1 Thursday, 3 June 2010
3 [Open session]
4 [Mr. Sljivancanin enters court]
5 --- Upon commencing at 8.47 a.m.
6 JUDGE MERON: Please be seated.
7 Good morning, everybody.
8 Registrar, may I ask you to call the case on the Appeals
9 Chamber's agenda.
10 THE REGISTRAR: Good morning, Your Honours. This is case number
11 IT-95-13/1-R.1, the Prosecutor versus Veselin Sljivancanin.
12 JUDGE MERON: Thank you.
13 May I ask Mr. Sljivancanin if he can hear me and follow the
14 proceedings through the translation. Mr. Sljivancanin.
15 MR. SLJIVANCANIN: [Interpretation] Good morning to all in the
16 courtroom. Yes, I can follow the proceedings and I can understand what
17 you're saying.
18 JUDGE MERON: Thank you. You may be seated.
19 MR. SLJIVANCANIN: [Interpretation] Thank you.
20 JUDGE MERON: Prosecution.
21 MS. BRADY: Good morning, Your Honours. Helen Brady appearing
22 together with Mr. Paul Rogers on behalf of the Prosecution, and together
23 with us today Mr. Kyle Wood and our case manager Mr. Colin Nawrot.
24 JUDGE MERON: Thank you, Ms. Brady.
25 This is a hearing held as part of a pre-review proceeding in the
1 case of Prosecutor versus Veselin Sljivancanin. At the outset, I will
2 briefly summarise the issues which are pending before the Appeals Chamber
3 and the manner in which we will proceed today. I will underscore again
4 that none of my comments today expresses in any way the Appeals Chamber's
5 views on any aspect of the review motion.
6 This hearing addresses two issues: First, the evidentiary value
7 and the relevance of Mr. Panic's anticipated testimony regarding certain
8 issues relating to Mr. Sljivancanin's conviction for aiding and abetting
9 murder as a violation of the laws or customs of war; and second, whether
10 this anticipated testimony could potentially constitute a new fact within
11 the scope of Rules 119 and 120 of the Rules of Procedure and Evidence.
12 During this hearing, counsel will first examine the witness,
13 Miodrag Panic, and present summary arguments concerning his testimony.
14 They will then present submissions on whether Mr. Panic's further
15 evidence constitutes a new fact. I would underscore -- I will underscore
16 that parties should provide precise references to materials supporting
17 their arguments. I would also underscore that every time parties refer
18 to a new document, they should provide the document number they assigned
19 it when providing copies to the Chamber.
20 Before turning to this morning's proceedings, I would like to
21 apologise, I did not call on the counsel, the counsel for
22 Mr. Sljivancanin.
23 MR. LUKIC: Good morning, Your Honour. On behalf of Defence of
24 Mr. Sljivancanin, my name is Novak Lukic, I am lead counsel for
25 Mr. Sljivancanin. Here with me is Mr. Stephane Bourgon as a co-counsel.
1 There are two legal assistants, Ms. Maja Dokmanovic and
2 Mrs. Caroline Bouchard-Lauzon.
3 JUDGE MERON: Thank you. And I apologise for not calling on you
5 I will now turn to the timetable for this morning's proceedings.
6 This hearing will proceed according to the schedule outlined in the order
7 responding to the Prosecutor's motion on hearing management and the
8 revised Scheduling Order issued on 21 May 2010. Counsel for
9 Mr. Sljivancanin will conduct the examination-in-chief of Mr. Panic for
10 one hour, 15 minutes. Following a 15-minute pause, the Prosecution will
11 then cross-examine Mr. Panic for one hour, 15 minutes. After a 15-minute
12 pause, counsel for Mr. Sljivancanin will conduct a re-examination of
13 Mr. Panic for 15 minutes, followed by 15 minutes of summary arguments
14 concerning Mr. Panic's testimony. Finally, the Prosecution will present
15 summary arguments concerning Mr. Panic's testimony for 15 minutes.
16 I note that the Chamber will look favourably on any request by
17 counsel for Mr. Sljivancanin to re-allocate some of their time from
18 examination-in-chief to re-examination. In the afternoon at 1.45 p.m.
19 counsel for Mr. Sljivancanin will present submissions on whether
20 Mr. Panic's testimony is a new fact for 45 minutes. This will be
21 followed by submissions from the Prosecution on the same issue for 45
22 minutes and a reply by counsel for Mr. Sljivancanin for 15 minutes. Of
23 course, parties need not exhaust the entirety of their allotted time.
24 It will be most helpful to the Appeals Chamber if the parties
25 could present their submissions in a precise and clear manner. I wish to
1 remind the parties that the Judges may interrupt them at any time to ask
2 questions or they may prefer to ask questions following each party's
3 submissions. I would also remind parties that certain exhibits are under
4 seal; therefore, if the parties wish to refer to these documents, they
5 should request private session.
6 Having said this, I would now call -- like to call Witness
7 Miodrag Panic.
8 The Registry.
9 [The witness entered court]
10 JUDGE MERON: Good morning, Mr. Panic.
11 THE WITNESS: [Interpretation] Good morning.
12 JUDGE MERON: Mr. Panic, could you please read the solemn
13 declaration given to you by the usher.
14 THE WITNESS: [Interpretation] I solemnly declare that I will
15 speak the truth, the whole truth, and nothing but the truth.
16 JUDGE MERON: Thank you, Mr. Panic. You may now be seated.
17 Mr. Panic, you -- Mr. Panic, you will be asked to testify in
18 conjunction with Mr. Sljivancanin's application for review of his
19 conviction for aiding and abetting murder as a violation of the laws or
20 customs of war. In the course of the morning, counsel for
21 Mr. Sljivancanin and for the Prosecution will both put questions to you
22 concerning certain issues relating to this conviction. Judges may also
23 choose to ask questions.
24 I would now like to invite counsel for Mr. Sljivancanin to begin
25 with his examination-in-chief, for which you have, as you know, one hour
1 and 15 minutes starting from now.
2 MR. BOURGON: Good morning, Mr. President. Good morning, Judges
3 from the Appeals Chamber. Good morning to my colleagues from the
4 Prosecution. I will be conducting the examination-in-chief of
5 Witness Panic this morning, and for this purpose I would like to have the
6 usher give to the witness a binder, which includes all the documents that
7 has been given to the Appeals Chamber, simply to make things easier.
8 JUDGE MERON: Please proceed.
9 MR. BOURGON: Thank you, Mr. President. This binder was shown to
10 the Prosecution this morning, and it includes nothing more than the
11 documents that we intend maybe to use.
12 Mr. President, if I may add before I begin, you have suggested
13 the possibility of re-allocating some of our examination-in-chief time --
14 JUDGE MERON: Registry, would you give us one more set? We have
15 only four sets. Oh, you have one. We're all right. Sorry.
16 I'm terribly sorry, Mr. Bourgon. Please continue.
17 MR. BOURGON: Thank you, Mr. President. I apologise.
18 You indicated earlier, Mr. President, the possibility of
19 re-allocating some of our examination-in-chief time to re-examination. I
20 will see if that will be necessary. I hope, Mr. President, to complete
21 my examination-in-chief within one hour, but of course we never know how
22 these things go.
23 WITNESS: MIODRAG PANIC
24 [Witness answered through interpreter]
25 Examination by Mr. Bourgon:
1 Q. Good morning, General Panic.
2 A. Good morning.
3 Q. General, we have met this week, but allow me to introduce myself
4 for the record. My name is Stephane Bourgon and I am accompanied this
5 morning for your testimony by Mr. Novak Lukic, by Ms. Maja Dokmanovic,
6 and by Ms. Caroline Bouchard-Lauzon.
7 General, I will be asking you a series of questions this morning.
8 I would like to remind you that at any time, should there be any question
9 that you do not understand, please do not hesitate to interrupt me so
10 that I can say the questions over again. It is very important that you
11 understand each question that I will put to you.
12 General, when we met yesterday, I explained to you the purpose of
13 the hearing this morning, so we will go straight to the essence of your
14 testimony. However, before I do so, I would like to point out that
15 the -- even though the Judges from the Appeals Chamber are most likely
16 familiar with your testimony in the Sljivancanin case when it was at
17 trial, it is the first time that they see you this morning. So for the
18 benefit of the Judges, can you briefly summarise your military career.
19 A. I graduated from the military academy in 1972, when I became a
20 professional officer of the Yugoslav People's Army. During my
21 professional career, I held all command positions that exist, from
22 platoon commander to commander of the corps of the special units,
23 assistant Chief of General Staff for land forces, and I ended my career
24 as head of the inspectorate for combat-readiness in 2002, when I retired
25 with the rank of lieutenant-general. During my education and military
1 service, I completed all military schools that existed, including the
2 school of national defence. I'm a retiree now and I live in Belgrade
3 Q. Thank you, General. I will be asking my questions to you this
4 morning based on the series of topic, and my first topic this morning is
5 your testimony in the Mrksic, Sljivancanin, and Radic case. Do you
6 recall, General, when you testified before this Tribunal in this case?
7 A. Yes, I do recall. It was in 2006, in the first half of November.
8 Q. And, sir, did you have an opportunity to review your testimony
9 since then?
10 A. Yes.
11 Q. When was that and how did you do that?
12 A. I reviewed it about a month ago, and this is how I did it: I
13 received from Mr. Lukic's office, through Ms. Dokmanovic, the video
14 recording of that testimony.
15 Q. And what language was this recording in?
16 A. That video recording was in my mother tongue, in the Serbian
18 Q. And, sir, having watched your testimony, are there any of your
19 answers that you gave at the time that you would like to modify today?
20 A. When I reviewed that testimony of mine, I decided that I stand by
21 what I said then when I testified, except that now I could clarify
22 certain events and certain minute details related to that testimony.
23 Perhaps I could clarify certain events with greater precision.
24 Q. And, General, is there any one issue that comes to your mind this
25 morning that you could perhaps provide further clarification on?
1 A. Well, now, after everything, I could explain with greater
2 precision the place and role of Mr. Sljivancanin during the evacuation of
3 the hospital; more specifically, his role in the field of security -- or
4 rather, the security-related selection of paramilitary formations that
5 had sought shelter in the hospital. I could explain that part in greater
7 Q. Thank you, General. I will not be asking any questions about
8 this topic today. Maybe the Prosecution will in cross-examination, but
9 that's a different matter. I move to my next topic, which is the
10 judgement that was rendered in the trial of Mrksic, Sljivancanin, and
11 Radic. Sir, do you know when the trial judgement was rendered in that
13 A. That judgement was rendered in 2007, sometime in the month of
15 Q. Were you interested in the outcome of this trial; and if so, why?
16 A. Yes, I was. I was and our entire public was very interested in
17 that. I in particular, because I know the man concerned. I was with
18 them when certain things happened and this was in particular due to the
19 fact that I testified before this court as well. That is why I was
20 interested in the outcome.
21 Q. Thank you. Now, moving on to my next topic, which is the outcome
22 of the judgement. Do you recall what happened to Mr. Radic in that case
23 and what was your reaction?
24 A. Yes, I recall. Mr. Radic was acquitted of all the charges. I
25 found that acceptable. I was very pleased. I had never even known of
1 Radic. I did not realise, as I said here when I testified, how come he
2 became part of all of that. So I'm glad that that is how things turned
3 out for him.
4 Q. And what about Sljivancanin, do you know what happened to him and
5 what was your reaction after the first-degree judgement?
6 A. Yes, I remember. Mr. Sljivancanin was sentenced to five years in
7 prison. That is a serious sentence, but my understanding was that that
8 was the price to be paid for where he was during the Vukovar operation
9 and the fact that he personally was more exposed.
10 Q. Can you elaborate on what you mean by "he ... was more exposed"?
11 A. Well, Mr. Sljivancanin, as you can see him here, he's a striking
12 person. He has personal courage. He was in many places. He was in many
13 places where things happened, and in particular towards the end of the
14 operations, he was in the places where civilians were supposed to be
15 protected physically; that is to say, those who had been taken prisoner
16 and those who were frail. I believe that this is a personal shortcoming
17 of his, that he liked to have his picture taken, he liked being exposed
18 in the media. For the public, he was a media personality. That's the
19 way it was.
20 Q. Thank you. And what about Mrksic, what happened to him and what
21 was your reaction to that judgement?
22 A. Mr. Mrksic, as the commander, was sentenced to 20 years. That is
23 a long sentence. It's serious punishment, and I took it to be the price
24 of the -- for the fact that he was the commander. Being commander
25 involves responsibility and glory. At that point in time, it was my
1 understanding that that was the price to be paid for command
3 Q. I move to my next topic, which is the reason why Mrksic was
4 convicted. Did you come to learn, Mr. Panic, as to why Mrksic was
6 A. I learned that Mrksic was convicted because he had ordered the
7 withdrawal of the security detail from Ovcara, where the prisoner had
8 been guarded.
9 Q. And was this a surprise to you, sir?
10 A. This was a major surprise for me.
11 Q. Why so?
12 A. I know Mrksic as commander pretty well. We worked together for a
13 number of years. I know that he is a stern but fair commander. I could
14 not believe that that was possible, that it was possible for him to have
15 ordered that, approved of that, or agreed with that kind of decision, to
16 withdraw the security detail. When I think about this, he never
17 communicated that to anyone. So that was my surprise first of all. How
18 come he was being convicted for something that we had not known about at
19 all? And again, as I think about this, he's the only one who could have
20 made that kind of decision as commander. It is only the commander who
21 can make that kind of decision, but I had never known of that decision
22 nor can I believe that and I cannot even be convinced now that he had
23 done something like that. That was a major surprise to me.
24 Q. Thank you, General. Let us move to the appeals judgement or the
25 second-degree judgement. Did you come to learn, Mr. Panic, that the
1 judgement was under appeal?
2 A. Yes, yes, I did know. Yes.
3 Q. And how did you come to learn this?
4 A. Well, it was in the media and our public was greatly interested
5 in that, so was I and all my comrades too.
6 Q. Do you remember the date of the Appeals Chamber or the
7 second-degree judgement?
8 A. Yes, I remember. I remember that Mr. Sljivancanin was on
9 provisional release then, and he had to go back because the judgement was
10 supposed to be rendered. And that was in December -- sorry, no, that was
11 in May, about a year ago -- or actually to be more specific, while I was
12 preparing a bit here, I saw that it was in May 2009, yes.
13 Q. Thank you, General. What about the outcome of the second-degree
14 judgement, do you recall first of all what happened to Mrksic and what
15 was your reaction to that?
16 A. Yes. I know that Mrksic's sentence of 20 years in prison was
17 confirmed, and I had expected that, in view of the fact that he had been
18 commander and that was it.
19 Q. And what about Sljivancanin, what happened to him in this
20 second-degree judgement and what -- how did the people react in Belgrade
21 to this?
22 A. Well, as far as Mr. Sljivancanin's judgement was concerned, for
23 me this was a major shock, a major surprise, first of all for me
24 personally and also for the public in Belgrade.
25 Q. Now tell us, sir, why was this a major shock for you personally?
1 A. For me personally this was a major shock. All of a sudden he got
2 12 years additionally. We thought that he had served his sentence and
3 that he was coming back and that he would be free. However, he got a
4 sentence that was more than three times higher. This is what he got at
5 this new trial. Then I was greatly surprised when I saw why it was that
6 he was given this sentence. That is what surprised me in particular. I
7 understand that it is for the Court to assess all the facts and to
8 compare them. However, at that point in time I did not see that
9 Sljivancanin had deserved that kind of punishment for what was stated
11 Q. Sir, can you explain how this took place exactly. How did you
12 come to be shocked and when did that happen?
13 A. Well, you see, I followed the proceedings on the internet. So I
14 was watching and I couldn't believe my eyes and ears. I was watching,
15 reading, and it seemed less than normal to me, uncomprehensible, one
16 sentence or two sentences, namely, that Mr. Sljivancanin was -- got that
17 sentence because Mrksic as commander had ordered to withdraw the security
18 detail from Ovcara. If he had communicated that -- or rather, that he
19 communicated that to Sljivancanin and that he, as a security organ,
20 failed to protect the prisoners at Ovcara -- or rather, it says there
21 that he didn't exert influence on Mrksic to change his decision.
22 After that, I tried to see in the media whether that was really
23 so, whether it may have been a translation error or maybe I misheard.
24 Many people called me on that day and I spoke to many people, but things
25 remained as I had understood them in the first place. I couldn't wait
1 for my daughter to come back from work on that afternoon. She speaks
2 excellent English because she studied at Cambridge, she got her doctoral
3 degree there. I wanted to consult her and see whether she could
4 translate to me from English and check whether I had understood things
5 correctly. And he really -- was able to find a summary that states the
6 same thing. If I can repeat -- or I don't know if I should repeat what
7 it said there.
8 Q. And, General, did your daughter and yourself find such
9 information; and if so, where?
10 A. Yes. My daughter was able to do so. It's an English version, a
11 summary in the English language, which she translated to me. It was on
12 the internet.
13 Q. And what was this the summary of?
14 A. It was a summary of the sentence, the judgement of the Appeals
16 Q. Sir, can you look in the binder that is in front of you at tab
17 number 8.
18 MR. BOURGON: For the Appeals Chamber, Mr. President, this is
19 Exhibit RD8.
20 THE WITNESS: [Interpretation] Yes, I can see it.
21 MR. BOURGON:
22 Q. Do you recognise this document?
23 A. Yes, I do. Yes, this is the summary of the judgement of the
24 Appeals Chamber.
25 Q. Is there any specific part of this document that was most
1 important for you on that day; and if so, can you identify that for us,
3 A. Yes. All of this was important to me. I read that all. But
4 what shocked me especially and which made me react as a human being is
5 this part, the summary. The Trial Chamber notes that the -- sorry, the
6 Appeals Chamber notes that the Trial Chamber -- et cetera --
7 Q. General, can you tell us where you are in the document, please,
8 what page, so that everybody can follow in the courtroom.
9 A. Well, as I turn the pages, I'm looking at the typed pages, page
10 2, page 3, 4, 5, and then we reach the sixth typed page.
11 Q. Now, the document you have before you is in what language, sir?
12 A. It's in my language, the Serbian language, and it's the second
14 Q. And is this the exact document that you saw that night?
15 A. Yes.
16 Q. In that language?
17 A. It was in English.
18 Q. Okay. Tell us -- please proceed to tell us what is the paragraph
19 that was most important to you.
20 A. To me this paragraph was the most important, the second paragraph
21 on page 6. It says here:
22 "However, the only reasonable conclusion that can be drawn is
23 that Mr. Mrksic, during their meeting after the return of
24 Mr. Sljivancanin to Negoslavci on that night, said to Mr. Sljivancanin
25 that he had withdrawn the members of the JNA who were protecting the
1 prisoners of war at Ovcara."
2 Q. Now, sir, tell us why this paragraph was suddenly so important to
4 A. This became important to me -- I testified here and I testified
5 to a series of facts, but this is completely new to me. That is why it
6 attracted my attention, because I know that I was at Negoslavci at the
7 time. I know that I was at the command post. I know when
8 Mr. Sljivancanin arrived. I know that he met Mr. Mrksic. And I know
9 that Mrksic then didn't say to him that he had withdrawn the security
10 detail. That is why this was a surprise to me --
11 JUDGE MERON: Would you be kind enough to by reference to the
12 English text direct us exactly to the paragraph that
13 [overlapping speakers] --
14 MR. BOURGON: I will, Mr. President. I'm looking for the
15 paragraph right now and it is on the sixth page, I believe.
16 MR. ROGERS: Your Honours, if it helps, it's on the sixth page of
17 the English under Prosecution Appeal, it's the third paragraph, and it's
18 in the middle of the third paragraph.
19 JUDGE MERON: "The Appeals Chamber notes ..." that's how it
20 starts; right?
21 MR. BOURGON: Yes, that is correct, Mr. President. I just found.
22 Thank you to my colleagues.
23 JUDGE MERON: Thank you, Mr. Rogers.
24 MR. ROGERS: I'm obliged, Your Honour.
25 MR. BOURGON:
1 Q. So, sir, having seen this information on that summary, how did
2 you react to this?
3 A. Having seen this, I was upset. I couldn't sleep that night and I
4 could hardly wait for dawn to call up Mr. Lukic's office, which I did
5 first thing in the morning. And I was able to reach Mr. Lukic's office.
6 He wasn't there at the time. I suppose that he was here -- or rather, he
7 certainly was. Ms. Dokmanovic answered the phone. I asked whether I
8 could establish contact in any way with Attorney Lukic. She said she
9 would do all she could when she gets the chance to have Mr. Lukic call
10 me. And in the evening hours of the same day, Mr. Lukic contacted me
11 from The Hague
12 Q. And when Mr. Lukic called you, can you tell us what you told him?
13 A. When he called me, I [as interpreted] immediately asked me,
14 without beating about the bush, what happened, Mr. Lukic? Where did this
15 sudden turn come from? Is this possible? Is it true that
16 Mr. Sljivancanin was convicted because Mr. Mrksic gave him the
17 information that he had withdrawn the security detail and
18 Mr. Sljivancanin failed to try to make him change his decision, as it
19 says? Mr. Lukic said to me, "Yes, indeed, this is true."
20 Q. Go on -- please go on. Explain what happened during that
22 A. I said to him, "Mr. Lukic, that's wrong. I was there. I was
23 present during the conversation. It's impossible that Mrksic gave that
24 information to Sljivancanin without giving it to me, who was there, or
25 before that or at any time. That is simply wrong. And I really ask you
1 that we do something." Well, this is a brief version.
2 Q. And what did Mr. Lukic say in response to this?
3 A. Mr. Lukic said, "Keep this information. When I come to Belgrade
4 we'll speak about it some more, and you try to remember everything that
5 happened that evening at the command post, try to remember who else was
6 present who could corroborate that."
7 Q. Thank you, sir. And did -- Mr. Lukic did travel to Belgrade to
8 see you; and if so, when?
9 A. Mr. Lukic arrived in Belgrade
10 this matter.
11 Q. Can you tell us what happened during that meeting?
12 A. Mr. Lukic informed me of his arrival and we met at his office.
13 We then spoke some more about the matter.
14 Q. And did Mr. Lukic tell you anything about the information you
15 provided him with?
16 A. Well, we talked about it. I again asked him whether everything
17 was really like that, and he gave me a more detailed explanation. Then
18 we spoke about the information I had given to him. Mr. Lukic was then
19 interested to hear why I was reacting and what kind of information I
20 could relate to him, what kind of facts I could speak about. He asked me
21 whether I was present at the command post, who else was there, what they
22 spoke about, when Mr. Sljivancanin arrived at the command post, what
23 Mr. Mrksic and Mr. Sljivancanin spoke about. He asked me why I hadn't
24 disclosed that information to anybody earlier, why I was -- contacted him
25 about it now. And I simply said that I had testified on several
1 occasions, I had given many statements, but nobody had ever asked me
2 about it. He also asked me whether I -- if a new testimony should become
3 necessary, whether I would be willing to testify, and I said, "Yes,
4 certainly, any time."
5 Q. Thank you. Let me move to --
6 A. If I may. He merely said that I should keep it to myself, this
7 information, and then we would see after a certain time.
8 Q. Well, maybe that brings another question from me. Did you sign a
9 statement on that occasion?
10 A. No.
11 Q. Okay. Now, at that time was this -- how much was this reported
12 in the media in Belgrade
13 A. This was present in the media. They wrote a lot about the
14 judgement, but there was also a small article in the media about the
15 Sljivancanin Defence having received some new information.
16 Q. Sir, if you can turn at tab 14 in the binder in front of you.
17 MR. BOURGON: And for the Appeals Chamber, this is Exhibit RD14,
18 1-4. There is an unofficial translation in English, Mr. President, but
19 the original is in B/C/S.
20 THE WITNESS: [Interpretation] Yes, I can see it.
21 MR. BOURGON:
22 Q. And can you tell us if you were -- if you came to learn this
23 information at the time?
24 A. Yes, I saw this in the media.
25 Q. Now, it says here in the middle of the document -- now, of course
1 I have the English version. It says:
2 "New information which we have received and which we have already
3 started to investigate ..."
4 Does that correspond in any way to the information you provided
5 Mr. Lukic with?
6 A. Yes, yes. This matches. I saw this. I -- concluding that from
7 reading between the lines that this was the information that originated
8 from me -- well, maybe somebody else too, but I certainly recognised
9 myself in it.
10 Q. Let me move then to our next topic, which is whether you had any
11 other meetings following this first meeting with members of the
12 Sljivancanin Defence team?
13 A. Yes.
14 Q. When was that?
15 A. It was a few months later in Belgrade. I met you, Mr. Lukic, and
16 there was also Ms. Dokmanovic.
17 Q. How long did this meeting last and what was discussed then?
18 A. It was a short meeting. It didn't last long. I understood that
19 it was all about meeting each other and my corroborating the information
20 I had, and I learned then that I might be called to testify and you asked
21 me whether I would be willing to do so.
22 Q. Thank you. Did you provide a statement on this occasion, sir?
23 A. No, no, I didn't.
24 Q. Now, it's a known fact in these proceedings that you did provide
25 a statement; when was that?
1 MR. ROGERS: I'm happy for my learned friend to lead the date if
2 he wants to.
3 MR. BOURGON: So -- thank you.
4 Q. So the statement that we have on record is dated 8th October of
5 2009. Can you recall when and how you came about to provide this
7 A. Yes. That's the exact date of that statement. I wrote it by
8 hand on two pages, and I did so in the presence of Mr. Lukic at his
9 office. There were other people around, but they were doing their own
10 work. They were in their respective offices and I met Mr. Lukic in
12 Q. And were you provided with any guide-lines as to what to put in
13 that statement?
14 A. I got brief guide-lines like bullet points. Apart from stating
15 my personal information, what I was and where I was, I was also
16 instructed to write down what I had heard, that is, the contents of the
17 conversation between Mrksic and Sljivancanin. Firstly, whether it was
18 correct that Mrksic had told Sljivancanin that he had withdrawn the
19 security detail, and Mr. Sljivancanin failing to try to make him change
20 his decision. Then stating the reason why I was volunteering this
21 information only then. And finally, why I had decided to testify.
22 Q. So tell us, physically how did you provide this statement to
23 Mr. Lukic?
24 A. Let me just add, Lukic suggested to me to add another sentence,
25 whether or not I sought protective measures, and I stated that I was
1 willing to testify without any protective measures. I signed the
2 statement with my own hand and handed it to Mr. Lukic.
3 Q. Now, sir, between the time that you provided this statement in
4 October of 2009 and today, did you have any other meetings with members
5 of the Sljivancanin Defence team?
6 A. Yes. I met Ms. Dokmanovic in Belgrade and I also had a meeting
7 with the Defence team, that is, you and Mr. Lukic, when I came here to
9 Q. Now, I see that time is running out, General, so I'm going to
10 move straight to a different topic, and that is concerning the people
11 that you met before you testified in the first-degree judgement,
12 first-degree trial. I'd like you to recap very quickly all the people
13 you spoke to before your first testimony in The Hague.
14 MR. ROGERS: Your Honours, that does appear to be a rather broad
15 question --
16 MR. BOURGON: Well, I'm --
17 MR. ROGERS: It doesn't appear to be focused on any particular
18 issue. I expect he had a conversation with a lot of people over a --
19 about a lot of things, but perhaps my learned friend wants to try to be a
20 little bit more precise about what it was he spoke to and which people he
21 spoke to about. Then we'll see -- [overlapping speakers].
22 JUDGE MERON: Time is limited. Do you think it's --
23 [overlapping speakers].
24 MR. BOURGON: Yes. Yes, well, I would like -- well, you know, I
25 met with my colleague. I'm trying to -- not to lead the witness in any
1 way and that is why I'm being so broad, but I will try to be more direct.
2 JUDGE MERON: It's your judgement call, but you'll note the
4 MR. BOURGON:
5 Q. Sir, did you meet with the Prosecution before you testified in
6 The Hague
7 testimony in The Hague
8 A. Yes. I met representatives of the OTP. They have an office in
10 and that's when I gave a statement. And about your earlier question, I
11 worked with the Mrksic Defence extensively. I was willing to testify in
12 favour of any of the accused or testify for the OTP. I don't mind whose
13 witness I am, because what I care about is that the truth is spoken here.
14 I have been willing to testify. It was that way before and it's the same
15 way now. That's why I'm here. I did work with the Prosecution.
16 Q. And, sir, it is established on the record that you testified on
17 two occasions in Belgrade
18 A. Yes. I testified before the special tribunal in Belgrade, where
19 proceedings are underway against persons accused of committing murders at
20 Ovcara, 16 of them. I testified two times before the Trial Chamber.
21 There I provided answers to some 15 lawyers there and even the accused
22 had the right to put questions to me.
23 Q. Now, sir, my next question is quite simple. While you met with
24 all of the persons you just spoke about, the Prosecution, the Mrksic
25 Defence, or proceedings in Belgrade
1 questions about the contents of the conversation between Mrksic and
2 Sljivancanin on the 20 November 1991
3 A. Nobody has ever asked me anything about the conversation between
4 Commander Mrksic and Major Sljivancanin on the 20th of November at
5 8.00 p.m.
6 Q. Let us move to 20 November 1991
7 were the activities that Operational Group South was involved on that
8 day, very briefly, please.
9 A. 20th of November, 1991, was day two after the fiercest fighting
10 had ceased in the town of Vukovar
11 tasks and commitments at this time. The situation that some of the
12 people faced during the actual combat was actually easier than the one
13 they now found themselves facing when peace was back in town. All of a
14 sudden we were swamped by a huge number of civilians who had just left
15 their shelters and were now seeking our assistance. They wanted to go
16 back to Croatia
17 of tasks that had to do with the evacuation of the wounded. There were
18 tasks that had to do with the future activities of our unit. It was a
19 very dynamic situation.
20 The reason the 20th of November really sticks in my mind is the
21 evacuation of the hospital that took place as well as the government
22 meeting that occurred in Vukovar at the time. I do remember a number of
23 other details and any account that I may provide depends on how much time
24 we have.
25 Q. Sir, let me take you immediately to the evening of 20 November
1 1991. I'd like to know if you were at the OG South command that night?
2 A. Yes.
3 Q. What time did you arrive at the command and what did you do then?
4 A. I arrived at about 1600 hours. I had visited Ovcara previously
5 before I met General -- or rather, Commander Mrksic. When I met
6 Commander Mrksic, I briefed him in the shortest possible terms on what I
7 had been doing that day and where I'd been to. I told him that I'd been
8 to the barracks, the government meeting, that I'd been to Ovcara to try
9 and take in the situation. I had briefed him on it in the shortest
10 possible terms, and then I stayed at the command post throughout.
11 Q. And, sir, was there a daily briefing that day; and if so, at what
13 A. Indeed, there was a daily briefing on that day, as there had been
14 one on previous days. Normally it would start at 1800 hours, and this
15 day was no different.
16 Q. And who chaired the daily briefing and who was present, if you
18 A. Yes. Commander Mrksic chaired these briefings. Also in
19 attendance were most of the other commanders and his assistants. Some
20 were away because they had to deal with the evacuation of civilians, or
21 rather, trying to get the civilian convoy on buses out of the town and
22 towards destinations somewhere along the border or elsewhere.
23 Q. And, sir, do you recall --
24 JUDGE MERON: Excuse me, Mr. Bourgon, my colleague Judge Guney
25 would like to ask a question.
1 Judge Guney.
2 JUDGE GUNEY: [Interpretation] Mr. Panic, what was your personal
3 interest at the time and what was your capacity and how can you remember
4 all the details of the conversation that occurred between Mr. Mrksic and
5 Mr. Sljivancanin? What's your interest in remembering all this? Could
6 you tell us what your personal interest in remembering all this can be?
7 THE WITNESS: [Interpretation] At the time I was Chief of Staff of
8 the Guards Brigade and also OG South in that particular area. I was
9 Commander Mrksic's deputy. I'd stand-in for him when he was away. I was
10 there for all the important tasks and for all the important briefings. I
11 always directly witnessed whatever was going on. The only interest I
12 have is the fact that I was, myself, carrying out a task.
13 JUDGE GUNEY: [Interpretation] Thank you.
14 JUDGE MERON: You may proceed, Mr. Bourgon.
15 MR. BOURGON: Thank you, Mr. President.
16 Q. General Panic, quickly, do you recall what was discussed at the
17 daily briefing that day?
18 A. Indeed I do. I've also been looking at documents in preparation
19 for this testimony. Several key tasks were discussed on that day. It
20 was about the --
21 MR. ROGERS: Your Honours, I'm sorry to interrupt. I'm not quite
22 sure what the relevance of the content of the daily briefing was. What
23 we're concerned about in this hearing is the content of the conversation
24 between Mr. Mrksic, Mr. Sljivancanin, and in the presence of Mr. Panic.
25 I don't see in the scope of the context of this hearing what relevance
1 there is to the content of the daily briefing, which has been fully
2 litigated in the Tribunals below.
3 JUDGE MERON: I suppose you are getting there, aren't you?
4 MR. BOURGON: Well, Mr. President, I thank my colleague for that.
5 I hope he will remember the same when he does his cross-examination, but
6 I can move immediately after the briefing.
7 Q. What time does Mr. Sljivancanin arrive at the OG South that
8 night, sir?
9 A. Mr. Sljivancanin arrived at about 2000 hours.
10 Q. Who was present at the command when he arrived?
11 A. I was there, Lieutenant-Colonel Trifunovic was there, and two
12 signals officers were there too. I'm certain about these persons, but
13 there may have been other people there too, some people processing
14 documents, perhaps one of the operatives. And then occasionally other
15 people would drop in, warrant officers who would bring mail or take mail
16 away for delivery.
17 Q. Now, sir, describe what happened exactly to the best of your
18 recollection when Major Sljivancanin arrived at the OG South command.
19 A. What I remember is I was seated at my table at the time, and
20 Mr. Mrksic was there. He made a habit of pacing up and down the room
21 when he wasn't doing anything in particular. It was in the operations
22 room and he would walk from wall to wall, see what the signals men were
23 doing. Sljivancanin is a tall man and stalwart, too, so he stood across
24 the way from the commander somewhere near the door. He then spoke to
25 him, "Colonel, sir, I'm just back from the hospital. I have completed my
1 mission. Please, sir, can you tell me what exactly happened. I only
2 know that a decision was taken in relation to the paramilitaries who were
3 at the hospital. Why were they taken to Mitrovica but to Ovcara
5 Mrksic gave no more than a brief reply. He said, "This was the
6 government's call. There was a government meeting today and they took
7 that decision. Make sure you remember your tasks in relation to
8 tomorrow, and we can go back to discussing this later on."
9 MR. BOURGON: Mr. President, I note that there's a problem with
10 the translation in terms of what was said by the witness.
11 Q. Mr. Panic, I will just read you one sentence that was on the
12 transcript here, and you can tell me -- you can correct me if this is
13 what you said. It says -- the question was what Sljivancanin said and
14 then you said, "Colonel, sir, I'm just back from the hospital. I have
15 completed my mission. Please, sir, can you tell me what exactly
16 happened." And then that sentence here is the one I'm trying to get at.
17 "I only know that a decision was taken in relation to the paramilitaries
18 who were at the hospital. Why were they taken to Mitrovica but to Ovcara
20 Is that what you said?
21 A. No, no. I'll repeat. The moment Mr. Sljivancanin briefed
22 General Mrksic to tell him that he was now back from the hospital, having
23 completed his mission there, without even pausing he asked him the
24 following question, "What happened, why was the decision changed so the
25 members of the paramilitary units at the hospital who were hiding there
1 did not go to Mitrovica, but went to Ovcara instead?"
2 Mrksic then said, "This is a government decision. There was a
3 government meeting today and they took this decision. We'll talk about
4 that later."
5 Q. And, sir, what else was discussed in that conversation to the
6 best of your recollection?
7 A. Mrksic told him, "Listen, Sljivo," because that's what he used to
8 call him, "the 80th Brigade would be taking charge of the zone of
9 responsibility around these parts. The Guards Brigade would be on its
10 way back to the Belgrade
11 group of both domestic and foreign journalists arriving, about 120
12 journalists. Give Panic a hand just to make sure things go smoothly. I
13 will not be around because I will be on my way to Belgrade to see federal
15 And if I may just make a remark here, he even said, "Please don't
16 push it in terms of how much you show your face before the journalists."
17 Q. Thank you, sir. Now, where exactly were Mrksic and Sljivancanin
18 in the room compared to where you were at the time?
19 A. It was all happening right next to me near the door to the room
20 in which the command was.
21 Q. And, sir, were you a party to that conversation?
22 A. No, I did not contribute myself. I was busy doing something and
23 I just happened to be there and listened to that conversation. I was
24 interested in hearing what they were talking about.
25 Q. Sir, did you hear that conversation?
1 A. Yes.
2 Q. And on what basis can you say that you heard that conversation?
3 A. Well, because I was nearby. They were talking loud. Anyone who
4 knows Mrksic knows that he talks loud and Sljivancanin talks even louder.
5 Q. Sir, during that conversation, was the situation of prisoners of
6 war held at Ovcara discussed in any way?
7 A. No, there was no discussion of that.
8 Q. Sir, it's been a long time. How can you be so sure?
9 A. I'm sure. I just am. Had I not been sure about it, I would not
10 have gotten in touch with Mr. Lukic to begin with and I certainly would
11 not be sitting here today. I'm sure. Maybe I'm unable to remember every
12 single word of that exchange after all this time. I'm sure that I don't.
13 But I'm certain about one thing: What was not said. And that is what
14 moved me to take steps. I'm obeying my conscience in coming up just to
15 say this: It is simply not true that Mrksic told Sljivancanin at any
16 point in time that he had withdrawn or indeed issued approval for the
17 security detail to be withdrawn from Ovcara. I could keep telling you
18 the same thing any time of day or night and no matter who asks. Perhaps
19 I'm unable to remember every single word or detail. I'll grant you that.
20 I may have heard these things. I may not remember all of them right now,
21 but this is not the sort of thing that would slip your mind --
22 Q. Why not --
23 A. -- this is something that is essential and directly affects the
24 security of the people who were at Ovcara.
25 After I came back from Ovcara, I briefed Mrksic on what the
1 situation was like there. I said, "Step-up the security." I said,
2 "Dispatch more people there to give Vojnovic a hand, in a technical
3 sense, if necessary," although he had sufficient men who were there
4 already and soldiers. Mrksic agreed and as far as I remember he
5 dispatched a contingent there. I think I testified about this the last
6 time around. Captain Bozic was also at Ovcara and someone else from the
7 security body. Following my briefing to Mrksic. That is why I'm saying
8 what I'm saying. At no point did he tell Sljivancanin anything like
9 that. If he had told Sljivancanin, he certainly would have told me in my
10 capacity as Chief of Staff. I was after all his deputy and I was there
11 with him throughout. That is the gist of it. I do apologise if perhaps
12 I've -- if I spoke a little louder and strictly necessary.
13 JUDGE MERON: Mr. Bourgon, I would like to ask a question of
14 clarification, if I may.
15 MR. BOURGON: By all means, Mr. President.
16 JUDGE MERON: A moment ago Mr. Panic said, and I'm quoting from
17 the transcript "I was busy doing something," he was busy during the
18 meeting between Mr. Mrksic and Mr. Sljivancanin. And my question to the
19 witness is whether you can remember any details of this conversation
20 between Mrksic and Sljivancanin, apart from the fact that Mrksic did not
21 inform Sljivancanin about the withdrawal, or is this the only item that
22 remained in your mind? Because to clarify, in your testimony during
23 trial and in your previous statements, you did not testify in an
24 affirmative manner on anything that was said or not said during the
25 conversation between Sljivancanin and Mrksic. So please tell us how you
1 can suddenly remember so clearly that the withdrawal of JNA protection
2 was not mentioned.
3 THE WITNESS: [Interpretation] I was sitting there busy doing
4 something. Sljivancanin was to my right. I stopped working for a
5 moment. The two of them met in the room, standing across the way from
6 each other, and I was listening to their conversation. I do allow for
7 the possibility that I don't remember every single detail of that
8 conversation. I do know, however, what the general drift was. When
9 Sljivancanin came he said, "I'm back from the hospital. I've completed
10 my mission." And went on to ask Mrksic how the change had come about in
11 terms of the paramilitaries who were at the hospital and selected there
12 being sent to Sremska Mitrovica, but that was changed and they were now
13 to be sent to Ovcara. Why was that changed? Mrksic said, "The
14 government met today. It was a decision that they took. This is
15 something we'll be discussing in due course."
16 Why do I remember this? Simply because the following day
17 Sljivancanin was with me and we were supposed to carry out a specific
18 task, a regular task, to do with the transport of civilians and a number
19 of other routine steps. There was still sporadic fighting in some
21 I also know for a fact that Mrksic gave him a number of specific
22 tasks. Now, this is very important. He had to know this. The zone of
23 responsibility was passing into the hands of the 80th Brigade and the
24 Guards Brigade will be on its way back. This is essential. It's not
25 something one would be likely to forget. It's always there in one's
1 mind. They would be on their way back to the Belgrade garrison, and he
2 would be assisting me the next day when this large group of journalists
3 would be arriving, for those people to be welcomed and for the whole
4 thing to be organised in addition to all our routine tasks, as I said.
5 Had Mrksic told Sljivancanin something like this: I issued
6 approval or even ordered for the security detail from Ovcara to be
7 withdrawn, I would have been the first to react in my capacity as an
8 officer, Chief of Staff, his own deputy, and first and foremost as a
9 human being. I would have said something along these lines: Commander,
10 it wasn't like that, not until a minute ago. What has come up? And I'm
11 certain that Mr. Sljivancanin, as chief of security, would have done the
12 very same thing. I know because I was at Ovcara myself. I briefed that
13 commander; and no more than an hour before, he had agreed.
14 This kind of conversation would have stuck with me for the rest
15 of my life, just as I clearly remember that no such thing was ever
16 uttered. As I said, had something like this been uttered, I would have
17 been the first to react.
18 JUDGE MERON: Judge Vaz has a question.
19 JUDGE VAZ: [Interpretation] Thank you, Mr. President.
20 Mr. Panic, you told us earlier that you arrived at the command
21 post at 4.00 p.m.
22 Could you tell us exactly what means "till the end." What time was it
23 when you left the command post, if you left it? Where was Sljivancanin
24 at that time when you left? And the future missions were also mentioned
25 and you just talked about it. Could you tell us exactly in the framework
1 of this conversation between Mrksic and Sljivancanin regarding these
2 future missions, what exactly was Mrksic's answer when Sljivancanin asked
3 him what he was supposed to do the next days. I'm sorry, I'm a bit
4 hoarse at the moment, but I hope that you understood my question,
5 otherwise I can repeat, of course.
6 JUDGE MERON: Thank you, Judge Vaz.
7 Mr. Panic, the question was clear to you, right? Please.
8 THE WITNESS: [Interpretation] The question is clear. Just in
9 order to make sure we understand this, the mainstay of the activity at
10 the command post would take place in this room that we called the
11 operations room. There would be a number of officers who were there
12 throughout. I was there, the commander was there whenever we were not
13 touring the units. I arrived at 1600 hours that evening, having
14 completed all my daily tasks. I briefed the commander and sat down at my
15 own desk. I was there throughout, in that room at the command post.
16 Right across from there there was a recreation room that we had there,
17 and that was where I would spend my nights before we were off to new
19 But I do understand what you are after. At no point in time did
20 I actually physically leave during their conversation, simply because the
21 conversation was brief. As for the specific tasks that Mrksic handed out
22 to Sljivancanin, I'll repeat, one was that the 80th Brigade would be
23 taking charge of the zone of responsibility. He was telling him this
24 because Sljivancanin had not attended the daily briefing when this was
25 discussed and when the commander of the 80th Brigade assumed
1 responsibility. It was very important for Sljivancanin, as chief of
2 security, to be aware of this, that he would have other commitments soon
3 probably now that this new brigade was taking over.
4 Secondly, the Guards Brigade would be on its way back to the
6 that would enable him to plan his own security tasks and assignments in
7 this complex situation where we suddenly faced 12.000 civilians coming to
8 us, begging us to help them out, to give them something to eat and to
9 take them as far as the border or wherever they wanted to go. Another
10 task was in relation to the next day. As I said, Sljivancanin was very
11 much in the public eye, in the media. Nevertheless, he was the security
12 chief and he had to vouch for the safety of a large group of domestic and
13 foreign journalists in a situation that was as riotous as this one was.
14 They would be there the following morning and Sljivancanin was told to
15 give me a hand with this task, just to make sure that everything went
16 smoothly. These journalists eventually arrived, a press conference was
17 organised and held, and perhaps that is also something that we can bring
18 up if necessary. That's in the briefest of terms.
19 JUDGE VAZ: [Interpretation] Thank you, Mr. Panic. You told us
20 that this conversation on the question that we're interested in today was
21 very short, but could you give us some information as to the length of
22 this conversation. Was it possible to revisit the issue? You said that
23 you stayed there all the time and -- or most of the time, but could you
24 imagine that at one point in time maybe Mr. Mrksic could have told
25 Sljivancanin what we are interested about today, i.e., what -- about the
1 security detail that was supposed to be withdrawn. Do you think that at
2 one point in time this could have been mentioned between the two without
3 you overhearing it?
4 THE WITNESS: [Interpretation] I'll say this again. I was right
5 there, in close physical proximity, and the conversation was short.
6 Maybe over a minute, but it certainly wasn't longer than five- to
7 ten-minutes, their encounter. It would not have been feasible for Mrksic
8 to tell him that without me hearing it. For the most part, I heard
9 everything they said. Granted, I may not be able to remember every
10 single word and it has been a long time. Nevertheless, what I'm telling
11 you is: I heard everything there and then. And I assert, had he ever
12 said anything about the security detail being withdrawn and had I heard
13 that, I would have been the first to react. This would have constituted
14 an important reversal in this whole situation as well as a violation of
15 something that the two of us had agreed on shortly before when I had
16 briefed him on the situation at Ovcara. It was clear that this would
17 have constituted a threat to the safety of the people at Ovcara, and I
18 wouldn't have glossed over it, no way. I don't think this possibly could
19 have happened. He couldn't possibly have told Sljivancanin because we
20 were all there at all times.
21 JUDGE MERON: Mr. Bourgon, sorry, just a short follow-up question
22 to the question asked by my distinguished colleague, Judge Vaz.
23 Do you remember, Mr. Panic, or don't you, when Mr. Sljivancanin
24 asked Mr. Mrksic about these future missions, is this among the things
25 that remained in your memory?
1 THE WITNESS: [Interpretation] Mr. Sljivancanin was not seeking
2 missions. He listened to the tasks that Mrksic was giving to him. So I
3 repeat, Mr. Sljivancanin arrived, reported about what he had done and
4 where he had been, and Mrksic gives him tasks after that. If necessary,
5 I can repeat all the details.
6 JUDGE MERON: Do help us, Mr. Bourgon, didn't Mr. Sljivancanin
7 testify that he asked Mrksic about his future missions? And I'm trying
8 simply to identify whether the witness remembers that scrap of the
10 MR. BOURGON: Mr. President --
11 JUDGE MERON: I think Mr. Lukic has also that recollection.
12 MR. BOURGON: Mr. President, of course it's on the record of what
13 Mr. Sljivancanin said during his testimony. What you have today is what
14 Mr. Panic remembers. If there are differences, there are differences,
15 and the Appeals Chamber will have to draw the consequences of any
16 differences. But it's been 19 years, Mr. President --
17 JUDGE MERON: No, no, I understand that.
18 Would you like to add to your answer to me, Mr. Panic? Because
19 if there is -- if there is this item of the conversation that you do not
20 remember, it could conceivably be true that there are other fragments
21 that you do not remember or have not heard. I would be grateful for any
22 help on that.
23 MR. BOURGON: Mr. President, I guess this will be covered in
24 detail in cross-examination, what the witness remembers from the
25 conversation he mentioned in detail to the Appeals Chamber. I think he
1 will stick to his story, Mr. President.
2 MR. ROGERS: Your Honours, I'm not sure it's for Mr. Bourgon to
3 comment upon what the witness will say. Your Honours asked a question
4 and I think the Court's entitled -- and I would very much like to hear
5 the answer to the questions that Your Honours posed, even if my learned
6 friend does not wish to hear the answers that Your Honours have -- the
7 question -- the answer to the question, so perhaps we could hear from the
9 MR. BOURGON: I believe, Mr. President, it is indeed very
10 important. I can either ask the question or you can ask, Mr. President.
11 Q. General Panic, Mr. Sljivancanin said in his testimony that he
12 inquired about what his next duties would be. Is that how it took place?
13 A. That's possible. It's possible that that's what happened. It's
14 possible. I accept that it's possible.
15 JUDGE MERON: But you do not have a recollection of that or do
17 THE WITNESS: [Interpretation] I remember -- I remember tasks. At
18 that moment, whether Sljivancanin had asked something, that's a detail
19 that -- well, it's possible that he asked him something that I missed.
20 It's possible after all these years that I'm missing something, but I did
21 hear the gist of the conversation -- or rather, I remember the gist of
22 the conversation.
23 MR. BOURGON: I just have two more questions, Mr. President. I
24 know I'm out of time, but I have two more questions.
25 Q. Mr. Panic, who was -- after that conversation, who was the first
1 to leave the room?
2 A. After that conversation, the first to leave the room was
3 Mr. Sljivancanin.
4 Q. And where did he go, if you know?
5 A. Well, he went to that place, Negoslavci, he had his command -- or
6 rather, security organs in house number 9.
7 Q. And, sir, after that conversation that you just described, were
8 there any more exchange of words between Mrksic and Sljivancanin?
9 A. Well, I noted what it was that remained carved in my memory and
10 that I certainly could not forget. It's possible that they exchanged
11 another word or two. It's possible. But I doubt that I missed it. It
12 was a brief conversation.
13 Q. But after that conversation, did they speak again? That's my
14 simple question. Did they speak again after?
15 A. No, no, no. Mr. Sljivancanin left the room. Mr. Mrksic was
16 still with me there, and after a while Mr. Mrksic left too. I think that
17 he went to visit our wounded at the hospital in Negoslavci.
18 Q. And my last question: That press conference that you mentioned,
19 did that press conference take place the next day?
20 A. Yes, yes. That conference was held at the barracks in Vukovar.
21 At that conference, as I've already mentioned, there were 120 journalists
22 from home and abroad.
23 Q. Sir, can you just turn to your tab 7 in your binder. There's a
24 picture there. I'd like you to describe that picture for us.
25 Do you recognise this picture?
1 A. Yes. Yes, I recognise this picture.
2 Q. What is it?
3 A. This is a room, or rather, a classroom, the biggest room in the
4 barracks where we received the journalists and where the press conference
5 was held on the 21st of November in the morning.
6 Q. Is Mr. Sljivancanin present on this picture?
7 A. Yes. Mr. Sljivancanin is present. He's right in front of the
9 Q. Who was the centre of attention during that press conference?
10 A. At the press conference, regardless of the fact that it was
11 chaired by our organ for morale and political work, the journalists
12 expressed the greatest interest in Mr. Sljivancanin, and he was the media
13 personality on that day as well.
14 Q. And are you present in that picture, sir?
15 A. Yes, I am. I am in that picture. I'm in the second row and I'm
16 standing there.
17 Q. Thank you very much, sir.
18 MR. BOURGON: I have no further questions, Mr. President.
19 JUDGE MERON: Thank you very much. This concludes your
21 I am told by the technical department that changing the tapes
22 requires 20 rather than 15 minutes. So we will meet here at quarter to
23 11.00 sharp. The court will now rise.
24 --- Recess taken at 10.25 a.m.
25 --- On resuming at 10.48 a.m.
1 JUDGE MERON: Please be seated.
2 Okay. We will now have cross-examination of Mr. Panic by the
4 MR. ROGERS: Thank you, Your Honour.
5 JUDGE MERON: And you have one hour and 15 minutes, and do start.
6 MR. ROGERS: Thank you.
7 Cross-examination by Mr. Rogers:
8 Q. Good morning, General. My name's Paul Rogers. I'm appearing on
9 behalf of the Prosecution and I will be conducting the cross-examination.
10 A. Good morning.
11 Q. General, you told us in evidence that you became aware of the
12 appeals judgement and as a result of that you contacted Mr. Lukic the
13 same day or the next morning; is that right?
14 A. The next day.
15 Q. Having had, I think, a sleepless night, the way you've described
17 A. Yes.
18 Q. And when you were able to speak with Mr. Lukic, he suggested that
19 it would be helpful for him to know a number of facts; is that right?
20 A. Yes.
21 Q. In particular, you told us that in that first conversation what
22 he wanted to know was whether you were present; do you agree?
23 A. Yes.
24 Q. Who else was there; correct?
25 A. Yes.
1 Q. And what you spoke about; correct?
2 A. Yes.
3 Q. And in particular, what was said between Mr. Sljivancanin and
4 Mr. Mrksic; correct?
5 A. I asked Mr. Lukic to confirm to me whether what I had seen was
6 correct, what I learned from that judgement, that is.
7 Q. My question was: Mr. Lukic wanted to know from you what you
8 could say about the conversation between Mr. Mrksic and Mr. Sljivancanin;
9 that's correct, isn't it?
10 A. Mr. Lukic said to me or explained to me that that was correct,
11 that that is what the verdict was passed for. And then there was my
12 reaction, namely, that I was there and that I cannot accept that that was
13 correct. He told me to wait for his return.
14 Q. General, it was a very simple question. I'll put it to you one
15 more time. When you spoke with Mr. Lukic, he particularly wanted to know
16 what you could say about the conversation between Mr. Sljivancanin and
17 Mr. Mrksic; that's correct, isn't it?
18 A. Well, he was interested in -- well, he wanted me to think about
19 what it was that I remembered in relation to that conversation.
20 Q. Yes. Thank you. And you already said that in your evidence at
21 092949. I just wanted to make it clear that we were in agreement, that
22 he did want you to recollect your conversation. He told you, I
23 understand it, that you should keep it to yourself; is that right?
24 A. Yes.
25 Q. When you first met with Mr. Lukic and before you made your
1 statement, when you went through your account did Mr. Lukic make any
2 notes of what you said that you recall?
3 A. Well, he didn't take any notes then.
4 Q. Okay. So you met again some months later or around the 8th of
5 October, 2009, to provide your actual statement; is that right?
6 A. We met once again.
7 Q. Yes. And you said you were provided -- forgive me.
8 A. I'm sorry. We met once again a few months later, and then our
9 third encounter was when I signed the statement.
10 Q. And you told us that you were provided with some guide-lines for
11 making your statement; that's right?
12 A. Yes, just some guide-lines so that I do not speak at too great a
14 Q. And you told us that they were provided to you in a form of sort
15 of bullet points. Was this written down?
16 A. He said that to me. It was oral, rather, and I just jotted down
17 a few things for myself, this, that, and the other thing.
18 Q. Thank you. And you told us what he asked for. Now, my note of
19 your evidence this morning was this, he asked you: "What I was, where I
20 was, and to write down what I had heard in the contents, that is, the
21 contents of the conversation."
22 That's what he asked you to do, those were your instructions, is
23 that right, to write down the content of the conversation in your
25 A. Yes, that was it. Then, also why I did not speak about that
1 earlier and why I decided to testify or why I accepted to testify.
2 Q. So you agree that one of the primary purposes of your statement
3 was to put your fullest recollection of the events outlined in that
4 conversation down on paper; you agree with that?
5 A. Yes, in the briefest possible terms.
6 Q. Yes. Brief, you say, but nevertheless you needed to deal with
7 the totality of the conversation that had happened between Mr. Mrksic and
8 Mr. Sljivancanin; you agree with that? That was the purpose of the
9 statement, after all.
10 A. My understanding was that the purpose of the statement was, in
11 addition to stating my own particulars and the fact that I already
12 testified, that I was supposed to say what the basic things were that had
13 been said by Mrksic and Sljivancanin when they met and that I was
14 prepared to testify in order to be able to clarify during the testimony.
15 So here I am and please go ahead.
16 Q. So the purpose was to try to recall as much as you possibly could
17 about that conversation and put it down in your statement?
18 A. No, no, no. That's not it. Had he said that to me, that
19 statement would have been very detailed and it would have been over 20
20 pages long. It was supposed to be short. The statement was supposed to
21 be short containing only the basic questions that I could testify about.
22 When you look at it, it was written up on two pages, handwritten.
23 Q. And the totality of what you recorded in your original
24 statement --
25 MR. ROGERS: I see Mr. Bourgon is on his feet. I wonder if he's
1 got an objection or --
2 MR. BOURGON: Thank you, Mr. President. I'd just like to --
3 because we're going for more than one hour here, and if my colleague is
4 going to suggest something to the witness, that's one thing. But he
5 should not say something that the witness said that the witness did not
6 say. In this case, he said - not as a suggestion - but he said that it
7 was for you to remember -- he said -- I'm looking for the words here, the
8 exact words. "So the purpose was to try to recall as much as you
9 possibly could about the conversation."
10 Now, that's not what the witness had said earlier. So I just
11 want my colleague to stick to the answers or to make it as a suggestion.
12 Thank you, Mr. President.
13 JUDGE MERON: Thank you, Mr. Bourgon.
14 MR. ROGERS: Yes, thank you, Mr. Bourgon. It is a suggestion
15 when you read it. It's a proper cross-examination question to put a
16 suggestion as to what the purpose was and my learned friend perfectly
17 well knows that it is a proper question.
18 Q. Mr. Panic, you've told us that the purpose was to provide a more
19 broad outline, I think, and the outline you provided was this - and I'm
20 going to read to you -- that's Exhibit RD6, it's a Defence document.
21 There's no need for you to turn to it because I'm just going to read it
22 to you. It's the seventh paragraph on the page. You said this - and if
23 anyone wants to correct me, they can:
24 "During this conversation Mrksic informed Sljivancanin that the
25 Guards Brigade would be going back to brigade and that the 80th Motorised
1 Brigade would assume responsibility in the area. Mrksic also told
2 Sljivancanin that he should assist me the next day by handling the large
3 number media who were expected in Vukovar, which was an important task
4 for all members of the command. At no time during this conversation did
5 Mrksic inform Sljivancanin that members of the military police of the
6 80th Motorised Brigade had been ordered to withdraw from that location,
7 i.e., Ovcara."
8 That's the totality of what you recorded about the conversation
9 on the 8th of October. Today, you have provided for the first time much
10 more detail about those events; that's right, isn't it?
11 A. Yes.
12 Q. And you've told us a number of things relating to what
13 Mr. Sljivancanin appeared to have said. For example, that he'd just come
14 back from the hospital, having completed his mission; correct?
15 A. Yes.
16 Q. That's not anywhere recorded in your written statement, is it?
17 A. It was not recorded in my written statement because I have the
18 possibility of stating that here, live.
19 Q. There's no reference in your written statement to the -- anything
20 to do with the hand-over of the prisoners, even to the government
21 session. There's no reference in there at all to the government session
22 and any orders that the government session may have given?
23 A. No, there is no reference to that in the statement. I testified
24 about that here today. I testified about that session, about the
25 decisions, at the previous testimony here, when I appeared here to
1 testify earlier on, in 1996 [as interpreted].
2 Q. My understanding of your evidence is that the first time that you
3 were asked to recall anything about this conversation or to provide any
4 details about this conversation was when you first met with Mr. Lukic for
5 the purpose of this appeals process, for the -- is that right?
6 A. The first time I met with Mr. Lukic, I discussed that a bit more.
7 And I told him about certain details from that meeting between Mrksic and
8 Sljivancanin. And he said to me, "Let that be and in time we will see
9 whether we're going to do anything with that, anything further." It was
10 my understanding that he was supposed to carry out some investigations or
11 some kind of procedure -- well, not investigation, but to gather more
12 information. I mean, I'm not the only one who was there during those
14 Q. When you spoke with the Office of the Prosecutor and provided
15 your statement on the -- or about the 1st of September, 2005, you were
16 asked about the evening briefing and you were asked about whether the
17 hospital evacuation was discussed. And you said:
18 "I do not recall whether Major Sljivancanin spoke about the
19 evacuation of the hospital at the briefing, but I assume he did inform
21 And that's in your OTP statement, which is RP16 at page 24,
22 paragraph 88. Do you recall telling the OTP that in your statement, that
23 you assumed he did inform Mrksic? Do you recall that?
24 A. I worked with the OTP for two days. I made a statement and it is
25 noted in that statement that I do not recall that he spoke -- I mean, the
1 reference is to the evening briefing at 1800 hours. As I prepared later
2 for that testimony in 2006 and for this testimony as well, as I was
3 leafing through the war diary and other documents, and as I was trying to
4 refresh my memory, of course things had been different. Sljivancanin was
5 not -- well, I mean, that's why I said that I did not remember that he
6 had said anything. I mean --
7 Q. No, but you see, General, you said that I assume he did inform
8 Mrksic about the hospital evacuation. But the fact is that you knew that
9 not only did you assume it, you knew he had done that because you were
10 present, you say, at the meeting subsequently where that very topic was
11 discussed, i.e., the subject of this hearing. So why did you say "I
12 assume he informed Mrksic," when in fact you knew, according to your
13 evidence, that he had informed Mrksic?
14 A. Yes, when he arrived and when they met he said, "I have
15 accomplished my task at the hospital." That's what is true, but it's not
16 in the statement for the following reason: I gave that statement
17 unprepared at the time. I made the statement when I personally had some
18 major psychological and physical trouble of my own. And I went to see
19 the Prosecution and talk to them when my wife was dying of cancer.
20 Unfortunately she died immediately after that. The situation was such
21 that at that point in time I could have missed some facts because I was
22 troubled by problems of my own at the time. It is possible that that was
23 an omission on my part. I accept that.
24 Q. General, you were cross-examined during the course of your
25 testimony in the trial, and you were asked about whether you remembered
1 making your OTP statement. And at transcript 14485 to 90 you said that
2 you made changes to virtually every page of the OTP statement because
3 "there were both mistakes in terms of content, style, language,
4 typographical errors, and so on." That's 14485, lines 25 to 3 -- 485 or
5 6, 25 to 3.
6 This was something that should have been corrected, according to
7 you, in relation to its content, shouldn't it because it's wrong? You
8 didn't assume, you knew, and you had ample opportunity to change it but
9 you didn't.
10 A. For two days I was giving my statement and it was shown to me. I
11 corrected some things I thought had to be corrected. I'm telling you
12 what the situation was like. It is possible that I omitted some things,
13 that I didn't correct everything.
14 Q. General, your recollection of events would appear to be improving
15 over time rather than getting worse, wouldn't it? After 19 years, it
16 seems to be much better than it was when you were giving your OTP
17 statement. You're filling in more details today even than you had done
18 previously, aren't you?
19 A. Well, I apologise for saying this, but this is a bit sarcastic.
20 It is possible that with time and with age memory gets worse,
21 deteriorates. But it's a fact that after testifying in 2006 --
22 THE INTERPRETER: Interpreter's correction:
23 THE WITNESS: [Interpretation] That for my testimony in 2006 and
24 for this testimony, I devoted some time to preparation and I thought
25 about some particular matters. Here this is about the fate of people.
1 That is something for which a sufficient amount of facts and evidence is
2 necessary, and I prepared for that. I leafed through some documents, the
3 war diary. I refreshed my memory. But I agree with you that as time
4 passes we don't get any younger.
5 MR. ROGERS:
6 Q. You were also given an opportunity during the course of your
7 evidence in chief at the trial to expand upon the conversation between
8 Mr. Mrksic and Mr. Sljivancanin. If I refer you to your evidence on the
9 9th of November, 2006, at trial transcript 14330, lines 1 to 7, you said
10 this when you were being asked about Sljivancanin:
11 "Of course Sljivancanin was given time to say something at all
13 The context is that you were talking about the briefing.
14 "Of course, Sljivancanin was given time to say something at all
15 meetings, to say things, to ask things. I don't remember that he was
16 present," that is, at the briefing, "because I certainly would have
17 remembered what it was that he would have said about what he did at the
18 hospital. As far as I can remember, he came somewhat later to the
19 command post. It was dark. In all fairness, at 1800 hours, it's dark,
20 too." I think he came, "around 2000 hours, and I know that he talked to
21 the commander."
22 And there you stopped and nothing more was said about that
24 You had an opportunity then, didn't you, to explain what you're
25 explaining now?
1 A. Yes. And I would have been glad if someone had asked me then.
2 Maybe there would be no need for us to sit here today.
3 Q. Forgive me, my understanding of your evidence is that the first
4 time that anybody had raised this question of that conversation with you
5 was when these matters came to be dealt with on appeal; that's right,
6 isn't it?
7 JUDGE MERON: Judge Pocar has a question.
8 JUDGE POCAR: Mr. Rogers, you gave an answer given by the witness
9 at the hearing in 2006.
10 MR. ROGERS: Yes, Your Honour.
11 JUDGE POCAR: Which was exactly the question that was put to the
12 witness on that occasion.
13 MR. ROGERS: Your Honour, I can find that.
14 The question was:
15 "Do you remember specifically whether Sljivancanin attended that
16 meeting," that is, the briefing, "whether he said something, whether he
17 reported, do you have any memory of that and did you see him that evening
18 at all?"
19 And then came the answer:
20 "Of course Sljivancanin was given time to say something at
21 meetings ..." et cetera.
22 JUDGE POCAR: Thank you.
23 MR. ROGERS:
24 Q. So, Mr. Panic, my question was: My understanding of your
25 evidence is that you told us the first time that you were given an
1 opportunity to speak about these events, the first time it became
2 necessary to speak about these events or tell anyone about it, was at the
3 appeals stage; is that right?
4 A. Yes, that's right. But allow me to explain why. Giving evidence
5 here and before the special tribunal and making a series of statements,
6 nobody ever asked me about the content of the conversation between Mrksic
7 and Sljivancanin -- or, in other words, at the -- that Mrksic withdrew
8 the security detail from Ovcara and that he gave that information to
9 Sljivancanin was never asked or stated before. That's why I'm saying --
10 THE INTERPRETER: Could the witness please repeat his last
12 MR. ROGERS: Okay. I think the witness was asked to repeat the
13 last sentence.
14 THE WITNESS: [Interpretation] So as nobody ever asked me, as I
15 said, on how many occasions giving evidence or making statements, I never
16 spoke about that until the moment when I saw something impossible: My
17 commander making the decision to withdraw the security detail, informs me
18 about that decision, and I react [as interpreted].
19 MR. ROGERS:
20 Q. I understand. And I'm curious, did you ever mention the
21 conversation of the meeting to Mr. Lukic or to the team defending
22 Mr. Sljivancanin during the course of the trial?
23 A. Well, no. I repeat, that conversation was the consequence of
24 this verdict -- or rather, I came forward because Mr. Sljivancanin was
1 JUDGE MERON: [Microphone not activated]
2 MR. BOURGON: Thank you, Mr. President. It's an important
3 correction on the transcript. At page 51, lines 6 and 7, it says here on
4 the transcript: "Informs me about that decision and I react." And what
5 the witness really said is "did not inform me about that decision." So I
6 think we need to correct that before we move on.
7 MR. ROGERS: Yes.
8 JUDGE MERON: Thank you.
9 MR. ROGERS:
10 Q. My question, Mr. Panic, is this, and I wonder whether you can
11 help - maybe you can't - but the Prosecution was provided with a proofing
12 note of what evidence you could give prior to your testimony at the
13 trial. That's at RP17. And in that proofing note on the second page,
14 the penultimate paragraph, says this:
15 "The witness was present at the regular reporting at Colonel
16 Mrksic's on 20 November 1991
17 at the meeting, but later, after the meeting, he was present when
18 Sljivancanin and Mrksic were having the conversation."
19 It would seem, Mr. Panic, that you had previously mentioned the
20 content of the conversation or the fact at least of the conversation
21 between Mr. Sljivancanin and Mrksic at an earlier stage and that this
22 very question as to what was in that statement -- as to what you could
23 say was dealt with. Would you agree?
24 A. I'm sorry, but I don't understand the question.
25 Q. There's a note that was provided as to your potential evidence --
1 JUDGE MERON: Do you want to -- when you complete the point that
2 you're continuing, Judge Guney will have a question.
3 MR. ROGERS: Oh.
4 JUDGE MERON: So I will just let you finish this point.
5 MR. ROGERS: Yes, I just want to explain it to the witness.
6 Q. Mr. Panic, so you understand, there is a note provided as to what
7 you may have testified about at trial, was given to the lawyers in
8 advance of your testimony at trial. In that note, there is a reference
9 to what you could say about a meeting at which Sljivancanin and Mrksic
10 were present, "having the conversation" is what it says, all right? So
11 you understand. So my point is for you to comment upon: This would seem
12 to suggest that you had in fact discussed the content of that
13 conversation before your testimony and it wasn't the first time you dealt
14 with it. A matter for you to comment.
15 A. Yes. Before putting down my statement on paper, I did speak to
16 Mr. Lukic about the content of the conversation between Mr. Mrksic and
17 Mr. Sljivancanin.
18 MR. ROGERS: Your Honours, I think it's a question for comment at
19 the end of the day. I've given the witness an opportunity to comment
20 upon it. It may be he can't make a remark about what other people might
21 have written, but it's there. He's had an opportunity. That's the only
22 reason for putting it to him.
23 JUDGE MERON: We interrupt you, Mr. Rogers. Now Judge Guney then
24 Judge Pocar -- yes, before the question of Judge Guney or --
25 MR. BOURGON: Well, if --
1 JUDGE MERON: Or if you want to --
2 MR. BOURGON: Mr. President, it is directly related to the last
3 question that was asked by my colleague.
4 JUDGE MERON: Then by all means do it now and then --
5 MR. BOURGON: I apologise to Judge Guney.
6 It's just that my colleague, when he read from the proofing note,
7 he mentioned -- and I will quote the exact line. I just have to stop the
8 transcript here. And he said that "you were given an opportunity." I
9 quote from page 52 at line 22 where it says:
10 "What you may have testified about at trial was given to the
11 lawyers in advance of your testimony at trial."
12 Then it says:
13 "In that note there is a reference to what you could say about a
14 meeting ..." and this is not what is in the proofing note. What the
15 proofing note says - and Your Honours have this in the tab before
16 you - it simply says that after the meeting he was present when
17 Sljivancanin and Mrksic were having the conversation.
18 So we should not try to lead the witness into answering a
19 question on something that was not in the proofing note. Thank you,
20 Mr. President.
21 JUDGE MERON: Do you want quickly to respond to that before --
22 MR. ROGERS: Yes, Your Honour. The implication --
23 JUDGE MERON: -- we move to Judge Guney?
24 MR. ROGERS: The implication of the proofing note is that -- and
25 this is why it may be more a matter for comment than for the witness, but
1 the implication in the proofing note is that the witness was in a
2 position to explain the content of that conversation because it's
3 referred to within the proofing note. So that was the point. And as I
4 say, it may be more a matter for comment, but I felt it was fair to the
5 witness to give him an opportunity himself to comment upon that but there
6 it is. I think we can leave it.
7 JUDGE MERON: Judge Guney, I appreciate your patience.
8 JUDGE GUNEY: [No interpretation]
9 MR. ROGERS: We're not having any French.
10 JUDGE GUNEY: [Interpretation] Should I repeat my question?
11 JUDGE MERON: Do we have interpretation now, or no?
12 MR. ROGERS: We have it now.
13 JUDGE MERON: So do kindly repeat the question, Judge Guney, just
14 to play it safe.
15 JUDGE GUNEY: [Interpretation] Why did Mrksic not mention the
16 order to withdraw the troops during this conversation with Sljivancanin?
17 THE WITNESS: [Interpretation] Well, that's the crucial matter.
18 At my previous testimony, and now too, I can say that I know Mrksic very
19 well. He's a good commander. And if he made that decision, to withdraw
20 the security detail from Ovcara, he should have informed me, being his
21 Chief of Staff and being involved in the carrying out of his orders. He
22 should have informed the other members of the command if he made that
23 decision. Mrksic simply didn't inform anybody about it. Whether he made
24 that decision or not, I don't know, but I repeat, that's a decision that
25 only the commander can make. It's the commander's authority to withdraw
1 an order that he gave before. I never heard of such a decision. I
2 didn't hear him saying that to Sljivancanin, and that's why I'm here in
3 front of you to speak about that fact in the presence of God.
4 JUDGE GUNEY: [Interpretation] Thank you.
5 JUDGE MERON: Mr. Panic, let me follow this up. We do know --
6 you do know that the security detail was withdrawn, wasn't it?
7 THE WITNESS: [Interpretation] I learned that rather late, that
8 the security detail had been withdrawn or that they were under some
9 pressure or that they -- that they had gone due to the action of some
10 strange forces. But I only heard about that after returning to Belgrade
11 which is what I said before this Tribunal. I didn't hear and couldn't
12 believe that Mrksic on that evening issued that order to anyone. He
13 didn't order it to me or in my presence.
14 JUDGE MERON: Thank you. The military -- the security detail
15 was, of course, withdrawn, and we are talking of movement of military
16 forces. You were the Chief of Staff of General Mrksic -- of
17 Colonel Mrksic at that time, and you have no theory to offer? It was not
18 an act of God the troops were withdrawn. How do you explain that
20 THE WITNESS: [Interpretation] Well, you see, when I testified
21 here in 2006 I remember well that I said, "Whoever answers the question
22 who ordered the withdrawal of the security detail or who withdrew them on
23 his own initiative and jeopardised the security of those people at
24 Ovcara, that is the crux of the matter when it comes to the fate of the
25 people at Ovcara."
1 I repeat, I did not know about such a decision.
2 JUDGE MERON: Thank you.
3 MR. ROGERS:
4 Q. Mr. Panic, you said that you gave additional details today
5 relating to the content of that conversation, but you accept that your
6 recollection may not be complete to all of the details of the
7 conversation between Mrksic and Sljivancanin; you agree?
8 A. I accept that I may have omitted something and that the passage
9 of time has left some traces.
10 Q. See, when Mr. Sljivancanin testified about this meeting, one of
11 the things that he mentioned was that the commander had told him that the
12 government had taken charge of a group of suspects from the hospital that
13 had been taken to the barracks in order for them to be later exchanged
14 for captured Serbs. That's in the transcript 13655 to 6.
15 You haven't made any mention in your evidence today relating to
16 the reference to suspects from the hospital being taken to the barracks
17 for exchange. Can you comment on that, please. Was it said?
18 A. Yes. I mentioned that in my testimony. You may have omitted it.
19 Mr. Sljivancanin, when he met with Mrksic, said, "I'm coming from the
20 hospital. I accomplished my mission. Commander, what happened that
21 brought about the change of the decision? The members of the
22 paramilitary units," and I mentioned to them -- referred to them as
23 prisoners, when their unit surrendered at Mitnica, the people who
24 surrendered knew that they hadn't committed any crimes and they were also
25 at Ovcara. It was the night from between the 18th and the 19th. They
1 spent the night there, and the security detail was the same, the same
2 units of the 80th Brigade. On the following day they were taken to
3 Sremska Mitrovica by buses.
4 The other part of that unit, knowing that they were guilty of
5 crimes, escaped in the direction of the hospital. They found refuge at
6 the hospital. They lay in hospital beds. Some of them put plaster-casts
7 on their arms, legs, or heads, and they were waiting to be evacuated as
8 wounded soldiers under the auspices of the Red Cross and the
9 international observers. And these people I call members of paramilitary
10 units --
11 Q. General, that wasn't what I asked you. What I asked you was
12 relating to what Mr. Sljivancanin testified about, that Mrksic had told
13 him that the government had taken charge of a group of suspects from the
14 hospital brought to the barracks in order to be later exchanged for
15 captured Serbs. And you haven't made any mention at all in your
16 testimony so far relating to that, asking you why. Was it said or wasn't
17 it said?
18 A. It was said. Let me continue. Sljivancanin asks Mrksic, "What
19 happened that you changed your decision about these people not going to
20 Mitrovica, but to Ovcara instead?" And Mrksic said, "Today there was a
21 government session and this was a government decision, and we'll see
22 about this later." This is what I stated.
23 Q. Yes, that's what you stated, but what Mr. Sljivancanin suggested
24 is that they were to be later exchanged for captured Serbs. That was his
25 evidence before the Chamber, and I'm asking you whether you heard that,
1 that these prisoners were allegedly going to be exchanged for captured
3 A. With your leave, the first group I was speaking about went to
4 Sremska Mitrovica and there was an all-for-all exchange, and they are
5 alive even today, thank God. The other group, in line with the same
6 methodology should have been exchanged, but the government insisted that
7 they would be tried. That was the only difference. And Mr. Sljivancanin
8 maybe spoke about it at more length than I. The difference may be in the
9 length of the answer, but not in the essence. In essence, we're saying
10 the same. They were also supposed to be exchanged.
11 Q. But your evidence at trial, which was rejected by the
12 Trial Chamber on this point, but your evidence at trial was that they
13 were to be tried, not exchanged, to be tried. And here apparently Mrksic
14 is telling Sljivancanin that they're to be exchanged, in complete
15 contradiction to what you understood the position to be. What do you say
16 about that?
17 A. Well, I can speak about that if the Trial Chamber has enough
18 time. I can speak about this extensively because I was present at the
19 government session. The -- on the 20th of November, there was a
20 government session, I was present, and I heard their conclusion. I
21 related them to Mrksic, Mrksic accepted --
22 Q. General, General, it's a very simple question and it relates
23 directly to what was said in the meeting, and you are avoiding answering
24 the question, I suggest to you. There's no reference made by you in your
25 testimony to exchange for Serbs until recently, until I've just put it to
1 you. Now, I'm suggesting that in your original account, in the account
2 that you gave today, you haven't referred to any reference to exchange
3 for captured Serbs. That's right? And that would be in contradiction to
4 what you understood was to be happening to them, namely, that they were
5 to be tried; correct?
6 A. Yes. The decision was made at the government session that they
7 would be tried, and I can go into the details regarding that government
8 session and the conclusions made there. And Mrksic accepted their
10 Q. That account that you gave, that there was to be trials, was
11 rejected by the Trial Chamber as untrue, wasn't it?
12 A. Yes.
13 Q. And you're repeating it again now, you still stand by that?
14 A. Well, allow me to explain --
15 Q. No, you just have to say is --
16 A. -- how this came about.
17 Q. All you have to do is say whether you stand by your original
18 trial testimony or not on this point, that they were to be tried.
19 A. I stand by what I said, that this was a government decision which
20 was also accepted by Mrksic that they would be tried, brought to justice.
21 The prime minister on that day after the government session made a public
22 statement on TV and said, "Today a government session was held, at which
23 it was decided that these persons from the hospital should be tried.
24 Whoever has blood on his hands will be convicted; who is innocent will be
25 set free." And he stated that publicly on television. The then-prime
1 minister of a country which was recognised at the time.
2 Q. Do you agree that --
3 MR. ROGERS: Does Mr. Bourgon --
4 JUDGE MERON: Is there a problem, Mr. Bourgon?
5 MR. BOURGON: Well, I'd just like to have a reference. My
6 colleague said that the Trial Chamber had rejected, and he said exactly
7 these words:
8 "That account that you gave, that there was to be trials, was
9 rejected by the Trial Chamber as untrue ..."
10 I would just like to have a reference because that's not what I
11 recall from the judgement, Mr. President.
12 JUDGE MERON: Could we have the chapter and verse on that,
14 MR. ROGERS: Trial judgement, paragraph 307 said:
15 "While the Chamber accepts that Panic arrived at Ovcara shortly
16 after the arrival of the buses from the JNA barracks, it is unable to
17 accept his explanation as to why he was at Ovcara. It is entirely
18 lacking in credibility that he believed that trials of prisoners could be
19 in progress at Ovcara. There was manifestly no time for this to be
20 implemented, even had there been the necessary skilled investigators ..."
21 MR. BOURGON: Mr. President, we're talking at that time as the
22 reason why he went to Ovcara, not whether they were tried or not, that
23 the intent was to try them or not.
24 MR. ROGERS: Well, Your Honours, that was the -- that's the -- my
25 learned friend can say as he wishes. That was my understanding of that
1 passage. If it's wrong, it's wrong. But certainly his explanation as to
2 why they were at Ovcara, that is, that they were to be tried -- that
3 trials could even begin to be in progress, given against the background
4 of the fact that the Chamber did not accept that there could be a
5 functioning government at the time, would be -- would appear to be
6 consistent, that this whole question of trials was simply not honest.
7 But there we are. Perhaps again it's a matter for comment.
8 JUDGE MERON: Thank you. Let's continue.
9 MR. ROGERS:
10 Q. Mr. Panic, you were telling us about the -- your account of what
11 happened, and you told us that you were busy doing something. What was
12 it that you were busy doing when Mr. Sljivancanin and Mr. Mrksic began to
13 have their conversation?
14 A. The daily briefing was through and the tasks had been handed out.
15 The Chief of Staff and the staff - and this applies to all the armies
16 throughout the world, it certainly applied to us - were elaborating on
17 the commander's order and rephrasing it as an order for the units. They
18 were making proposals to the commander for how the tasks -- on how the
19 tasks would be carried out. Each of us were also working on our own
20 personal preparation. Specifically, the tasks for that day were quite
21 comprehensive --
22 Q. So --
23 A. -- there were large numbers of civilians who needed to be taken
24 care of --
25 Q. I understand --
1 A. -- there was a different unit assuming responsibility. This had
2 to be phrased in the form of an order. We had to prepare this unit for
3 going back to the garrison, and I personally had to prepare for the press
4 conference because my commander would not be there on the following day.
5 Q. So the impression I'm getting is that this was a busy period of
6 time in the operations room?
7 A. Yes.
8 Q. There was a lot going on?
9 A. Yes, yes.
10 Q. And you told us that the conversation between Mr. Sljivancanin
11 and Mr. Mrksic may have lasted certainly longer than a minute -- longer
12 than a minute but not longer than five or ten minutes. So it could have
13 been as long as five or ten minutes that these two individuals were
15 A. Yes.
16 Q. Mr. Panic, I suggest to you that in the busy environment of the
17 operations room, given the length of time that it appears these two were
18 talking, there may well have been parts of the conversation that you
19 simply missed, you didn't hear accurately or at all what was being said?
20 A. At this point in time, I mean the briefing occurred at 1800
21 hours. The commanders and those who were involved in the briefing then
22 left the room. Staying at the command post were me, the commander,
23 Lieutenant-Colonel Trifunovic, and the signals men who were busy doing
24 their own work. The tasks had already been handed out and were now under
25 way. I wasn't the only person there performing all of these tasks. I
1 divided out the tasks and I was working at this point in time on my own
2 personal preparation in case the need arose for someone to consult me or
3 submit anything to me for signature or, for example, if I was required to
4 approve of a plan.
5 I was sitting there at one point in time the door opens and
6 Mrksic is pacing up and down. Do you want me to go into the physical
7 detail of the situation? Between the window and the wall and they met,
8 they came together, right next to my table and started talking.
9 Sljivancanin is a man of monumental stature. I couldn't possibly have
10 missed him, so I heard the conversation. I may have missed the
11 occasional detail. Had I known what might later happen, I would have
12 resorted to actually recording the conversation; but I didn't know at the
14 Q. Why would you have resorted to recording the conversation?
15 A. So that today we would no longer be discussing whether I heard or
16 indeed did not hear something. We would then have proof. I'll say this
17 a thousand times over if that's what it takes: I cannot fathom that
18 Mrksic produced an order like that, and I'll say this a million times.
19 He never told that to anybody. He didn't tell me and he didn't tell
20 Sljivancanin in my presence, and they were right next to me.
21 Q. You said that if you had heard such a thing, you would have been
22 the first to react. Is that because you would have appreciated that the
23 prisoners would have been in danger and you needed to act to protect
25 A. Thank you for that question. As I said, I would have been the
1 first to react. I would have sprung to my feet and ask him, "Commander,
2 what's wrong with you? Why are you going back on your decision? Do you
3 know that I was at Ovcara? Did I not brief you on that, on the situation
4 there? Had we not agreed for security to be stepped-up? Had I not made
5 my proposal to you that someone should be dispatched there to provide
6 technical assistance" --
7 Q. General, General, I asked you: Would you have acted because you
8 appreciated that the prisoners were in danger and you would have needed
9 to act to protect them? As Chief of Staff, as an officer, you needed to
10 act to protect them in the face of such an order, do you agree?
11 A. Well, absolutely. That's what I've been telling you all the
13 Q. And that's why --
14 A. The withdrawal of the security detail would have put the people
15 in that prison in harm's way directly. There were criminals among those
16 people there. And secondly, perhaps there were people around who might
17 have wanted to take matters into their own hands and take revenge,
19 Q. If you failed to act, you yourself could have been at risk of
20 punishment under the regulations under Articles 20 and 21 of your own
21 military regulations; do you agree?
22 A. Yes, certainly. If there was something that I didn't do --
23 Q. Yes, which is why, General, you simply could never admit to
24 hearing about the order for withdrawal during the course of that
25 conversation. You could never come and give an account which involved
1 that happening because it implicates you?
2 A. Yes. From where you stand, that is correct; from where I
3 stand -- had I been afraid for my own responsibility, I would never have
4 gotten in touch with Mr. Lukic. Quite the contrary, I am doing my best
5 for truth to emerge before this Trial Chamber. The best thing for us
6 would be for Mr. Mrksic to say: I ordered this or I ordered something
7 else, and I ordered this and that to such and such a person, so that the
8 facts are established --
9 Q. Or is it the case, General, that you want to come here today to
10 try to set the record straight, as you call it, to ensure that there can
11 be no implication on you?
12 A. No. During my testimony I said I was with those people, I was
13 there. I was Chief of Staff. I know what went on. Please try to
14 recognise the fact that Mrksic never ordered that to any of us. I failed
15 to understand how he could possibly have ordered that to anyone at all,
16 knowing Mrksic, knowing his position.
17 Q. The Trial Chamber, when it was considering your evidence in the
18 quote below, rejected it on occasions when it appeared to them to be
19 self-serving and in situations where you yourself were implicated in
20 possible criminal behaviour, that's what they found. And they found in
21 relation to one particular matter this at trial judgement paragraph 585,
22 this is referring again to the government session planned to put war
23 criminals on trial. And perhaps this is a better quote from the
24 judgement than the one I referred Your Honours to earlier when I was
25 making my submissions as to what was said. It said this:
1 "In his evidence about the meeting," that's the SAO government
2 meeting, "Lieutenant-Colonel Panic sought to say that from the debate at
3 the meeting it appeared that the SAO government planned to put the war
4 criminals on trial. While he indicated he believed this to be their
5 intention when he conveyed Mile Mrksic's position, the Chamber is quite
6 unable to accept the honesty of this aspect of his evidence. It was
7 obviously self-serving, and also an attempt to put the JNA and
8 Mile Mrksic in a more favourable light."
9 In addition, they also said at trial judgement paragraph 297:
10 "Regrettably, the Chamber also finds that in his evidence
11 Lieutenant Colonel Panic sought to present aspects of his own role in a
12 more favourable light and to avoid disclosing matters which could be
13 construed as implicating Panic himself in criminal conduct."
14 Isn't that precisely what you're doing now, avoiding disclosing
15 matters that would implicate you?
16 A. Do I strike you as that kind of person after everything we've
17 done, after all the trials, all my evidence, the fact that I got in touch
18 and appeared here today ?
19 Q. General, it's not for me to make any decisions about how you
20 strike me. I'm simply putting to you how you struck the Trial Chamber.
21 You see, General, it makes no sense at all that you as Chief of Staff --
22 [Microphone not activated]
23 THE INTERPRETER: Microphone, please.
24 Microphone, please.
25 MR. ROGERS: I have got the microphone. It's on.
1 Q. General, it makes simply no sense that you as Chief of Staff
2 would have had no knowledge about the withdrawal of troops within your
3 zone of responsibility, particularly as you were taking over as commander
4 the next day when Mrksic left. You must have known about what was going
5 on, General, didn't you?
6 A. The next day at about 8.00, Mr. Mrksic left for Belgrade
7 group of officers to see the federal secretary for National Defence. I
8 went to the Vukovar barracks again with a group of officers. Soon after,
9 this large group of journalists arrived, 120 of them. So in a formal
10 sense, yes, I was standing-in that day for Commander Mrksic, but Mrksic
11 was still alive. He was right there. He had communications equipment
12 and was soon back from Belgrade
13 Mrksic's deputy --
14 Q. But, General, General, you appear to be suggesting that what was
15 more important that day was your press conference, compared with the
16 safety of nearly 200 prisoners of war that you yourself had raised
17 concerns about their security the day before. Are you really suggesting
18 you had made no inquiries as to what had happened to them?
19 A. You see, the day before at the briefing Commander Mrksic gives an
20 order for the 80th Brigade to be taking charge of the zone of
21 responsibility. The 80th Brigade is a brigade whose zone of
22 responsibility includes Ovcara, then as before. The Guards Brigade is
23 now preparing to go back to Belgrade
24 other task was care of the civilians and their transport, and there was
25 also the press conference. That was the task that I got from Mrksic. He
1 said, "Welcome those people, greet them on my behalf, allow them to ask
2 any questions they like, and allow them to go anywhere they like." That
3 was the gist of it.
4 Q. Wasn't part of the responsibility of Chief of Staff to ensure
5 that the commander's orders were implemented on the ground; that's right,
6 isn't it?
7 A. Yes. Chief of Staff and everyone else was there to implement his
8 orders at ground level.
9 Q. And part of his orders, according to you, was that the prisoners
10 should be handed over to the government in order that trials should
11 begin, according to you. So what steps did you take to ensure that was
12 actually happening the next day, if that's what happened?
13 A. On the 20th of November the hospital was evacuated. There was a
14 selection procedure underway at the hospital. Some people were busy
15 doing that. In parallel, there was a government meeting in progress on
16 that day. You're asking me what I was doing. After the government
17 meeting, I went back to the barracks --
18 Q. No, just pause --
19 A. -- I briefed Mrksic.
20 Q. No, just pause because I think you're not understanding my
21 question. I'm referring to the 21st, the next day, forgive me if I
22 didn't make that clear. The next day, on the 21st. Now, having had an
23 order that these were to be tried, as you say, to be handed over, what
24 steps did you take to make sure that had actually happened? Because that
25 would have told you what was going on with these prisoners, wouldn't it?
1 A. Well, if you allow, that's exactly what I'm trying to say. The
2 government decision was implemented on the 20th. As early as the
3 afternoon hours of the 20th these people were put up in the hangar at
4 Ovcara. I left the government meeting, I went to the barracks, I briefed
5 Mrksic. Having completed my business at the barracks, on my way back to
6 the command post I took a turn and went to Ovcara. I was there outside
7 the hangar at Ovcara. I saw the people there. I saw the commander of
8 the unit providing their security. I saw the security detail deployed
10 Upon my return, I spent no more than 15 minutes there, by the
11 way, and then I went back to my command post. As soon as I was there, I
12 briefed Commander Mrksic on everything I had been doing that day. I also
13 told him, just to keep this brief, about the situation at Ovcara. So
14 that was what I did and that was the 20th. On the 20th they were under
15 the security regime of the 80th Brigade, just like the previous group who
16 had left for Mitrovica.
17 Q. Were there any meetings with the 80th Motorised Brigade on the
18 morning of the 21st of November? Did you have contact with their
19 commanders on the morning of the 21st of November?
20 A. The 21st, I repeat, Mrksic and the delegation were getting ready
21 to leave for Belgrade
22 assistant for morale, and myself --
23 Q. General --
24 A. -- were on our way to the barracks --
25 Q. General --
1 A. -- there was no morning briefing on that day.
2 Q. It was a very simple question. Did you have contact with
3 commanders of the 80th Motorised Brigade on the morning of the 21st of
5 A. No, I didn't and I don't know whether Mrksic did. Perhaps by
7 Q. So you say that you remained completely ignorant that an entire
8 group of soldiers had been removed and been withdrawn from the Ovcara
9 farm? You had absolutely no idea that day or for several days later that
10 the MPs had gone and they were no longer protecting the prisoners?
11 That's your account, despite being deputy commander in charge of the zone
12 of responsibility for that next day. Is that what you're saying?
13 A. Yes. That day and generally speaking, I didn't go to Ovcara, nor
14 did I contact the commander of the 80th Brigade on that day. He had been
15 ordered to take charge of the entire responsibility zone of the
16 Guards Brigade.
17 Q. So you're also suggesting by your answer --
18 THE INTERPRETER: Can the witness please repeat the last portion
19 of his answer. Thank you.
20 MR. ROGERS:
21 Q. There's a request to repeat the last portion --
22 JUDGE MERON: Yes, Mr. Panic, please repeat.
23 THE WITNESS: [Interpretation] On the 21st I was at the barracks.
24 I did not meet the commander of the 80th Brigade. The commander of the
25 80th Brigade had taken charge of the area or taken over command of the
1 area. The Guards Brigade was preparing to go back to the Belgrade
2 garrison. We did not have any responsibility over that area anymore.
3 MR. ROGERS:
4 Q. Well, in the light of the finding of the Trial Chamber that it
5 was indeed Mile Mrksic that ordered the withdrawal of the troops from
6 Ovcara, what you're suggesting is that Mile Mrksic deliberately misled
7 you and everyone else about issuing an order to withdraw. He
8 deliberately failed to tell you an important fact relating to the command
9 and the operation at the zone of responsibility over Operational Group
10 South. Is that what you're suggesting in reality?
11 A. No, that is not what I'm suggesting. What I'm suggesting is I've
12 known Mrksic for a very long time and quite well. I cannot bring myself
13 to believe that he could possibly have issued an order like that to
14 anyone at all. An order like that could only possibly have come from the
15 commander, but he certainly issued no such order in my presence. I was
16 certainly not aware of that order, nor was anything like that ever
17 mentioned in my presence or indeed during the conversation with
18 Sljivancanin. Now, that is what I am suggesting.
19 JUDGE MERON: Mr. Rogers, I think your time is drawing closed.
20 Do you have a new point to make? It seems that we are sort of repeating
21 ourselves now?
22 MR. ROGERS: Well, Your Honour, I think it's just fair to put to
23 him that the -- because I'm not sure that he's following this point, that
24 the effect of what he's saying is that the commander, given the finding
25 that it was him who made the order, given that, the commander was in fact
1 deliberately misleading him, the Chief of Staff, about something that was
2 important in his zone of responsibility. And he couldn't hope for that
3 not to be discovered because the command had gone to Vojnovic at the
4 80th. There was no hope that that could not be discovered. That's the
5 point. And therefore there was no point in him doing it.
6 JUDGE MERON: Judge Vaz, please.
7 JUDGE VAZ: [Interpretation] Thank you, Mr. President.
8 I don't know if we can move forward, but I have a question for
9 the witness. In the military line of command as it operated in your
10 country, was it possible that Mr. Mrksic make a decision without
11 consulting you, without consulting Mr. Sljivancanin, given an order that
12 could be executed without your being told about it?
13 THE WITNESS: [Interpretation] When I looked at the Mrksic
14 judgement, it said he had been convicted because he had ordered the
15 withdrawal of the security detail from Ovcara. That was new to me. It
16 seemed impossible to me. I know him as a commander, and he never told
17 anyone that. Nevertheless, if you look at the command system in our army
18 or any other army that works and operates based on the principles of
19 subordination and singleness of command, no commander is duty-bound to
20 inform all of his subordinates of all the orders that he issues. There
21 is a certain honour that attaches to the role of commander and this is
22 the price the commander pays.
23 If the Trial Chamber established that this was something that he
24 had done, he must have done this at his own initiative and perhaps with
25 the knowledge of the last person in this chain executing the order, that
1 means the security detail. An order like this could only have come from
2 the commander and no one else but the commander within the chain of
3 command. No subordinates would have been required to execute an order
4 like that since executing it would have amounted to criminal
6 By way of conclusion, Mrksic could have taken that decision,
7 could have issued that order without necessarily informing anyone, as you
8 see. Did he actually do it? I don't know but I can't bring myself to
9 believe that he did; however, it's possible.
10 If I may, at Ovcara the commander of the 80th Brigade was
11 directly subordinated to him. There are no mediators between the two, so
12 that too would have been possible.
13 JUDGE MERON: So you are saying that it is not impossible that
14 Mrksic issued the command and he would have issued this command directed
15 to the 80th Brigade without any inkling to the Chief of Staff, his own
16 Chief of Staff, which would be yourself?
17 THE WITNESS: [Interpretation] Yes.
18 JUDGE MERON: Thank you.
19 I think that you have finished, Mr. Rogers, haven't you?
20 MR. ROGERS: Your Honours, it would appear that I have, as
21 Your Honours are telling me I have. It appears that I have. May I make
22 one other point? I have one question related --
23 JUDGE MERON: Briefly.
24 MR. ROGERS: -- to the 1st Military District.
25 Q. Simply this, General: What you're suggesting relating to the
1 treatment of these prisoners was not only the -- relating to their
2 hand-over, there was an order from the 1st Military District which was
3 received in your command post in the early hours of the 20th of November
4 at which -- required all the prisoners to be dealt with on an all-for-all
5 exchange. Do you recall that order coming in? It's RP - forgive me - I
6 think it's RP5.
7 MR. ROGERS: Your Honours, forgive me, I can't put my finger on
8 it right now. Forgive me, it's RP11, sorry.
9 Q. It was an order of the 19th of November in which said this, I
10 don't think you dispute this:
11 "Competent organs shall continue working intensely on the
12 implementation of the agreement on exchange of the arrested members of
13 the SFRY OS and the captured members of the Ministry of the Interior and
14 Croatian National Guards according to the all-for-all principle."
15 And on the second page of that the date is the 20th of November
16 and the time is 0045 hours in the morning.
17 JUDGE MERON: Mr. Bourgon, you have problems in finding the
19 MR. BOURGON: No, I'd just like the witness to have the document
20 because --
21 MR. ROGERS: Yeah, it's --
22 MR. BOURGON: It would be fair to him to at least know what
23 document we're dealing with.
24 MR. ROGERS: It's RP --
25 JUDGE MERON: Indeed.
1 MR. ROGERS: It's RP11.
2 JUDGE MERON: Indeed.
3 MR. ROGERS: He has a binder. It's in Sanction as well at the
5 Q. I think you have the original order. And you'll see the first
6 paragraph dealing with the all-for-all principle.
7 A. Yes.
8 Q. And the second page you see the stamp, if you turn it over you'll
9 see the stamp, which shows when it was received --
10 A. Yes.
11 Q. -- in the early hours of the morning of the 20th of November.
12 A. Yes.
13 Q. Having received that, was that an order you were aware of on the
14 20th of November, the all-for-all principle order from the 1st Military
16 A. Yes, precisely. That's the way things were done. And that first
17 group had gone to Mitrovica on the basis of that principle. As for the
18 second group, what followed was the government decision because they had
19 already started functioning as the authority there. They had decided
20 that they would try them.
21 Q. So there was already a breach of the order of the 1st Military
22 District that you were tolerating; is that right? These prisoners were
23 supposed to be exchanged all-for-all, not tried.
24 A. Well, that's the way things were supposed to happen up until
25 then, and then it was on the 20th that an exception was made. A
1 government decision was made and accepted by Commander Mrksic, but
2 according to the same methods, they were put up at the hangar in Ovcara
3 and they were secured by the same unit like the previous group that had
4 been taken to Sremska Mitrovica.
5 Q. So you agree that the way these prisoners were handled was in
6 breach of the order of the 1st Military District and you knew about that
7 at the time?
8 A. As I went to the government session, I had the position of my
9 commander, and that is the position that I appeared with at that meeting.
10 They passed certain conclusions and I made my commander aware of them.
11 He accepted that. And I was just one of the persons implementing this.
12 I was not the creator of that decision and it was not my idea.
13 Q. Final question: So you were implementing the order in direct
14 contravention of the order of the 1st Military District; is that what
15 you're saying?
16 MR. ROGERS: That's my last question.
17 THE WITNESS: [Interpretation] No, no. There was no contravention
18 as far as my execution of tasks was concerned. It was -- it's not the
19 commander of the 1st District that issues tasks to me; it is my
20 commander, Colonel Mrksic, who gives me tasks and issues orders to me.
21 Now, whether he had violated something or whether someone had approved of
22 the decision that he had made, well I can assume that he had to ask
23 someone about that decision because that is a major decision, it is a big
24 decision. It is a government decision, the commander accepts it, and
25 they are probably in contact, Mrksic with his superiors. But at that
1 point in time, he is my superior. I just carried out the tasks that he
2 had given me, that is to say to attend the session.
3 JUDGE MERON: Thank you, Mr. Panic. Here we are. We are
4 finished with cross-examination of Panic by the Prosecutor. We will now
5 have a 20-minute break. We will resume exactly at 12.35 and we will then
6 have re-examination of Panic by the counsel of Sljivancanin.
7 --- Recess taken at 12.17 p.m.
8 --- On resuming at 12.37 p.m.
9 JUDGE MERON: Please be seated.
10 Next time we reconvene, I would be grateful if everybody would be
11 waiting for the Bench, not vice versa.
12 Now, the counsel for Mr. Sljivancanin will now conduct a
13 re-examination of Panic for 15 minutes, followed by 15 minutes of summary
14 arguments concerning Mr. Panic's testimony; and finally, the Prosecution
15 will have summary arguments for 15 minutes. And I would be grateful if
16 everybody would stick to the timetable.
17 Mr. Bourgon, please.
18 MR. BOURGON: Thank you, Mr. President.
19 I just found the page I was missing. Sorry. I apologise.
20 Re-examination by Mr. Bourgon:
21 Q. Welcome back, Mr. Panic. I only have a few questions for you in
22 re-examination this morning. My first question relates to a question
23 that was put to you by my colleague at page 42, lines 22 to 25. At that
24 moment my colleague was drawing your attention on the statement which you
25 provided to the Sljivancanin Defence on 8 October. So you understand
1 what statement I'm talking about, do you?
2 A. Yes.
3 Q. Now, my colleague suggested to you that when you drafted that
4 statement you were supposed to brief to the fullest everything that
5 happened during the conversation between Mrksic and Sljivancanin on that
6 night. What I would like to know from you is: What was your
7 understanding at the moment you are drafting this statement were you
8 supposed to give a full account of that conversation or were you supposed
9 to give or to talk about the basic things that happened during that
11 A. That statement consists of two handwritten pages only. There are
12 just a few lines on the third page. That statement could not include
13 each and every little detail. I have already responded to that question
14 here in part. Had I described all the details involved, I would have
15 needed 20 pages. That was my understanding and that is what I did;
16 namely, in the statement I just put down the basic facts so that the
17 Defence could use that, if it is valid, for these proceedings. That is
18 how I understood the statement.
19 Q. Thank you, Mr. Panic. Now, in cross-examination my colleague
20 established - and of course that was obvious - that in this statement you
21 did not mention anything about the hospital, but today you spoke about
22 the hospital. So my question is the following. When I look at your
23 statement I see that you mention that the Guards Brigade was redeploying
24 to Belgrade
25 responsibility for the area, and you also spoke about a press conference.
1 Is there any reasons why you mentioned these three things and not the
2 hospital issue or other things?
3 A. Well, I outlined the most important tasks and what pressured me
4 the most, what I was supposed to carry out during the course of the day.
5 That is why I outlined these main tasks that our command dealt with and
6 the subordinate units too.
7 Q. Now during your examination-in-chief you said that you may have
8 missed some words of what was said between Mrksic and Sljivancanin, and
9 my colleague established that again in cross-examination with you. Now,
10 my question is: To the best of your recollection, General Panic, did you
11 miss any topics that were discussed during that conversation?
12 A. Well, to the best of my recollection and looking at the
13 documents, trying to refresh my memory, I did not miss the main topics of
14 the conversation. It is possible that something unimportant may have
15 slipped by after all this time.
16 Q. Now, General, I'd like to follow-up on a question which was put
17 to you by His Excellency Judge Guney, and I think it is a very important
18 question. The question was: Why did Mrksic not mention the order to
19 withdraw to you or to -- I think he mentioned the exact question to
20 the -- to his security officer. And you provided an answer. Now, I'd
21 like in order for us to fully understand the answer that you give, can
22 you expand on the relationship which exists or which existed, sorry,
23 between Mrksic and Sljivancanin at the time?
24 A. Yes. In the briefest possible terms, the relations between
25 Mrksic and Sljivancanin were based on the principle of subordination and
1 mutual respect. However, Mrksic was the commander who was stern,
2 well-balanced, and he didn't let people very close to him. In
3 conclusion, their relations were proper and soldierly. Since
4 Sljivancanin is also security officer, I can give you a view of my very
5 own, and I was a commander as well. Commanders often do not like to have
6 security officers close to them for reasons known to them. They thought
7 that sometimes they dealt with questions that go beyond the scope of
8 their duty and service.
9 Q. Thank you, General. Now, it was established on your -- during
10 your testimony today that - and you spoke about that in
11 cross-examination - the consequences of the withdrawal of the military
12 police from Ovcara. So when we consider that relationship between Mrksic
13 and Sljivancanin, who is of course the chief of security, based on your
14 vast military experience would you expect a commander who has just given
15 an order which has dreadful consequences for prisoners of war to tell
16 what he just did to a security officer?
17 MR. ROGERS: Your Honour, that's a -- it's a leading question.
18 Would he expect that to happen suggests the answer in it. And in any
19 event, I'm not sure what speculations are helpful in this regard from
20 this witness, the motives for individuals to act are not really an issue
22 JUDGE MERON: Still I think it would be interesting for us to
23 hear an answer.
24 THE WITNESS: [Interpretation] Yes. If Mrksic as commander would
25 decide to take such a course, namely, to order the withdrawal of the
1 security detail from Ovcara and thus directly endanger the safety and
2 lives of people, it is not logical if he had done that or if he would
3 have done that that he'd discuss that with a security officer because the
4 duties of the security officer include working against such things that
5 involve criminal liability. So that very instant he could have filed
6 criminal -- a criminal complaint against him, not only the security
7 officer but any other officer, any other officer could react to that.
8 And even if he had made such a decision, he did not communicate it to
9 anyone, least of all to the security officer.
10 MR. BOURGON:
11 Q. Thank you, General. Now I move to the 21st of November, which
12 was covered in cross-examination. You mentioned that you were involved
13 in the press conference --
14 JUDGE MERON: You are aware of the time constraints.
15 MR. BOURGON: I have five minutes left.
16 JUDGE MERON: Well, I think that you already had 15, didn't you,
17 since you started?
18 MR. BOURGON: I just started, Mr. President. I have two more --
19 three more questions, Mr. President.
20 Q. General, beside the press conference, what other activities,
21 briefly, were you involved in yourself on the 21st of November?
22 A. I personally, together with a group of officers, including
23 Major Sljivancanin, Lieutenant-Colonel Maric, went to the barracks in
24 relation to the press conference, welcoming the journalists, that is, and
25 the press conference itself. My other task that I had not been prepared
1 for and that I had not expected was that the commander sent me during the
2 implementation of the previous task, he actually telephoned me and sent
3 me to the government session. I attended the government session. I came
4 back to barracks --
5 Q. Sorry, General, we're talking the 21st of November.
6 A. Oh, the 21st, sorry, sorry.
7 Q. You mentioned you were involved in a press conference in the
8 morning. What else were you involved in on that day?
9 A. Oh, yes, sorry. After the press conference I went back to
10 carrying out my tasks related to the return of the brigade to the
12 coming back from the border, convoys that were not accepted by anyone,
13 that nobody would take. There were lots of them. Then also units from
14 combat deployment were supposed to be returned slowly to normal life,
15 which is very pain-staking. We had spent about two months in war
16 conditions. Winter had set in and there were many, many problems that we
17 were resolving in the process.
18 Q. Thank you, General. And my last question is the following:
19 Which unit was responsible for the area and the prisoners of war at
20 Ovcara on the 21st of November, 1991?
21 A. On the 21st of November, 1991, the area of responsibility that
22 includes Ovcara and the hangar where these suspects were was under the
23 responsibility of the 80th Brigade, that is to say that it was the 80th
24 Brigade that had this area of responsibility that included Ovcara,
25 Negrovac, Grabovo, and they had already taken over the area of
1 responsibility that had previously been held by the Guards Brigade. Let
2 me note that they had had that zone or area earlier on as well.
3 Q. Thank you, General. I have no further questions.
4 MR. BOURGON: Thank you, Mr. President.
5 JUDGE MERON: So thank you, Mr. Bourgon. Now you will have 15
6 minutes of summary arguments.
7 MR. BOURGON: Thank you, Mr. President. Is the witness remaining
8 in the room for these arguments?
9 JUDGE MERON: No, I don't think so. I think that we can thank --
10 unless there is -- no. I think we can thank the witness, but he would
11 remain available should we need him in the course of the afternoon.
12 MR. BOURGON: I'm willing to begin now. I'm just saying --
13 JUDGE MERON: No, Mr. Panic, thank you for your testimony. You
14 are excused.
15 [The witness withdrew]
16 JUDGE MERON: Until ten past 1.00.
17 MR. BOURGON: Thank you, Mr. President.
18 I will have the honour of addressing the Appeals Chamber
19 concerning the testimony of Witness Panic, whom we just heard. In
20 accordance with the Scheduling Order, I only have 15 minutes, so I will
21 go straight to the point. The purpose of hearing Witness Panic this
22 morning was to assess the evidentiary value and relevance of his
24 Now, we must say that we understand the concerns of Judge Pocar
25 expressed in his dissenting opinion regarding this hearing today. As
1 Defence counsel, we're always the first to say we want the Statute to be
2 abided strictly. However, we're grateful, Mr. President, for being given
3 this opportunity to assess the probative value of the evidence provided
4 by Witness Panic. In fact, we take the view, as expressed in our
5 application for review, that calling Miodrag Panic to testify before the
6 Appeals Chamber this morning about this proposed new fact was not only
7 justified, it was absolutely necessary, bearing in mind the exceptional
8 circumstances of this case.
9 Now, we're in a position now to say now that we've heard him
10 mission accomplished, Mr. President. The purpose of hearing
11 Witness Panic has been achieved. We now know beyond any doubt that
12 Miodrag Panic was present when Sljivancanin had this short conversation
13 with Commander Mrksic in the evening of 20 November 1991. We know that
14 Panic heard a conversation. And we know that during this conversation
15 Mrksic did not tell Sljivancanin that he had withdrawn the MPs from
16 guarding the prisoners at Ovcara.
17 General Panic made it clear during his testimony that if anything
18 of the kind had been mentioned by Mile Mrksic during that conversation,
19 he could not have missed it, as he said, and he would have immediately
20 reacted. Why? Because he said this would have been a change of plan
21 which Panic knew would have endangered the safety of the prisoners being
22 held at Ovcara.
23 Now, he would have reacted about the order itself, which would
24 have been the change of plan, but he said, "I would also have reacted
25 because I should have been informed as well as others in the command."
1 That's what he said. He said: Commander - and I don't have to repeat
2 his words. Now, that was necessary also for the planning purposes.
3 Now, based on the testimony of Panic, there are no reasons to
4 doubt that the conversation between Sljivancanin and Mrksic at the OG
5 South command did not include any reference to the withdrawal of the MPs
6 guarding the prisoners at Ovcara. Now, whereas before there is no direct
7 evidence of what was said during that conversation, other of course than
8 for the testimony of Sljivancanin - and it's important to note when we
9 speak about Sljivancanin that the question was not -- never even put to
10 him: Hey, Sljivancanin, did the commander inform of you this order?
11 Never. Never by Mrksic, never by the Prosecution, never by Mr. Lukic,
12 never by the Judges. So we now have a source of direct evidence, and
13 that's the direct evidence we've heard this morning. And we say,
14 Mr. President, it must be attributed full probative value.
15 Now, of course I look at Witness Panic this morning. At times he
16 was hesitant. We never know really if it's the translation that he's
17 waiting for or if he's thinking about his answer. But the key question
18 that the Appeals Chamber must ask or answer this morning: Is General
19 Panic a liar? Is -- did General Panic fabricate the evidence that he put
20 before the Chamber this morning? It is our submission,
21 Mr. President - and there can be no doubt that the answer to both
22 questions - is a straightforward no.
23 So what can we conclude from his testimony? Well, I can't list
24 everything that we can conclude, but let me try to get to the most
25 important and relevant issues. Panic is a professional military army
1 officer. The Appeals Chamber knows how successful he was. He ended up
2 as a two-star general. And while watching the appeals judgement on the
3 internet, something mystified him. Maybe I'm putting -- I'm adding a bit
4 of emotion here. But he said he was surprised by what he heard. He said
5 he tried to look. Is that really what I heard? And until that night
6 when his daughter came and with the help of his daughter, he checked on
7 the internet, he found a summary, and he says: Almighty God, what I
8 heard is true. But I know that this is not true. What do I do about it?
9 Well, he didn't sleep that night, and he said so.
10 What he did next, he picked up the phone and he called Mr. Lukic.
11 Why? Because he had to say that that conversation he could not accept
12 that a man would go down. He said: Is this why Sljivancanin was
13 convicted? So because of that he calls. And he says what he discussed
14 with Mr. Lukic and what Mr. Lukic told him to do. So now we know the
15 origin of the new fact. We know where and why he's here this morning.
16 The next thing, Mr. President, when Panic testified before the
17 Trial Chamber in this case, it was significant that the Trial Chamber
18 found him to be a credible witness. It is true that in some respect my
19 colleague raised a few issues here, where the Chamber did not fully
20 accept his testimony, but after hearing him this morning we have a better
21 understanding of these issues for -- the issues for which the
22 Trial Chamber maybe did not accept fully his testimony. But what's
23 important is that those issues for which the Trial Chamber did not accept
24 fully his testimony are not related to that conversation he was here to
25 talk about this morning.
1 Thirdly, Mr. President, it's very important to note that the
2 Prosecution today - of course they tried to undermine the credibility of
3 the witness, that's their job, I didn't expect anything else - but at
4 trial they relied on this testimony during their final brief and their
5 final arguments. They relied on this testimony, they believed him, and
6 today they're saying it's not possible what he's saying. When Mrksic
7 raised a ground of appeal saying that Panic was not a credible witness,
8 in response they said that ground of appeal must be dismissed. The
9 Chamber correctly assessed the credibility of Panic. Now, fourthly, the
10 Appeals Chamber has already had the opportunity when it dismissed the
11 ground of appeal raised by Mrksic concerning the credibility of Panic to
12 assess his credibility. It is our respectful submission, Mr. President,
13 this morning that after you've -- now that you've heard him, you should
14 be even more convinced that he's a credible witness.
15 The Appeals Chamber should know by now that the purpose of his
16 testimony has been -- has not been to protect himself or else he would
17 not be here this morning, as he said. Fifthly, the fact that Panic
18 provided statements to any party in this case is also very important. He
19 was ready to testify for anyone; he said so, whether the Prosecution,
20 whether the Defence, whether Belgrade
21 has always been to contribute to the establishment of the truth.
22 Sixthly, even though - and that's the crux here - even though he
23 was surprised by the finding of the Trial Chamber that Mrksic is the one
24 who issued the order, he's surprised by that, but he explained that. He
25 explained that at trial before the finding and he explained it now after
1 the finding. I know Mrksic, "dobar komandant," he's not the type of guy
2 who's going to give an order like that. But he did not hesitate to say
3 at the same time, and he said it again today, it can only have come from
4 the commander. Now, that's critical, Mr. President.
5 Seventhly, the fact that Panic was never asked by anyone about
6 the contents of the conversation, even though it had been established way
7 from the beginning that he was present when the conversation took place,
8 that's also an important conversation, and we say that is also revealing
9 today as to why he's here.
10 Moving on, Mr. President, I'd like to address one very important
11 issue, and I'm almost done. As you can see from his testimony this
12 morning, his recollection of the contents of the conversation which he
13 heard is not exactly the same as that of Sljivancanin. Well, I'll tell
14 you, Mr. President, that's absolutely normal. No two people can report a
15 conversation in which they were involved or in which they heard 19 years
16 ago and report that in the exact same terms or the exact same words. Did
17 he miss any topics? Did he miss any important issue? Even the issue
18 that my colleague raised about the exchange of the prisoners, that topic
19 was covered by what he recalls from that conversation. But the crux of
20 the matter, Mr. President, is that Witness Panic is absolutely certain
21 that Mrksic did not make any reference during that conversation to the
22 withdrawal of the MPs, and he's also 100 per cent certain that he could
23 not have missed if it had been said by Mrksic. He explained what he
24 would have done in such circumstances.
25 Now, the last thing I'd like to raise here is, of course the
1 Prosecution tried at the end to say it's not possible that Mrksic gave
2 this order without telling him. Well, firstly, the witness said yes it
3 is possible. It doesn't come off, but it is possible. The commander is
4 not duty-bound to tell everything that he does and every order he issues.
5 But the witness candidly and honestly said: I should have been informed,
6 because that's the normal practice. Yes, the normal practice is for the
7 Chief of Staff to be informed, but that's the normal practice. There is
8 no obligation for Mrksic to inform everybody. Now, that's not the issue
9 here. The issue is there's a reason why Mrksic would not say that during
10 that conversation, many reasons, and we went through that during his
11 testimony. And the other reason is we now know that there was a -- there
12 was a direct line, as he mentioned today, between Mrksic and Vojnovic.
13 So there are plenty of issues that -- question marks as to
14 exactly how this happened, but that doesn't change anything from the
15 judgement of the Trial Chamber that Mrksic issued the order. He accepts
16 that. It surprises him but he accepts it. But he says, I still have
17 trouble living with that today.
18 Now, the Prosecution, we say, did not put that question, whether
19 to him, whether to Sljivancanin, whether to anybody. It's too late now
20 to say: Come on, Mr. Chief of Staff, you knew about that order, didn't
21 you? Why did the Prosecution not say that at trial? They didn't say
22 that at trial. They used his testimony.
23 Last thing, Mr. President, simply that - and this refers to the
24 applicable burden of proof in such -- in the cases that we find ourselves
25 now. It is our submission that we need not prove the proposed new fact
1 beyond a reasonable doubt for our review application to be successful.
2 Honestly, I haven't found anything on the record that says what is the
3 applicable burden of proof. But we say - and it is our submission - that
4 all that is required is that we prove the fact sufficiently to raise a
5 doubt regarding the inference which was adopted by the Appeals Chamber at
6 paragraph 62, in which case we say the judgement cannot stand. But
7 nonetheless, even if you put -- brush aside completely our arguments and
8 if you don't accept our arguments, it doesn't matter. If the Appeals
9 Chamber was to hold that the new fact must be proved beyond a reasonable
10 doubt, it is our submission that we have achieved this standard through
11 the testimony of General Panic this morning.
12 And that is why, Mr. President, we submit that Mrksic did not
13 tell Sljivancanin in the evening of 20 November 1991 when they met at
14 that OG South command during a very specific conversation which forms the
15 basis of the judgement, Mrksic never said to Sljivancanin that he had
16 withdrawn the MPs guarding the prisoners at Ovcara. This is what stems
17 from the testimony of Witness Panic.
18 Thank you, Mr. President.
19 JUDGE MERON: Thank you, Mr. Bourgon.
20 Mr. Rogers, 15 minutes.
21 MR. ROGERS: Your Honours, in our respectful submission, the
22 evidential value of this witness's testimony in this particular case and
23 these particular circumstances is of no value in our submission, and that
24 is because he is not reasonably capable of belief in relation to these
25 matters. The knowledge of the order to withdraw does on his own
1 admission implicate him, implicate him in probable criminal or, in this
2 case, actual criminal activity. He cannot admit, as he said, to it being
3 said because, in our submission, it would fix him with knowledge and
4 therefore would have required him, as he accepted, to act. And indeed
5 Your Honours will recall he was really rather forthright about what he
6 said he would have had to have done if he had been made aware of those
7 materials and those facts relating to the withdrawal.
8 Whenever he is implicated in the consequences or in relation to
9 criminal activity, he has minimised his role, as was found by the
10 Trial Chamber, he has lied, and he has misled. We stand by the
11 Trial Chamber's credibility findings because they were nuanced, they were
12 sensible, and they were sensitive to the particular demands of the case,
13 and they had the opportunity over four days to hear General Panic give
14 evidence, and they very carefully identified the areas of his testimony
15 that were not reliable. Those areas of his testimony that were not
16 reliable were those areas in which he was implicated himself.
17 The Chamber made a number of really very nuanced findings
18 relating to him. They found him to be a liar. They didn't use the word
19 "liar," but in our submission that is what they held. At trial judgement
20 paragraph 307 they found that the Chamber was unable to accept his
21 explanation as to why he was at Ovcara.
22 "It is entirely lacking in credibility that he believed that
23 trials of prisoners could be in progress at Ovcara. There was manifestly
24 no time for this to have been implemented, even if there had been the
25 necessary skilled investigators ..." et cetera. And they went on to make
1 a finding as to why he was there.
2 "In the Chamber's finding his presence at Ovcara was to assess
3 the position and to report to Mile Mrksic."
4 Finding someone to be entirely lacking in credibility on a point
5 that they testified about is clearly to hold them to have told lies about
7 Furthermore, they held at paragraph 585 of the judgement:
8 "In his evidence about the meeting, Lieutenant-Colonel Panic
9 sought to say that from the debate at the meeting it appeared that the
10 SAO 'government' planned to put the war criminals on trial. While he
11 indicated he believed this to be their intention, when he conveyed
12 Mile Mrksic's position, the Chamber is quite unable to accept the honesty
13 of this aspect of his evidence. It was obviously self-serving, and also
14 an attempt to put the JNA and Mile Mrksic in a more favourable light."
15 In the same way, in our submission, his distancing himself from
16 this conversation to the extent that he has to say nothing was said about
17 the order to withdraw is obviously self-serving and an attempt to put
18 Sljivancanin in a more favourable light. And clearly it's something that
19 he has done before and would be prepared to do again.
20 The Chamber went on at trial judgement 297:
21 "Regrettably, the Chamber also finds that in his evidence
22 Lieutenant-Colonel Panic sought to present aspects of his own role in a
23 more favourable light and to avoid disclosing matters which could be
24 construed as implicating Panic himself in criminal conduct."
25 Precisely the point here.
1 The Chamber found him in addition at -- to be less than frank
2 about his role, as it was once famously suggested in the Spycatcher trial
3 in the United Kingdom in 1986, the phrase "he was economical with the
4 truth" was used. At paragraph 297 the Chamber said this:
5 "The Chamber is persuaded that the evidence of Lieutenant-Colonel
6 Panic underplays the full extent of his knowledge of the situation at the
7 barracks that morning."
8 It went on:
9 "When questioned about this aspect, it was the evidence of
10 Lieutenant-Colonel Panic that there was no threat to the prisoners on the
11 bus as all security measures had been taken, and he appeared to deny
12 seeing any mistreatment of prisoners at the barracks that day. In the
13 Chamber's finding, the role of Lieutenant-Colonel Panic in conveying the
14 instructions from Mile Mrksic for the meeting and his own role at the
15 meeting," note that, I underscore that, and his own role at the meeting,
16 "provide reason for Lieutenant-Colonel Panic not to be fully frank and
17 honest about the events he saw at the barracks concerning the convoy of
18 prisoners of war."
19 It went on at trial judgement 308:
20 "... while the Chamber had the clear impression of
21 Lieutenant-Colonel Panic as he gave his evidence, that the witness was
22 not being frank when speaking of his own knowledge of the mistreatment of
23 the prisoners of war that day, so as to minimise the truth in that
24 respect ...," trial judgement 308.
25 And at trial judgement 262:
1 "The Chamber also recognises that Lieutenant-Colonel Panic may
2 have seen more of the mistreatment of the prisoners of war outside the
3 hangar than he acknowledged in his evidence in which event his evidence
4 in this respect would not have been entirely frank, no doubt out of self
6 And if that wasn't enough to dispose of him in relation to these
7 areas in relation to his credibility, they went on to deal with other
8 ways in which the witness was prepared to amend or alter or be influenced
9 in his testimony. They said this:
10 "In" -- this is at trial judgement 396 and it related to a
11 conflict between what Colonel Panic had said in his OTP witness statement
12 relating to the role of Veselin Sljivancanin and what he subsequently
13 testified about. And they said this:
14 "In this respect, the Chamber accepts the honesty and correctness
15 of the account of Mile Mrksic's statement to the briefing, given by
16 Lieutenant-Colonel Panic in a written statement he gave to the
17 Prosecution investigators. The Chamber does so after careful
18 consideration of the course of evidence of Lieutenant-Colonel Panic,"
19 evidence of course given under oath, "in which he sought to qualify the
20 effect of his prior statement. When this was more fully explored with
21 Lieutenant-Colonel Panic, however, it became clear in the view of the
22 Chamber that his evidence sought to accommodate what he described as
23 documents, with which he had been familiarised, and which he said helped
24 him realise that in his statement he had ascribed to Veselin Sljivancanin
25 certain powers which he did not have at the relevant time."
1 Your Honours, I pause there to recall the -- a number of times
2 during testimony today in which Colonel Panic -- General Panic as he
3 now -- he's retired, referred to his recollection and refreshing his
4 memory from other documents and materials that he was provided with. And
5 I remind the Chamber that he was provided with the statements of
6 Sljivancanin prior to testimony -- prior to this testimony. So relevant
7 parts of that testimony were read to him to assist him.
8 "From his evidence," they went on, "as with a number of other JNA
9 former JNA witnesses, it appears that attempts were made to persuade
10 Lieutenant-Colonel Panic that, in the light of the military rules
11 applicable at the time, his recollection of the words of Mile Mrksic
12 about Veselin Sljivancanin was erroneous."
13 So again he's been influenced. Further they held at trial
14 judgement 261:
15 "The evidence of Lieutenant-Colonel Panic and some others, such
16 as P014, as to the timing of events that afternoon, appeared to the
17 Chamber to be based substantially on genuine attempts to rationalise the
18 events of the afternoon rather than precise recollection."
19 Your Honours, in our submission, all of those factors may well be
20 and in our submission are at play in the evidence given by General Panic
21 today. He appears to be one of the few individuals capable of improving
22 his memory over 19 years, as opposed for it to be degenerating over 19
23 years. Each time he comes to recall these events or at least record
24 them, it appears they improve rather than get worse. More memories come
25 forward than one might otherwise expect. Is that because he is genuinely
1 attempting to rationalise events that were going on? Is it because they
2 implicate him and he has to distance himself from them? Is it that the
3 true passage of time may well be taking its toll and that he now
4 misremembers, does not accurately recall what was said? And Your Honours
5 will have in mind the number of points that were made during the course
6 of the hearing relating to the content of what he said when he was making
7 his statement, the content of what he said in evidence, and the fact that
8 new material was put to him during the course of the hearing which he
9 then accommodated into his evidence.
10 At the end of the day, is he reasonably capable of belief in the
11 background that you have relating to the findings about credibility made
12 by him and your own impressions having heard him today? That's before
13 one even takes into account the absurdity of a situation in our
14 submission where the Chief of Staff of an operational group appears to be
15 wholly in the dark about what was going on with 200 prisoners that he,
16 the very day before, had twice reported on to Mrksic relating to their
17 care, custody, and safety. Was he really so consumed with the press
18 conference the next day that all thought of the 200 prisoners, for which
19 he had legitimate, he says, security concerns - and bearing in mind he's
20 underplayed his role according to the Chamber, so his actual knowledge
21 may be much greater - is it really realistic that he would have done
22 nothing and that the first ever knew about what had happened was days
23 later? It's simply inconceivable. It's inconceivable that he did not
24 hear, as Your Honours found to be the case, that during the course of
25 that conversation the order to withdraw was communicated to Sljivancanin,
1 especially when we know that the purpose of Sljivancanin's attendance
2 that day at the barracks -- sorry, at the command post was to report, in
3 our submission, was to inform his commander about what he'd done, receive
4 instructions, is it really realistic given that the Chamber found he was
5 in charge of the evacuation that that conversation would not have been
6 had and that information not imparted to Mr. Sljivancanin in the presence
7 of Mr. Panic? It's inconceivable in a functioning chain of command, in a
8 disciplined organisation such as the Guards Brigade, and Your Honours
9 will recall Panic's evidence about that, about how they were an elite
10 unit, that this chain of command would so catastrophically break down in
11 the way that it did.
12 For all those reasons, Your Honours, the evidence of
13 General Panic in relation to these matters is not credible, it is not
14 reasonably capable of belief, and we invite you to disregard it and
15 dismiss this application.
16 JUDGE MERON: Thank you, Mr. Rogers, for your argument.
17 We will now have a one-hour break. So we will meet here at 2.25.
18 And this afternoon we will hear testimony -- we will hear arguments on
19 whether Panic's testimony constitutes a new fact. So we will now stand
20 adjourned for one hour.
21 --- Luncheon recess taken at 1.25 p.m.
22 --- On resuming at 2.27 p.m.
23 JUDGE MERON: Thank you. Please be seated.
24 Before we start this afternoon's programme, let me note that all
25 documents referred to during the hearing today and not already part of
1 the record will be considered annexes to the party's motion, that will
2 make it simple. I take it no objection to that.
3 Now, we will turn to the final stage of our proceedings today,
4 arguments on whether Panic testimony constitutes a new fact.
5 Mr. Bourgon, you will be arguing now or Mr. Lukic? Mr. Bourgon, you will
6 have 45 minutes, then Mr. Rogers -- or I see Ms. Brady there, Ms. Brady,
7 45 minutes. And then, Mr. Bourgon, you will have the final 15 minutes
9 Okay, so please.
10 MR. BOURGON: Good afternoon, Mr. President. And thank you very
11 much. Good afternoon to the Judges. And good afternoon to my colleagues
12 from the Prosecution.
13 Pursuant to the Scheduling Order, Mr. President, on behalf of
14 Mr. Sljivancanin I have the honour of addressing the Appeals Chamber for
15 the next 45 minutes on one single issue, and that is whether the
16 testimony of Witness Panic heard this morning constitutes a new fact.
17 Our legal arguments stricto sensu on this issue are included, as you
18 know, Mr. President, in our application for review and even more so in
19 our reply to the Prosecution's response. I do not intend to repeat these
20 arguments one by one. I'm sure you've had the chance to read those and I
21 will focus on some specific issues.
22 What I really want to do this afternoon is to convince you that
23 the new information provided by Witness Panic, first in his statement
24 provided to us in October 2009, that was at the time, Mr. President, you
25 will recall that we filed our motion for reconsideration in which we
1 referred to Panic and that's why we had chosen that date for him to make
2 his statement; but also during his testimony this morning. That this
3 information constitutes a new fact pursuant to the applicable law and the
4 jurisprudence of the Appeals Chamber on this issue. I intend to do so by
5 drawing your attention on four different aspects or ways of considering
6 the new evidence provided by Witness Panic which all lead to the same
8 The fact that Miodrag Panic heard the conversation between
9 Sljivancanin and his commander, that is, in the evening of 20 November
10 1991, that is, the conversation when Sljivancanin returned to the
11 Operational Group South sometimes after 8.00, or 8.00 p.m. for those of
12 us who are not military, is a new fact which makes it necessary for the
13 Appeals Chamber to review its judgement and to reinstate the acquittal of
14 Mr. Sljivancanin which was pronounced at trial after hearing all the
15 evidence in this case, that is, more than 90 witnesses over a period of
16 more than 18 months. In other words, Mr. President, the issue this
17 afternoon is strictly limited to the first of four criteria which must be
18 fulfilled for the Appeals Chamber to review its own judgement. And of
19 course our position is clear. There can be no doubt that the testimony
20 of Witness Panic fully meets the requirements of this criteria.
21 My arguments this afternoon will be divided into four distinct
22 topics. I will first address the new fact pursuant to the plain meaning
23 of the words found in Article 26 of the Statute and Rules 119, 120;
24 secondly, I will demonstrate how and for what reasons the testimony of
25 Panic meets the new fact test developed in the jurisprudence of the
1 Appeals Chamber; thirdly, I will expose why the new information provided
2 by Witness Panic, which of course can clearly be distinguished from the
3 alleged new facts which form the basis of previous applications for
4 review, and that's another reason why it does constitute a new fact;
5 fourthly, and finally, I will address the testimony of Witness Panic
6 pursuant to what I call the forest test. In other words, I will make it
7 obvious to you, Mr. President, that although the Prosecution may ask you
8 to look at all the trees in the world, they cannot prevent you from
9 seeing the forest.
10 Before I move to my first argument, there's of course an
11 additional issue which was raised in the Scheduling Order which I must
12 address as a preliminary matter, namely, the exceptional circumstances --
13 JUDGE MERON: [Microphone not activated]
14 MR. BOURGON: I apologise to the interpreters. It's been a while
15 since I was in court and I'm trying to meet my 45-minute dead-line.
16 So before I move on, that's one issue I wish to raise which was
17 in the Scheduling Order, and that is the exceptional circumstances of
18 this case because we believe that this is directly related to the issue
19 whether it does constitute a new fact or not. The exceptional
20 circumstances of this case were described in our application for review
21 at paragraphs 30 to 38, but let me summarise briefly.
22 The reversal of Sljivancanin's acquittal for murder and his
23 conviction on appeal rest on a single inference because the
24 Appeals Chamber confirmed that there is no direct evidence that
25 Sljivancanin was informed of the withdrawal in the course of his meeting
1 with Mrksic. And the Appeals Chamber added Mrksic and Panic, and that
2 was at paragraph 62.
3 Now, of course we now know, Mr. President, that Sljivancanin had
4 a meeting with Mrksic in the presence of Panic and not with Mrksic and
5 Panic, but I will return to this later because this is all together
7 As we heard this morning Witness Panic, he said he heard the
8 conversation between Sljivancanin and his commander, during which Mrksic
9 did not inform Sljivancanin of the withdrawal. Thus, Mr. President, if
10 you attach probative value to the witness -- to the testimony of
11 Witness Panic, quite simply the inference drawn by the Appeals Chamber is
12 nullified, considering that it can no longer be said that Mrksic must
13 have told Sljivancanin about the withdrawal. Consequently, without this
14 watershed inference which brought everything else thereafter, the
15 Sljivancanin's conviction for murder on appeal cannot stand. No new fact
16 could be more decisive, Mr. President.
17 To make myself clear let me use an example. Suppose Sljivancanin
18 had been found guilty of aiding and abetting the murder of Mr. Smith, and
19 the following week it was established that Mr. Smith was never murdered
20 and that he is well alive. Could Sljivancanin's conviction stand? Now,
21 I'm not referring, Mr. President, to the exact same scenario which you
22 raised in your separate opinion in the Niyitegeka decision on request for
23 review of 6 March, 2007
24 say, Mr. President, is that the present case falls in the exact same
25 category, which is why it is exceptional. Panic said -- as established
1 by Panic, Mrksic did not inform Sljivancanin of the withdrawal, therefore
2 the Appeals Chamber inference is nullified by his testimony, which is
3 something that was not known before. Accordingly, the conviction for
4 murder cannot stand.
5 In our respectful opinion, Mr. President, there is a direct
6 relationship between the decisive character of the evidence provided by
7 General Panic and whether it constitutes a new fact. Just as
8 Sljivancanin could not have been convicted for the murder of Mr. Smith if
9 there was evidence that he was alive, his conviction in the present case
10 would not have been possible if the evidence of the new fact provided by
11 Panic, that is, of course, that Mrksic did not inform Sljivancanin of the
12 withdrawal, had been available. But that information was not available
13 to the Appeals Chamber. In both instances, the example of Mr. Smith or
14 the present case, the information which came to light must constitute a
15 new fact pursuant to Article 26 of the Statute which was designed
16 specifically to address such cases.
17 This brings me to the first of my four arguments, namely, the
18 plain meaning of the word "new" in Article 26 of the Statute and Rules
19 119 and 120. Pursuant to the new oxford American dictionary:
20 "Something new is nothing more than something not existing
21 before, something discovered now for the first time."
22 Applying this definition to Article 26 of the Statute and Rules
23 119 and 120, it follows that a new fact is no more than a fact which did
24 not exist or was not established at the time of the proceedings before a
25 Trial Chamber or the Appeals Chamber and which has been discovered for
1 the first time thereafter. Clearly, Mr. President, a tough word for a
2 frenchman, this teleological interpretation of the word "new" applies to
3 the evidence provided by Witness Panic this morning.
4 Once again, the acquittal of Sljivancanin for murder was reversed
5 on appeal, as we know, without any possibility of a further appeal. But
6 the Appeals Chamber confirmed there was no direct evidence that
7 Sljivancanin was informed of the withdrawal in the course of his meeting
8 with Mrksic.
9 Bearing in mind that the evidence provided by General Panic this
10 morning constitutes a source of direct evidence as to what was said
11 during this conversation, it is thus evident that this information did
12 not exist or, in other words, was not known or was not established at the
13 time of the proceedings before the Appeals Chamber. It therefore
14 constitutes a new fact.
15 Another way to look at this is to consider that the dissenting
16 opinion of Judge Vaz appended to the Appeals Chamber judgement.
17 Judge Vaz said the following at page 172, paragraph 4, I quote:
18 "There is no clear evidence cited in support of the Appeals
19 Chamber's conclusion that Mrksic must have told Sljivancanin that he had
20 withdrawn the JNA protection. To the contrary, this crucial conclusion,
21 which must be the only reasonable one, appears to be solely based on
22 Sljivancanin's testimony that he inquired about further tasks and duties,
23 although there is no evidence as to what Mrksic actually responded to
24 that inquiry."
25 Taking into account that the evidence offered by Panic
1 establishes what was said during the Mrksic/Sljivancanin conversation,
2 the only reasonable conclusion is that his evidence did not exist, this
3 new information did not exist at the time of the proceedings before the
4 Appeals Chamber and that it does constitute a new fact.
5 Moving on to my second argument this afternoon. It is our
6 submission, Mr. President, that applying the definition of new fact as
7 developed in the case law of the Appeals Chamber yields the same
8 conclusion; that is, the evidence offered by Miodrag Panic indeed
9 constitutes a new fact. Pursuant to the jurisprudence of the Appeals
10 Chamber, the key question before a Chamber in determining whether a fact
11 proffered in a review proceeding is actually new is whether the fact
12 raised by the new evidentiary information was at issue during the trial
13 or appeal proceedings, that was at Blaskic review applications decision
14 paragraphs 15 and 40.
15 Moreover, the Appeals Chamber has further interpreted this
16 requirement, holding that this means - that's the fact of being an
17 issue - this means that it must not have been amongst the factors that
18 the deciding body could have taken into account in reaching its verdict.
19 That was Tadic, paragraph 25; Blaskic, paragraph 14; Rutaganda,
20 paragraph 9. These are all, of course, review application decisions.
21 In other words, what is relevant is whether the deciding body,
22 the Appeals Chamber in this case, knew about the fact or not in arriving
23 at the decision, Tadic, paragraph 25; Rutaganda, paragraph 9.
24 Applying this test to the new information provided by
25 General Panic in his testimony this morning, we can only conclude that
1 his evidence constitutes a new fact. How so? Well, firstly the Panic
2 new fact was clearly identified in our application for review as well as
3 in our reply to the Prosecution response. And we have explained why the
4 Panic new fact was not in issue both at trial and on appeal. I will not
5 repeat these arguments.
6 Secondly, the crux of the matter pursuant to the test developed
7 by the Appeals Chamber is, and I quote, "the requirement for the moving
8 party," that is us, "to show that the Chamber did not know about the fact
9 in reaching its decision."
10 In the present case, what was known to the Appeals Chamber?
11 Well, it was known, inter alia, that Sljivancanin did not attend the
12 daily briefing in the evening of 20 November. It was known that
13 Sljivancanin was not involved in the transmission of the withdrawal
14 order. It was known that Sljivancanin returned to the Operational Group
15 South command shortly after 2000 hours on 20 November. It was also known
16 to the Appeals Chamber that upon arriving at the command, Sljivancanin
17 had a short conversation with his commander. And it was also known to
18 the Appeals Chamber that Panic was present during this conversation.
19 However, what is most significant here is that the Appeals Chamber did
20 not know that Panic heard the conversation and, even more importantly,
21 that Mrksic did not tell Sljivancanin during this conversation anything
22 about the withdrawal.
23 On what basis can we affirm this, Mr. President? Well, on the
24 following. Firstly, when Sljivancanin testified and mentioned the
25 presence of Panic during his conversation with Mrksic, he's the one who
1 brought it up, he was testifying in his own defence and he brought it up.
2 When that took place, no one asked him whether Panic was a party to the
3 conversation; if Panic was a party to the conversation, what did Panic
4 say during this conversation; and if Panic was not a party to the
5 conversation, whether Panic could hear the conversation. None of this
6 was asked to Sljivancanin.
7 Secondly, on the basis that when Panic took the stand after the
8 testimony of Sljivancanin and confirmed that he was present at the
9 Operational Group South command when Sljivancanin returned in the evening
10 of 20 November and had a conversation with his commander, you had Panic
11 right there on the stand. Nobody asked him: Were you a party to that
12 conversation, General? That was not asked. If you were a party, what
13 did you say during the conversation? Not a question about that. If he
14 was not a party, could you hear the conversation, General? Not a word
15 about that.
16 I make a short pause here, Mr. President, just to say that it is
17 very significant that this morning the Prosecution asked the Appeals
18 Chamber to apply specific findings on credibility drawn by the
19 Trial Chamber, whereas to apply this to questions that were never put to
20 Panic. Now, that's quite incredible, but I move on.
21 Thirdly, also on the basis that a number of other witnesses
22 appeared which could have been asked if Panic heard and what Panic heard
23 or what was said. No questions were asked to any other witness.
24 Now, this conclusion is supported by the Trial Chamber's finding
25 at paragraph 389. The Trial Chamber found Lieutenant-Colonel Panic was
1 there. No comments were made by the Trial Chamber, no information was
2 provided regarding what Panic could have said, could have heard or said
3 during this conversation. Of course, the Trial Chamber was not as
4 surprised, because as mentioned by the Trial Chamber in footnote 1553, it
5 is based solely on the testimony of Sljivancanin and nothing else.
6 Now, even though the Appeals Chamber stated at paragraph 61 that
7 there is no evidence that Sljivancanin was informed of the withdrawal in
8 the course of his meeting with Mrksic and Panic, which appears to be a
9 different finding on its face, we now know based on the accurate
10 interpretation in English of Sljivancanin's testimony in B/C/S, that
11 Sljivancanin really had a conversation with his commander in the presence
12 of Panic, exactly as the Trial Chamber found.
13 I take this, Mr. President, from the fact that during his
14 testimony Sljivancanin really said: I wanted to tell, and not: I wanted
15 to tell them. That is transcript 13987, lines 5 to 7.
16 And also because he really said "I called in to Colonel Mrksic ,"
17 pause, and "I briefly informed him" and not "I informed them ."
18 Transcript 13665, lines 14 to 18.
19 Considering, Mr. President, that the Appeals Chamber quoted the
20 exact same transcript references as the Trial Chamber did in support of
21 this statement and that no new evidence was proffered by the Prosecution
22 on appeal concerning this event, we respectfully submit that this is not
23 a contentious issue. It follows, Mr. President, that the Appeals Chamber
24 indeed did not know that Panic heard the conversation, that Mrksic did
25 not, during this conversation, tell Sljivancanin about the withdrawal.
1 Now, that's only the first step. There's a second step to this analysis.
2 Quite simply, if you look at the inference adopted by the Appeals Chamber
3 at paragraph 62, and I read the inference: The only reasonable
4 conclusion that can be drawn is that Mrksic must have told Sljivancanin
5 that he had withdrawn the JNA protection from the prisoners of war out of
6 Ovcara and thus also Sljivancanin's responsibility for the prisoners of
8 In drawing this far-reaching inference, it is of the utmost
9 importance to recall, Mr. President, that the Appeals Chamber neither
10 referred to the role of Miodrag Panic during and/or in respect of the
11 Mrksic/Sljivancanin conversation, nor to what he heard of this
12 conversation. We must recall in Celebici the Appeals Chamber found at
13 paragraph 458 that:
14 "If in a case of circumstantial evidence there is a conclusion
15 which is reasonably open from the evidence and which is consistent with
16 the innocence of the accused, he must be acquitted."
17 The Appeals Chamber recently reiterated this finding or this
18 holding in the Boskoski appeals judgement at paragraph 271.
19 It follows, Mr. President, that an inference such as the one that
20 was drawn at paragraph 62 of the appeals judgement can only be drawn if
21 it is the only reasonable conclusion available on the basis of the
22 evidence on the record. The Appeals Chamber knows its own case law and
23 there's no doubt, this is not an appeal. We don't doubt that the
24 Appeals Chamber applied its own case law, but obviously if the
25 Appeals Chamber had known of the new information proffered by Panic
1 during his testimony this morning, that he heard the conversation, and
2 that Mrksic did not tell Sljivancanin about the withdrawal, then the
3 Appeals Chamber would have done one of two things. Either the Appeals
4 Chamber would simply not have drawn the inference that Mrksic must have
5 told Sljivancanin about the order; or, if the Appeals Chamber still
6 decided to draw this inference, while before drawing such a far-reaching
7 inference, I have no doubt that the Appeals Chamber would have explained
8 why the fact that Panic said that he heard the conversation and that
9 Mrksic did not tell Sljivancanin that this was not an obstacle to the
10 Appeals Chamber drawing that inference.
11 So what I'm saying in a nutshell, the fact that the
12 Appeals Chamber neither referred to the role of Panic during the
13 conversation or in respect of the Mrksic/Sljivancanin conversation, nor
14 even to the fact that he heard the conversation, that makes it clear that
15 the evidence proffered this morning by Miodrag Panic was not known to the
16 Appeals Chamber and indeed constitutes a new fact.
17 In this regard, Mr. President, it is interesting to note the
18 Prosecution argument raised at paragraphs 13 and 14 of its response, that
19 the evidence proffered by Panic is not new because Panic said during his
20 testimony that he did not know who issued the order. Now, that's very
21 interesting because it actually supports what I'm telling you today.
22 Now, bearing in mind the testimony of Panic at trial. Firstly, he says I
23 know Sljivancanin spoke to the commander upon his return to the command.
24 That's 14330, line 7. Secondly, Panic says that he did not know who
25 ordered the withdrawal of the MPs from Ovcara.
1 JUDGE MERON: Excuse me, Mr. Bourgon, as a very talented lawyer
2 for Mr. Sljivancanin, how come during the trial you did not try to
3 question Mr. Panic more closely about the content of the conversation?
4 MR. BOURGON: Because at the time, Mr. President, it was not a
5 relevant issue. At the time what was of interest to counsel representing
6 Sljivancanin -- now, of course, I was not there but I'm perfectly
7 familiar with the record and able to answer. What was relevant at the
8 time, Mr. President, was whether Sljivancanin was actually present for
9 the daily briefing. And why was this important? Because of the
10 Prosecution's case. The Prosecution's case - and this morning it looked
11 like they were going back to their initial case of a joint criminal
12 enterprise. So it was very important for counsel for the Defence of
13 Sljivancanin to establish that he was not present at the briefing. Why?
14 Because there was evidence coming in because -- during the Prosecution's
15 case that this is where and around the time that the order was given. So
16 to show that he was not part of that joint criminal enterprise, the focus
17 of the Defence case was exactly to show that he was not at the briefing.
18 When Mr. Panic answered that he was not at the briefing, there
19 was no reason to question him further. Had the Prosecution put the case
20 to Sljivancanin when he testified, of course the Defence would have asked
21 Panic, of course it would; but it didn't. Had the Prosecution put the
22 question to Panic: What did you hear? Of course the Defence would have
23 done something about that, but it didn't.
24 JUDGE MERON: But what about the 8.00 p.m. meeting?
25 MR. BOURGON: Well, the 8.00 p.m. was exactly this,
1 Mr. President, it was Sljivancanin arriving at the command, arriving late
2 at the command. And when he arrived, the briefing was over. That was
3 it. That was the issue that was of importance to the Defence, and the
4 Defence moved on. When Panic testified, Mr. --
5 JUDGE MERON: But the meeting went on and things could have been
6 said during that meeting. Wasn't it natural that you would ask Panic
7 questions about it? Did you hear anything about the order? Didn't you
8 hear anything about the order?
9 MR. BOURGON: Well, Mr. President, we're on the Defence side. If
10 somebody must establish something, it's the Prosecution. If the
11 Prosecution had put questions, they have the burden of proof. The
12 Defence does not have any obligation or any need and it would be stupid
13 for the Defence to go into events that it doesn't have the answer. It's
14 a basic line that you never ask a question to which you don't know the
15 answer. I'm sure Mr. Lukic wished that he had asked Mr. Panic about that
16 conversation when he met with him before his testimony. I wish -- I'm
17 sure Mr. Lukic would dream that during the trial that issue would have
18 come out because we wouldn't be here today, but it didn't and we can't be
19 blamed for that. The Defence cannot be blamed for this at all,
20 Mr. President.
21 Thank you. Now, I move on to the thing that -- my argument which
22 was that Panic said: I know Sljivancanin talked to the commander, but I
23 don't know who issued the order for the withdrawal -- I don't know -- no,
24 sorry. He knows that Sljivancanin talked to the commander upon his
25 return to the command. That's 14330, line 7. And secondly, he said that
1 he did not know who ordered the withdrawal of the MPs from Ovcara.
2 Now, if you take these two things together, it follows that if
3 the Appeals Chamber had known or if it had been established that Panic
4 either was a party to the conversation or that he heard the conversation,
5 then the Appeals Chamber could not have drawn the inference without first
6 distancing its from what Panic said, or else the inference could not be
7 the only reasonable conclusion.
8 Consequently, the fact that the Appeals Chamber - now we're
9 looking at what is existing today and not maybes - the Appeals Chamber
10 did not enter into such details. It demonstrates that the Appeals
11 Chamber did not know that Panic heard the conversation and that the
12 Appeals Chamber did not -- certainly did not know that Panic heard that
13 Mrksic did not tell Sljivancanin about the withdrawal. Hence, the
14 argument put forward by the Prosecution actually confirms that the
15 evidence proffered by Panic this morning is indeed a new fact.
16 I have 15 more minutes to go, Mr. President. I move to my third
17 argument, and that is that our submission that another way to consider
18 this, the evidence of Panic, is to look at all previous decisions
19 rendered by the Appeals Chamber of both the ICTY and the ICTR in respect
20 of applications for review. To this day, some 18 applications for review
21 have been filed before the Appeals Chamber. I say some 18 because we --
22 you well know, Mr. President, there were some mixed applications for
23 review and reconsideration. Some 18 applications. One such application
24 was granted, while all others were denied.
25 I hesitate in saying this, but I have to, Mr. President. I know
1 how difficult these applications are for the Appeals Chamber. I know how
2 important the finality of judgements is. I know that. It's been a long
3 time when I was chef de cabinet in this place, but I do remember, just as
4 Judge Guney, I'm sure, remembers the secretary I gave him when I was chef
5 de cabinet. I remember sitting with the Judges when the Barayagwiza
6 application was granted. I know the debates. I know how it took place.
7 I know how it was done. I know how difficult it is. But when we have
8 exceptional circumstances, it is important, Mr. President, that we take
9 them into consideration.
10 Now, looking at this application, the Barayagwiza application,
11 which was granted, it reads the following:
12 The Appeals Chamber held "a relevant new fact emerges from this"
13 application. "In its Decision, the Chamber determined from the basis of
14 the evidence adduced at the time that 'Cameroon was willing to transfer
15 the accused' as there was no proof to the contrary. The above
16 information, however," the new fact, "goes to show that Cameroon
17 been prepared to effect its transfer before 24 October 1997. This fact
18 is new."
19 That's what the Appeals Chamber said at paragraph 57. It is
20 evident that applying this finding to the ICTR Appeals Chamber to the
21 present case, that the evidence of Witness Panic heard this morning is
22 indeed a new fact. The Appeals Chamber adopted the inference at
23 paragraph 62 on the basis that there was no direct evidence that Mrksic
24 told Sljivancanin that he had withdrawn the MPs from Ovcara. The
25 evidence of Witness Panic not only provides direct evidence as to what
1 was said, it also provides evidence that Mrksic did not tell Sljivancanin
2 about the withdrawal during this conversation.
3 Other examples where the Appeals Chamber concluded that the
4 evidence proffered did constitute new facts, even though these
5 applications were later denied for other reasons, can be found in Tadic
6 motion for review, 30 July 2002
7 "Findings of the Appeals Chamber made after the final judgements
8 were considered as new facts."
9 In Josipovic, first motion for review, 7 March 2003, where the
10 discovery of a policeman who resembles Josipovic and who could have been
11 involved in the attack on Ahmici was considered to be a new fact because
12 it was not litigated at trial.
13 In the Rutaganda application for review, 9 December 2006, where
14 findings were made in another case on the general lack of credibility and
15 about the fact that statements given to Rwandan authorities prior to the
16 testimony of some witnesses -- of two material witnesses were considered
17 new facts because they were not in issue at trial.
18 Comparing these three instances to the evidence provided by Panic
19 this morning, which was neither known by the Appeals Chamber nor
20 litigated and/or in issue at trial or on appeal because no questions were
21 put to the relevant witnesses, inter alia, that's one of the reasons,
22 reveals the same conclusion. The information provided by Panic is indeed
23 a new fact.
24 As for the other decisions rendered by the Appeals Chamber, the
25 nine applications for review, the rationale appears to have been quite
1 constant that the proposed evidence constituted additional evidence of
2 the fact in issue, and therefore were not new facts.
3 If we consider the testimony of Witness Panic, we -- it is our
4 respectful submission that it cannot be considered to be additional
5 evidence of a fact in issue. This rationale simply does not apply in the
6 present case. That is why this case not only raises some exceptional
7 circumstances but can be distinguished from all other applications which
8 have been denied.
9 I can move into explaining why the fact was not in issue, but the
10 Trial Chamber's conclusion was that Sljivancanin does not possess the
11 requisite mens rea for aiding and abetting murder as long as he was under
12 the understanding that the JNA troops remained at Ovcara. That's the
13 finding, that's the part that was in issue at trial.
14 Whether Sljivancanin learned that the JNA troops guarding the
15 prisoners at Ovcara were removed, a far-reaching interpretation would say
16 it probably became an issue when the Appeals Chamber put the question to
17 the parties at the end of the appeal, when all briefs were in, and then
18 there were oral arguments. However, considering the findings of the
19 Trial Chamber that Mrksic issued the order to withdraw the MPs from
20 Ovcara, that Sljivancanin was not involved in the transmission of this
21 order, and while it may also be considered on that basis that whether
22 Sljivancanin learned that Mrksic had withdrawn the MPs from Ovcara and if
23 so when, whether that was an issue on appeal because of the question put
24 by the Appeals Chamber, it is significant that this was not the
25 Prosecution's theory and has never been until final oral arguments.
1 Quite to the contrary. The Prosecution's second ground of appeal was the
3 "It was unreasonable for the Trial Chamber to find that it was
4 unable to conclude that at the time of its visit to Ovcara Sljivancanin
5 was aware that the prisoners of war would probably be murdered."
6 More importantly, if we look at the evidence adduced by the
7 parties at trial, especially by the Prosecution, it is evident that the
8 issue whether Sljivancanin learned that Mrksic had withdrawn the MPs from
9 Ovcara was not litigated and certainly not disputed by the parties. The
10 only witnesses who said anything about that conversation between Mrksic
11 and Sljivancanin is Sljivancanin himself. And the Prosecution never put
12 the question to him: Did Mrksic inform you or didn't Mrksic tell you,
13 Mr. Sljivancanin? Nothing like that. He was questioned, but not on that
15 All other witnesses who testified at trial and who could have
16 offered any evidence in relation to the issue whether Sljivancanin
17 learned that Mrksic had ordered the withdrawal of the MPs from Ovcara
18 were meant -- never put to any witnesses in this regard. Now, this
19 includes Trifunovic, Gluscevic, Vukasinovic, Sljivancanin, Vojnovic, and
20 Lesanovic, and of course Witness Panic whom we've heard this morning.
21 Consequently, Mr. President, whether and when Sljivancanin
22 learned that Mrksic had withdrawn the MPs from Ovcara were certainly not
23 disputed by the parties at trial and was not disputed on appeal and no
24 new evidence was submitted by the Prosecution on appeal, even though the
25 burden of proof rests on the Prosecution. In these circumstances, the
1 direct evidence by Panic that Mrksic did not inform Sljivancanin that he
2 had withdrawn the MPs from Ovcara can in no way considered to be
3 additional evidence.
4 I move on quickly. I have I think three minutes left. My fourth
5 and last argument, Mr. President.
6 It is our respectful submission that the arguments put forward by
7 the Prosecution in arguing that the evidence by Panic is not a new fact
8 focuses on details, just as my colleague did this morning when
9 cross-examining Witness Panic, but that they missed the most obvious
10 conclusion, which stems from the testimony of Witness Panic and on which
11 the present review application rests. In other words, the Prosecution is
12 asking you to look at the trees while at the same time it is telling you
13 to ignore the forest. On the one hand the acquittal of Sljivancanin was
14 reversed on appeal on the basis of a single watershed inference made in
15 the absence of direct evidence that Mrksic told Sljivancanin about the
16 withdrawal. On the other hand, the evidence proffered by Witness Panic
17 provides a source of direct evidence, while establishing that Mrksic did
18 not tell Sljivancanin about the withdrawal during that conversation.
19 Mr. President, if that doesn't qualify as new fact, then nothing
20 ever well. The purpose of Article 26 applications is precisely to
21 prevent a miscarriage of justice in situations where new information
22 unknown to the deciding body at the time the decision was rendered makes
23 it clear that the decision was erroneous. It is obvious that the
24 evidence offered by Witness Panic is one such situation. Yes, that is
25 the -- the Prosecution is asking you to ignore, the forest. We, on the
1 other hand, take this opportunity to recall the holding of the ICTR
2 Appeals Chamber in the Barayagwiza case which is directly applicable
3 because to reject the fact by Panic in the light of the impact on the
4 decision would indeed be to close one's eyes to reality.
5 A quick, Mr. President, conclusion, simply to say - I had more
6 but I will stop here - simply to say that I raise today four different
7 ways to look at new fact: A case law, the jurisprudence, the plain
8 meaning of the words, and the forest test. You look at any way you want
9 at -- if you try to find that the thing that -- this was an issue at
10 trial, it was not. Any way you look at it, we find that what Panic said
11 this morning is indeed something that is new and that was unknown to the
12 deciding body.
13 I close with one quick sentence, and very quickly because it's
14 not the gist of our application today. But should there be any doubt
15 that it's not a new fact, that it's not a new fact, then we say as two
16 learned Judges have put in separate opinion - yourself, Mr. President,
17 and Judge Shahabuddeen - you still have the power as the Appeals Chamber
18 to make things right. Of course, that's not what we're asking today.
19 But if it's not a new fact - and we are certain that it is a new
20 fact - but even if that is not, you still have the power to make things
21 right and that is very important because you heard the man this morning
22 and that was not told to Sljivancanin in the night of 20 November 1991
23 and his conviction cannot stand.
24 Thank you, Mr. President.
25 JUDGE MERON: Thank you, Mr. Bourgon, for your argument.
1 And, Ms. Brady, you're taking over. You have 45 minutes.
2 MS. BRADY: Thank you, Your Honour.
3 Good afternoon, Your Honours. Panic's evidence, even if it were
4 to be accepted - which for all the reasons given by my colleague
5 Mr. Rogers this morning it should not be - but even if it were to be
6 accepted by you, it still doesn't meet the test for a new fact which is
7 required to trigger a review by the Appeals Chamber of its judgement.
8 And for this reason, Sljivancanin's application must be dismissed.
9 Based on consistent ICTY and ICTR Appeals Chamber jurisprudence,
10 his testimony that we heard today does not amount to a new fact. During
11 both the trial and the appeal, the issue of what Sljivancanin -- excuse
12 me, whether Sljivancanin learnt of the withdrawal of the 80th Motorised
13 Brigade from Ovcara; who he learnt it from, that is, Mrksic; when he
14 learnt it, that is, at 2000 hours on the 20th of November; where he
15 learnt it, that is, at the command post; and how he learnt it, that is,
16 in that meeting, was litigated and considered. Sljivancanin testified
17 about these matters, and we disagree with Mr. Bourgon's point about this
18 in the -- that he's just made. We disagree with him when he says it's
19 not additional evidence of those facts; in fact, Panic's testimony that
20 we've heard today is simply additional evidence of the facts that were
21 previously litigated and considered. And on the case law, this is
22 insufficient to trigger a review.
23 Your Honours, in the case law on review proceedings, the Appeals
24 Chamber has carefully distinguished between on the one hand a fact -- a
25 new fact, and on the other hand what is additional evidence of a fact
1 which has already been litigated or considered by the original deciding
2 Chamber. And the Appeals Chamber has defined a new fact as this, and I'm
4 "Information of an evidentiary nature supporting a fact that was
5 not in issue during the trial or appeal proceedings. The requirement
6 that the fact was not in issue during the proceedings means that it must
7 not have been among the factors that the deciding body could have taken
8 into account in reaching its verdict."
9 And as we know, only a showing of a new fact will open the door
10 to review proceedings. As you've emphasized, this Chamber's emphasized
11 in the Delic review decision, where the additional material proffered
12 consists of a new fact, that is, a fact which was not in issue or
13 considered in the original proceedings, a review pursuant to Rule 119 is
14 the appropriate procedure which must be taken before the Chamber which
15 gave the final judgement upon the relevant issue.
16 "If the material proffered consists of additional evidence
17 relating to a fact which was in issue or considered in the original
18 proceedings, this does not constitute a new fact within the meaning of
19 Rule 119 and the review procedure is not available."
20 And as I'll develop during the course of my submissions this
21 afternoon, the Appeals Chamber's approach that it has taken to defining a
22 new fact reflects the exceptional nature of the review proceeding, and in
23 particular the interest in finality and certainty of judgements.
24 Now, coming right to the point of what is the new fact. The
25 applicant, Mr. Sljivancanin, says that this new fact coming -- emanating
1 from Panic's testimony is that Panic, who was present during the
2 conversation between Mrksic and Sljivancanin on the night of the 20th of
3 November, that he heard the conversation, but he did not hear Mrksic tell
4 Sljivancanin that he had ordered the withdrawal of the 80th Motorised
5 Brigade from Ovcara.
6 Having framed the alleged new fact in this very specific way,
7 this very narrow way, he then looks back at the trial and the appeal
8 proceedings and he argues that this specific piece of evidence -- in
9 fact, we heard in his submissions a number of times, he's always
10 referring -- most frequently referring it as evidence. This specific
11 piece of evidence was not considered or taken into account by the
12 Trial Chamber or the Appeals Chamber in reaching its decision. In our
13 submission, this approach is flawed. If you look at the 20 or so review
14 cases that have previously been considered by this Chamber, what is
15 necessary is to first identify correctly the facts that were in issue in
16 the original proceedings. And having done this, the new information has
17 to be then assessed to see if it can be deemed indeed a new fact or
18 whether it's simply additional evidence of a fact already litigated or
19 considered by the deciding Chamber.
20 And in our submission, applying the proper approach to this case,
21 what Sljivancanin learnt once he returned to the command post at
22 Negoslavci at 2000 hours on the relevant evening, in particular whether
23 he learnt that Mile Mrksic had withdrawn the remaining JNA troops from
24 Ovcara was a fact in issue in both the trial and the appeal proceedings.
25 And I'll start first with the appeal proceedings, since that's the stage
1 in which the factual finding was made.
2 It's not correct -- it's not true to say, as Mr. Bourgon has,
3 that the issue didn't crystallise until the questions were put by the
4 Appeals Chamber. In fact, the Prosecution first raised the issue on
5 appeal in a substantive way in its Prosecution appeal brief filed in
6 January 2008. And, Your Honours, I'll briefly read just two paragraphs
7 from that brief to remind yourselves of our position on this. Paragraph
8 76 of the Prosecution appeal brief we argued this:
9 "Later that night at approximately 2000 hours Sljivancanin
10 learned more about the events at Ovcara, including that Mrksic had
11 ordered the JNA to withdraw."
12 Then at paragraph 102 we elaborated further:
13 "Sljivancanin returned to Negoslavci at approximately 2000 hours
14 on the 20th of November, 1991, and was briefed on events at Ovcara by
15 Major Vukasinovic. He then reported to Mrksic. The only inference
16 available on this evidence was that Sljivancanin was informed of Mrksic's
17 order upon his return to Negoslavci. Sljivancanin admitted that he had a
18 conversation about the transfer of the prisoners when he returned to
19 Negoslavci that night."
20 And the footnote for that is a reference to Sljivancanin's
21 testimony about this meeting that he had with Mrksic when he returned to
22 the command post.
23 Now, the Trial Chamber hadn't made an affirmative finding on this
24 issue of whether he learnt and how he learnt it. If you look at the
25 trial judgement paragraph 389 and 661, they didn't make an affirmative or
1 positive finding in favour of the Prosecution on that point. So it was
2 an important point to establish, a finding on this issue had to be made
3 by the Appeals Chamber in order to trigger Sljivancanin's duty to protect
4 the prisoners. And the factual finding at issue -- it's clear from what
5 I've read, the factual finding at issue concerned Sljivancanin's
6 conversation with Mrksic that evening at the command post.
7 And the Defence answered in some detail in his response brief
8 several paragraphs were dedicated to this issue, paragraphs 178 to 179
9 and 208 to 216. Sljivancanin not only denied being aware that Mrksic had
10 issued an order to withdraw the JNA from Ovcara, but he specifically
11 argued that:
12 "The evidence as well as the conclusions of the Trial Chamber do
13 not show that Mrksic informed Sljivancanin that he had ordered the JNA
14 security to be withdrawn from Ovcara on 20 November 1991."
15 So this issue, what Sljivancanin learned that evening, and his
16 conversation with Mrksic in particular, was a factual issue for
17 determination in the appeal. And the parties clearly saw it that way.
18 The Appeals Chamber recognised this in its addendum to the Scheduling
19 Order, which came out a couple of weeks I think before the appeals
20 hearing. It focused on -- the Chamber focused on Sljivancanin's claim
21 that he didn't know that Mrksic ordered the withdrawal, and the parties
22 were asked to elaborate on this issue, this very factual issue, when
23 Sljivancanin learned of Mrksic's order to withdraw the JNA troops.
24 And the parties gave extensive answers on this issue at the
25 appeals hearing. That's at transcripts pages 219 to 224 for the
1 Prosecution's submissions on this point and 283 to 287 for the Defence
3 And we advocated that the only reasonable conclusion was that
4 when he returned to the command post that night at that time, 2000 hours,
5 that he must have learnt of the withdrawal order and pointing in
6 particular to his conversation with Mrksic and its content. And I recall
7 reading large chunks -- quotes of Sljivancanin's testimony, direct
8 evidence about this conversation. And the Appeals Chamber itself then
9 devoted the majority -- devoted two lengthy paragraphs on this issue to
10 what Sljivancanin found out when he returned to the command post. It
11 looked at -- the Chamber must have looked at the totality of the evidence
12 in the trial record, including Sljivancanin's testimony about his
13 conversation with Mrksic, amongst which topics they discussed with the
14 facts that the prisoners were at Ovcara and were now under the authority
15 of the SAO government. The relevant parts of Sljivancanin's testimony
16 being 13665 and 13983 to 13988. And from this, the Appeals Chamber made
17 its critical finding in paragraph 62 that Mrksic must have told
18 Sljivancanin he had withdrawn the troops from Ovcara.
19 Now, before I move on to speak about the issue -- this factual
20 issue being litigated at trial, I do want to make one comment about
21 Mr. Bourgon's submissions on the changes in the translation from B/C/S
22 into English.
23 In our submission, none of the changes that were made that were
24 approved by the CLSS from the B/C/S into English about that conversation
25 affect the import of the conversation. But there is one point I do wish
1 to correct because Mr. Bourgon indicated that the testimony of
2 Sljivancanin had been corrected -- this is Sljivancanin's testimony at
3 13665. He said that it had been corrected in -- if I understand
4 correctly in two points. And we agree with the first point but not with
5 the second. It's true that the translation has been corrected so that it
6 now says that Sljivancanin called in on Colonel Mrksic instead of using
7 the word I think "reported." But Mr. Bourgon also mentioned that the
8 change was made by CLSS so that it now reads "I briefly informed him on
9 what was basically happening with the hospital."
10 But in fact, Your Honours, that change was not accepted by CLSS.
11 CLSS in fact kept the original wording "I briefly informed them," and
12 relevant as well to this point is that if you take a look at a further
13 part of Sljivancanin's evidence - and this is when he's under
14 cross-examination at 13983 - in fact, under cross-examination
15 Sljivancanin again gives his version of the conversation or part of it
16 and he says at paragraph -- at page 13983, line -- well, I'll start at
17 line 18, Sljivancanin answers:
18 "I went to see Mrksic to tell him what I'd seen at the hospital
19 and what happened at the hospital that day and to see what would be
20 further tasks and duties."
21 And then dropping down to line 22 he says this:
22 "And since the Chief of Staff, Mr. Panic, was there, I believed
23 them to be in the know, in the sense of knowing exactly what was going
24 on, why those people had gone there."
25 Which does tend to support the version of CLSS, that he
1 originally briefed them.
2 Your Honours, the issue of Sljivancanin's knowledge that night
3 when he returned to the command post and his conversation with Mrksic was
4 also a factual issue at trial. I've spoken already about the appeal
5 stage, but the Appeals Chamber clearly made its findings on the basis of
6 evidence and factual findings of the Trial Chamber.
7 Now, the fact that the Prosecution's case at trial was more
8 extensive -- because at trial the Prosecution alleged that Sljivancanin
9 was part of a joint criminal enterprise to harm and to kill the
10 prisoners, and also we alleged that he had himself been involved in the
11 transmittal of the order, of the withdrawal order, but that fact does not
12 mean, as he argues or he argued today, that what he learnt, what
13 Sljivancanin learnt when he returned to Negoslavci and his conversation
14 with Mrksic were not facts in issue. And allow me to explain what I
16 To the contrary, what Sljivancanin did and what he knew in the
17 evening when he got back were relevant, both to a proper consideration of
18 his earlier conduct, whether it was part of the Prosecution's theory on
19 joint criminal enterprise or not, what he found out later was still
20 relevant to a proper consideration of his earlier conduct and to his
21 Defence of those matters. And no doubt that's part of the reason -- one
22 of the reasons why Sljivancanin's counsel actually asked Sljivancanin
23 about his meeting with Mrksic. Let's -- we recall that the conversation
24 that Sljivancanin had with Mrksic was first raised by a question in
25 examination-in-chief. And the tenor of the question and the answer shows
1 that it was being done to show that Sljivancanin when he got back to the
2 command post that night, it was more or less business as usual, he was
3 asking for his next tasks and duties, and he didn't get any information.
4 He continued to remain uninformed about the fate of the prisoners. That
5 is more or less the purpose of this line of questioning.
6 Indeed, his evidence -- his state of mind after the events has
7 always -- has been an even more longer-term issue. His evidence at trial
8 was that he remained ignorant of the fate of the prisoners until many
9 years later, something like 1998 when he actually found out, he says, for
10 sure about what happened to the prisoners. He heard rumours swirling
11 around, but he says he didn't know for sure until he called to the
12 military proceedings in Belgrade
13 So what he knew and what he found out always was a very relevant
14 issue for him both in meeting the Prosecution's case and in running his
16 What's also interesting to note is that at trial Sljivancanin
17 also had to deal with or meet Mrksic's defence. Now, Mrksic's defence --
18 now, Mrksic's defence was not accepted by the Trial Chamber or the
19 Appeals Chamber, but it's relevant to an understanding of what were the
20 facts in issue at the trial. Because Mrksic's defence was that sometime
21 between 7.00 to 8.00 that night he left Negoslavci on a helicopter and
22 went to Belgrade
23 in charge. And Mrksic's argument - again, it wasn't accepted - but his
24 argument was that the order to withdraw happened on Panic's watch, and he
25 pointed to the security administration as the likely source.
1 So again, what Sljivancanin knew, his interactions and his
2 discussions with Mrksic that evening, were facts in issue -- facts in
3 issue, given this attempt by Mrksic to shift the blame to Panic and the
4 security administration, and thereby also by implication to Sljivancanin.
5 In fact, when cross-examined by Mrksic's counsel about the timing of his
6 conversation with Mrksic that evening, and in particular Sljivancanin's
7 claim that Mrksic had told him that the government had taken over the --
8 a group of suspects, Sljivancanin said this under cross-examination by
9 Mr. Vasic, this is at transcript 13724 to 725:
10 "... I know not 100 per cent, but with 1 million per cent
11 certainty that I was at the commander's on the 20th, in the evening. As
12 for the government session, before hearing about it from the commander, I
13 heard it from my security officer, Srecko Borisavljevic."
14 So for Sljivancanin to now say that the issue of what he found
15 out that evening about the prisoners and in particular their loss of
16 protection, the withdrawal of the security detail, was not a live issue
17 during the trial proceedings is baseless.
18 The Trial Chamber didn't make an affirmative finding as to
19 whether Sljivancanin learnt about the withdrawal order that evening,
20 didn't make a positive finding on that issue, but this doesn't mean as
21 Sljivancanin alleges that somehow it didn't consider the matter. If you
22 look at the clear wording of paragraphs 389 and 661, it shows that the
23 Trial Chamber did consider the issue but they weren't sufficiently
24 persuaded by the evidence to make a finding. And that's exactly why we
25 asked Your Honours on appeal to make this finding because the
1 Trial Chamber had not made a finding in favour of the Prosecution.
2 So in a nutshell, Your Honours, those are the previously
3 litigated facts: What he learnt, the withdrawal of the 80th from Ovcara;
4 who he learnt it from, Mrksic; when he learnt it, at 2000 hours on the
5 20th of November, 1991; where he learnt it, at the command post; and how
6 he learnt it, in that meeting.
7 If we now turn to examine Panic's recent evidence, recent
8 testimony that we heard this morning and compare it to these facts which
9 were already litigated and considered, it is simply additional evidence
10 pertaining to these already-litigated facts. And in fact several times
11 in his written submissions the applicant has said it's evidence
12 corroborating Sljivancanin's evidence at trial.
13 Now, the gist of his argument today is that neither the Appeals
14 Chamber or the Trial Chamber had before it this specific piece of
15 evidence that Panic now provides, that Panic did not hear Mrksic tell
16 Sljivancanin that he had ordered the security detail to be withdrawn.
17 There are two answers to this. Firstly, even if you were to take a more
18 elastic approach to the concept of a new fact in this case, even if you
19 were to adopt the approach being advocated by Mr. -- by Mr. Sljivancanin
20 and his team, this evidence was already before the Trial Chamber and the
21 Appeals Chamber. You have to consider two different factors in this:
22 Firstly, both Sljivancanin and Panic testified at trial that Panic was
23 present when Sljivancanin met with Mrksic that evening. Mr. Rogers this
24 morning read to you Panic's evidence at transcript 14330, just to remind
25 you what he said. Panic's -- Panic was asked whether Sljivancanin
1 attended the 6.00 p.m.
2 "did you see him that evening at all."
3 And after going through the -- that he doesn't remember seeing
4 him at the briefing, Panic then says that:
5 "I think he came," he being Sljivancanin, "I think he came, say,
6 around 2000 hours and I know that he talked to the commander."
7 So there's no issue; he's there.
8 Now, Panic testified at trial that he never knew who ordered the
9 withdrawal. His position is he never knew who ordered the withdrawal,
10 but basically over time he has some to accept or to conclude, reluctantly
11 or otherwise, that it must have come from Mrksic. And I invite Your
12 Honours to read carefully Panic's testimony at pages 14409 to 10 and
13 14498 to 502. I will briefly go into this testimony to make this point.
14 At transcript page 14409 Mr. Panic was asked this:
15 "Q. Well, who was tasked with handing over those people to the
16 civilian authorities?
17 "A. Well, that's the problem, that's the issue that has to be
19 "Q. Do you know this?
20 "A. No, I don't. But when this becomes evident, then the truth
21 will be known about these events. There was supposed to be no hand-over
22 to anyone by our command. They were supposed to be screened, selected.
23 The combatants were supposed to be separated off from the non-combatants,
24 the patients, and the wounded, and they were to be transported to Sremska
25 Mitrovica. Nowhere was anything said by anyone in anyone's presence at
1 the command post, in the barracks, or anywhere else in the area at that
2 time about their handing over to the civilian authorities. The problem
3 of who handed them over is something that has to be proved, and when this
4 is proved it will be easier to arrive at the truth about this case."
5 So here he is saying no one ever said anything, including at the
6 command post. And he knows -- at trial, he knows this is the crux of the
7 issue in the case. He in fact again this morning referred to this as the
8 crux of the matter.
9 I also take you to his -- a later part of his evidence at
10 14498 [sic] to -- this is Panic under cross-examination by the
11 Prosecution, where he reluctantly concludes that the order must have come
12 from Mrksic. It was a bit surprising today to hear his submissions that
13 he was so surprised when he read the appeal judgement because, in fact,
14 at trial he had more or less reached the conclusion that Mrksic must have
15 ordered it. But nevertheless, you can make that -- make of that what you
16 will. But at page 14498, the Prosecution is putting to Panic his
17 previous OTP statement and in particular paragraph 92 of that OTP
18 statement. And he reads it to -- Mr. Weiner, the Prosecution trial
19 attorney reads it to Panic. Question -- he quotes from paragraph 92 of
20 the OTP statement:
21 "Q. 'In my opinion, the two central issues concerning Ovcara
22 are: One, how long the JNA can secure the hangar. Two, why did the JNA
23 leave the area. The order for the withdrawal of the military police
24 could have been issued only by the commander of the military police of
25 either the Guards Motorised Brigade or the 80th Motorised Brigade. As
1 the commander of OG South, Colonel Mile Mrksic was the highest-ranking
2 commander in the area. This means the order of the JNA withdrawal must
3 have been issued or at least authorised by him. I know Mrksic very well
4 and cannot imagine he would have issued such an order. However, the
5 order for withdrawal of military police could have only come from him.
6 The military police of the 80th Motorised Brigade withdrew on JNA orders.
7 They were not forced out by the local Serbian TO.
8 Lieutenant-Colonel Vojnovic could have issued the order for the
9 withdrawal of the military police but not without consulting Mrksic. It
10 is possible that someone carried out the withdrawal of the military
11 police of the 80th Motorised Brigade without'" his "'authorisation, but
12 that would represent a violation of the regulations.'"
13 He's asked:
14 "Is that what you said, sir?"
15 And he answers:
17 And then for the next four or so pages Panic agrees with each of
18 the propositions in greater detail in that statement.
19 So from these facts, the facts that he was present and the facts
20 that he never knew that Mrksic had given the order to withdraw. These in
21 fact established at trial Panic's denial of having heard Mrksic tell
22 Sljivancanin on the evening or, indeed, ever that he had ordered the
23 withdrawal of the 80th from Ovcara. Now, it's true that Panic never
24 affirmatively said at trial the words -- he never said in his testimony:
25 I did not hear Mrksic tell Sljivancanin he had ordered the withdrawal of
1 the security detail at Ovcara. But in fact it's the only logical
2 implication of his and Sljivancanin's trial evidence. So that's
3 addressing the evidence put forward in the interpretation of new facts
4 that Mr. Bourgon would give to it. We say that that is actually too
5 narrow, but even if you take that narrow approach this matter was already
6 before you and before the Trial Chamber.
7 But secondly, and the more correct approach, is that Panic adds
8 nothing more to what Sljivancanin already testified about at trial. What
9 he offers is simply additional evidence of a fact which has been
10 previously litigated and considered. This fact, which I've stressed
11 throughout the submissions, what Sljivancanin learned, when he learnt it,
12 where he learnt it, who he learnt it from, and how he learnt it. The
13 who, what, when, where, how that I've been speaking about this afternoon.
14 And this testimony that we heard today from Mr. Panic is no
15 different from the additional evidence which this Appeals Chamber has
16 rejected as a new fact in a host of previous review cases. And I think
17 we take quite a different view of the case law from that which has been
18 put forward by the applicant this afternoon. In fact, the overwhelming
19 majority of cases on this new fact support the Prosecution position. I
20 won't go through all those cases, but, for example, the Appeals Chamber
21 has rejected as a new fact new evidence which was put forward to
22 establish an alibi which had already been -- which had been presented at
23 trial. This is in the Josipovic 7 March 2003 case, the Niyitegeka case
24 or cases. And the reason that the Appeals Chamber gave is that because
25 the issue of alibi was previously litigated and considered at trial.
1 The Appeals Chamber has also rejected as a new fact new evidence
2 which tended to show that a witness relied upon by the Trial Chamber for
3 a factual -- for a conviction was not credible. This is in the Naletilic
4 decision 19 March 2009
5 did it reject it? Because the issue of the credibility of the witness
6 had already been considered at trial.
7 Likewise, Your Honours have rejected as a new fact or rejected
8 classifying as a new fact evidence which was put forward which tended to
9 undermine the identity of the accused as the assailant of the crime.
10 This is in the Delic case, 25 April 2002
11 reasoning, why was this? The Appeals Chamber said this is because the
12 identity of the accused as the person who took the victim out and beat
13 him had already been discussed and considered at trial.
14 Likewise, in the Radic case, 31 October 2006, this Chamber
15 rejected as a new fact new evidence which showed the accused had no
16 access to a room in which he had been found to have raped a victim. And
17 the reasoning was that the issue of accessibility and use of the room by
18 the accused had already been considered at trial.
19 And finally, Your Honours, you've rejected as a new fact in a
20 Prosecution application in the Blaskic case 23 November 2006, where you
21 rejected as a new fact new evidence showing that oral orders may have
22 been given by the accused, again, on the basis of the issue of whether
23 the accused ordered the crimes in Ahmici had already been considered at
24 trial, albeit in the form of written orders.
25 Panic's evidence is no different from any of these cases in which
1 the Appeals Chamber rejected classifying the new information as a new
2 fact. And, in our submission, following these precedents, you should
3 likewise reject his testimony today as being a new fact sufficient to
4 trigger a review.
5 Your Honours, I won't address the other criteria for review, the
6 second and third criteria have been amply dealt with in our response
7 brief, as has the fourth criteria for review. We stand by our
8 submissions in the response brief.
9 In my conclusion, I would like to reiterate a couple of points
10 made by Mr. Rogers this morning about Panic's evidence. Panic's evidence
11 is not credible, it's not reasonably capable of belief; in our
12 submission, it's manufactured as a memory. It's offered 18 years after
13 the events to continue to try and distance himself and Sljivancanin from
14 any responsibility whatsoever for what happened to the prisoners at
16 I also just will briefly respond to a point made by Mr. Bourgon
17 this afternoon, where he said he was surprised that the Prosecution had
18 asked this Chamber to apply specific findings on credibility by the
19 Trial Chamber and to apply this question -- apply this reasoning to
20 questions which were never put to Panic. Perhaps I have missed his
21 point, but he seems to miss ours. Our point is that the same fundamental
22 credibility analysis applied by the Trial Chamber should apply here
23 today. I mean, firstly, Your Honours, you have upheld the
24 Trial Chamber's credibility findings about Panic. But secondly, it --
25 the same reasoning applied by the Trial Chamber applies to your
1 consideration of his evidence today because, put quite simply, when Panic
2 gets to matters that could implicate him or expose him or somehow not
3 present his role in the favourable way that he wishes it to be shown, he
4 is - I think Mr. Rogers put it quite well this morning - he is economical
5 with the truth. In fact, we could say that he is not credible and that
6 he greatly underplays his role, his knowledge, what he knew, and what he
7 saw, what he heard. And this is yet just another example, what we heard
8 this morning, of his distancing himself from anything that could touch
9 him or hurt him or increase his responsibility in any way.
10 But, Your Honours, even if you were to find Mr. Panic's evidence
11 credible, no matter how broadly or narrowly you characterise the facts
12 previously in issue, whether you characterise them as what Sljivancanin
13 learnt that evening about the troop withdrawal, whether you characterise
14 it as Sljivancanin's conversation with Mrksic, even if you characterise
15 it on the more narrow basis that the applicant would -- how the applicant
16 would frame the issue, that Panic did not hear Mrksic tell Sljivancanin
17 he had ordered the JNA withdrawal, no matter how you characterise the old
18 facts versus the new facts, you will not find that Panic's testimony
19 amounts to a new fact; it simply fails to meet the test.
20 Your Honours, that concludes my submissions this afternoon, and
21 I'd be happy to answer any questions if Your Honours have any.
22 JUDGE MERON: Thank you, Ms. Brady. I see there are no
24 So on to you for the last 15 minutes.
25 MR. BOURGON: Thank you, Mr. President. I'll try to be even
1 shorter than 15 minutes. The first issue I'd like to respond to is what
2 my colleague from the Prosecution said concerning the memorandum we
3 received from CLSS about the translation issue. Translation initially
4 came back from CLSS. On the first issue they say "I tell," "I wanted to
5 tell," without the "them." They agree, we agree. On the second issue it
6 came back and the "them" was still there. We listened to the tape again,
7 we returned that to CLSS saying there's a problem because in our
8 understanding the "them" is not there. It came back to us saying, Well,
9 the issue is the verb "inform" requires an object, so it has to be "him"
10 or "them." Now, if you read that paragraph and that paragraph was like
11 this, the exact paragraph was:
12 "I briefly informed them on what was basically happening with the
13 hospital ..."
14 But if you read the complete paragraph to which this applies,
15 "this is what I called in on Mrksic," so it can't be "I called in on
16 Mrksic and I briefed them." It must be "I called in on Mrksic and I
17 informed him." You know, to be logical in the same paragraph he can't
18 talk about one man and then say "them." The object is there but the
19 object must have been "him." That's, of course, that's our submission,
20 which can always be checked.
21 The second issue I'd like to address, Mr. President, is my
22 colleague said that whether or not there was a JCE argument at the
23 beginning makes no difference, a joint criminal enterprise argument.
24 Well, Mr. President, we say it does make a difference in terms of what
25 the questions -- what questions are put to the witnesses and what
1 evidence is led by the Prosecution. And in order to get their joint
2 criminal enterprise case that they were looking for, they were interested
3 in ensuring that Sljivancanin was part of the process and that he was
4 involved in the transmission of the order. And of course, as we all
5 know, they failed in their argument and the Trial Chamber said there is
6 no joint criminal enterprise and there was no involvement of Sljivancanin
7 regarding -- regarding the transmission of the order. If there was an
8 issue at trial, that was it.
9 The issue of Sljivancanin's knowledge of the withdrawal itself
10 were certainly not in issue at trial and we did that in our briefs
11 already. The issue is did it become an issue on appeal? And we say
12 absolutely not. If it had been an issue on appeal, Mr. President, the
13 Prosecution would have made it a ground of appeal. They would not have
14 said the Trial Chamber erred by saying that Sljivancanin erred in saying
15 that he did not get the mens rea in the afternoon when he was at Ovcara.
16 They would say the Trial Chamber erred because they failed to see that
17 Mrksic informed him and that he gained the mens rea at night. That's not
18 at all what they said. They may have said in their argument that at 8.00
19 at the command post he learned more, his knowledge became greater, that
20 did not make it an issue.
21 The next point I want to raise, Mr. President, is, you know, the
22 Prosecution today, they keep insisting on the notion of issue. Of
23 course, there's nothing more confusing than trying to find out what is an
24 issue. Is it a fact in issue, is it a material fact, is it a key fact?
25 That's not the point. The point here is did the deciding body knew the
1 information? We haven't heard much about that today, but one thing we
2 did hear, the Prosecution said, that's already on the record. That's a
3 surprise to me. If it had been on the record, when the Appeals Chamber
4 put the question to the Prosecution: When did Mrksic learn of the
5 order -- when did Sljivancanin learn of the order issued by Mrksic? How
6 come they never said any of that when they responded to the question of
7 the Appeals Chamber? They never said nothing -- they never said: That's
8 already on the record that Panic said about this -- nothing like that was
9 mentioned by the Prosecution. Now, I can guess why, but that's not the
11 The same applies to us. As the respondent, did we refer to that
12 information on the record? Of course we didn't. Is there any doubt in
13 anyone's mind in this room that if we had known what Panic said this
14 morning that we would not have used that when we responded to your
15 question on appeal? That says it all, Mr. President. It's completely
16 new. We would have said -- we would have told you: Listen,
17 Mr. President, we have this witness. We would have talked about Panic.
18 We're the respondent. And we didn't. That says it all.
19 Last thing is if it was an issue, as they say, how come they
20 didn't raise the question? They didn't explain that today. How come
21 they did not put the question to Sljivancanin? How come they did not put
22 the question to Panic? How come they did not put the question to
23 anybody? When you look at the case law, when you look at the
24 definitions, when you look at what is important today in order for a
25 review application, you can only come to one conclusion, Mr. President,
1 the evidence we heard this morning is a new fact. Thank you.
2 JUDGE MERON: Thank you very much. This hearing, this
3 evidentiary hearing, is now over. I would like first of all to say to
4 Mr. Panic, whom I thank, we thank, can now return home. He need not stay
5 in The Hague any longer. And I would like to thank the Registry, the
6 interpreters, of course, but also the parties for their arguments today,
7 and for more or less adhering to the time-line, and the hearing is now
8 over. We will issue our decision when we are ready. Thank you very
10 --- Whereupon the hearing adjourned at 4.03 p.m.