1 Monday, 22 February 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.07 a.m.
5 [Defence Opening Statement]
6 JUDGE MOLOTO: Good morning to everybody in and around the
8 Mr. Registrar, please call the case.
9 THE REGISTRAR: Good morning, Your Honours. Good morning to
10 everyone in and around the courtroom. This is case number IT-04-81-T,
11 the Prosecutor versus Momcilo Perisic. Thank you.
12 JUDGE MOLOTO: Thank you so much. Could we have appearances for
13 the day, please, starting with the Prosecution.
14 MR. HARMON: Good morning, Your Honours. Good morning, counsel.
15 Good morning everyone in and around the courtroom. Mark Harmon,
16 Dan Saxon, Barney Thomas, and Carmela Javier for the Prosecution.
17 JUDGE MOLOTO: Thank you very much. And for the Defence.
18 MR. LUKIC: [Interpretation] Good morning, Your Honours. Good
19 morning to all the parties to the proceedings. Mr. Perisic will be
20 represented today in this courtroom by Gregor Guy-Smith and Novak Lukic
21 as Defence counsel. There are also our assistants, Chad Mair,
22 Boris Zorko, and also our intern.
23 JUDGE MOLOTO: Thank you very much, Mr. Lukic. May the record
24 show that the Chamber is sitting pursuant to Rule 15 bis today in
25 Judge Picard's absence.
1 Mr. Lukic.
2 MR. LUKIC: [Interpretation] The Defence wishes to give its
3 introductory statement today. I would like to inform you also that
4 Mr. Gregor Guy-Smith and I will jointly present the introductory word of
5 the -- Mr. Perisic's counsel. I will start, Mr. Gregor Guy-Smith will
6 follow, and I will conclude.
7 JUDGE MOLOTO: Thank you, Mr. Lukic.
8 MR. LUKIC: [Interpretation] Your Honours, this Tribunal, in its
9 work so far has been faced with a large number of cases which in a
10 broader or narrower way were supposed to give -- provide many important
11 answers. The answers to some of the most controversial issues concerning
12 the break-up of a country and all the consequences of that break-up.
13 This Trial Chamber also has an important task in accomplishing that
15 The Prosecution claims - and I'm saying this in the most general
16 terms for the sake of the public - that General Perisic is responsible on
17 two counts of criminal responsibility as set forth by the Statute of the
18 Tribunal. Briefly, that he, firstly, in his capacity as Chief of
19 General Staff of the Army of Yugoslavia, in the period of time since he
20 was appointed Chief of General Staff of the VJ in August 1993 until the
21 end of the armed conflict in Bosnia-Herzegovina and Croatia, in
22 compliance with the policy and the limitations set forth by the
23 Supreme Defence Council of the Federal Republic of Yugoslavia provided
24 significant military assistance to the VRS, although he knew that it
25 would, for a great part, be used to commit crimes, the crimes mentioned
1 in the indictment. We know that these crimes are the artillery campaign
2 and the sniper campaign in Sarajevo
4 Secondly, according to the indictment, General Perisic bears
5 command responsibility because he was the superior officer of former JNA
6 members who had joined the newly established armies of the Republika
7 Srpska, that is the VRS and the SVK, and who became officers of the
8 30th and the 40th Personnel Centre of the General Staff of the VJ, whose
9 members are the perpetrators of the aforementioned crimes as well as the
10 crime of the shelling of Zagreb
11 The Prosecution claims that General Perisic had effective control
12 over them through the salaries paid out to them by the Army of Yugoslavia
13 and preserving the right to have the final word on their promotion or
14 their end of service. Furthermore, that he, although he had this kind of
15 control, did not prevent those crimes, nor did he punish the
17 I claim with full responsibility, Your Honours, that you are now
18 faced with one of the most complex cases of this Tribunal both from the
19 factual and the legal point of view. The trial of General Perisic
20 requires that you, Your Honours, become directly acquainted with many
21 concepts and notions. From legal provisions, through military doctrine,
22 international relations, internal economic and socio-political relations,
23 up to personal dramas and tragedies. You are expected to analyse all
24 these facts with understanding in order to achieve your basic task, to
25 establish whether or not General Perisic is responsible.
1 During the Prosecution case, you have been faced with a series of
2 very different concepts and facts. They have been presented from one
3 point of view, and that will not suffice you to carry out your task. You
4 will have to get deeper inside, into the relations that existed during
5 the breaking out, the development, and the end of a drama which as its
6 content had the break-up of a country, civil war, suffering, and,
7 unfortunately, crimes. That is why the Defence, during the Defence case,
8 will insist on certain concepts which we claim will be crucial to your
9 full understanding of the facts and drawing true conclusions from those
11 One of these concepts to which I would like to turn your
12 attention at the beginning is the word "context." Facts taken out of
13 context can only create confusion and give rise to wrong conclusions.
14 Although our position on how to assess the Prosecution case we will give
15 in our final submission, I feel the need to stress that the Defence --
16 it's said that the Defence's position that the Prosecution focused much
17 of its energy in the presentation of evidence on, if I may call it that,
18 bombarding the -- bombarding the case file with documents. It mostly
19 failed to put these -- to put this evidence through the Prosecution
20 witnesses into context, although without context they cannot be correctly
21 read and understood.
22 The Prosecution gave up on a large number of its witnesses meant
23 to assist them in shedding more light on the reasons, motives, and
24 relations having to do with the facts that it wanted to present in its
25 case. It is exactly because of this approach of the Prosecution that the
1 Defence is now in a unique situation. What should be an exception,
2 namely, tendering documents directly in the courtroom without cases has
3 been a rule rather than an exception in this case. Thus the Defence has
4 received a new role and a new task, namely, that in the Defence case it
5 now has to explain these documents and the facts contained in them.
6 Your Honours, a large number of witnesses will testify before
7 you, witnesses who are direct participants of events, who have immediate
8 knowledge of the most relevant facts contained in the indictment. At the
9 same time, they are witnesses who have knowledge about everything that
10 constituted the general framework and the context in which these
11 complicated relations existed.
12 These relations existed at several levels, and we must not
13 neglect them. They existed in the international community and were
14 present in its attitude toward the conflict in former Yugoslavia, but
15 they also existed among the participants of the conflict in BiH and
17 institutions, as well as their -- their relations and attitude toward
18 that conflict.
19 I would like to say a few words about the context in which the
20 country disintegrated, because I think that will be extremely relevant at
21 this stage of the proceedings.
22 The Yugoslav People's Army of the then SFRY had often been
23 described as one of the most serious armed forces in Europe. Its concept
24 and its internal organisations had been developed for decades based on
25 the notion of Yugoslav-ship and on the doctrine of preparations for a
1 defence war against an external enemy. One of the keys of such structure
2 was a rule for officers to be deployed, to do their service
3 without the -- without the place of their residence, either with or
4 without their families, and particularly outside of their ethnic
5 territories. That was the principle that was intended to cement a unique
6 feeling of belonging to a single country of Yugoslavia and as a guarantor
7 of patriotism, and it was built exclusively to serve, to repel an
8 external attack. And then when the Pandora's box was opened and politics
9 began to shape the future of Yugoslavia
10 felt the most serious traumatic experience, because as such, as pillars
11 of Yugoslavia
12 political trends. What used to be a concept, that is to say, the
13 protection of Yugoslavia
14 Eight new armies emerged from a single reputable army, and that
15 has no precedent in history. After certain fledgling stages, all these
16 armies were basically structured on the same rules stemming from the
17 rules governing the functioning of the Yugoslav People's Army, and at the
18 heads of all these armies were brought professional officers from this
19 very same Yugoslav People's Army.
20 As an illustration, in 1991 and 1992, the JNA left -- over
21 10.000 professional officers left the JNA, and they constituted the core
22 for these new armies. In that period, over 3.000 officers went to
24 Bosnia-Herzegovina, and you're going to hear evidence about that.
25 These officers also joined the newly formed Army of
1 Republika Srpska in the Serbian Krajina. They became their members, and
2 they took up the most responsible positions when these armies were
3 incepted. Who and when assigned them to these positions, you will hear a
4 lot of evidence.
5 This movement of officers created a new reality. The officers
6 who used to be deployed all over Yugoslavia
7 and new armies and entered the command structure with their new
8 commanders in chief. Their then decisions to join these new army were,
9 in principle, voluntary, and they carried all the consequences that such
10 decisions normally have. However, these consequences were different in
11 different entities and in different armies. In some places they were
12 proclaimed heroes. Elsewhere, they were branded traitors.
13 The new political establishments and who had created these armies
14 very often perceived them as relics or the remnants from the old system
15 that should be gotten ridden of as soon as possible. With such legacy,
16 their status was that of people who were not desirable, people who lacked
17 reputation, and it was problematic.
18 What also became impossible in all this movement of personnel
19 involved the whole territory of the former Yugoslavia. When the
20 withdrawal of the army in Slovenia
21 beginning of that process. Then came Bosnia-Herzegovina, Croatia
23 standard-issue weapons, they went to new territories and went to join new
24 armies. These new states were now much less sizable in terms of
25 territory, and therefore, consequently had fewer personnel needs.
1 Political, economic, and social problems emerged that one had to
2 face. The families of these military personnel were broken up and
3 eventually expelled. They lost their flats. They lost their property.
4 The new state of the Federal Republic of Yugoslavia was only at
5 the beginning of setting up a new legal framework in which it had to put
6 a considerably changed army, in terms of structure, that is to say, the
7 change from national army to a professional army. This context, in our
8 view, is very important for the sake of understanding the facts that have
9 already been presented or will be presented in evidence. We believe that
10 you have not been presented with significant proof, and one of our
11 objectives is that we shed some light on this particular subject in our
12 Defence case.
13 Another context which is extremely important for understanding
14 the facts and the creation of new states is their political, legal, and
15 military reality. This new political reality, which as consequence had
16 the emergence of new subjects of power and decision-makers and new
17 realistic relations. There were a lot of such issues, but as far as this
18 indictment is concerned, we are going to focus on Republika Srpska, the
19 Republic of Serbian Krajina, and their newly established armies.
20 You will have an opportunity, Your Honours, to hear testimonies
21 about these facts of witnesses who discharged the most responsible duties
22 in the Army of Republika Srpska, in the army of the Serbian Republic
24 Can we please move to private session for a while?
25 JUDGE MOLOTO: May the Chamber please move into private session.
1 [Private session]
7 [Open session]
8 THE REGISTRAR: We're back in open session, Your Honours.
9 JUDGE MOLOTO: Thank you so much.
10 Yes, Mr. Lukic.
11 MR. LUKIC: [Interpretation] I would like now to focus on a
12 subject about which Mr. Harmon and I agree that it constitutes one of the
13 key issues in this case, that is, one of the three elements of command
14 responsibility, and that is the existence of superior/subordinate
15 relationship. We know that if the Trial Chamber fails to establish the
16 existence of this relationship, there will be no command relationship,
17 nor this form of criminal responsibility. We also know that what this
18 Trial Chamber has a task with regard to this element of criminal
19 responsibility is to establish the existence of effective control exerted
20 by General Perisic over the perpetrator qualified as direct perpetrator
21 of crimes as stated in the indictment. And with this, we embark on what
22 is of essence when it comes to the very existence of command
24 In the appeals judgement of Celebici, paragraph 303, it is said
25 that the historical focus was put on persons who had power, by virtue of
1 their positions, over other people. The persons claimed by the OTP in
2 the indictment to be the perpetrators were at the time members of the VRS
3 and RSK armies. You already had an opportunity to hear evidence about
4 the constitutional structure of the RSK and the RS and how, in legal
5 terms, their respective armies functioned. The Defence often insisted,
6 in its questions during the Prosecution case, that this should not be
7 based only on de jure regulations but, rather, on the de facto
8 functioning of this army as well such as is the case with other armies
9 who have their own chain of commands.
10 These principles are simple. It is quite clear who the
11 Commander-in-Chief is, who is subordinated to him, who issues orders, and
12 who keeps the army under control. There is no dual chain of command.
13 Let me draw to your attention to the two sentences that I'm going
14 to read out to you now.
15 "Ratko Mladic was the highest officer of the Army of Republika
16 Srpska, subordinated only to the Presidency/President of Republika
18 "Based on his authorities governed by military rules and
19 instructions, Mladic controlled the operation of the Main Staff and took
20 decisions on behalf of the Main Staff and the subordinate units."
21 These are paragraphs 16 and 17 from the indictment issued by the
22 ICTY against Ratko Mladic.
23 One thing is clear, what the OTP is presenting as allegations in
24 one case becomes a problem for their proposition about the relationship
25 of superiority and subordination as a crucial element of responsibility
1 pursuant to Article 7(3) of the Statute in another case. They are aware
2 of this and that is why they are advocating the indictment against
3 Mr. Perisic in their thesis about his effective control and they want to
4 establish parallel command structure. This is included in several
5 propositions; namely that Perisic ordered all his subordinates to join
6 this army, that they were transferred to those armies, and that the daily
7 operative control was transferred to the commanders of these armies.
8 Both these terms "transfer" or "reassignment" and transfer of operational
9 control do not exist in military legislature and the doctrine either in
10 the JNA or the VJ, or the VRS and SVK. The Defence claims that in all
11 military structures, if they are established properly, and the evidence
12 have already shown and will continue to show during the forthcoming
13 procedure that these were properly established armies, there cannot be
14 multiple chains of commands. This is contrary to the very basics of how
15 an army should function.
16 Leaving one military chain of command and structure and transfer
17 to another is not known either in the domestic legislature or in the
18 international practice. However, making a comparison of such different
19 status with international forces and all coalition forces may only create
20 confusion and eventually can lead the Chamber to draw wrong inferences.
21 The Defence will present to you relevant documents and will prove
22 that such relationships never existed between anyone in the VJ, on the
23 one hand, and the VRS and the SVK on the other.
24 The Defence, it does not deny some facts, namely, that there
25 existed relationships among these three armies. In the Defence case, we
1 will not fail to use the term "co-ordination," which is a generally
2 accepted standard in the communication among all those who have something
3 in common, and especially with reference to military relations.
4 Co-ordination and communication are ways in which the interests of
5 certain partners are realised.
6 The Federal Republic of Yugoslavia and its army had a clear
7 interest to secure their safety or the safety of their borders and of
8 their territory. The previously single system, not only from the point
9 of view of organisation and functioning but also including military
10 industries, overhaul facilities, et cetera, including training, health
11 care, et cetera, had been torn apart. The political and historical
12 interest and decisions that grew out of this interest created obligations
13 on the military subjects to re-establish some relations. Is that a
15 You've already had the chance to hear in the Prosecution case how
16 many different interests were present in the Balkans at that time and
17 even today. Much political and especially military co-ordination was
18 required in forwarding those interests.
19 We don't want to embark on a tu quoque argumentation, but we do
20 think that co-ordination is a legitimate means in the relations among
21 those who have some sort of interest, that this shows that there's no
22 subordination in place at all, but, rather, that these relations were the
23 relations of equal participants. In that context, we are not at all
24 afraid of the word "co-ordination."
25 You were able to hear terms such as "control," "subordination,"
1 and the like in the Prosecution case; but now during the Defence case,
2 you will be faced with the concepts of co-operation, interest, and the
3 Defence will not shun the term of "influence." Influence, even
4 substantial influence, are not the equivalent of control, and the
5 jurisprudence of this Tribunal is unambiguous in this respect. Influence
6 is something that the leadership of the Federal Republic of Yugoslavia
7 including the highest military officials, among who there was
8 General Perisic, something they tried to exert often, but these attempts
9 of theirs were often completely thwarted. However, other times they were
10 successful. I mean, influence on the leadership of the RS on the RSK.
11 Influence is an instrument of politics. If you look at influence
12 in the context of the events in question, you will see to what -- or,
13 rather, in what direction the influence of the political and military
14 leadership of the SRJ on the subjects in the RS and RSK was -- or went.
15 In order to point out the difference between influence and
16 control, during the Defence case we will lead you through certain events
17 that are blatant examples of such relations -- relationships.
18 The -- an important example for the powerlessness of influence
19 and the absence of control is, among other things, the direct charges as
20 mentioned in the indictment. This is -- I mean, the transparent attempt
21 to talk sense into the military and political leadership of the RSK, to
22 stop their activity to shell Zagreb
23 For the sake of the public, I stress that this is an
24 incrimination which is put against Mr. Perisic based on his command
25 responsibility and his failure to prevent that.
1 This clear example of influence and its -- and the failure to
2 achieve success through this influence is that the shelling continued on
3 the following day, although General Perisic required it to stop. This
4 can -- this is an indication to the Trial Chamber that at least two
5 conclusions can be drawn: One, that there was no authority in the direct
6 requirement to stop the attack, and for -- on the other hand, the -- the
7 direct effort made to resolve the conflict peacefully.
8 For the Defence and its argument about influence and control, it
9 is extremely important to show the context of the relations among the
10 political and especially the military leaderships after the refusal of
11 the peace plan put forward by the Contact Group by the RS leadership and
12 the imposing of sanctions by the SRJ toward the RS in August 1994 as a
13 reaction to the refusal of that plan.
14 This was the continuation of the SRJ's insistence which followed
15 after the equally unsuccessful attempt to influence the acceptance of the
16 Vance Plan in 1993. The SRJ insisted on -- insisted that a peaceful
17 solution to the war in Bosnia-Herzegovina be found, but obviously it
18 lacked sufficient influence on the political leadership of the RS for
19 them to accept that plan. The consequence of that refusal are the facts
20 about which we'll hear the testimony by immediate participants from both
21 sides of the Drina River
22 leaderships, about breaking off of relations, and about a blockade. You
23 will hear testimonies about the consequences of that blockade that
24 reflected themselves on the relations of some VRS officers toward the SRJ
25 and the Army of Yugoslavia
1 from the Federal Republic of Yugoslavia clearly showed who their superior
2 was even though no more salaries were paid out. Although there were
3 direct appeals by the highest representatives of the SRJ authorities to
4 the VRS officers not to support the RS leadership, even to leave the VRS,
5 they did not accept these appeals.
6 You will be able to hear testimonies about many kind of
7 influence, including imposing sanctions, being an insufficient argument
8 on -- on the part of the one who has the money as opposed to the one who
9 receives the money.
10 Witnesses, members of the VRS, will testify to their personal
11 feelings of belonging to that army and about the fact that certain status
12 rights of theirs were regulated in the SRJ. Their testimonies are clear
13 and militarily precise. They will openly state that they were part of
14 the single command -- chains of command of their armies, structured in
15 accordance with all doctrines, and more precisely, that their activities
16 were not controlled by anybody from the Army of Yugoslavia, not even its
17 highest-ranking officer, General Perisic.
18 Salaries, the verification of ranks, the regulating of certain
19 status rights for them and their families couldn't make these officers do
20 anything that would go beyond the chain of command of their army, to obey
21 anybody and carry out the orders of anybody else but those superior to
22 them in their chain of command.
23 Finally, as far as influence and control are concerned, you will
24 hear evidence about yet another episode that reverberated greatly in the
25 international community and which, if you follow the context, follows the
1 attempts by the Yugoslav leadership to finally establish permanent peace
2 in Bosnia-Herzegovina. I mean the episode about the liberation of the
3 French pilots in the autumn of 1995, which triggered off such a political
4 crisis that the highest French leadership actually questioned the
5 verification of the Dayton Accord in Paris.
6 General Perisic played an active role in that episode. You will
7 hear testimonies about that from persons directly involved.
8 Mr. Harmon, in his introductory statement, mentioned the facts
9 related to the liberation of the French pilots in an attempt to convince
10 you of his claim that Mr. Perisic was aware of the existence of this
11 Tribunal and about General Mladic's attitude toward the demands for his
13 Mr. Harmon quoted an intercept of the conversation between
14 Mr. Lilic and General Perisic about this, which is now Exhibit P1464. In
15 that conversation, let me remind you, President Lilic speaks to
16 General Perisic about the attempts to convince him to meet General Mladic
17 regarding the French pilots, and he says:
18 "Explain to him nicely that the FRY guarantees on a memorandum
19 with a stamp and my signature on it."
20 So according to this exhibit, these are the words of Mr. Lilic,
21 the then president of the Federal Republic of Yugoslavia and the chairman
22 of the Supreme Defence Council, as well as the Commander-in-Chief of the
23 Army of Yugoslavia
24 This request to be nice to General Mladic is not a coincidence.
25 This word shows the awareness of the then highest-ranking officials of
1 the SRJ about how General Mladic must be approached and what was
2 necessary to exert influence on him.
3 If you have effective control over someone, are you asking them
4 to tread carefully? Are you trying to ingratiate yourselves to them?
5 Are you begging them? The true meaning of these words and why
6 General Mladic was being begged you can hear from some direct
7 testimonies, but you shall also hear something about the context. Let's
8 go back to this whole episode as it is.
9 The people directly involved in these events will testify to how
10 they went through dramatic hours that led to the finalisation of the
11 Dayton Accord, an enormous effort on the international community and the
12 political and military leaderships of the SFRY to reach a peaceful
13 solution. This example, Your Honours, will serve to you and hopefully to
14 the public, who is full of prejudice, will show you how the then Yugoslav
15 leadership persistently tried to achieve the only possible solution to
16 the crisis by persuading the leadership of the RS to accept a compromise
17 and end a war. How potent or impotent Milosevic, Lilic, or Perisic were
18 could be felt by all genuinely unbiased members or actors in the events
19 in the international community.
20 Now, can we please have on our screens 65 ter document 01090.
21 Maybe we can even have a French version, but I would like to have an
22 original as well.
23 Your Honours, this is a letter -- yes. We have an English
24 translation. Excellent. A letter sent by the military attache of the
25 Republic of France
1 was sent to Mr. Perisic. In it, he says, and I'm going to read -- and
2 this, by the way, happened after the incident with the French pilots.
3 "The Defence attache in the last six months has witnessed how
4 efficient the role of the Yugoslav Army was under the guidance of the
5 Chief of General Staff, in resolving sensitive problems in connection
6 with the Blue Helmets who had been taken prisoner or detained in May and
7 June 1995, as well as with the crew of the French aircraft which was shot
8 down on the 30th August 1995 above the territory of Republika Srpska
9 "He is fully aware of General Perisic's decisive personal
10 contribution to the positive resolution of both these cases. This also
11 made him realise how much the VJ Chief of General Staff is committed to
13 Then he goes on to say:
14 "This fact, which is something that high-ranking officials of the
15 French Armed Forces, Generals Douin, Chief of Defence Staff; de Lapresle,
16 Special Envoy of the President of the Republic of France; and Janvier,
17 UNPROFOR commander, have also realised, arouses hope that in the near
18 future military relations between France and the FRY will reach the level
19 at which they deserve to be. It also represents a token of all the
20 restored French-Serbian friendship, regardless of the recent pitfalls."
21 The representatives of the international community knew what it
22 was that General Perisic advocated. General Mladic was not under the
23 control of General Perisic. You will hear an abundance of evidence,
24 Your Honour, about Mladic's conduct, about his attitude towards
25 VJ officers and about his relationship with the highest political
1 leaders, including his relationship with General Perisic.
2 In their opening statement, the OTP emphasised the fact that
3 Mladic was Perisic's friend. As the Defence understand things, this does
4 not constitute an element of effective control. However, I would like to
5 underline once again in order for one to be -- understand the facts
6 corroborating these notions, I will always insist on a context and
7 specific events. For each event there was a reason. This reason was not
8 an abstract vision but a realistic framework in which somebody acted or
9 did not act. If you judge somebody's acts in isolation, not in proper
10 environment, Your Honours, you will not arrive at truthful conclusions,
11 and in this particular instance, on the existence or nonexistence of the
12 effective control on the part of General Perisic.
13 I'm going to say a few words now about a few things that I would
14 like you to draw your attention during our case, and it is related to the
15 structure and functioning of all relevant institutions.
16 In order for one to be able to fully understand the functioning
17 of all those involved in this case, it is necessary to present evidence
18 before this Chamber relating to the structure and the interrelationships
19 of all relevant structures, both in the FRY and its army as well as in
20 the Republic of Serbian Krajina and their army. The evidence to be
21 presented to you will demonstrate that the functioning of all these
22 institutions was precisely set out on the basis of rules and regulations
23 and that all those involved acted accordingly.
24 You will become familiarised with how the Supreme Defence Council
25 operated, how the Chief of the General Staff operated, as well as other
1 institutions, primarily the MOD. We shall clearly show you which part of
2 the notion authority, which is the term which is often accentuated by the
3 OTP in the indictment as a means of putting forward certain allegations,
4 was really in the hands of Mr. Perisic and to what extent this -- these
5 authorities gave him actual power. We shall offer you evidence to the
6 effect that he didn't carry out any activities that would incriminate him
7 beyond the scope of these powers. You will see that he always acted
8 within his authorities and his obligations under the law and that he
9 followed orders received from his superior. This framework of his
10 conduct didn't even give him a right to breach it.
11 Let me tell you now something about the VSO, or the
12 Supreme Defence Council. In their case, the OTP introduced -- introduced
13 a large number of documents relating to the activity of the VSO. The
14 mystery and secrecy of these documents was used to generate certain
15 speculations in the public will now be testified to by people directly
16 involved in that, and again I understand who knew the context. The
17 Defence team is not going to use this document for the benefit of
18 hindsight, but, rather, for the benefit of establishing relevant facts
19 that will prove the innocence of Mr. Perisic.
20 Can we please now move to a private session.
21 JUDGE MOLOTO: May the Chamber please move into private session.
22 [Private session]
11 [Open session]
12 THE REGISTRAR: We're back in open session.
13 JUDGE MOLOTO: Thank you very much.
14 Yes, Mr. Lukic.
15 MR. LUKIC: [Interpretation] An ample part of our case will be
16 focused on presenting evidence about how the General Staff of the
17 Yugoslav Army functioned in the relevant period. You will hear evidence
18 of high-ranking VJ officers who occupied the most responsible positions
19 in the General Staff at the time. You will hear direct evidence about
20 the most important item in this case, and these are its organisational
21 units of the General Staff, such as the sector for operational staff
22 affairs and its first administration; operations centre, that is the
23 second intelligence administration; sector for logistics, and all
24 subordinate logistics administrations; sector for replenishment,
25 mobilisation and system matters that had two administrations, personnel
1 and legal ones; sector for communications; and the sector for
2 anti-aircraft defence and air force; and the sector for relations
3 within -- with foreign military representatives and international
4 organisations in the security administration and other independent
6 Some of the most competent people from -- members from the
7 General Staff will appear here before you. Unfortunately, some of these
8 people are no longer among us. However, those witnesses who are prepared
9 to appear before you will have full credibility, and even though they
10 were sometimes not directly involved in some events, they can give you
11 relevant evidence about them.
12 You will also have a whole series of authors of individual
13 documents, as well as witnesses who have direct knowledge about specific
14 pieces of evidence of the OTP on which we didn't hear a single word in
15 the courtroom so far. You will have also an opportunity to hear how
16 the -- the staff of the NGH
17 which was a very important body and was directly subordinated to
18 General Perisic and whose members were on a daily basis in contact with
19 Mr. Perisic.
20 Once you become familiar with all this evidence, you will clearly
21 understand the reasons and certain activities carried out by Mr. Perisic,
22 but they were always carried out within the framework of powers and
23 obligations. His decisions were the product of conclusions reached based
24 on the previously heard opinions and consultations with his professional
25 superior -- his professional special subordinates.
1 [No interpretation].
2 JUDGE MOLOTO: Did you say something else?
3 MR. LUKIC: [Interpretation] I just said that I think it's a good
4 time for us to break.
5 JUDGE MOLOTO: Very well. We will come back at a quarter to
6 11.00. Court adjourned.
7 --- Recess taken at 10.16 a.m.
8 --- On resuming at 10.48 a.m.
9 JUDGE MOLOTO: Mr. Lukic.
10 MR. LUKIC: Thank you, Your Honour.
11 [Interpretation] I spoke about the Supreme Defence Council or
13 institutions that we are going to deal with during the presentation of
14 our case. Let me just say a few words about the Ministry of Defence of
15 the Federal Republic of Yugoslavia. It is also extremely important for
16 the Defence to explain the functioning, the responsibility, and the role
17 of the Ministry of Defence of the FRY and their relationships with the
18 General Staff of the VJ and the SDC
19 We are going to call evidence and present documents about all
20 these subjects that will undoubtedly convince you of the truthfulness of
21 our proposition regarding the place and role of General Perisic. We
22 shall demonstrate that all the submissions in the indictment concerning
23 the fact or the claim that he was the sole decision-maker whose opinion
24 was always sought is a role of Mr. Perisic which is a production of
25 fabrication. It was extracted from the context and some significant
1 factors in these events have been overlooked.
2 With all this kind of information and the -- and established all
3 relevant facts, we are convinced that you will get a full picture about
4 the complicated relations and responsibilities of all relevant
5 participants in the events.
6 I would like to draw your attention to the position of the
7 Defence regarding one of the fundamental issues in this case, and that is
8 the status of members of the VRS and SVK and their relationship with the
9 VJ and the actual functioning of the personnel centres.
10 You, Your Honours, during the presentation of case by the OTP did
11 not have an opportunity to hear evidence that could give you some
12 substantial answers to these questions. The testimony of Mr. Starcevic
13 could not go further than his personal interpretation of the rules and
14 his personal opinions about individual documents. He precisely distanced
15 himself from the facts that were not known to him about the manner and
16 reasons of regulating certain status-related questions. Other witnesses
17 testified about their personal impressions about status-related issues
18 and rights deriving from them but without offering any reliable
19 information that would be of assistance to the Chamber in establishing
20 the reasons and the consequences of such status-related issues.
21 I would like to underline here one apparently terminological
22 distinction that the Defence intends to focus and which demonstrates a
23 material difference of opinions between the OTP and the Defence on this
24 particular subject.
25 The OTP is using and forcing the notion of officers as members of
1 the 30th and the 40th Communications Centre. The Defence, however,
2 asserts and intends to prove that these officers were not members of the
3 KC. They only regulated their certain status-related rights and
4 entitlements through these personnel centres that had been granted to
5 them by the SFRY and later the FRY.
6 The status-related issues of all these officers, members of the
7 VRS and SVK, must also be presented before this Chamber for the whole
8 period starting from the inception of these armies and these officers
9 joining these armies along with their personal, family, social, and other
10 consequences that had impact or that derived from their new status. This
11 has to be perceived both in the period before and in the period after the
12 personnel centres had been set up, all the way until their status of that
13 nature and their careers came to an end. And finally, you have to place
14 all these issues into a narrow framework that exists in the indictment
15 against General Perisic.
16 You will remember, Your Honours, that the Defence was opposed to
17 the fragmentary introduction into evidence of parts of personnel files of
18 individual officers, and it was -- it saw itself confronted with the
19 situation that in the cross-examination of Prosecution witnesses,
20 documents were being introduced that unambiguously show that these
21 officers were active members of the VRS and the SVK. It has been and it
22 still remains our position that partially presented documentation from
23 personnel files of such persons could induce you to draw wrong
24 conclusions. You have already had the opportunity to see status-related
25 documents from the VRS and the SVK who -- which show that service-related
1 matters of any of these officers and these armies were being dealt with
2 based on the regulations in force in the RS and the RSK, respectively.
3 The appointment of persons to positions in those armies, movement
4 of military personnel in them, promotions, replacement of -- from certain
5 positions, et cetera, such as responsibility in relation to their
6 service, as well as determination of service in those armies were being
7 governed by the regulations and procedures in force in those armies.
8 The -- their superiors in those chains of command took the relevant
9 decisions which were respected and implemented in accordance with the
10 relations of subordination.
11 It was not General Perisic who decided that some officers from
12 the VRS and the SVK should claim their status-related benefits through
13 the government bodies of the SRY. You have already had the chance to see
14 documents and hear testimonies that status-related matters were dealt
15 with in this way much before General Perisic was appointed to his
16 position -- to the position of Chief of General Staff.
17 One of the incriminations in the indictment that is related to
18 these status-related matters is the allegation that Perisic aided and
19 abetted crimes in the indictment by sending most of the officers to the
20 VRS and the SVK. We will present evidence to the effect that a
21 negligible number of officers left the VJ and joined the VRS and the SVK
22 at the time period since Mr. Perisic's assumption of his position of
23 Chief of General Staff until the end of the conflict in BiH and Croatia
24 For you to have a precise image of his participation here, we
25 must mention here, and we will corroborate our claims by evidence, that
1 professionals who joined the VRS after leaving the JNA constituted
2 8 per cent of the overall officers -- of the overall number of officers
3 and NCOs, which accounts for about 1 per cent of the overall strength of
4 that army.
5 We will also submit evidence to the effect that at the period
6 while Perisic was Chief of General Staff, about 350 officers and
7 non-commissioned officers left the VJ to join the VRS, which is about
8 10 per cent of the overall number of officers who claimed certain
9 benefits and exercised certain rights through the 30th Personnel Centre.
10 We will show documents about the number of professional military
11 personnel in the VRS and the SVK who, when these armies were being
12 established, had some status-related rights in the SRJ and the VJ. You
13 already know Exhibit D113. And in our defence case you will have the
14 opportunity to see that throughout General Perisic's term in office that
15 number was falling. By taking over his new duty, General Perisic was
16 faced with an existing situation and was involved in the procedure of
17 resolving the status-related matters.
18 What the OTP in the indictment and in its introductory statement
19 defines as a continuation of the practice of sending and ordering certain
20 officers to go to those armies must be established in the context of the
21 existence or nonexistence of his criminal responsibility.
22 The Defence will provide evidence and present exact figures by
23 which it will show whether or not or to what extent General Perisic took
24 part in the decision-making process regarding the status of these
1 Salaries and the acknowledgement of ranks, if they are a
2 parameter of effectively control, must be analysed by raising the
3 question whether they were apt to prevent crime or punish the
4 perpetrators of crime.
5 It's another court, namely the International Court of Justice,
6 has already provided an answer to this dilemma in paragraph 388 of its
7 verdict in the case of BiH against Serbia
8 the context about discussing the responsibility of a country,
9 General Perisic's acts are defined by the OTP in this case in the
10 framework of the policy and the powers of the Supreme Defence Council,
12 Salaries or assistance to the families equal to the salaries are
13 something the General Staff of the VJ or its number-one man hardly had a
14 say in. The legal provisions and documents show that this was part of
15 the remit of the Presidency of the Socialist Federal Republic
17 remit of the Supreme Defence Council. So these were issues that were
18 dealt with by the executive branch of government, exclusively at the
19 level of the cabinet and the Ministry of Defence.
20 You will also see the role of General Perisic in the procedure of
21 the acknowledgement of ranks. Each such acknowledgement of ranks was, as
22 a rule, preceded by promotions of these officers in the armies whose
23 members they were, namely, the VRS and the SVK. That it was -- it
24 took -- this was done in accordance with the laws and procedures
25 prevailing in the RS and the RSK. That was a procedure that clearly
1 shows how these military systems functioned in fact without any inference
2 of the -- or without any meddling of the authorities from the SRJ or the
3 VJ. The acknowledgment in the VJ which followed was nothing but granting
4 some status-related rights, the same as other status-related rights that
5 were based on the decisions of the Supreme Defence Council and the
7 The Defence will show that the procedure of the acknowledgement
8 of ranks and General Perisic's role in that lacked any elements of
9 control or authority.
10 I will say a few words about personnel centres, because what I
11 have said just now is the very essence of the establishment and the
12 functioning of the personnel centre. They were no secret or mystic
13 organisations. The personnel centres were, and we will prove that,
14 administrative bodies which did not have the structure of a unit, but,
15 rather, of an administrative body of the personnel administration of the
16 General Staff of the VJ. Their basic task was defined by an order of the
17 president of the Federal Republic of Yugoslavia and the
18 Commander-in-Chief, Mr. Lilic, and were based on the decision of the
19 Supreme Defence Council. That task was to register certain professional
20 members of the VRS [Realtime transcript read in error "VJ"] and the SVK
21 or those who hailed from the war-stricken areas, and it consisted in
22 making official some -- some of their status-related rights and the
23 rights of the members of their families, rights that they had exercised
25 You will hear direct evidence pertaining to the functioning, the
1 procedures and the decisions taken by the personnel centres, but you will
2 also have the opportunity to hear first-hand evidence about something
3 that wasn't even mentioned in the Prosecution case yet clearly correlates
4 or directly correlates with the personnel centres and in understanding of
5 their functioning.
6 I have a correction to the transcript. Page 30, line 14. I said
7 VRS or SVK.
8 Your Honours, you'll be faced with an abundance of evidence about
9 the functioning, structure and documents of the personnel of the bodies
10 in charge with personnel-related issues in the VRS and the SVK. These
11 bodies played a crucial role in dealing with status-related rights and
12 the service of all professional members of these armies, including
13 officers in the registers of the 30th and 40th Personnel Centres. You
14 will also see, Your Honours, what the basis was for resolving
15 status-related issues - when I say "status," I mean status based on
16 military service - who decided on that and how this was significant for
17 status-related decisions of the personnel centres.
18 These personnel bodies in the VRS and the SVK within whose remits
19 were the establishment of the fact of status and granting status-related
20 benefits, these bodies existed at all levels in those armies from
21 brigades to corps and all the way to General Staffs.
22 You will see documents and hear first-hand evidence provided by
23 the authors of those documents what these orders and decisions were about
24 in the factual sense and in what correlation they were with the decisions
25 taken by the personnel centres.
1 These armies had clear and precise regulations about discipline.
2 The RS and the RSK had their military judiciary and their military
3 disciplinary courts. You will also hear first-hand witnesses to that
4 effect about their activity and functioning. The de facto existence and
5 functioning of military judiciary and military disciplinary bodies in the
6 RS and the RSK was a well-known fact. The highest military and political
7 leaders in the RS demanded that disciplinary and criminal proceedings be
8 launched against their subordinates, and they indeed initiated such
10 What the Prosecution claims with regard to General Perisic's
11 responsibility is the alleged obligation of launching disciplinary
12 proceedings against their own subordinates in the military judicial
13 system of the SRY, which, according to the OTP, was a parallel or
14 subsequent obligation imposed on certain individuals. These individuals
15 are defined by the Prosecution as persons who even then were subordinate
16 to General Perisic.
17 It is the position of the Defence, which it will prove, that
18 General Perisic couldn't have such an obligation toward those persons,
19 because those persons, in fact, were not serving the VJ. They couldn't
20 have been called to responsibility in the framework of the discharge of
21 their duty or with regard to their service, nor were they in
22 any position -- in any official position in the VJ.
23 The launching of disciplinary proceedings with regard to
24 individual members of the SVK, which the OTP is basing its claims on, was
25 a consequence of the circumstances about which you will hear evidence.
1 And these must again be viewed in the context of the times when the
2 events took place. After the Croatian Operation Storm, the RSK and the
3 SVK, the army, that is, were starting to break apart. Individual
4 officers who -- of theirs who came to the SRY wished to -- to enter
5 active service in the VJ once more by being put in a certain position and
6 being assigned a certain duty. These circumstances such as -- as well as
7 the obligations toward the Supreme Defence Council must be placed in the
8 context of the trial of General Perisic.
9 THE INTERPRETER: Sorry, interpreter's correction: In the
10 context of the acts of General Perisic.
11 MR. LUKIC: [Interpretation] The military and civil judiciary in
12 the SRY was not anything over which General Perisic had authority. Under
13 the constitution and the subordinate legislation, they were independent.
14 The military and civil judiciary are autonomous and acted upon any
15 information about the existence of crimes from their remit.
16 Now, I will continue to speak about crime-base evidence.
17 General Perisic's Defence is not significantly going to directly deal
18 with evidence relating to the crime base from the indictment. When I say
19 "directly," I mean presentation of evidence that is directly related to
20 certain incidents. With respect to these specific incidents, the Defence
21 will focus only on those that might feature to a certain extent in
22 General Perisic's mens rea, and we are going to present specific and
23 concrete evidence.
24 During the presentation of its case, the OTP devoted a lot of
25 time to the incident in Sarajevo
1 indictment. Our position is that by presenting this evidence, the
2 picture portrayed before you about the events in Sarajevo before and
3 during indictment is a twisted one. The evidence presented was aimed at
4 portraying Sarajevo
5 on the other hand, would like to present evidence that during that same
6 period Sarajevo
7 By this I do not wish to diminish the suffering and the
8 importance of the suffering of the citizens of Sarajevo, but I would like
9 to emphasise the image that realistically reflected the controversy of a
10 civil war that was being waged in an urban environment, a town that was
12 This town was full of army. Between 40 and 70.000 members of the
13 Army of BiH controlled the city of Sarajevo
14 the movement in it, and they were engaged in combat operations within the
15 town and outside.
16 You will hear evidence about how they were billeted in civilian
17 facilities, schools, kindergartens and other public buildings, and from
18 there, members of this army were engaged in active fighting with the VRS.
19 By having procured modern weapons, either covertly or overtly, they
20 became a serious and well-organised military force. By using the media
21 in a very skilful manner and by indoctrinating the international public
22 opinion, they successfully depicted a picture that was to their
24 We shall present evidence to you about organisations and acts of
25 the authorities of the BH Federation and army. Not to point a finger, tu
1 quoque, to somebody else, but, rather, to show you the other side of the
2 fact that the Prosecution in their case omitted to underline and all that
3 for the sake of context and the elements of establishing the mens rea of
4 General Perisic concerning the very crimes.
5 MR. GUY-SMITH: Good morning.
6 JUDGE MOLOTO: Good morning.
7 MR. GUY-SMITH: Initially I'd like to also acknowledge the
8 presence of Tina Drolec as well as Deirdre Montgomery, who have joined --
9 or were here before with regard to the Defence of Mr. Perisic.
10 To the extent that the political sympathies of FRY or of
11 General Perisic lay with the Bosnian Serbs, this is not contrary to any
12 legal rule. That pronouncement can be found at paragraph 237 of the
13 ICJ judgement.
14 The Defence evidence in this case will raise a reasonable doubt
15 concerning the allegations brought against Mr. Perisic and by the
16 Prosecution, and my colleague Mr. Lukic has articulated in a short
17 fashion what those two areas are. One is that of command responsibility
18 under 7(3), and the other is that of aiding and abetting under 7(1) of
19 the Statute, which I will address in short order.
20 Forged on the anvil of adjectival truth as opposed to an
21 explication of the reality of the times under consideration, Your Honours
22 have been invited to consider the evidence in this case unprofessionally.
23 You've been asked to start your analytic journey with emotion, passion,
24 and prejudice, and I take us back to October 8th, when the Prosecution
25 started their case and in their opening statement said concerning the war
1 that occurred, "new benchmarks of human depravity were added to history's
2 long list of horrors." Adjectival, indeed. Of concern, yes, but hardly
3 the basis for which to start a case.
4 The facts and circumstances that give rise to this litigation in
5 this case are grave, serious, and it is true that after any trauma the
6 world or regions of the world have suffered hard to understand and accept
7 as possible aspects of human behaviour. However, I don't think I'm being
8 either bold or presumptuous to say that all of us in this room have seen,
9 experienced or studied the history of humankind sufficiently to recognise
10 that when the engines of war are unleashed, the consequences are never
11 pleasant. Indeed, the very first recognition of the consequences
12 involved in the reality of this litigation, direct, personal, and
13 heartfelt, were articulated by none other than the man who stands accused
14 of crimes here, General Perisic, who said:
15 "I regret deeply that there were victims of crimes in the
16 territory of former Yugoslavia
17 the victims. Every life lost in war is an irreplaceable loss for the
18 society, but lives lost to crime are an even greater loss."
19 He went on to say:
20 "I believe that all of those who committed crimes will face trial
21 and will receive proper punishment, and I hope that war crimes will never
22 happen again.
23 "As a professional soldier," which you have already learned that
24 he is and which the evidence will continue to show the extent to which he
25 was, "I hate war because I am fully aware of the fact that all wars, in
1 particular the war that was waged in the former Yugoslavia, it was a
2 civil war, a religious war, inter-ethnic war is the worst thing that can
3 happen in a society. I have felt the horrors of war. I despise it
4 because of the consequences it leaves in its wake, because of the lies it
5 relies on, the hatred it engenders, because it ushers in dictatorship to
6 topple democracy, and because of the misery it leaves in its wake."
7 The reason that we dwell here for a moment is simple. As my
8 colleague stated, you must analyse this case in the context of the times,
9 in the context of the reality of what was going on, and I would add to
10 that the most critical issue, that of perception as it influences all of
11 our actions and most definitely in this case will influence your
13 It has been said - it's an old tome - that the category in which
14 one speaks determines one's thoughts. Justice and truth are not, as one
15 would wish, abstract absolutes that stand unblemished in the wind and the
16 storm and sun of reality. They're noble indeed, yet rather elusive
17 eagles that sore above us, but as we are, they, too, are affected by the
19 Its opening statement the Prosecution went on to say:
20 "This case, Your Honours, will pierce the veil of elaborate
21 deceptions and will expose the roles of Momcilo Perisic, one of
22 Milosevic's principal collaborators, and will expose his unstinting
23 support for Milosevic's policies to establish a single state of the
24 Serbian people" as the truth upon which this case rests.
25 It is not the truth. It was not the truth. The evidence thus
1 far has failed to prove this position, and the evidence we will expect
2 will continue to show that early on in this unfortunate process of
3 dissolution, the issue of peace, the importance of peace, independent of
4 the thesis proposed by the Prosecution of a single state, was present,
5 paramount, in the minds of Milosevic and others.
6 And why peace? Well, if for no other reason, the evidence has
7 established and will continue to establish, so that the Federal Republic
8 of Yugoslavia
9 I apologise to the public, but for a few minutes in discussing
10 the matter of peace, I request that we go into closed session, and I do
11 that because the documents that I need to refer to have been protected by
12 a court order that requires that we go into closed session.
13 JUDGE MOLOTO: May the Chamber please move into closed session.
14 MR. GUY-SMITH: Private may work because I'm not putting anything
15 up on the screen, I just realised that. I'm not going to be putting
16 anything up on the screen so we could do private perhaps.
17 JUDGE MOLOTO: May the Chamber please move into private session.
18 [Private session]
11 Pages 9893-9898 redacted. Private session.
24 [Open session]
25 THE REGISTRAR: We're back in open session, Your Honours.
1 JUDGE MOLOTO: Thank you very much.
2 Yes, Mr. Guy-Smith.
3 MR. GUY-SMITH: The discussion and minutes of the documents as
4 just presented in closed session and further evidence to be presented in
5 this case establish beyond any doubt that resolution, peace, was
6 paramount in the minds of the leadership of FRY in general and Perisic in
8 Before we move on, lest we forget the comments that I've just
9 alluded to and the conclusions that were adopted were made in defence of
10 FRY during top-secret, highly confidential meetings and decisions that if
11 peace were not a motivating factor, then it would not be articulated by
12 these men in confidence as often as it was. From the Carrington Plan to
13 the Geneva
14 Vance-Owen Plans of January 1993 and subsequently March of the same year,
15 to the Contact Group plan in 1994, and ultimately to the signing of
17 continue to establish that the FRY leadership was actively and
18 conscientiously involved in obtaining peace in the region.
19 It has been asserted, and I quote Mr. Harmon:
20 "During this period, Slobodan Milosevic sought to deceive his
21 international interlocutors, the international community, and the public
22 with false claims that the governments of which he was a member and the
23 instruments of those governments, including the army, were not
24 interfering in the affairs of Bosnia
25 and aid to the Bosnian Serb army and to the Bosnian Croat army."
1 It's the last statement that he makes here that is the most
2 poignant and perhaps the most important:
3 "His deceits and the deceits of his associates fooled no one."
4 If such is the case, then the games played in the corridors of
5 power in Washington
6 the face of knowledge of such deception truly militate against the
7 perceptual premise offered by the Prosecutor. The suggestion by the
8 Prosecutor that the evidence in this case be viewed statically isn't an
9 accurate presentation of the facts and circumstances existing at the
10 time. The evidence has shown and we suggest we expect to augment that
11 presented by the Prosecution that the process was fluid, not static,
12 ill-defined, confusing, contradictory, unsure and erratic, a combination
13 of tornadoes, earthquakes, storms, blinding sun, calm, hurricanes and
14 doldrums, in short a reflection of the human condition writ large.
15 It would be naive for us and inaccurate to suggest that there was
16 not considerable resistance to the dissolution of the former Republic of
18 have heard, as well as United Nations Security Council Resolutions.
19 Similarly, it would be naive and inaccurate to suggest that the
20 fundamental and, indeed, structural aspects of the new nations and their
21 interrelationship to each other, the potential boundaries, their assets,
22 the balance of power were not important discussions to FRY. That is, of
23 course, a logical and natural outgrowth of the radical shifts that
24 occurred, as Mr. Lukic has explained, and as we are confident the Bench
1 Where there had been one nation state, there were now multiple
2 nation states. Indeed, this dissolution, this break-up, this political
3 reality is something that is absolutely unique in the history of the
4 world. You can find no other break-up, no other war, civil or otherwise,
5 that equates with this one.
6 The evidence will show that Croatia was a nation state with an
7 independent army, independent leader with independent powers. Republika
8 Srpska Krajina was a nation state with an independent army. The SVK, as
9 a matter of fact, the army, was established on the 16th of October, 1992
10 It too had an independent leader with independent powers who made
11 independent decisions, engaged in activity which is criminal in nature,
12 which cannot be, and the evidence will show and continue to show, laid at
13 the feet of General Perisic.
14 The evidence will show that again Bosnia-Herzegovina was a nation
15 state with independent powers and independent army, an independent
16 leader, as was the Republic of Srpska
17 of Srpska, let us not forget that neither the Republic of Srpska
18 VRS were de jure organs of the FRY. They didn't have that status, the
19 status of an organ of that state under its internal law, as has been
20 found in paragraph 386 in the ICJ judgement.
21 And I suggest now would be an appropriate time to take a pause.
22 JUDGE MOLOTO: It is indeed. We'll take a break and come back at
23 half past 12.00. Court adjourned.
24 --- Recess taken at 12.00 p.m.
25 --- On resuming at 12.30 p.m.
1 JUDGE MOLOTO: Yes, Mr. Guy-Smith.
2 MR. GUY-SMITH: Actions, as we suggested earlier, are predicated
3 on perception. We will show that General Perisic, as other men in his
4 position throughout the history of the world, military leaders, relied on
5 individuals and departments tasked with the responsibility of sifting and
6 filtering through myriad pieces of disparate information in order to
7 inform him. Perisic's task was, among others, to advise his superiors,
8 the Supreme Defence Council and the president, after analysing the
9 intelligence that he received.
10 In a military sense, information is unevaluated material of every
11 description, including that derived from observations, communications,
12 reports, imagery, rumours, and other sources from which intelligence is
13 produced. Information, we will continue to show, itself may be true or
14 false, accurate or inaccurate, confirmed or unconfirmed, pertinent or
15 impertinent, positive or negative. Intelligence is the product resulting
16 from the collection, evaluation, and interpretation of information.
17 Now, the most common problem, especially in the military sense,
18 and most importantly when there is a conflict about that must be paid
19 attention to, is information overload. And that's when so much
20 undifferentiated material pours into the decision-makers that they are
21 unable to discern what it means, and of course, as we have heard and we
22 will continue to show, such a problem can be exacerbated by the enemy
23 through informational warfare, propaganda, disinformation, the use of
24 civilians, be they reporters or fellow travellers with a position that
25 you espouse for purposes of producing information. The teachings of
1 Clausewitz, somebody who I think it would be fair to say all military men
2 are acquainted with, remain as true today as then. A great part of
3 information obtained in war is contradictory. A still greater part is
4 false, and by far the greatest part, somewhat doubtful, in a few words,
5 most reports are false.
6 The evidence shall establish that in his capacity as Chief of
7 Staff, his reliance, General Perisic's reliance, on the intelligence
8 forwarded to him by his experts, by those individuals who were tasked
9 with that particular job, the collection of information and the analysis
10 of such information to give him intelligence, given the context and
11 framework in which General Perisic was operating was subjectively and
12 objectively reasonable.
13 We suggest to you when subjecting a commander's judgement to
14 criminal critique, it is necessary to consider the situation through the
15 perspective of that commander at the time the judgement was made.
16 Early in this case we heard from a gentleman who I think
17 impressed us all, and he made a comment which is germane to this portion
18 of the opening statement. Mr. Martin Bell testified that the Serbs were
19 isolated 14th-century thinkers living in a 20th-century world.
20 It's an interesting observation and one which though not
21 dispositive, we submit in light of the evidence that you will hear
22 concerning the incident in Dobrovoljacka Street, in early May of 1992,
23 when a large column of JNA soldiers willingly departing from Sarajevo
24 led by General MacKenzie representing UNPROFOR, Izetbegovic, the
25 president of Bosnia-Herzegovina, and others stopped in the street.
1 After the column stopped it was ambushed. The reports are that
2 MacKenzie and Izetbegovic, who were ahead of the stopped column, crossed
3 the bridge to safety while the bullets flew and men died. The massacre
4 at Tuzla
5 assuredly helped set the stage upon which subsequent decisions were made
6 concerning the reliability and accuracy of information received from
7 international sources.
8 Mr. Bell went on to state, we submit that the evidence will show,
9 the war in Bosnia-Herzegovina was not free from media bias. Soon after
10 the war, there was the perception of the "good Muslims and the bad
11 Serbs." And it is in this context that when dealing and understanding
12 the information that was received and the intelligence upon which
13 General Perisic relied, we suggest that the assertion by the Prosecution
14 on the issue of what Perisic knew with regard to the issue of notice is
15 incomplete, again, failing to consider and take into account the reality
16 of the times and the overall picture of what was going on which we will
17 be presenting to you.
18 I said at the outset that I would discuss the issue of aiding and
19 abetting, and I think there at the very outset is an important
20 distinction to be drawn here, because part of what the Prosecution has
21 presented to you is that military assistance was given to the Republic
22 of Srpska and the Republika Srpska Krajina, and that in and of itself,
23 the giving of military assistance, for purposes of prosecuting a war,
24 whether we like it or not, does not constitute a crime. There may be
25 many in this room and there may be many in the world who take umbrage at
1 the notion that wars are continued to be fought; but the giving of
2 military assistance is not a crime.
3 In order to prove the allegations against Mr. Perisic as they
4 relate to the issue of aiding and abetting, the Prosecution must prove a
5 nexus between the assistance given, completed crime, knowledge of the
6 crime, and the assistance was substantial and significant in the
7 completion of that crime.
8 Mr. Lukic has already alluded to this, and there is no dispute
9 that the VJ, among other parties, gave logistic assistance to both the
10 VRS and the SVK. The VRS and the SVK received substantial and
11 significant logistic support from myriad sources other than the VJ. And
12 this is part of the reason why it's very important to go back to
13 Mr. Lukic's remarks with regard to the context in which you view this
14 case, because if the case is viewed in a static fashion, it does not deal
15 with the reality of what occurred. It doesn't deal with the reality of
16 what the evidence has shown and will show, which we submit ultimately
17 will result in this Chamber's decision that the Prosecution has failed to
18 prove beyond a reasonable doubt, which is the standard to be applied,
19 that General Perisic aided and abetted.
20 With regard to the sources from which the VRS and the SVK
21 received logistic support, let us not forget that when the JNA left the
22 region, they left substantial amounts of material logistic support before
23 Perisic's tenure. This logistic support cannot be ascribed to
24 General Perisic.
25 At the time of the dissolution, independent of the material left
1 by the JNA, there were depots controlled by the Territorial Defence,
2 local munitions controlled by local authorities independent of that
3 material with the JNA. Once again, material that existed before
4 General Perisic's position as Chief of the General Staff.
5 The VRS most assuredly received the district support from in situ
6 special purposes industries. Not VJ. The VRS and the SVK received
7 logistic support from special purpose industries outside of the territory
8 directly. Not the VJ. Support was received from special purpose
9 industries inside the Federal Republic of Yugoslavia, that support having
10 been approved by the Ministry of Defence. Not the VJ. A separate organ
11 with a separate authority, separate powers, constitutionally recognised.
12 The VRS and the SVK interchanged support between them. Before
13 General Perisic took his position as Chief of Staff in August of 1993,
14 the VJ had given support to the VRS and the SVK. Not on his watch.
15 Outside military sources, for example Greece, Romania
16 and Russia
17 And finally, war booty, the spoils of war, contributed to the
18 support that these armies had.
19 Lest there be any questions about the assertion just made, a
25 And I believe the import of that entry, the remarks around it are
1 that considerable support will be received from Greece with direct
2 contact with Ratko Mladic.
3 The evidence will show that the exhibits relied upon by the
4 Prosecution as proof of logistics provided by the VJ are incomplete,
5 inaccurate, and as such do not and cannot serve as a basis for proof of
6 VJ support as defined by the law of aiding and abetting. The requests
7 far outnumber the provisions given, and you will learn about the
8 methodology, the requirements for delivery of logistic material, and the
9 internal reasons within the VJ why not only accurate record-keeping but a
10 full and complete dossier of expenditures, distribution, or agreements
11 that have been made by the VJ with regard to the giving of logistic
12 support must exist. In its absence, the subsequent year's budget would
13 not be allowed. So there is an internal reason that you will understand
14 after we have brought forth the evidence to show -- to show that far
15 apart from anything as regards to the issues being offered by the
16 Prosecution here concerning logistic support as an internal matter, the
17 documents being relied upon are suspect and cannot form the basis of
18 proof beyond a reasonable doubt.
19 When viewing the issue of logistic support, we believe that the
20 evidence that we will present was, I said at the beginning, establish
21 that aid was supplied for military purposes. However, we draw a line in
22 the sand, and a line has been drawn, I think, by all members of the
23 military, as to whether that aid was for any other purpose but military
24 from the standpoint of the intent of General Perisic and with regard to
25 the issue of the knowledge that he had as regards to the aid given. We
1 submit that the evidence will show there is not the requisite nexus for
2 purposes of proving his guilt beyond a reasonable doubt there, nor is
3 there sufficient proof with regard to the aid given by the VJ, after an
4 examination of all of the aid given to these armies by all of the parties
5 that have been mentioned, that it was either substantial or significant.
6 I thank you for your time, and at this point I will cede the
7 podium to Mr. Lukic for his closing remarks with the Court's indulgence.
8 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith.
9 Mr. Lukic.
10 MR. GUY-SMITH: I have been told that your concerns were correct
11 with regard to the Mladic diary, but I'm not positive where we stand in
12 terms of a protective measures application. So I think perhaps for
13 purposes of discretion, until I'm clear about that, I ask that that
14 particular section be redacted. I'd rather put -- I'd rather put it into
15 in the public because I don't think it's a problem, but I just received a
16 note from my case manager so I want to double-check, because I certainly
17 don't want to offend any protective measures application that may exist
18 or any protective measures issue that may exist.
19 JUDGE MOLOTO: Mr. Court Officer, will you please make sure that
20 that portion is redacted.
21 Thank you very much, Mr. Guy-Smith.
22 Yes, Mr. Lukic.
23 MR. LUKIC: [Interpretation] At the end of our opening statement,
24 Your Honours, I would like to say a few words about the personality of
25 General Perisic.
1 On this occasion, we would like to draw your attention in our
2 opening statement to what is going to be the subject of our case before
3 this Trial Chamber. You will hear evidence that at first glance have no
4 direct link with the nature of allegations in the indictment. However,
5 indirectly, Your Honours, this evidence should portray in your minds his
6 character and thereby illuminate his actions that took place in the
7 relevant period.
8 To that end, we are going to lead evidence about his relationship
9 with President Milosevic relating to certain areas that may not be of
10 relevance for the Prosecution. In a nutshell, the Defence submits that
11 General Perisic clearly advocated the notion that the Yugoslav Army must
12 function within its legal responsibilities and authorities in order to
13 pursue the specific task given to it by the state, which is the
14 preservation of territorial integrity and constitutional order. He was
15 actively involved in trying to depoliticise the army.
16 For as long as President Milosevic was happy with the Yugoslav
17 Army as it was, he was happy with General Perisic too. However, as soon
18 as General Perisic clearly said to Milosevic that he did not accept his
19 request for abusing the army for his own domestic political goals, he
20 fully realised the implications of that view of his and he was dismissed.
21 We are going to present evidence about an episode which
22 explicitly reflects the relationship between General Perisic and
23 President Milosevic. At the time when Milosevic was considered the most
24 important guarantor of peace in the Balkans and only one year after the
25 Dayton Accords, in early 1997, considerable protests started in Belgrade
1 against his domestic policies and aimed at achieving a better
2 democratisation of society.
3 During the demonstrations, the Belgrade university students who
4 launched the protest itself wanted to meet persons in charge from the
5 police and Mr. Perisic, as Chief of General Staff, because they were
6 concerned of the possibility of the army being involved in these events.
7 The way in which General Perisic acted at that point was rather
8 surprising. He received a student delegation, and he again clearly
9 expressed his firm view about the possibility for the army to be free of
10 politics. He also guaranteed them that the army would not become
11 involved in the conflict and the protests.
12 This gesture of his had important ramification. On the one hand
13 on the relationship between Milosevic and General Perisic, which
14 culminated in the latter's dismissal, and on the other hand, in positive
15 reactions articulated by the democratic public in the FRY and the then
16 political opposition, and it was also warmly welcomed by the
17 international community.
18 This example speaks abundantly about the character and the
19 personality of General Perisic. Through this episode that you are going
20 to hear evidence about, you will have an opportunity to judge to what
21 extent Perisic insisted on the army abiding by its constitutional role.
22 The moment when Milosevic, the then president of the FRY, the
23 Commander-in-Chief and the chairman of the Supreme Defence Council asked
24 him to allow the Yugoslav Army to be used in Kosovo in 1998, beyond the
25 constitutional framework, and when General Perisic refused to comply, he
1 was dismissed.
2 Your Honours, General Perisic has clearly demonstrated what he
3 thinks about this Tribunal on several occasions. As an MP, he voted for
4 the adoption of the Law on Co-operation with the ICTY. When he learnt
5 about the indictment issued by this Tribunal, even before it was publicly
6 published, Mr. Perisic wrote an open letter in which he said, among other
7 things, and I quote:
8 "I have no dilemma whatsoever about my appearing before any
9 court, and particularly the international court in The Hague, because
10 that is the only way for me to defend my honour, the reputation of the
11 army, and the dignity of the people."
12 The Defence intends to call a large number of witnesses to appear
13 before this Trial Chamber. All of them want to give their evidence in
14 public. None of them ask for any protective measures. They told us that
15 they wanted to testify in public. They tell us that they have no fear
16 for themselves or for those around them from anyone or anything. I
17 presume that their intentions are identical to those of General Perisic,
18 when he surrendered to this Tribunal, and that is to try in that fashion
19 to defend the honour and the reputation of the Yugoslav Army and the
20 dignity of its members.
21 We, as General Perisic's Defence team, are prepared to give them
22 full credibility.
23 Thank you for listening to our opening statement, Your Honours.
24 JUDGE MOLOTO: Thank you very much, Mr. Lukic.
25 I guess that brings us to the conclusion of the opening statement
1 for the Defence, and I do guess that the Defence is not in a position to
2 call the first witness now. Okay. In that event, then we will stand
3 adjourned until tomorrow, at 9.00 in the morning, in Courtroom II.
4 Court adjourned.
5 --- Whereupon the hearing adjourned at 1.07 p.m.
6 to be reconvened on Tuesday, the 23rd day
7 of February, 2010, at 9.00 a.m.