regard, Mr. President, it is our submission that the

Page 258

1 mens rea requirement must also be assessed in this case from the point of

2 view of Mr. Sljivancanin as well as from the point of view of the

3 perpetrators.

4 I now move on, Mr. President, to setting out briefly the legal

5 principles which form the basis of our position in this case.

6 Firstly, we believe that the first legal consideration of

7 importance is to understand the difference which exists between the

8 following notions: Armed conflict; attack pursuant to Article 5 of the

9 Statute; attack pursuant to Article 49(1) of Additional Protocol I; and

10 unlawful attack against a civilian population pursuant to Articles 51(2)

11 and 85(3)(A) of Additional Protocol I.

12 In this regard, it is well known that pursuant to Article 5 of

13 the Statute of this Tribunal, a requirement exists exceptionally that a

14 crime against humanity be committed in armed conflict, whether

15 international or non-international. Moreover, pursuant to the case law

16 of the International Tribunal, we know that an armed conflict exists

17 whenever there is a resort to armed force between states or protracted

18 armed violence between governmental authorities and organised armed

19 groups or between such groups within a state. I refer to Tadic,

20 paragraph 407, the jurisdiction decision of 2 October 1995, paragraph 70.

21 As for an attack within the meaning of Article 5 of the Statute,

22 it has been defined as a course of conduct involving acts of violence,

23 and it is not limited to the use of armed force, and it may also

24 encompass any mistreatment of the civilian population. This is found in

25 Kunarac Appeals Chamber judgement, paragraph 86. In this regard, it

Page 259

1 follows, Mr. President, that the concept of armed conflict and the

2 concept of attack, pursuant to Article 5, are not identical; Tadic

3 Appeals Chamber judgement, paragraph 251. The two must be separate

4 notions, although, of course, under Article 5 of the Statute the attack

5 against any civilian population may be part of an armed conflict; Kunarac

6 Appeals Chamber decision, paragraph 86.

7 Moving on quickly, Mr. President, to the definition of attack for

8 IHL purposes, pursuant to international humanitarian law. Article 49(1)

9 defines "attack" as acts of violence against the adversary, whether in

10 offence or defence. In other words, "attack," pursuant to Additional

11 Protocol I, refers to the use of armed force by one party against

12 another, which of course will be his adversary.

13 The final notion that we need to address is that of unlawful

14 attack on a civilian population pursuant to the Laws of War and as

15 defined by reference to Articles 51(2) and 85(3) of Additional

16 Protocol I. In accordance with these provisions, the term "unlawful

17 attack" on a civilian population refers to an attack, as defined pursuant

18 to Article 49(1) of Additional Protocol I, which is unlawful because it

19 is directed at a civilian population as defined in Article 51(2), and of

20 course which results in civilian death, and that is as held by the

21 Appeals Chamber in the Prosecutor v. Kordic at paragraph 67.

22 From these definitions, Mr. President, it is possible to conclude

23 the following: Firstly, an attack pursuant to Article 5 of the Statute

24 does not necessarily involve an attack pursuant to Article 49(1) of

25 Additional Protocol I. In this regard, an attack may happen during an

Page 260

1 armed conflict, and it may also -- and the attack against -- the

2 Article 5 attack, sorry, may happen during an armed conflict, and it may

3 also out-last the armed conflict. Secondly, the term "armed conflict"

4 may but does not necessarily involve an attack pursuant to Article 5 of

5 the Statute. Thirdly, an armed conflict will most likely involve

6 attacks, as defined pursuant to the Laws of War, Article 49(1) of the

7 Additional Protocol I, but the presence of attacks, pursuant to

8 Article 49(1), may very well be happening without there being an attack

9 pursuant to Article 5 of the Statute.

10 Putting all these notions together will be important when we

11 assess the facts and the evidence on the record in this case.

12 The second legal consideration which is, in our submission,

13 important is the meaning to be given to "directed against," in the

14 context of Article 5 of the Statute. The Appeals Chamber has clarified

15 that this term, "directed against," is an expression which specifies that

16 in the context of a crime against humanity, the civilian population is

17 the primary object of the attack. What is significant here are the

18 criteria which the Appeals Chamber has identified in order that if we

19 consider these criteria, we will be able to determine whether there was,

20 indeed, an attack directed against the civilian population, and these

21 include the means and methods used in the course of the attack; the

22 status of the victim - very important; the number of victims; the

23 discriminatory nature of the attack; the nature of the crimes committed

24 during the attack; the resistance to the assailants at the time; the

25 extent to which the attacking force may be said to have complied or

Page 261

1 attempted to comply with the precautionary requirements pursuant to the

2 Laws of War; and finally, to the extent that the alleged crimes against

3 humanity were committed during the course of an armed conflict, that the

4 Laws of War, of course, provide a benchmark against which the nature of

5 the attack and the legality of the acts committed can be assessed. This

6 will be, again, also important when we assess the evidence on the record.

7 The third legal consideration which is of importance, in our

8 submission, is the meaning to be given to "widespread and systematic."

9 In our view, however, these terms are well defined in the case law of the

10 International Tribunal, and there's no need to further expand on them at

11 this point.

12 The last legal consideration which is of importance, in our

13 submission, is the meaning to be given to Article 5 of the Statute, the

14 requirement that the acts of the perpetrator must constitute part of the

15 attack. The Appeals Chamber in Kunarac has confirmed that this refers to

16 the nexus which must exist between the acts of the accused and the

17 attack. The Appeals Chamber has also said that the required nexus

18 comprises two elements; firstly, the acts committed which by its nature

19 and its consequence is objectively part of the attack; and, secondly, the

20 accused must know that there is an attack directed at the civilian

21 population and that his acts are part of it.

22 With respect to the first element, as part of, namely, the

23 commission of an act which by its nature and consequences is objectively

24 part of the attack, the Appeals Chamber has held that the acts need not

25 be committed in the midst of the attack, but it must be sufficiently

Page 262

1 connected to be part of the attack. The Appeals Chamber has also held

2 that the crime must not be an isolated act.

3 Consequently, Mr. President, in our submission, the following

4 must be looked at to determine whether the crime is part of the attack:

5 The nature of the crime, the consequences of the crime, the context and

6 the circumstances in which the crime was committed, and the connection

7 between the crime and the attack.

8 As for the second element of the term "as part of," it requires

9 two things. The accused must know that there is an attack directed at

10 the civilian population, and he must know that his acts are part of that

11 attack against the civilian population. This knowledge, of course, is

12 part of the mens rea requirement for crimes against humanity. Even

13 though it is not necessary for the accused to have knowledge of the

14 details of the attack itself, the attack which was directed at the

15 civilian population, evidently the accused must have known the nature and

16 the consequences of the attack directed against the civilian population.

17 And, more particularly, what is of critical importance, that the target

18 victim group comprises civilians as defined in Article 51 of Additional

19 Protocol I. Why is this so important? Simply because when the time

20 comes to determine whether the accused knew that his crime was part of

21 the attack against the civilian population, it will be necessary to

22 compare the knowledge -- his knowledge of the target group of his crime

23 and his knowledge with the target group of the attack against the

24 civilian population. It will also be necessary to compare the knowledge

25 of the accused regarding the consequences of his acts, meaning his

Page 263

1 crimes, with the knowledge -- his knowledge of the consequences of the

2 attack against the civilian population.

3 Having looked at the legal considerations which are of importance

4 to support our submission, we can now move on to the exact questions

5 which were put to us by the Appeals Chamber.

6 Of course, the first question, which is not included, is: Was

7 there an armed conflict on 20 November 1991? The Trial Chamber held, and

8 that is at paragraph 422, that an armed conflict existed in the broader

9 area of the municipality of Vukovar and elsewhere in Croatia, which

10 commenced by the end August 1991 and continued until after the events

11 charged in the indictment. Accordingly, it is not disputed in this

12 appeal that there was an armed conflict on 20 November 1991, but the

13 most -- the more important question: Was there on 20 November 1991 a

14 widespread or systematic attack directed at the civilian population of

15 Vukovar? And to answer this question, we must first look at the events

16 up to 18 November based on the Trial Chamber's findings.

17 The Trial Chamber found - paragraph 465 - that from 23 August

18 until 18 November, the town of Vukovar and its surroundings were

19 increasingly subjected to shelling and other fire, and the damage to the

20 city was devastating. The siege of Vukovar commenced on 25 August 1991;

21 that is paragraph 37. At paragraph 465, in essence, the city of Vukovar

22 was encircled and under siege until the Croat forces capitulated on 18

23 November.

24 I also refer to the following findings of the Trial Chamber at

25 paragraph 468, where the battle of Vukovar caused a large number of

Page 264

1 casualties, both dead and wounded, combatants and civilians, and the

2 Chamber accepted as a reliable estimate that the casualties were 60 to

3 75 per cent civilian; paragraph 466, that the buildings were shelled,

4 including schools, kindergartens, and wells were also targeted and

5 destroyed; paragraph 470, that the attack consciously and deliberately

6 directed against the city of Vukovar itself and its helpless civilian

7 population, trapped as they were by the military blockade of Vukovar;

8 paragraph 472, the extensive damage to civilian property and civilian

9 infrastructure, the number of civilians killed or wounded during the

10 military operations, and the high number of civilians forced to flee,

11 clearly indicate that the attack was carried out in an indiscriminate

12 way, contrary to international law.

13 Accordingly, the Trial Chamber found that at the time relevant to

14 the indictment, there was in fact not only a military operation against

15 the Croat forces in and around Vukovar but also a widespread and

16 systematic attack by the JNA and other Serb forces directed at the Croat

17 and other non-Serb civilian population in the wider Vukovar area; 472,

18 trial judgement.

19 On the basis of this evidence, Mr. President, the following

20 conclusions can be drawn: Firstly, that from late August 1991 until 18

21 November, there was an unlawful attack against the civilian population,

22 pursuant to the Laws of War and Article 51(2) and 52(1) of Additional

23 Protocol I; secondly, in parallel to this attack, in the same period

24 there was a widespread and systematic attack directed against the

25 civilian population pursuant to Article 5 of the Statute; and, thirdly,

Page 265

1 according to the Trial Chamber, the acts of violence and the unlawful

2 acts which constituted the unlawful attack against the civilian

3 population and civilian objects, pursuant to the Laws of War or

4 Additional Protocol I, are the same acts of violence and unlawful acts

5 which it qualified as a widespread or systematic attack directed against

6 the civilian population.

7 That being said, we now turn to the period what happens between

8 the 18th of November and the 20th of November. Once again, a two-step

9 process is required. First, we need to look at the findings of the Trial

10 Chamber. It found that the Croatian forces in and around Vukovar

11 capitulated on 18 November, but on 18 November, 4.000 civilians took

12 steps to leave Vukovar and that their evacuation was assisted by the JNA;

13 paragraph 157. At paragraphs 130 to 144, the Zagreb Agreement is

14 discussed. The Zagreb Agreement was reached on 18 November, agreement on

15 a humanitarian convoy to evacuate the wounded and the sick from the

16 Vukovar Hospital, as well as a cease-fire in the area of Vukovar Hospital

17 and along the agreed evacuation route. Preparation for the evacuation of

18 the hospital was done between 18 to 20 November - that's paragraphs 180

19 to 189 of the trial judgement - and on 20 November at 700 hours in the

20 morning, the beginning of the evacuation of the hospital, at

21 paragraph 199.

22 We also need to look at the following evidence on the record, and

23 we respectfully refer the Trial Chamber to the following exhibits: 368,

24 417, 418, 419, 421, 425, 734, and 735. These exhibits, Mr. President,

25 are combat reports submitted by Operation Group South to the command of

Page 266

1 the 1st Military District Command, as well as from the 1st Military

2 District Command to the Operations Centre of the SFRY, and these combat

3 reports cover the period from 18 to 22 November.

4 We also respectfully refer the Appeals Chamber to Exhibits 314,

5 315, 316, 320, 321, 322, 323, 333, 334, 339, 340, 341, and 344. These

6 are reports prepared by the European Community [sic] Monitoring Mission

7 during the period from 16 to 27 November 1991. And of course, we also

8 refer the Appeals Chamber to Exhibit 40, which is the Zagreb Agreement,

9 which is a document setting out the agreement between the Republic of

10 Croatia and the Yugoslav People's Army, the International Committee of

11 the Red Cross, Medecins Sans Frontieres, as well as the Maltese Cross.

12 This agreement regarding the convoy to evacuate the wounded and sick from

13 the Vukovar Hospital refers to the evacuation of 20 November, and it

14 includes, among other things, an undertaking by both parties, Croatia and

15 the Yugoslav People's Army, to guarantee a cease-fire in the area of

16 Vukovar Hospital and along the evacuation route.

17 Mr. President, it is our submission that these documents

18 establish amongst other things the ongoing efforts and the intent of the

19 Yugoslav People's Army during this period to organise the evacuation of

20 civilians, to evacuate the wounded and sick, and to care for the civilian

21 population. These documents also establish that there is no more

22 shelling and no more offensive operations, although there are, according

23 to the reports, a few skirmishes where Croat forces refused to surrender.

24 Consequently, it is our submission on the basis of this evidence,

25 including the exhibits referred to and the findings of the Trial Chamber,

Page 267

1 and of course bearing in mind the criteria mentioned earlier, which must

2 be considered to determine whether there is a widespread or systematic

3 attack directed at the civilian population, and our submission is that

4 the unlawful attack against the civilian population, pursuant to

5 Additional Protocol I, ended on 18 November with the surrender of the

6 Croat forces. Also, the widespread and systematic attack directed

7 against the civilian population, pursuant to Article 5, also ended on 18

8 November 1991, as evidenced by the fact that there was no longer any

9 course of conduct involving the commission of acts of violence directed

10 at the civilian population, and, of course, there was no longer any

11 course -- any mistreatment of the civilian population.

12 In other words, Mr. President, during the period from 18 to 20

13 November, there has been a complete change in the situation, which has

14 evolved from fighting using armed force between the Yugoslav People's

15 Army and Croatian forces to a situation where both parties and, more

16 importantly, the Yugoslav People's Army, displayed the will to protect

17 the civilian population and not to hurt or mistreat the civilian

18 population in any way. We're talking about, of course, humanitarian

19 efforts. On this basis, we respectfully submit that on 20 November,

20 there was no widespread or systematic attack directed at the civilian

21 population in the Vukovar area, and that for this reason, the chapeau

22 requirements of Article 5 was not met.

23 What is significant here, Mr. President, is the parallel that was

24 established by the Trial Chamber between the unlawful attack pursuant to

25 the Laws of War and the widespread and systematic attack against the

Page 268

1 civilian population pursuant to Article 5 of the Statute. The evidence

2 makes it clear that both of them ended on 18 November 1991.

3 The third question which needs to be addressed is the following:

4 Were the unlawful acts committed at Ovcara on 20 November part of any

5 widespread or systematic attack directed at the civilian population which

6 ended on 18 November 1991? Based on the evidence on the record, the

7 answer to that question, Mr. President, is a definite no. According to

8 the Prosecution, a sufficient nexus exists between the events at Ovcara

9 because it happened two days after the end of the surrender, in the same

10 geographical area, and because it was committed by persons who were

11 involved in the fighting or the same persons who were involved in the

12 fighting, persons who would -- who harboured feelings of animosity

13 towards enemy Croatian forces. It is our submission, Mr. President, that

14 this is not sufficient to establish the necessary nexus. As we have seen

15 earlier, the nexus comprises two elements; firstly, the acts at Ovcara

16 must be objectively part of the attack - of course, the Article 5 attack

17 - by their nature and consequences; and the accused must know that the

18 crimes are part of the attack directed at the civilian population.

19 Assessing the first of these elements on the basis of the

20 evidence on the record, we find the following: Firstly, the nature of

21 the crime, the torture of prisoners of war at Ovcara, is entirely

22 different. During the fighting, before 18 November, the use of armed

23 force was directed indiscriminately at the civilian population and the

24 civilian infrastructure. Vukovar was under siege, and the fighting

25 against the Croatian forces at that moment was legitimate.

Page 269

1 Looking at the consequences of the crime, they are completely

2 different. The victims at Ovcara were exclusively prisoners of war,

3 while the victims of the widespread and systematic attack against the

4 civilian population before 18 November were primarily and mostly

5 civilians, and the consequence was devastation of the civilian

6 infrastructure. Looking at the context and the circumstances in which

7 the crimes at Ovcara were committed, they have no connection with the

8 unlawful attack against the civilian population at the time when Vukovar

9 was under siege. Active fighting was taking place between parties to the

10 conflict, and the Croatian forces had not yet surrendered. At Ovcara,

11 prisoners of war were detained and mistreated, there was no more

12 fighting, and the Yugoslav People's Army was focusing all of its efforts

13 on the evacuation and the care of civilians. As a matter of fact, a

14 clear distinction can be established between the unlawful acts of the TOs

15 and paramilitaries and even the acts and intent of the JNA forces at the

16 same moment. Consequently, the crimes of the TOs and paramilitaries at

17 Ovcara exclusively against prisoners of war were not directed at the

18 civilian population of Vukovar.

19 Assessing the second element on the basis of evidence, we find

20 the following: Firstly, it can be said on the basis of the evidence that

21 the perpetrators of the mistreatment at Ovcara were aware of the

22 widespread or systematic attack directed against the civilian population

23 up to 18 November. That being said, they knew that both the unlawful

24 attack against the civilian population pursuant to the Laws of War, the

25 shelling and so, as well as the widespread and systematic attack directed

Page 270

1 against the civilian population, pursuant to Article 5, both of them

2 ended on 18 November, and the perpetrators knew this, and they knew that

3 the focus of the JNA after that date was the evacuation and the care of

4 both civilians and the sick and wounded. The real question, then, is

5 whether they knew that their crimes, the crimes they committed, were part

6 of the Article 5 attack.

7 The following findings of the Trial Chamber are important in this

8 regard: The persons removed by the JNA forces from the Vukovar Hospital

9 on 20 November and taken to Ovcara, there by Serb forces, had been

10 specifically identified, being that they were known or were believed to

11 have been active in the Croatian forces; paragraph 480. They were

12 identified and taken into JNA custody as prisoners of war; same

13 paragraph, 480. The perpetrators of the offence against the prisoners of

14 war on 20-21 November acted in the understanding that their acts were

15 directed against members of the Croatian forces, not against the civilian

16 population. The members of the Serb forces who had custody of the

17 victims on 20 November and those who executed them that evening and night

18 at Ovcara acted in the knowledge and belief that the victims were

19 prisoners of war, not civilians, as well as in the understanding that

20 their acts were directed against the members of Croatian forces;

21 paragraphs 480, 481.

22 On the basis of these findings, Mr. President, here's what we

23 have to look at: We have two things. First, we have to look at the

24 knowledge of members of the TOs and paramilitaries concerning the

25 widespread and systematic attack before the 18th of November; then, the

Page 271

1 knowledge and the understanding of members of the TOs and paramilitaries

2 concerning their own crimes on 20 November. As mentioned earlier, this

3 comparison must take place on the basis of the consequences, the context,

4 the circumstances, and the connection, if any, between the crimes in both

5 cases. Consequently, on this basis, on the basis of the totality of the

6 evidence on the record, there's only one possible conclusion, and that

7 is, Mr. President, that the members of the TOs and the paramilitaries who

8 committed crimes at Ovcara on 20 November were not aware that these

9 crimes fit in or were part of the widespread or systematic attack which

10 -- directed at the civilian population of Vukovar, which ended on 18

11 November 1991.

12 Lastly, Mr. President, it is necessary to look at these events

13 from the point of view of Mr. Sljivancanin. Is it reasonable to think

14 that Mr. Sljivancanin knew that the mistreatment of the prisoners of war

15 at Ovcara, considering the nature, the consequences, as well as the

16 context and the circumstances in which crimes were committed, is it

17 reasonable to think that he knew that this was part of the widespread or

18 systematic attack directed at the civilian population which ended on 18

19 November? Of course not, Mr. President. According to the Trial Chamber,

20 Mr. Sljivancanin was entrusted by his commander to organise the

21 evacuation of the civilians at the Vukovar Hospital, including the triage

22 operation, to ensure that members of the Croatian forces would be dealt

23 with in accordance with the law. With the help of others, he personally

24 screened and made sure that to the best his knowledge no members of the

25 Croatian forces would evade their responsibility as potential war

Page 272

1 criminals by being evacuated with the civilians he was caring for and no

2 civilians would face legal proceedings along with members of the Croatian

3 forces who were now prisoners of war.

4 At one point, when 12 to 15 persons were returned from the JNA

5 barracks to the hospital, to the Vukovar Hospital, he did not hesitate to

6 review his own prior decisions to ensure that this was so. Some of them

7 were put with the civilians who were evacuated; others were returned to

8 the JNA barracks where they pursued with the prisoners of war.

9 And although we maintain that he was never at Ovcara, if the

10 Appeals Chamber holds that he did go there and that he did see any

11 mistreatment, there was certainly no doubt in his mind that prisoners of

12 war were being mistreated and not civilians, by members of the TO and the

13 paramilitaries who at that time did not agree nor act in accordance with

14 the humanitarian efforts of the Yugoslav People's Army, that this was

15 unrelated to the widespread or systematic attack directed at the civilian

16 population of Vukovar which ended on 18 November.

17 For all these reasons, Mr. President, we respectfully request the

18 Appeals Chamber to dismiss the Prosecution's ground of appeal and confirm

19 the verdict of acquittal returned by the Trial Chamber for Counts 1, 2,

20 3, 5, and 6.

21 Respectfully submitted, Mr. President.

22 JUDGE MERON: Thank you, Mr. Bourgon.

23 We will now break for one hour and fifteen minutes, which would

24 bring us to 1.30. We will meet at 1.30, at which time your team will

25 have one more hour to speak. I hope you will not use all of that time,

Page 273

1 but you will have up to one hour. I am not sure that we will need a

2 pause in the afternoon. I will check on the tapes question. And then

3 the Prosecutor will have 45 minutes to reply. After that, we will have

4 personal statements, if the appellants are interested in making short

5 personal statements. After that, we will have a few minutes' break, and

6 we will have a status conference.

7 So we will now rise until 1.30.

8 --- Luncheon recess taken at 12.13 p.m.

9 --- On resuming at 1.28 p.m.

10 JUDGE MERON: Please be seated.

11 So if I'm not mistaken, the counsel for Mr. Sljivancanin has

12 another up to 60 minutes.

13 MR. LUKIC: [Interpretation] Thank you very much, Mr. President.

14 I would now like to provide argumentation of the Defence that has

15 to do with our response to the second ground of appeal of the OTP. The

16 essence of it is in the alleged error of the Court in paragraph 672 of

17 the judgement. That is the core of the matter.

18 According to the Prosecutor, no reasonable trier of fact would

19 come to the conclusion that the Trial Chamber came to; namely, that

20 Sljivancanin had reason to believe that members of the Territorial

21 Defence and the paramilitaries would not attempt murder because then it

22 was the Yugoslav People's Army that was providing security for the

23 prisoners. That is paragraph 99 of the appeal. Its argumentation is

24 based on the previous knowledge of Sljivancanin about the actions of the

25 TO and the paramilitaries, as well as his awareness of the JNA not

Page 274

1 preventing these persons from committing crimes in the previous period.

2 That is what the OTP says.

3 The OTP, lacking argumentation concerning this alleged error made

4 by the Trial Chamber, actually extensively repeats the conclusions and

5 findings of the Court on the evidence provided that should show that

6 Sljivancanin was aware of the behaviour of the members of the TO as

7 persons who are capable of committing murder.

8 All assertions made by the Prosecutor on Sljivancanin's awareness

9 of previous crimes of members of the TO and paramilitaries were something

10 that the Trial Chamber did have in mind when they found what they did in

11 paragraph 672, and they unequivocally said that, stating: It is true

12 that Sljivancanin must have been aware on the basis of his knowledge of

13 the events at Velepromet on the 19th of November, 1991, that at least

14 some of the TOs and paramilitaries were capable of killing.

15 However, what the Trial Chamber established as a key fact in its

16 findings as to why Sljivancanin could have assumed there would be no

17 killings was the presence of the security of the JNA. The Prosecutor did

18 not show that the Trial Chamber erred in those findings that led to a

19 miscarriage of justice.

20 The Prosecutor did not challenge the key findings of the Trial

21 Chamber from the judgement, which had as a direct consequence this

22 consequential conclusion from paragraph 672 that we are discussing. In

23 actual fact, the Trial Chamber, in paragraphs 620 and 621, concluded that

24 the danger came to be, in terms of the lives of the prisoners in the

25 hangar, after the JNA security withdrew. The Prosecution did not

Page 275

1 challenge the evidence that the Trial Chamber refers to. Evidence

2 actually shows that the killings were committed after the military

3 security withdrew; paragraphs 252 and 294.

4 It is clear that the JNA and the members of the security of the

5 military police of the 80th Motorised Brigade were actually between the

6 immediate perpetrators of the crimes of murder and the victims. The

7 Trial Chamber did not establish that the killings occurred in the period

8 while there was security provided by the JNA at Ovcara; paragraphs 494

9 and 508. That was also not challenged by the Prosecution in their

10 appeal.

11 Had the Trial Chamber concluded on the basis of the evidence

12 adduced that there was a danger for the lives of prisoners even at the

13 time when the JNA was providing security at Ovcara and that this danger

14 had as a direct consequence a direct attack against the lives of

15 prisoners, then there could be a connection established between possible

16 previous knowledge of Sljivancanin about the proneness of members of the

17 TO in terms of committing crimes and possible incapacity to provide

18 security in order to prevent killings from taking place.

19 In contrast to that construction made by the Prosecution, the

20 Trial Chamber established that the killings started after 2100 hours,

21 that is to say, after the security withdrew. The military police of the

22 80th Brigade was that buffer in whose presence the members of the TO

23 could not jeopardise the lives of the prisoners on that afternoon.

24 The Prosecutor himself in paragraph 186 claims that the

25 withdrawal of the security of the JNA from Ovcara left the prisoners in

Page 276

1 the hands of the TO and the paramilitaries, who then killed them over

2 several hours. Then, in paragraph 199 of their appeal, the OTP says that

3 the order on the withdrawal of security after 2100 hours, the prisoners

4 remained in the hands of the TO and the paramilitaries, and that then

5 they: [In English] "... vented their desire for revenge without

6 restraint."

7 [Interpretation] And they refer to paragraph 620 of the judgement

8 as a reference for this assertion. And in that paragraph that the

9 Prosecutor refers to, the Trial Chamber, in relation to the consequences

10 of the withdrawal of security, says the withdrawal of the JNA guards

11 removed this one restraint. What followed dramatically demonstrates that

12 the JNA guards had been effective, and the gravity and intensity of the

13 hatred and desire for revenge was then able to be unleashed without

14 restraint.

15 It is not only that the OTP does not challenge these findings of

16 the Trial Chamber, but as a matter of fact they support it, and in their

17 own appeal, in their third ground, they refer to it. The Prosecutor

18 supported this same thesis two days ago - transcript reference

19 7317 - when Mr. Rogers said, in relation to Mr. Mrksic:

20 [In English] "He ordered the withdrawal of 80th Motorised

21 Brigade, the only protective force keeping the killers at bay."

22 [Interpretation] And then on page 87, line 11, he also says:

23 [In English] "When he did act, it was to withdraw the only

24 security they had and to consign them to their fate."

25 [Interpretation] In the judgement, the Trial Chamber concluded

Page 277

1 that Sljivancanin, on the basis of his prior knowledge on their behaviour

2 during the events in Ovcara, had to be aware that some of them might

3 commit crimes, including murders.

4 The Defence, in their response in paragraphs 188 through 198, and

5 also in our appeal, paragraph 441 to 467 inclusive, dealt in detail with

6 the argumentation in which we challenged the findings of the Court in

7 terms of this element of Sljivancanin's mens rea.

8 In his appeal, the Prosecutor, in support of these findings of

9 the Court, provides some evidence that would corroborate that. He bases

10 Sljivancanin's prior knowledge on written reports prior to the 18th of

11 November, 1991, his emphasis on the necessity of prevention of any kind

12 of conflict with the prisoners who were handed over on the 18th of

13 November, that is to say, two days prior to what had happened, then

14 information on the events in Velepromet obtained from Colonel Vujic, his

15 knowledge about what happened in the barracks and events in Ovcara during

16 his alleged stay there, and his alleged knowledge on the withdrawal of

17 the security.

18 In relation to these points made by the Prosecution, we wish to

19 remind you, first and foremost, that the Sljivancanin Defence asserts

20 that Sljivancanin was not in Ovcara, was not in the barracks, was not

21 informed by Vujic about the events in Velepromet, and that he did not

22 have knowledge on the withdrawal of security. We presented our arguments

23 about that in detail in various paragraphs in our reply.

24 If the Honourable Appeals Chamber accepts any one of these

25 assertions made by the Defence, then the thesis on his previous knowledge

Page 278

1 concerning the behaviour of members of the TO is untenable. Also, even

2 if you were to accept the findings of the Trial Chamber in this regard,

3 Your Honours, this should not at all change the conclusion of the Trial

4 Chamber that Sljivancanin, as stated in paragraphs 672 of the statement

5 [as interpreted], reasonably -- could have reasonably believed in the

6 circumstances that the TOs and the paramilitaries would be unlikely to

7 resort to killing.

8 Just a moment, please. What I've said here, it's not

9 "statement." It should say "judgement." I see that there is an error in

10 the transcript.

11 We wish to point out that the Prosecutor says that Sljivancanin's

12 concern that there would be a clash between the members of the JNA and

13 the first group of prisoners on the 18th of November and that they base

14 their complaint on that, and it was Karanfilov and then the security

15 followed, so if Sljivancanin had reason for a concern, this concern not

16 to have any kind of conflict occur, then it has to be established what it

17 was that actually happened because that also constitutes Sljivancanin's

18 awareness of the possibility of killings in Ovcara on the 20th of

19 November and the functioning of the JNA.

20 On the 18th of November, everything functioned impeccably. On

21 the next morning, the prisoners were transferred from Ovcara to the

22 Mitrovica prison without any incidents whatsoever. We wish to point out

23 that this is the same security, at the same place, with the same group of

24 prisoners, roughly, like two days later, when the crime that you are

25 dealing with here today actually occurred.

Page 279

1 After this security provided on the 18th of November,

2 Sljivancanin only could have been aware that there was no danger of a

3 conflict and that the members of the military police of the 80th

4 Motorised Brigade were, indeed, possible of providing security in that

5 facility for such a large number of prisoners.

6 Also, according to the judgement, the members of the JNA

7 prevented the entry of members of the TO and paramilitaries in the area

8 of the hospital on the 19th of November. That is paragraph 184.

9 Then the crimes that the Trial Chamber established had taken

10 place in Velepromet, if they're not viewed as an isolated incident, but

11 within the context of the sources of knowledge as to whether it could

12 have reasonably been assumed that killings would occur at Ovcara, this

13 leads to a completely different conclusion from that that is drawn by the

14 Prosecutor. The members of the JNA in Velepromet prevented crimes

15 through their activities. Obviously, in that facility that was under the

16 Territorial Defence, when a large number of civilians arrived on the 19th

17 of November, 1991, there was confusion and crimes did take place.

18 Obviously, like in the first moments when the prisoners arrived in the

19 barracks and at Ovcara on the 20th of November, the present members of

20 the JNA at first did not react appropriately. However, that cannot be a

21 conclusion that would indicate the passivity of the JNA in relation to

22 possible killings.

23 It can clearly be established from the findings of the Court that

24 through any activity of the members of the JNA -- that all activities of

25 the members of the JNA led to the withdrawal of TO members or, rather,

Page 280

1 that they refrained from any further assaults. This is indicated in the

2 findings of the Trial Chamber in several paragraphs in relation to

3 Velepromet; for example, when a JNA officer appeared, the attacks against

4 the prisoners stopped; that's paragraph 163. When another officer of the

5 JNA arrived, he took the members of the Territorial Defence away and they

6 did not -- they could no longer attack Witness Vujic. That is

7 paragraph 171. That means that the bus managed to leave when the JNA

8 intervened without further obstruction.

9 Then in the evening hours, certain prisoners were transferred to

10 the prison in Sremska Mitrovica with the guards of the JNA;

11 paragraph 168. There was an identical situation at the barracks. The

12 attacks of the TO and paramilitaries and the alleged passive behaviour of

13 the JNA in barracks at first could not be viewed in an isolated manner.

14 This is most tellingly demonstrated by the -- by paragraph 216 of the

15 judgement that the OTP does not challenge; that is to say, that 30

16 minutes after the bus arrived in the barracks, there was order

17 established when the military policemen of the JNA removed the members of

18 the TO and the paramilitary forces from the compound of the barracks.

19 The Prosecution witnesses, prisoners from the bus, testified,

20 stating that JNA soldiers did not allow anyone to enter the bus, and this

21 was testified to by P-012 on page 3732; Dodaj, page 5598; then Witness

22 Karlovic, then Witness P-030, page 9741. Karlovic confirmed that at that

23 moment while he was on the bus, he felt safe, since JNA security was

24 there; that is transcript reference 6335. Witness Berghofer said that he

25 was not mistreated in the barracks, and the conclusion of the Trial

Page 281

1 Chamber, in paragraph 216, supports this testimony.

2 It is clear that the JNA, through its efficient action, managed

3 to remove the members of the TO and paramilitaries from the bus and the

4 barracks and to establish full control over their security. This is the

5 information that Sljivancanin received from Vukasinovic, his deputy, and

6 that the Trial Chamber refers to in paragraph 374 of the judgement. The

7 same conclusions have to be made in relation to the events in Ovcara

8 during the course of the afternoon. Although the security at first did

9 not react in an appropriate manner, the further sequence of events and

10 conclusions of the Trial Chamber show that the security was effective and

11 efficient in relation to the lives of the prisoners, protecting the

12 lives. I would like to underline that.

13 When Captain Vezmarovic arrived, the commander of the military

14 police or the brigade that provided security for the hangar, all persons

15 except for the prisoners and security were removed from the hangar. The

16 Trial Chamber says in paragraph 265: It was only members of the military

17 police that remained in the hangar. The witness Vezmarovic testified

18 himself, and my colleague Mr. Domazet also referred to his testimony, and

19 we consider that to be very important; namely, that through his orders,

20 he fully established control in the hangar - transcript reference 8421,

21 line 19 - and that is when, in his view, the security started functioning

22 in a normal manner, and then he repeated again that from then onwards,

23 the situation was under control; 8568, line 15 is the transcript

24 reference.

25 The conclusions of the Trial Chamber in paragraph 620 that we

Page 282

1 already mentioned is unequivocal -- are unequivocal. This paragraph

2 states the JNA was, in the main, a disciplined military force with a

3 strong leadership. Then, it says, the presence of JNA guards at Ovcara

4 that day had provided effective restraint against the members of the TO

5 and paramilitary forces.

6 And, finally, fundamentally in relation to the topic that we are

7 discussing, the withdrawal from Ovcara of the only remaining JNA soldiers

8 guarding the prisoners of war had an immediate and direct effect on the

9 commission of the murders that followed. This thesis, expounded in the

10 judgement, is fully supported by the OTP because they refer to it in

11 their own appeal, as we've already said at the very beginning. The

12 Prosecutor cannot consider some findings from the judgement good in the

13 case of one accused person and bad in the case of another person; the

14 very same findings, that is. The Prosecution did not challenge the

15 findings of the Court that are directly related to that paragraph, and

16 I'm referring to paragraph 658. The Trial Chamber says, at the most, he

17 could have been aware that crimes might be committed if the TOs and

18 paramilitaries were allowed access to the prisoners of war without proper

19 security, and that's what I underline, "without property security." The

20 OTP did not challenge those findings of the Trial Chamber either. I wish

21 to conclude this part of my remarks.

22 Not through a single one of their arguments did the OTP show that

23 the Trial Chamber erred when they established, in paragraph 672 of the

24 statement, that Sljivancanin reasonably could have believed in the

25 circumstances that the TOs and paramilitary would be unlikely to resort

Page 283

1 to killing. On the contrary, through their arguments, the OTP, and

2 supporting the findings of the Trial Chamber from paragraph 620, showed

3 themselves how right these findings of the Trial Chamber were.

4 As I continue, I'm going to present our position in relation to

5 question number 3. The question of the Appeals Chamber was: What is our

6 position about the time when Sljivancanin found out about Mrksic's order

7 to withdraw? Our response is simple. Sljivancanin at no point during

8 the relevant period in the indictment did not find out about the decision

9 to withdraw security from Ovcara. This position of the Defence was

10 accepted by the Trial Chamber in its judgement. The Chamber

11 specifically, in its findings in paragraph 661, provided all arguments

12 which counter the construction of the Prosecution. The Trial Chamber

13 established, I quote:

14 "There is no indication in the evidence that Veselin Sljivancanin

15 was at Negoslavci at the time the order was first given by Mile Mrksic."

16 He could have been informed by other means, but this is merely

17 conjecture.

18 The Prosecution does not dispute in its appeal the assertions

19 from paragraph 661 of the judgement. This entire paragraph speaks about

20 the findings of the Trial Chamber, which completely differently evaluate

21 evidence from the current attempt by the Prosecution. The Prosecution

22 now, especially in its reply, is doing what -- is constantly repeating

23 that it is unacceptable to do something in the appeals procedure, and

24 that is to make its own evaluation and interpretation of the findings of

25 the Trial Chamber which are contrary to those same findings. All the

Page 284

1 arguments of the Prosecutor are practically an attempt to take the

2 conclusion about the knowledge of Sljivancanin or awareness about the

3 withdrawal of the security be derived from an additional or subsequent

4 assessment of the evidence that has already been evaluated. The

5 Prosecution is trying to base its assertions on the fact that it will

6 draw its conclusions on the basis of indirect evidence and conclusions of

7 the Trial Chamber that talk about completely different facts, and thus,

8 they claim that Sljivancanin had to have known about the decision to

9 withdraw the security, because -- so this is something that cannot be

10 substantiated in the findings of the Trial Chamber.

11 The Defence asserts that his knowledge should be based on his

12 duties to the prisoners and not about when the security was withdrawn.

13 That is why the Trial Chamber has found that Sljivancanin's

14 responsibility stopped with the withdrawal of the security detail. So

15 the position of the Defence is that that finding of the Trial Chamber

16 cannot substantiate the assertions of the Prosecution. Thus, the Trial

17 Chamber established when his duty towards the prisoners of war stopped

18 and not whether he knew about the withdrawal.

19 The Prosecutor said that Sljivancanin found out about the

20 withdrawal of the security that evening at Negoslavci when he returned

21 there, but Vukasinovic, as he testified, or Borisavljevic, neither of

22 them testified that at that time when they were in touch with Vukasinovic

23 and Sljivancanin was it known that the security was withdrawing.

24 [Defence counsel confer]

25 MR. LUKIC: [Interpretation] There were no conversations that the

Page 285

1 security was withdrawing, and there was nothing to indicate that there

2 was information that they were aware, either of them, that the security

3 was withdrawing. Vukasinovic and Sljivancanin both testified that

4 Vukasinovic told Sljivancanin only what was happening at Ovcara during

5 the time he was there, about which Mrksic was subsequently informed as

6 well.

7 The Trial Chamber established that it would be pure conjecture

8 that Sljivancanin found out about the decision of the withdrawal not when

9 it was reached, but also in any other way, and the Trial Chamber

10 evidently had this in mind, as well, when it reached that conclusion,

11 which now the Prosecution is attempting to interpret differently.

12 According to the Prosecutor, Sljivancanin admitted that he had discussed

13 the outcome of the SAO government meeting, which included references to

14 the transferring of custody of the prisoners of war. What Sljivancanin

15 heard from Mrksic was quoted by the Prosecutor today, and this is his

16 testimony in transcript pages which have been quoted. The content of

17 Sljivancanin's testimony is unequivocal. There is no reference about the

18 information that Mrksic or anyone else ordered the withdrawal of the

19 security from Ovcara. From his testimony, it can be established what we

20 noted in paragraphs 213 and 214 of our response, and that is that

21 Sljivancanin was not concerned because he had received information that

22 the police was there, the commander and the unit. This is what he

23 testified, to the letter, during the examination.

24 When the Prosecutor received this answer, in continuing its

25 probing about the conversation with Mrksic, the Prosecutor did not seek

Page 286

1 further clarification, nor did they dispute that part of the testimony,

2 and this is on pages 13983 to 13990.

3 Now, if we look at the construction that the Prosecution now is

4 trying to assert, then we can also present our position, in turn, and

5 that is that Sljivancanin had a superior commander. He didn't have any

6 reason to believe that the commander was concealing anything from him.

7 He testified on a number of times and, also, the Trial Chamber

8 established that the commander was fully informed and was making

9 decisions pursuant to that information.

10 Paragraph 389 of the judgement, to which the Prosecutor refers in

11 footnote 199 of their appeal as a reference, which should corroborate

12 that Sljivancanin knew about this decision, does not actually mention at

13 all that Sljivancanin knew about the withdrawal of the security.

14 Your Honours, according to what Sljivancanin said, or in the

15 words that Sljivancanin used, you cannot find the meaning that those

16 words do not contain. That is precisely what the Prosecution is

17 attempting to do right now, to interpret the evidence and the conclusions

18 of the Trial Chamber in their own way.

19 The Defence must underscore here that Sljivancanin was available

20 to the Prosecution for cross-examination for four days and that the

21 Prosecutor could have asked him about any nuance and explanation about

22 their testimony arising from the examination-in-chief, including his

23 conversation with Mrksic. The Prosecutor questioned him in detail about

24 that particular conversation, but there was no mention or no question of

25 hearing what Sljivancanin said in response to this particular question

Page 287

1 that they are now trying to interpret in their own way. The Trial

2 Chamber could not have based its findings on suppositions. In the

3 situation when one could draw several conclusions or a number of

4 conclusions from Sljivancanin's testimony, any Trial Chamber would need

5 to hold to the standard in dubio pro reo, as it mentioned in paragraph 11

6 of the judgement. The thesis of the Prosecution about the alleged

7 awareness of Sljivancanin about the withdrawal of the Prosecution is not

8 corroborated by evidence or by the findings of the Trial Chamber.

9 I would just like to also argument [as interpreted] some aspects

10 of the matter covered by Mr. Bourgon this morning. I'm just going to

11 refer to some factual matters that are actually concerned with another

12 question, and also, I would like to address a response that could be

13 prompted by some arguments brought out by the Prosecution.

14 The Prosecution links Sljivancanin's duty to act in -- according

15 to international humanitarian law throughout the afternoon, evening, and

16 night of the 20th of November, 1991, including after the decision on the

17 withdrawal of security. The Prosecution holds the view that he was

18 informed about this decision on withdrawal by Mrksic in paragraph 113 of

19 the appeal brief of the OTP.

20 In our response to question 3, we provided arguments challenging

21 this thesis because the Court did not find that Sljivancanin knew about

22 that decision at any time on the 20th of November, 1991. Therefore, his

23 duty to act in accordance with international humanitarian law after the

24 withdrawal of the security cannot stem from information he might have had

25 on the withdrawal of security. His duty to act in accordance with

Page 288

1 international humanitarian law can follow from the task assigned to him

2 by Mrksic. That task was linked to the plan of transferring the

3 prisoners of war to the prison in Mitrovica, and after the plan was

4 changed, he no longer had any sort of activity assigned to him in

5 connection with that convoy.

6 It's our case that Sljivancanin was in no way involved in the

7 decision on transferring the prisoners to Ovcara. Even though the Trial

8 Chamber found that there are no elements of any criminal responsibility

9 of his in these activities, at paragraph 660, according to the Defence

10 case, the factual findings in paragraph 659 cannot be upheld, which is

11 why we provided arguments to support our case in our appeal in paragraphs

12 344 to 365 of our appeal brief. To indicate that the duty entrusted to

13 him by Mrksic was then taken from him, we shall use the arguments of the

14 Prosecutor of two days ago, which we have presented in our closing brief.

15 The Trial Chamber clearly found that all orders, reports, and

16 actions, after the government session, concerning the further direction

17 or location of security and security itself for the prisoners of war,

18 were made bypassing Sljivancanin. Mrksic withdrew the decision on

19 transferring the prisoners to Mitrovica, and I quote the findings of the

20 Trial Chamber in paragraph 607 of the judgement. Then Colonel Mrksic

21 issued a decision that the prisoners be taken to Ovcara, and he carried

22 it out through the staff of the command of Operative Group South in

23 Negoslavci; paragraph 305. Let me remind you that at that time

24 Mr. Sljivancanin was in hospital -- in the hospital.

25 Colonel Mrksic ordered Captain Susic to secure the buses in the

Page 289

1 barracks; paragraph 298. Lieutenant-Colonel Panic went to Ovcara to

2 convey information to Mrksic about what he had seen there; paragraph 307.

3 Lieutenant-Colonel Vojnovic informed Lieutenant-Colonel Panic on the

4 measures he had taken in Ovcara in paragraph 309. The commander of the

5 80th Motorised Brigade informed the Chief of Staff of Operations Group

6 South on the spot. These are the findings of the Trial Chamber. Major

7 Vukasinovic briefed Colonel Mrksic on what had happened at Ovcara.

8 That's paragraph 311 of the judgement; and finally, in paragraph 661, the

9 Trial Chamber says that there is no evidence on the involvement of

10 Sljivancanin in the withdrawal of security from Ovcara. Therefore,

11 Mr. Sljivancanin's duty in relation to the prisoners of war ceased when

12 the original task he had been assigned by Colonel Mrksic was changed.

13 And, finally, in answer to the claims put forward by the

14 Prosecutor today, if the Appeals Chamber should find that Sljivancanin

15 was at Ovcara as established by the Trial Chamber, we shall ask what he

16 could have seen there, and in relation to any possible murders, because

17 this is the topic addressed by the OTP, he might have seen his superior

18 officers there making decisions on security; Lieutenant-Colonel Panic and

19 Lieutenant-Colonel Vojnovic. The hangar was in their zone of

20 responsibility. At that time, no one could have foreseen that there

21 would be any murders, and his actions, as the Prosecutor suggests, and

22 his presence in front of the hangar could have had no effect on the later

23 commission of murders.

24 In relation to the arguments put forward by the Prosecution today

25 as to what measures Mr. Sljivancanin might have taken, if the danger that

Page 290

1 the prisoners of war might be murdered came into being after the

2 withdrawal of the security, as established by the Trial Chamber, and as

3 we have seen, the OTP accepts this in their arguments, then we might ask

4 how the measures suggested by the Prosecutor could have prevented the

5 murders, and how could, as Ms. Brady said, that Sljivancanin might have

6 transferred the prisoners to another location, how could this have

7 prevented the murders if, after that, somebody issued the order that

8 security withdrawn from this other location or, as she suggests, he might

9 have asked that security be reinforced by bringing in more policemen and

10 murders might take place when the security withdrew? What sort of link

11 is there between this bringing in of vast numbers of military policemen

12 or other forces to protect the prisoners if someone later on made the

13 decision that all these guards and the security be withdrawn, or if he

14 took measures to chase away all the Territorials and paramilitaries from

15 around the hangar and then somebody withdraw security?

16 According to the case supported by the Trial Chamber and the OTP,

17 the withdrawal of security ensured the unhindered access to the prisoners

18 by the Territorials and the paramilitaries, which led to the murders.

19 The duty to respond and to prevent any possible murders, if it became

20 certain that there was a danger of murder after the withdrawal, this can

21 be viewed only in relation to the decision to withdraw security. As we

22 have shown, the Trial Chamber did not find that Sljivancanin had any

23 knowledge of that decision.

24 Your Honours, I have concluded our arguments. We will not

25 address any issues related to sentencing, as all this is contained in our

Page 291

1 written submissions, and we have also made in writing our submissions in

2 response to the Prosecution brief as relates sentencing, and I am at your

3 disposal to answer any questions Your Honours might have.

4 JUDGE MERON: Thank you, Mr. Lukic. Questions, questions?

5 In this case -- sorry, there are no questions, and thank you for

6 your argument and for completing it in a timely fashion.

7 MR. LUKIC: [Interpretation] I would only, as this is my last

8 chance to address you, wish to take this opportunity on behalf of all the

9 Defence teams to thank you for giving us this opportunity to address you

10 and present our arguments, to thank all the participants in the

11 proceedings, and also to express our gratitude to the interpreters

12 because I know what a hard time they had today, trying to keep up with

13 our arguments.

14 Thank you very much.

15 JUDGE MERON: Thank you, Mr. Lukic, for your kind words, and we

16 will now move on to the Prosecutor, Ms. Brady. You have 45 minutes.

17 Following on the salutary example set by the other party, you might

18 prefer not to use all of them, but it's up to you.

19 MS. BRADY: Thank you, Your Honour. We'll definitely heed your

20 words, or we'll try to.

21 Your Honours, I can be quite brief in reply to some of the points

22 that were made this afternoon by Mr. Lukic when responding to the

23 Prosecution's second ground of appeal concerning the aiding and abetting

24 of murder.

25 I will just make a few short points, and then I believe that the

Page 292

1 majority of this reply will be used by my colleague, Mr. Marwan Dalal, to

2 make some submissions in response to the Article 5 arguments that we

3 heard from Mr. Bourgon.

4 On the question, firstly, of Mr. Sljivancanin's knowledge in the

5 afternoon, on this point we fully realise that this issue is not about

6 merely did he know that the TOs were capable of committing murders. That

7 as much we know as a Trial Chamber finding. But we say, in effect, that

8 it must have been clear that the JNA was unable, largely -- it was -- it

9 can be described as, on the whole, ineffective in stopping the violence.

10 Now, he points to paragraphs -- paragraphs he said we didn't

11 challenge in the trial judgement, such as paragraphs 620, 621. Your

12 Honours, we accept that this is a very nuanced point. We accept, and I

13 said in my submissions this morning, we acknowledge that the JNA was able

14 at times to get some kind of control over the situation pertaining to the

15 TOs and the paramilitaries, and, for example, at some point at the JNA

16 barracks, at some point at Velepromet. But I think, Your Honours, this

17 can be best summarised -- the difficulty of the situation that was

18 clearly pertaining to Ovcara can be best summarised in, actually,

19 paragraph 625 of the Trial Chamber's findings. Those findings, of

20 course, are to be found in the Mrksic section, one could call it, of the

21 judgement, and it -- but it really -- it's a very long paragraph, Your

22 Honours. I don't have time -- or I probably don't have time at the

23 moment to read the whole paragraph to you, but this paragraph very much

24 paints the situation where the situation between the TOs vis-à-vis the

25 JNA was highly volatile. It could have been that there were lulls in

Page 293

1 violence at times, but the TOs were getting back on top of the situation.

2 The JNA, as I said, was largely ineffective.

3 So when Mr. Lukic says that they were a buffer - they were his

4 words - we ask you to consider, really? Were they really a buffer? And

5 this point that we make, it is not inconsistent with any of our

6 submissions that we made in relation to Mr. Mrksic's appeal, as Mr. Lukic

7 has indicated that somehow we're running an inconsistent case here.

8 We're not.

9 Mrksic did order what we call the last remaining vestiges of

10 protection. Yes, there was some JNA there; of course. This is who he

11 ordered the removal of. But this in itself was insufficient, and then

12 Mrksic orders the last remaining vestiges of this patently insufficient

13 body, the 80th Military Police, the patently insufficient body in the

14 face of this Croat -- this determination by Serb TOs and paramilitaries

15 to harm the Croat prisoners.

16 The second point I'd like to make is regarding the evidence about

17 Velepromet. Mr. Lukic made a submission this afternoon to the effect

18 that the JNA was there and preventing crimes and so that we can't rely on

19 his knowledge that people were killed there to show that the JNA was

20 ineffective. Your Honours, for this, I point you to the evidence

21 regarding whether -- regarding the fact that the Velepromet was, in fact,

22 under guard of the JNA at the time, although the TOs were running

23 Velepromet. Clearly, Velepromet was being used as an assessment centre

24 for finding extremists and possible disguised members of the MUP and ZNG

25 by the Guards Military Brigade OB led by Borisavljevic, and in this

Page 294

1 regard Sljivancanin himself testified that his subordinate,

2 Borisavljevic, a member of the Guards Motorised Brigade, had been, quote,

3 "given the task of making sure that there was sufficient order and

4 discipline there," and he personally give him that task. That's at

5 paragraph 13603 to 13607.

6 I also point Your Honours to the evidence of Vujic at transcript

7 4502, who likewise talks of the JNA being at Velepromet when these crimes

8 were happening on the night of the 19th. So I think, Your Honours, the

9 evidence is that the killings occurred that night in Velepromet. The

10 events speak for themselves as to the presence of the JNA at that time.

11 The third point I'd like to mention is the question of his

12 knowledge at 8.00 p.m. We would, of course, argue that it's the only

13 reasonable conclusion, that it's inconceivable that Mrksic omitted and,

14 in fact, actively misled him to believe that the JNA in the form of the

15 80th was still at Ovcara. He refers to paragraph 661 of the judgement,

16 and Your Honours, if you go to this paragraph, again, it's a paragraph

17 which goes across two pages, it's a very lengthy paragraph, but these

18 essentially -- when you have a chance to look in detail at this

19 paragraph, these findings are essentially the Trial Chamber's findings on

20 whether he was involved in the transmittal of that order to withdraw.

21 And in that conclusion, the Trial Chamber draws the -- makes the findings

22 in Sljivancanin's favour. They do not find beyond reasonable doubt that

23 he was involved in transmitting that order to withdraw through his

24 deputy, Karanfilov.

25 Now, the Trial Chamber goes on to say, as Mr. Lukic pointed out:

Page 295

1 "He could have been informed by other means, but this is merely

2 conjecture."

3 And this is precisely the point at which we're asking you to make

4 the only reasonable finding which we say is available on the evidence, is

5 that it's not a matter of conjecture. If you take the evidence and you

6 draw the inferences -- the only reasonable inferences that must be drawn

7 from that, Your Honours will be satisfied, we say, about that factual

8 conclusion which the Trial Chamber never really makes because if you look

9 at paragraph 389, that's the other paragraph which connects to this

10 paragraph 661, the Trial Chamber there doesn't make a finding in

11 paragraph 389 about whether he was told about the order to withdraw, so

12 this is where we're asking you to find that the Trial Chamber legally

13 erred as to the expiry of the duty, and then you, yourselves, will be

14 convinced beyond reasonable doubt that he must have learned of the order.

15 I also point out, and it may have been an interpretation error or

16 maybe my colleague misspoke, but he referred to Borisavljevic's having

17 testified about what he told Sljivancanin, and just to point out that

18 Borisavljevic did not testify. The only people who testified on this

19 conversation are Sljivancanin, and we have a small amount of testimony

20 from Vukasinovic. I see my friend nodding, so I think we're in agreement

21 about that point.

22 The final point I want to make is concerning the duty error. Of

23 course, our argument proceeds on the basis that he learned of the

24 withdrawal order. Our argument also proceeds on the basis that he had

25 been entrusted by Mrksic not just in terms of separating and identifying

Page 296

1 the war crimes suspects at the hospital, but also for their transport and

2 security, and most of the arguments that he makes today on this duty

3 error are really trying to unseat, unpick that factual finding, and this

4 being the Prosecution's appeal, of course, we are entitled to rely on

5 that finding, that he was delegated authority, and not only that finding

6 but the one in paragraph 660, that he, in fact, was also involved in the

7 transmittal of the order to send the prisoners to Ovcara, so those two

8 findings which the Trial Chamber found in our favour, in the

9 Prosecution's favour.

10 That would conclude my submissions, Your Honours, in the reply,

11 and I'd like to now hand over to my colleague, Mr. Dalal, on the

12 Article 5 points.

13 Thank you.

14 JUDGE MERON: Thank you, Ms. Brady, and we'll be hearing

15 Mr. Dalal.

16 MR. DALAL: Good afternoon, Your Honours.

17 I will be addressing the Prosecution's reply in the context of

18 our appeal in Ground 1. Before going through my submission, I have three

19 comments to make about the issue of the timing of the attack, which was

20 raised by my learned colleague.

21 The first point is the fact that the military attack ended on 18

22 November in the finding of the Trial Chamber does not mean that the

23 attack in the meaning of Article 5 also ended, and I don't think there's

24 a dispute between the parties on this question. Indeed, the

25 victimization of the civilian population continued after the 18th of

Page 297

1 November; for example, in Velepromet, where hundreds of non-Serb

2 civilians were brought from the Vukovar Hospital to Velepromet. Many

3 were severely mistreated, and some were even killed, and this is at

4 paragraph 167 of the trial judgement; see also paragraphs 130, 161, 163,

5 164, and 177, where also the victimization of civilians is mentioned

6 there beyond the 18th of November.

7 The second point is to say, Your Honours, that after the

8 devastation of Vukovar and its surrounding that the evacuation of

9 civilians was voluntary and based on agreements is not to do justice to

10 the truth. There was a victor in Vukovar and its surroundings that was

11 dominating the geography and the local civilian population, the non-Serb

12 local civilian population. This population was compelled, in fact, to

13 evacuate as a direct result of the relentless bombardment of their homes.

14 They were -- they were still under attack in the meaning of Article 5.

15 And the third and last point on this subject, Your Honours, is

16 that even if we were to accept for the sake of the argument that the

17 attack in the meaning of Article 5 indeed ended on the 18th of November,

18 still the Article 5 requirements, namely, the nexus requirement, is still

19 satisfied based on the law of the Tribunal, and, indeed, crimes --

20 convictions for crimes against humanity should be entered against the

21 accused as set out in our appeal brief.

22 I now would like to move to the submission -- the prepared

23 submission which addresses your question directly.

24 Your Honours, the attack by the JNA and other Serb forces on

25 Vukovar and its surrounding had horrific consequences. The JNA attacked

Page 298

1 with aircraft, artillery, tanks, and rockets; paragraph 52. 60 to

2 75 per cent of the casualties during the conflict were civilians. The

3 Vukovar Hospital, schools, public buildings, offices, wells, the water

4 and electricity supply and roads were severely damaged. Your Honours,

5 kindergartens were shelled; paragraphs 466 and 468.

6 As a direct result of the JNA attack, destruction befell many

7 towns in the Vukovar area, not only in the city of Vukovar; for example,

8 the towns and villages such as Luzac, Opatovac, Stompajvci, Tolonik,

9 Trpinja, Brsadin, Petrovci, Negoslavci, and Borovo Naselje; paragraph 55.

10 Ambassador Herbert Okun, at the time UN special adviser, who visited

11 Vukovar on the 19th of November, observed the city -- observed that the

12 city was completely shattered and compared it to Stalingrad. Ambassador

13 Kypr of the ECMM, on arrival in Vukovar on 20 November, 1991, noted that

14 every house had suffered damage; paragraph 56 and Exhibit 320.

15 Ambassador Kypr of the ECMM described the attacking pattern that had

16 evolved against the non-Serb population in Vukovar and its surroundings.

17 This is at paragraph 43 and Exhibit 312, dated 8th of November, 1991.

18 There were four steps in the description of Ambassador Kypr of

19 this attack. The first one: Tension, confusion and fear is built up by

20 a military presence around a village or a bigger community and

21 provocative behaviour; B, the second step, there is then artillery or

22 mortar shelling for several days, mostly aimed at the Croatian parts of

23 the village. In this stage, churches are often hit and destroyed. The

24 third stage: In nearly all cases, JNA ultimatums are issued to the

25 people of the village demanding the collection and the delivery to the

Page 299

1 JNA of all weapons. Village delegations are formed, but their

2 consultations with JNA military authorities do not lead, with the

3 exception of Ilok, to peaceful arrangements, with or without --

4 THE INTERPRETER: If the speaker could slow down, please.

5 MR. DALAL: I will slow down.

6 With or without waiting for the results of the ultimatum, a

7 military attack is carried out.

8 And the last stage of the attack: At the same time or shortly

9 after the attack, Serb paramilitaries entered the village. What then

10 follows, and this should be underscored, varied from murder, killing,

11 burning, and looting to discrimination.

12 Your Honours, Exhibit 317 is a video of an aerial view of Vukovar

13 which was tendered through Ambassador Kypr of the ECMM. It shows damage

14 resulting from the widespread and systematic attack against Vukovar and

15 its surrounding.

16 Please show Exhibit 317.

17 [Videotape played]

18 MR. DALAL: Another exhibit is Exhibit 136, which is a Sky News

19 report that illustrates some of the results of the attack. In it, we can

20 see some of the effects on the civilian population in Vukovar and

21 surrounding, including the damage to the Vukovar Hospital. We will show

22 the first four minutes and forty seconds, approximately, of the report

23 which is, in total, around six minutes and twenty seconds, which speaks

24 for itself.

25 Both exhibits, by the way, were accepted, of course, by the Trial

Page 300

1 Chamber.

2 Please show Exhibit 136.

3 [Videotape played]

4 MR. DALAL: Is there a voice? There should be also a commentary

5 with it. There should be a commentary with this exhibit.

6 [Appeals Chamber and registrar confer]

7 MR. DALAL: There should be a commentary with this exhibit.

8 JUDGE MERON: Maybe in the meantime you could proceed with your

9 argument, and when the system is up, we'll go back to it, okay?

10 MR. DALAL: No problem.

11 JUDGE MERON: So proceed with your oral argument.

12 It seems to be working now.

13 [Videotape played]

14 JUDGE MERON: So what's missing, the commentary?

15 MR. DALAL: It appears to be working now.

16 JUDGE MERON: It's working, yes.

17 [Videotape played]

18 MR. DALAL: Your Honour, at the time --

19 THE INTERPRETER: Microphone, please.

20 MR. DALAL: Your Honours, at the time General Zivota Panic was

21 the commander of the 1st Military District and the overall JNA commander

22 of the fighting that took place in Vukovar area. On the 1st of April,

23 1998, a magazine from Belgrade published an interview with him. In this

24 interview, he was asked the following question:

25 "You are the victor of Vukovar. Could, in the military sense,

Page 301

1 that affair have been resolved otherwise, without so much destruction?"

2 General Panic's answer was very clear and included the following

3 statement:

4 "If you want to take a city, it is better to demolish it with as

5 few casualties as possible than have people get killed and lose the

6 city."

7 This is at Exhibit 696, pages 5 to 6.

8 Indeed, Your Honours, in conclusion to this part of my

9 submission, the attack against Vukovar and the surrounding was both

10 widespread and systematic. It was not merely a military operation.

11 Civilians were faced with the worst options: death, injury, or

12 displacement. The damage covered all of Vukovar and the town surrounding

13 it. The attacking force wanted to punish the victimised civilian

14 population. For all of these reasons, the attack requirement in

15 Article 5 indeed has been met.

16 I now turn to the issue of the nexus between the acts of the

17 accused and the widespread and systematic attack.

18 Legally, the acts of the accused must be part of the widespread

19 and systematic attack. Two elements need to be established in order to

20 conclude that the acts of the accused were part of the attack. The first

21 one is an objective requirement. The acts need to be sufficiently

22 connected with the attack as opposed to being an isolated act. They need

23 not to be at the midst of this attack. They can be before or after the

24 attack; Kunarac appeal judgement, paragraphs 99 to 100; Tadic appeal

25 judgement, paragraph 251.

Page 302

1 In Martic appeal judgement at paragraph 318, the Appeals Chamber

2 concluded that the close timing between the attack and the crime, and

3 given that the same perpetrated both -- or were part of the execution of

4 the attack and the crime, the only reasonable inference should be that

5 the crimes were committed as part of the attack.

6 Your Honours are also referred to Krstic trial judgement

7 paragraphs 61 to 67 and the Prosecution appeal brief at paragraph 29 to

8 30.

9 In this case, the conduct of the accused is objectively part of

10 the attack. First, the Trial Chamber held that at the time relevant to

11 the indictment period, a widespread and systematic attack had occurred in

12 Vukovar and its surrounding; paragraph 472. Second, the context of the

13 conduct of the accused, including its location, is inherently linked to

14 the attack against Vukovar. Indeed, the crimes had been committed in the

15 Vukovar area by the TO and volunteers who played a significant role in

16 the attack itself against Vukovar. And, third, the crimes in question

17 are similar in nature to TO and volunteers' crimes committed during the

18 attack against civilians and prisoners of war alike; see paragraph 47 of

19 the trial judgement, relying on Ambassador Kypr's testimony that on 10

20 October 1991, Serb volunteers in Lavoc [phoen] had attacked specific

21 homes and killed 22 Croats and 1 Serb; see also paragraph 43 and

22 Exhibit 312, report by Ambassador Kypr, which I have mentioned, and also

23 Exhibit 636, page 2.

24 The second element related to the question of the nexus between

25 the acts of the accused and the attack is the awareness or the mens rea

Page 303

1 element. The accused must have known that there is an attack on the

2 civilian population and that his acts comprised part of that attack, or

3 at least he took the risk that his acts were part of the attack; Kunarac

4 appeal judgement, paragraph 102.

5 In this case, Sljivancanin and Mrksic knew of the attack, of

6 course, as they were in Vukovar starting from October 1991;

7 paragraphs 465, 664, and transcript pages 13460 to 13461 regarding

8 Sljivancanin.

9 Both Sljivancanin and Mrksic were aware of the violent and

10 lawless conduct of the TO and volunteers which was directed against

11 civilians and POWs during the attack against Vukovar and its surrounding.

12 This conduct included the killing and brutal treatment of civilians and

13 prisoners of war as well as looting and other violent and lawless

14 conduct.

15 And now I would like to refer to some exhibits which demonstrate

16 the knowledge of the accused of the violent conduct of the TO and

17 paramilitaries, the perpetrators of the crime. The first is Exhibit 718.

18 This exhibit Sljivancanin admitted that he had read, and this is in the

19 finding of the Trial Chamber at paragraph 664. It's a report from the

20 1st Military District, and it reaches also the security organ, which is

21 Sljivancanin's unit. In it, the first page, it says that there are

22 paramilitaries, Arkan's men, that are committing unauthorised killings of

23 arrested ZNG members and arresting Croatian individuals and committing

24 certain acts against them. This is from 18th of October, 1991.

25 The second exhibit is Exhibit 636. It is directed to the 1st

Page 304

1 Military District, which is the district of the OG South, and it mentions

2 at page 2 explicitly, murderous, violent conduct, albeit not necessarily

3 in the zone of both Mrksic and Sljivancanin, but they should have been

4 aware of this conduct if we also add the other reports to that. It says

5 in a clear wording:

6 "In the combat activity zone of the 1st PGMD, the main motive

7 behind the presence of several groups of different paramilitary

8 formations from Serbia, Chetniks, the Dusan Silni Detachment and various

9 self-styled volunteers, is not to combat the enemy, but to loot the

10 people's property, and" - and this is the most important thing - "engage

11 in the sadistic abuse of innocent civilians of Croatian nationality."

12 Exhibit 415 is distributed order from the commander of both

13 Mrksic and Sljivancanin, Panic, the commander of the 1st Military

14 District, where he mentions the lawless conduct of TO and paramilitary

15 and asks to take action against such conduct. At page 4 of this Exhibit,

16 paragraph 8 :

17 "Every unit must fully control the situation on the territory of

18 its area of responsibility. Commanders at all levels will be responsible

19 for this. Wartime laws have not entered into force, and therefore, as

20 always, nobody has the right to retribution and other kinds of revenge

21 which some local of TO, Territorial Defence, units carried out. In

22 future, arrest those who commit any such acts and undertake appropriate

23 legal measures."

24 And this is from 18th of November, 1991.

25 The last two reports are drafted by Sljivancanin himself. The

Page 305

1 first one is from 23rd of October, 1991, Exhibit 823, where he talks

2 about the TO and the volunteers' lawless conduct, in this context,

3 looting. He mentions that at the first page -- on the first page:

4 "Searches of personal possessions discovered last quantities of

5 looted items and various valuables which go to show what their primary

6 aims were."

7 And probably most importantly, a report by Sljivancanin, which,

8 also, by the way, these reports get to Mrksic, his superior -- get to

9 Mrksic, a report which is Exhibit 843 from 10 December 1991 by

10 Sljivancanin where he talks about his awareness during the fighting,

11 during the attack in the Article 5 meaning, he writes on page 2:

12 "In addition to the GMTBR, large number of volunteers also

13 participated in the fighting. The volunteers came in groups,

14 individually and with no organisation. Our unit had major difficulties

15 in receiving, checking and equipping them, and in employing them in

16 combat. A large number of volunteers arrived with party insignia, which

17 might have had some considerable effects on the order and discipline of

18 the units conducting combat tasks."

19 These reports, Your Honour, in our submission, demonstrate the

20 awareness of the violent criminal conduct of the TO, which was a constant

21 during the attack in Vukovar, and the accused, both of them, were aware

22 of this conduct.

23 There's a common theme in the criminality of the TO and the

24 attack by the JNA, which is the punishment theme. The perpetrators', and

25 that is in the finding of the Trial Chamber, motivation was indeed to

Page 306

1 punish the victims, for cultural reasons, probably, but the theme of

2 punishment was clear, and the Appeals Chamber is referred to

3 paragraph 671 for the punishment theme for the attack and paragraphs 47,

4 532, 535, and 510 for the punishment theme for the crimes themselves that

5 were perpetrated.

6 In conclusion, Your Honours, the Article 5 requirement, namely,

7 the attack, the widespread and systematic attack, as well as the nexus

8 with the acts of the accused, were satisfied, in our submission, and we

9 ask Your Honours to enter convictions for crimes against humanity against

10 both accused as set out in the Prosecution appeal brief in Ground 1.

11 If you have -- unless you have questions, Your Honour, with this,

12 I would conclude my submission.

13 JUDGE MERON: Thank you.

14 MR. DALAL: Your Honour, of course, we have still one submission

15 with regard to the sentence of Mrksic in reply, unless you have

16 questions, of course.

17 JUDGE MERON: No, you have six, seven minutes.

18 MR. DALAL: Thank you, Your Honour.

19 JUDGE MERON: Thank you, Mr. Dalal.

20 MR. ROGERS: Your Honours, I will endeavour to match Your

21 Honours' need for speed, as it were, in the final six minutes and to

22 tread the thin line of brevity and eloquence that Mr. Lukic has already

23 said.

24 Your Honours, in relation to Mr. Mrksic's sentencing submissions,

25 may I just say this: We in our appeal have advanced various grounds, and

Page 307

1 in particular we focused upon the Trial Chamber's failure to

2 significantly address the position of responsibility that Mrksic held as

3 an aggravating feature in its assessment of the gravity of the crimes.

4 Your Honours will see, when you look at the judgement, that there really

5 is scant reference to this. They touch upon it as being material but say

6 nothing more than that. They do not specifically address it in

7 considering gravity, and in our respectful submission, given the need for

8 a reasoned opinion, they should have done, and this feature of the case

9 in relation to him is clearly one of the most significant features

10 relating to him.

11 Furthermore, they did not specifically address, other than by

12 referring to the fact there had been convictions for them, they did not

13 address the torture and cruel treatment of the prisoners during the

14 course of the afternoon. Clearly, they record that there was a

15 conviction and it happened, but it doesn't appear to have featured in any

16 significant way in their sentence, and certainly, there is no reference

17 to how or in what way they considered it affected the overall sentence

18 that was imposed.

19 And, finally, there's no indication that the Trial Chamber

20 considered the encouragement, the encouraging effect of his inactions on

21 both the torture and cruel treatment and also in relation to the

22 withdrawal on the gravity of the crimes or as an aggravating feature.

23 Again, they -- there's brief reference to it, but really nothing more

24 than that. And if they had properly considered these matters, the

25 sentence would have been significantly higher.

Page 308

1 And finally, we submit that they started, effectively, from the

2 wrong place. The Trial Chamber said that it could find no comparable

3 cases to assist it, but, Your Honours, we draw your attention to the

4 Vasiljevic Appeals Chamber decision on sentence, which in our submission

5 is the a clear indication of the correct starting point for sentence in

6 relation to aiding and abetting murder and inhumane treatment. In that

7 case - and Judges Guney and Meron may recall it - you imposed a series of

8 15 years' imprisonment on a low-level perpetrator in relations to five

9 crimes of murder and two crimes of cruel treatment based upon a single

10 incident on the side of the Drina River where the accused person's intent

11 was at the lowest possible level and at which he, the accused, was also

12 at the lowest possible level. Your Honours found, in assessing his

13 culpability, that he had no intent to commit the crimes - clearly, that's

14 why he was convicted for aiding and abetting - but the reason for that

15 was there appeared to have been a very late change of heart or change of

16 mind by the principal perpetrators and that the intent to kill was formed

17 at a very late stage, and so Vasiljevic's involvement as an aider and

18 abetter was simply in escorting the eventual victims from the car to the

19 river and preventing their escape, and their murders, therefore, took

20 place. There was no evidence that he shoot at any of them. That's why

21 he was convicted as an aider and abetter.

22 Now, whilst, of course, we recognise that there are limitations

23 in the comparison of cases as has been recognised here, Your Honours have

24 said in the Celebici appeal judgement that where there are similar

25 factual and legal cases, and we submit these are similar both factually

Page 309

1 and legally, although of course the rank and responsibility of the

2 accused in each case is different - one at the very bottom and, in our

3 submission, Mrksic at the very top - there clearly are comparisons that

4 could and should properly be made. As Judge Meron recognised in Galic in

5 his dissenting opinion, that a review of comparable cases can assist in

6 determining whether a sentence is "clearly out of proportion" to other

7 comparable cases. In our submission, Vasiljevic is a clear indicator

8 that the sentence for Mile Mrksic is wholly out of proportion.

9 Your Honours, having regard to Mrksic's involvement, whilst we

10 accept that he did not personally carry out the acts himself, as

11 Judge Shahabuddeen observed in Galic in his separate opinion at

12 paragraph 41, after quoting the District Court in Eichmann, that the

13 appellant engaged increased responsibility because, quote, "the degree of

14 responsibility generally increases as we draw further away from the man

15 who uses the fatal instrument with his own hands and reached the higher

16 levels of command." And, Your Honours, we submit that that is as

17 applicable in the case of an aider and abetter as it is in any other

18 case.

19 Mile Mrksic was the commander of Operational Group South. He was

20 well aware of the intent of the killers, although he did not himself

21 share it, but the Trial Chamber found that he anticipated the threat,

22 quote, "would manifest itself in considerable and life-threatening

23 violence and, indeed, death." Trial judgement 621; that the considerable

24 likelihood of serious injury and murder was one that was quote "obvious

25 to Mile Mrksic," trial judgement 621. His mens rea, therefore, whilst

Page 310

1 not as high, of course, as a principal perpetrator is but, in our

2 submission, a shade away from it and far different from that of the case

3 of Vasiljevic. Of course, in this case the numbers of the murders were

4 far in excess of Vasiljevic, 194, and in addition, 194 victims were

5 tortured, kept in appalling conditions with a palpable atmosphere of

6 fear, and beaten throughout the course of that afternoon and into the

7 evening of the 20th of November, 1991, for which he was also convicted.

8 Your Honours, there is a risk in this case that a sentence of 20

9 years can seem substantial, but as His Honour Judge Shahabuddeen

10 recognised again in his separate opinion in Galic, the proper question is

11 this:

12 " ... not how the sentence imposed appears in absolute terms.

13 Thus viewed, a sentence of 20 years' imprisonment may appear to be

14 substantial. The question is how the sentence imposed appears in

15 relation to the sentence which is reasonably judged to be merited by the

16 gravity of the appellant's crimes."

17 Your Honours, in this case, the gravity of the appellant's

18 crimes, when compared to the bar set by this Chamber in Vasiljevic,

19 clearly demonstrates that 20 years is inadequate to reflect the totality

20 of his criminal responsibility. A mere five additional years for 189

21 other murders and cruel treatments and torture, for the encouraging

22 effect of his actions and inactions, for his position of responsibility

23 and his high mens rea in this case, shows that the sentence is manifestly

24 inadequate and one that demonstrably shocks the conscience of the

25 International Community, and we respectfully request that Your Honours