1 Monday, 28 March, 2011
2 [Prosecution Closing Statement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.10 a.m.
6 JUDGE MOLOTO: Good morning to everybody in and around the
7 courtroom. Mr. Registrar, will you please call the case.
8 THE REGISTRAR: Thank you, Your Honours. Good morning,
9 Your Honours. Good morning to everyone in and around the courtroom.
10 This is case number IT-04-81-T, the Prosecutor versus Momcilo Perisic.
11 Thank you, Your Honours.
12 JUDGE MOLOTO: Thank you very much, Mr. Registrar. Could we have
13 the appearances, please, starting with the Prosecution.
14 MR. HARMON: Good morning, Your Honours. Good morning, counsel.
15 Good morning, everyone in the courtroom. Mark Harmon, Barney Thomas,
16 Bronagh McKenna, April Carter and Rafael La Cruz and Carmela Javier for
17 the Prosecution.
18 JUDGE MOLOTO: Thank you very much. And for the Defence.
19 MR. LUKIC: [Interpretation] Good morning, Your Honours. Good
20 morning to all the participants in the proceedings. Mr. Perisic is
21 represented in court today by Mr. Gregor Guy-Smith, Novak Lukic, and then
22 our co-workers, Deirdre Montgomery, Tina Drolec and Boris Zorko.
23 JUDGE MOLOTO: Thank you very much, Mr. Lukic. May the Chamber
24 please move into private session.
25 [Private session]
11 Page 14629 redacted. Private session.
10 [Open session]
11 THE REGISTRAR: We are back in open session, Your Honours.
12 JUDGE MOLOTO: Thank you very much, Mr. Registrar.
13 Now, Mr. Harmon, Prosecution final brief, is the Prosecution
14 charging the two modes of liability cumulatively or alternatively. I
15 tell you why I'm asking, I'm asking because up until we received the
16 final brief, I had been under the impression that it is cumulative.
17 However, at page 294, paragraph 808 of your brief, for the first time I
18 see the phrase, "in the alternative."
19 MR. HARMON: Your Honour, we are charging General Perisic
20 cumulatively. The Court makes a finding on 7(1) of guilty, then we say
21 that it does not have to make a finding in respect of 7(3).
22 JUDGE MOLOTO: Having given that answer, my next question then
23 become, then I, I see it's not a first time in the Tribunal that this is
24 done, what is actually the rationale for charging cumulatively two
25 mutually exclusive modes of liability?
1 MR. HARMON: Your Honour, we usually charge cumulatively. The
2 courts have made decisions that have suggested that if in the event there
3 is a conviction on 7(1), it does not have to make a finding on 7(3). We
4 have charged it cumulatively, the Court has discretion then to make a
5 finding either 7(1) or 7(3).
6 JUDGE MOLOTO: I'm going to start again, Mr. Harmon. I did say
7 at the beginning I've seen that it is done in the Tribunal, I've seen it
8 in the courts. I have not found any legal justification, legal
9 explanation why it must be the Court, which is not the dominus litis,
10 which must choose which one to convict on. And I understand that it has
11 been done, but all I'm asking is what is the rationale, what is the legal
12 reason for doing this, because as you've just said, it is -- the Court
13 has discretion then to make a finding either on 7(1) or on 7(3), the
14 court is not the dominus litis.
15 MR. HARMON: Your Honour, both ways of charging General Perisic
16 are proper and correct. We have asserted both modes, both 7(1) and 7(3).
17 I think, Your Honour, I do believe there are different types of
18 liability. The first is --
19 JUDGE MOLOTO: Maybe I'm being unfair on you. My actual
20 question, really, is why charge both modes of liability, which are
21 mutually exclusive, for the same conduct? You see, for the same conduct,
22 you are saying under 7(1) you are the perpetrator, under 7(3) you are
23 saying I acknowledge you are not the perpetrator, it's your subordinates
24 who are the perpetrators, but it's for the same conduct.
25 MR. HARMON: They address different issues, Your Honour. One
1 addresses the issue of General Perisic's responsibility as a commander
2 for the actions of his subordinate, and we assert that he is responsible.
3 And the other method, the other charge under 7(1) is that he assisted in
4 the crimes. We assert that is proper. I can't give you a legal
5 justification, Your Honour. I can tell you that we have asserted both.
6 JUDGE MOLOTO: The problem is if they are charged in the
7 alternative, then there's logic in the whole indictment, but if they are
8 charged cumulatively, I don't see the logic of the indictment. And, if
9 you charge them in the alternative, you still get what you get if you
10 charge them cumulatively because you say, as you say that if you convict
11 on the one, you don't bother on the other. So the end result will still
12 be the same, but I just don't find -- if I had been in the pre-trial of
13 this case, I wouldn't have accepted this kind of indictment. Even though
14 it has been done before in this court.
15 MR. HARMON: Your Honour, we have been proceeding for over three
16 years on this indictment in the way in which it's been charged.
17 JUDGE MOLOTO: I couldn't ask this question during the trial and
18 I didn't have the opportunity at the pre-trial phase, I'm asking now at
19 the beginning of the final brief, of the closing arguments, because this
20 is only opportunity I thought was appropriate.
21 MR. HARMON: Well, Your Honours, we, as I said, we have charged
22 it in both respects in our brief. We said alternatively, we accept the
23 decision of the Courts and we are proceeding on the decision of the
24 Courts and the logic of the Courts to proceed in this way. If there is a
25 conviction on 7(1), the Court doesn't have to make finding on 7(3). Of
1 course, Your Honour in respect of the charges on Zagreb the only charges
2 against General Perisic are 7(3).
3 JUDGE MOLOTO: That's fine. That is a different consideration.
4 Thank you very much, Mr. Harmon. I just want to raise this issue that
5 has caused me concern right through the trial and you may proceed with
6 your argument.
7 MR. HARMON: Your Honour, I'm sorry I haven't given you the
8 satisfaction of an answer that addresses your concern, but that's the way
9 we have been proceeding and I can make no further submissions on it.
10 JUDGE MOLOTO: That's fine.
11 MR. HARMON: Your Honour, this is the Prosecution's opportunity
12 to make its closing submissions. This case started on the 2nd of
13 October, 2008. Before I begin with the substance of my remarks, many
14 people participated in the conduct of this trial to bring it to this
15 stage, to this conclusion, and I'd like to take a minute to acknowledge
16 and thank those people who made contributions. First of all,
17 Your Honours, I'd like to thank you Judge Moloto, Judge David, and
18 Judge Picard for your patience, for your understanding and for the
19 dignity in which you conducted these proceedings. I thank you also for
20 the courtesy which you showed the witnesses when they appeared and you
21 showed the parties during the conduct of these proceedings.
22 I would like to thank the Office of the Prosecutor trial team,
23 both past and present, it's investigators, its support staff. I'd like
24 to thank the Defence, Mr. Lukic, Mr. Guy-Smith, Mr. Zorko, Mr. Mair,
25 Ms. Drolec and previous counsel Mr. Castle, with whom we've had an
1 excellent working relationship throughout this case.
2 I'd like to thank the Legal Officers, Mr. Blumenstock, Mr. Moneta
3 and others who were of great assistance to us and to the Defence, I know,
4 who were always available to us and participated in a constructive way in
5 this case. The Registrar, and the many people from the Registrar who
6 have appeared in this case, need our thanks as well. They managed large
7 volumes of documents very effectively and we are quite appreciative.
8 To the interpreters, who we bedevilled for probably three years,
9 sometimes speaking too fast, I think we have one of the hardest jobs in
10 this institution, I'd like to thank them. They have impressed me over
11 the many years I've been here, and they impress me in this case as well.
12 We owe thanks to the translators from CLSS and from DVU who were
13 confronted with large volumes of documents, literally thousands and
14 thousands of pages and their work was impeccable. The people in the
15 technical booths as well need special appreciation, because there are
16 many times in this 20th century courtroom, or 21st century courtroom, I
17 should say, where things broke down and without their assistance we could
18 not have proceeded.
19 The security people were, of course, quite helpful and finally,
20 the victim and witness unit that assisted both parties with the
21 management of the witnesses. So I would like to express our gratitude
22 for the very excellent assistance we have received throughout this trial.
23 Now, Your Honours, Your Honours have received our extensive trial
24 briefs. Your Honours were kind you have to grant our request to make
25 these briefs longer than normal. The parties avail themselves to that.
1 We do not intend, the Prosecution does not intend to repeat the contents
2 of its brief. We certainly rely on the briefs. We will be making
3 submissions in respect of certain elements of the briefs, but we will be
4 not repeating their contents entirely, we rely on them. Of course we are
5 available to answer the Trial Chamber's questions.
6 In making our submissions, Your Honour, we will be having to go
7 into private session on occasion because of the confidential nature of
8 some testimony. We intend to minimise that, we've made efforts to make
9 that as unobtrusive in these final submissions as we can.
10 Now, Your Honours, in assessing the evidence in this case, the
11 Trial Chamber must view the evidence as a whole, both direct evidence and
12 circumstantial evidence. Circumstantial evidence forms a significant
13 part of the Prosecution case, and the Prosecution relies on inescapable
14 inferences drawn from the evidence as a whole to support each of the
15 elements of the offence. In this respect, Your Honours, the Defence,
16 miscalculates the Prosecution case. Throughout the Defence final brief,
17 the Defence isolates individual documents or categories of documents and
18 argues that each is either insufficient or so unreliable to be considered
19 as supporting the Prosecution case. However, in our view that approach
20 is flawed when one considers the nature of circumstantial evidence and
21 the burden of proof. Such evidence should not be viewed and evaluated in
22 isolation but assessed against the totality of the evidence. Like any
23 body of circumstantial evidence, inferences are available from the whole
24 that are not necessarily provided by pieces of evidence singly.
25 Your Honours, we intend to divide the -- the Prosecution intends
1 to divide its presentation in the following way. I will start by making,
2 not submissions, but giving Your Honours an overview of the case.
3 Ms. McKenna will make submissions on the law and on the personnel
4 centres. Mr. Thomas will make submissions on aspects relating to
5 logistics. Ms. Carter will make submissions relating to Sarajevo which
6 will touch on the VJ participation on Mount Zuc, the campaign of sniping
7 and shelling in Sarajevo and on scheduled incidents. And I will
8 conclude, Your Honour, by making submissions of General Perisic's
9 responsibility under article 7(3) and with sentencing submissions.
10 The Prosecution has charged General Perisic with 13 counts. He
11 is charged both under Article 7(1) and 7(3) of the Statute of the
12 Tribunal and in respect of the crimes in Sarajevo, Your Honour, he is
13 charged with two counts of murder, one being a crime against humanity and
14 one violation of the laws or customs of war. He is charged with one
15 count of inhumane acts as a crime against humanity and he is charged with
16 one count of attacks on civilians, as a violation of the laws or customs
17 of war.
18 In respect of Zagreb, the rocket attacks on Zagreb, we have
19 charged General Perisic with four counts, but under Article 7(3) only.
20 He is charged, in respect of Zagreb, with two counts of murder, crime
21 against humanity and a violation of the laws or customs of war; one count
22 of inhumane acts, injuring or wounding civilians as a crime against
23 humanity; and one count of attacks on civilians as a violation of laws or
24 customs of war.
25 In respect of Srebrenica, we have charged General Perisic with
1 five counts under both Article 7(1) and 7(3). He is charged with two
2 counts of murder, violation of the customs of war, a crime against
3 humanity. He is charged with one count of inhumane acts, that is
4 inflicting serious injures, wounding and forcible transfers, as a crime
5 against humanity. He is charged with one count of persecutions on
6 political, racial or religious grounds as a crime against humanity. And
7 he is charged with one count of extermination as a crime against
9 The modes of liability under Article 7(1) is aiding and abetting.
10 Now, I want to clarify our position in respect of General Perisic's 7(3)
11 responsibility. General Perisic is charged with, under Article 7(3),
12 with failure to prevent his subordinates for having committed crimes in
13 Sarajevo, Srebrenica, and Zagreb, and for failing to punish his
14 subordinates for having committed those crimes. In respect of the crimes
15 in Zagreb, the Prosecution is not seeking a conviction of General Perisic
16 for failing to prevent the crimes committed in Zagreb.
17 Now, Your Honours, and this is for the benefit of the public, and
18 not for Your Honours' benefit or for the benefit of my friends from the
19 Defence, we will be using throughout our submissions a number of acronyms
20 and in order that the public understands what we are talking about, I
21 will identify those acronyms and explain what they mean. When we use
22 SFRY, we mean the Socialist Federal Republic of Yugoslavia. When we use
23 FRY, we mean the Federal Republic of Yugoslavia. We will use RS, which
24 means Republika Srpska. We'll use RSK as Republic of Serbian Krajina.
25 JNA means the Yugoslav People's Army. VJ means the Army of Yugoslavia.
1 VRS means the Army of the Republika Srpska and SVK is the Army of the
2 Serbian Krajina.
3 Now, Your Honours, the crimes -- and in Sarajevo and Srebrenica
4 that the Trial Chamber has been examining were the foreseeable
5 consequences of state policies encouraged and promoted from Belgrade.
6 Those policies were implemented by military force, and in the process of
7 implementing them, the lives of ordinary men, women, and children were
8 devastated. Some people resisted the ferocious onslaught that endangered
9 their lives, the lives of their families, the lives of their fellow
10 citizens. Many did not, or could not, only to be crushed and swept aside
11 by forces greater than themselves. They were the collateral damage of
12 state policies. This case addresses the criminal responsibility of
13 General Perisic, who during the period of the indictment was the key
14 military implementer of FRY state policy, vis-a-vis Croatia and Bosnia.
15 The indictment identifies a crime base of enormous scale and scope. A
16 campaign of shelling in Sarajevo and sniping in Sarajevo that occurred
17 over a protracted period of time. The forcible expulsions and mass
18 executions at Srebrenica. The Orkan rocket attacks on Zagreb. And the
19 manner by which we have endeavoured to prove the crime base was by
20 availing ourselves to procedures provided in the Tribunal's Rules of
21 Procedure and Evidence; adjudicated facts from other trials; we proceeded
22 by using agreed facts, facts we could agree with the Defence; we
23 submitted numerous witness testimonies in written form, in lieu of oral
24 testimony; and we also presented some oral testimony from victims.
25 Now, the use of this -- these procedural measures to present
1 evidence clearly stream-lined this case, but I offer this observation,
2 and I do not intend this to be a criticism, is we all appreciate that the
3 core of these cases are people, ordinary people like you and like me,
4 like people in this courtroom, but who have had the misfortune of being
5 caught up in the maelstrom of war and who have suffered at the hands of
6 others. What happened to them, to their loved ones and to the members of
7 their communities the public needs to hear. Streamlining cases before
8 the Tribunal has its benefits, but the cost in part is that the voices of
9 the victims have often less been heard. They have become muted.
10 The voices of the victims were not entirely silent in this case.
11 The Prosecution presented a number, a small number, of representative
12 victims to establish the crime base. They testified before Your Honours
13 so Your Honours could hear what happened to them, that the forces aided
14 and abetted by General Perisic. We are indebted to them for having the
15 courage to come to The Hague to recount what must have been truly the
16 worst experiences of their lives. I'd like to thank them publicly for
17 having the courage to come here to tell Your Honours about what happened
18 to them.
19 Now, one of the victims who testified was Ms. Afeza Karacic, she
20 was the victim of scheduled incident A-8 in the indictment. Ms. Karacic
21 was a Sarajevan. She testified that on the 23rd of November, 1994, after
22 she and her sister had been out for the day looking for food, she boarded
23 a tram, they were returning home. While riding on that tram in Sarajevo,
24 she told you that something terrible had happened to her, something that
25 had changed her life entirely. She was grievously wounded by a sniper's
1 bullet, that tore through her shoulder, shattering bones and severing
2 nerves. She had multiple surgeries to repair her arm, which is now 6
3 centimetres shorter than her other arm. Ms. Karacic was a civilian. She
4 was 31 years old at the time she was shot.
5 You will recall the testimony of MP-294 who was a victim of the
6 crimes committed in Srebrenica in 1995. He was a farmer, a humble man,
7 who along with his wife, his two sons, his daughter, his daughter-in-law,
8 and his four grand-children had been expelled from his village near
9 Srebrenica. In July of 1995, they were inhabitants of the UN safe area
10 in Srebrenica.
11 Following the VRS conquest of the enclave in July of 1995, tens
12 of thousands of civilians were forcibly expelled from the enclave.
13 MP-294 and members of his family were amongst them. They were placed on
14 a lorry, but shortly after it left the enclave, MP-294 told you that it
15 was stopped and that he and other men from the lorry were separated from
16 their loved ones and sequestered in nearby schools. They were abused and
17 some of them were killed. Members of the VRS then transported them to
18 various execution sites, where thousands of men and boys were
19 slaughtered. Few survived. MP-294 was amongst the handful of those who
20 did. He told Your Honours what happened at the Branjevo military farm
21 where he and other men and boys were lined up in a field and shot by VRS
22 soldiers. By his estimate, between 1.000 and 1.500 men and boys died in
23 the field that day.
24 The Defence has challenged the evidence of MP-294 in
25 paragraph 584 of the Defence final trial brief. They assert that the
1 Prosecution has presented no evidence to corroborate the estimate of the
2 witness, and the Prosecution has failed to prove the number of persons
3 allegedly killed at the Branjevo military farm on the 16th of July, 1995.
4 We do not accept this submission, Your Honours. You will recall
5 the testimony of a VRS soldier who participated in the executions at the
6 Branjevo military farm, Drazen Erdemovic who was a member of the
7 10th Sabotage Detachment of the VRS. He was asked specifically how many
8 people were killed at the Branjevo military farm, and he provided an
9 answer. You'll see his answer on the monitor before you. His answer
11 "Again, it's my estimate. I do not know, I do not wish to know,
12 but I think it was about 1.000 people."
13 The victim and the executioner agree on the numbers of people
14 killed at the Branjevo military farm. Mr. Erdemovic has corroborated the
15 testimony of MP-294. It's our submission, Your Honour, that the
16 Prosecution has proved that between 1.000 and 1.500 persons were killed
17 at that location on that day.
18 During the war in Bosnia, General Perisic never saw Ms. Karacic
19 or MP-294. He was a warrior who operated in the shadows behind the
20 facade of FRY denials of involvement in the Bosnian conflict. He aided
21 and abetted the crimes in the indictment from his office in Belgrade. He
22 didn't see Mrs. Karacic or MP-294 until they appeared in the courtroom to
23 explain to the Trial Chamber the damage wrought on their lives by the
24 forces that he so willingly assisted. To General Perisic, they simply
25 were not on his radar. They were not part of the equation he considered
1 when implementing the policies of his political masters by providing
2 vital assistance to the VRS despite his knowledge that the VRS had killed
3 and injured thousands of innocent civilians and had ethnically cleansed
4 large swathes of Bosnian territory and would do so in the future.
5 Now, this case, Your Honours, has illuminated the role of the
6 SFRY and the FRY and the army in sponsoring the wars in Bosnia and in
7 Croatia. The state policy to support the VRS and the SVK was the
8 products of decisions taken by the political leadership of the SFRY, and
9 later, the FRY. By Slobodan Milosevic, the most powerful political
10 figure in the SFRY and FRY, and by his colleagues at the Supreme Defence
11 Council, Momir Bulatovic and FRY president, Zoran Lilic.
12 I would like to provide Your Honours with a brief overview of
13 events in the FRY in order to put in context the case we presented
14 against General Perisic. It's not intended to be comprehensive. In that
15 respect I refer Your Honours to the expert reports of Dr. Donia and
16 Dr. Treanor for a comprehensive analysis of the historical background
17 against which the facts relevant to this case occurred, that would be
18 P375, P348, 349 and 350.
19 When the Socialist Federal Republics of Bosnia and Croatia sought
20 to become independent states, tensions developed between the inhabitants
21 of those republics, between those who sought independence, principally,
22 the non-Serbs and those who wished to preserve Yugoslavia as a state.
23 The vast majority of Serbs living in the socialist republics of
24 Bosnia-Herzegovina and Croatia sought to preserve the state of
25 Yugoslavia, or failing that, sought to achieve unity of the Serb people.
1 Their aspirations were firmly supported by the political leaders in
2 Belgrade, in particular, Slobodan Milosevic, and by the military leaders
3 of the JNA.
4 The JNA was the most respected and powerful instrument of policy
5 in the former Yugoslavia. Throughout its existence, its mission and its
6 purpose, in which it took great pride, was to protect all the peoples of
7 Yugoslavia. However, in the increasingly tense period before the
8 outbreak of war, a political decision was taken in Belgrade to support
9 the Serbs living in Bosnia and Croatia, and this resulted in an epic
10 shift by the JNA. The JNA shed its lofty mantle of protector of all
11 peoples of Yugoslavia and took sides in the conflict. The army became
12 and remained a potent instrument for advancing Serb policies and
14 We can see that, Your Honour, in Prosecution exhibit 164 which
15 will appear for you on the monitor. Now, P164, Your Honours, is a
16 directive on the use of armed forces for the preparation and performance
17 of combat operations in the forthcoming period. This directive, as we
18 know, is the highest command instrument in the army. This was issued --
19 this directive was issued by General Kadijevic, who was the head of
20 Federal Secretariat for National Defence of the SFRY, it was issued on
21 the 10th of December, 1991. And in his directive, and before you on the
22 screen is some of the text from that directive, he says:
23 "Our forces are entering a new period of exceptional significance
24 for accomplishing the ultimate aims of the war: Protection of the
25 Serbian population, a peaceful resolution of the Yugoslav crisis, and the
1 creation of conditions in which Yugoslavia may be preserved..."
2 Now, in aligning itself with the Bosnian Serbs, the JNA provided
3 assistance to the Serbs living in Bosnia in two significant ways.
4 Firstly, before the conflict it provided arms to the Bosnian Serbs, and
5 this, Your Honour, can be seen in Prosecution Exhibit 185, which appears
6 before you. This is a -- P185 is a document that was issued in March of
7 1992. It was issued by General Kukanjac, who was the JNA commander of
8 the 2nd Military District. And this is conclusions -- this is
9 conclusions that he made on the situation in the territory of his area of
10 responsibility, and if we go next to his conclusions, if we turn to
11 subpart (5), which is before you on the monitor, you will see that
12 General Kukanjac and the JNA was quite vigorous in terms of distributing
13 arms to the Serbian population. You'll see that, first off, there were a
14 number of volunteer units. Now, these volunteer units, by the text of
15 this document, were not part of the TO. They were not part of the JNA.
16 These volunteer units comprised 69.198 persons. And you'll see in
17 subpart (f) that the JNA distributed 51.900 weapon to them, the SDS
18 distributed 17.298 weapon to them. And you'll see in subpart (g) in
19 Sarajevo 300 automatic rifles have been distributed to them.
20 There was an annex that was attached to this report of
21 General Kukanjac. We'll go to that next. That is P186, Your Honour.
22 And if we go to 186, to this annex, what is remarkable about this annex
23 is it shows, first of all, the number of volunteers who received those
24 weapons and their locations. And you'll see, for example, through the
25 first numbers up through 7 are areas in Sarajevo. Now, the distribution
1 wasn't limited to Sarajevo. If you go to 51 on this, you'll see that
2 weapons were distributed far and wide. Number 51 is Srebrenica, number
3 52 is Banja Luka, number 67 is Sanski Most. So this document, by
4 General Kukanjac, that he distributed to his command in March of 1992,
5 shows the widespread nature of the support that the JNA gave to the
6 Bosnian Serb population.
7 Now, further to the issue of the JNA support to the civilian
8 population, I direct Your Honours' attention to the statement of
9 Miroslav Deronjic. And I specifically direct Your Honours to
10 paragraphs 4 through 36, where he describes in detail the support from
11 Belgrade, the manner in which weapons were distributed prior to the
13 Now, Your Honours, the second important way in which the JNA
14 contributed, participated, was that they participated in combat
15 operations and ethnic cleansing operations with Bosnian Serb forces.
16 Typical, Your Honour, of these operations was the attack on the village
17 of Glogova which occurred on the 9th of May, 1992. Now, Your Honours may
18 recall we drove by Glogova during the site visit. It's located not far
19 from Bratunac and not far from Srebrenica. If we could go to the next
20 visual aid, Your Honour. This before you is the factual basis for the
21 plea of Miroslav Deronjic. Mr. Deronjic was the former SDS head of the
22 party in Bratunac municipality. He entered a guilty plea before this
24 He describes the attack on the village of Glogova and in that
25 attack, Your Honour, he describes in paragraph 36 that the attack was a
1 joint operation. The attacking forces comprised of members of the JNA,
2 the Bratunac TO, the Bratunac police, and paramilitary volunteers from
3 Serbia. During the attack on the village of Glogova it was eliminated.
4 The result of that was that everybody in that village was driven out.
5 The majority of homes, Muslim homes, in that village were burned. The
6 mosque was burned, and 65 Muslim residents of the village were murdered.
7 The assistance of the JNA in these operations wasn't limited to
8 the village of Glogova, it was widespread, and as I will discuss in a few
9 minutes, Your Honour, once the JNA left Bosnia, its successor, the VJ,
10 continued actively to participate in operations, and in ethnic cleansing
11 operations in Bosnia.
12 I'll be referring in a few minutes to the military campaign
13 specifically that occurred in the Podrinje region. The Podrinje region
14 is the region that includes Srebrenica. Let me -- before I get to that,
15 I'd like to just touch upon some political developments that were
16 happening in Bosnia, because as Bosnia was fracturing along ethnic lines,
17 the Bosnian Serbs created parallel legislative bodies and adopted a
18 declaration proclaiming a republic of the Serbian people of Bosnia. They
19 also created their own army, the VRS.
20 Prior to the creation of the army, the establishment of the VRS,
21 which occurred on the 12th of May at the 16th session of the Bosnian Serb
22 Assembly, Radovan Karadzic contacted General Perisic. He asked
23 General Perisic to be the commander of the VRS. General Perisic refused
24 because in his own words, they wanted an ethnically clean army because --
25 JUDGE MOLOTO: Sorry, you have referred to the date of the 12th
1 of May and the 16th session of the Bosnian Serb people, the record
2 doesn't show what year.
3 MR. HARMON: Maybe I didn't say it. 1992, Your Honour.
4 JUDGE MOLOTO: The record doesn't show it.
5 MR. HARMON: Thank you, Your Honour, I'd like the record to be
6 complete on that, so thank you for bringing that to my attention. It was
7 1992, the 16th session which was, incidentally, probably the most
8 important session of the development -- in the development of the Bosnian
9 Serb entity, the Republika Srpska. Because as I say, as I will explain
10 in a few minutes, I'll explain in a few minutes its importance, but in
11 any event, the -- before, as I said, before the VRS was established,
12 General Perisic had been contacted by Radovan Karadzic and he had been
13 offered the position of being chief of the VRS Main Staff. He refused.
14 He refused, as I said, because they wanted an ethnically clean army,
15 because they wanted the army to be under the influence of the SDS.
16 JUDGE MOLOTO: I don't understand that sentence. "He refused
17 because they wanted an ethnically clean army."
18 MR. HARMON: Yes.
19 JUDGE MOLOTO: Who are the "they"?
20 MR. HARMON: The VRS -- Radovan Karadzic. The "they" is the
21 Bosnian Serbs, Your Honour.
22 JUDGE MOLOTO: Now, if you say -- are you saying "they", the
23 VRS's desire for a ethnically clean army is the reason why he refused.
24 MR. HARMON: Let me rephrase what I want to say, Your Honour.
25 Maybe I didn't make it clear.
1 President Karadzic approached General Perisic. He asked him to
2 be the commander of the army. General Perisic who had been serving in
3 Bosnia in the Mostar area was familiar with the activities that were
4 occurring in Bosnia. He refused Karadzic's offer to become VRS Main
5 Staff commander, because and I'm using his own words, because they wanted
6 an ethnically clean army. He is referring to the Karadzic's army and the
7 political leaders wanted the army to be an ethnically clean army, so he
8 refused. He also refused because he said they wanted the army to be
9 under the influence of the SDS. The SDS was the party of
10 Radovan Karadzic. The SDS was the party that advocated, as I'll say --
11 inform you in a few minutes in my remarks, wanted ethnically clean
13 He also said -- he also refused because he said, and he didn't
14 give any further details on this, "because I saw that their concept is
15 unacceptable for my belief." In any event, he refused. Instead,
16 General Perisic was instrumental in the appointment of his friend and
17 fellow JNA officer Ratko Mladic to become head of the VRS. You can see
18 that, Your Honour, in Prosecution Exhibit 2938 which on page 8, this is
19 an excerpt, Your Honours, from Ratko Mladic's diary. It is dated the
20 11th of May, 1992. In other words, this is one day before the 16th
21 session where Ratko Mladic was announced to be the VRS Main Staff
22 commander. And what Mladic's diary records is a statement from
23 General Perisic and what is recorded is the following:
24 "Ninkovic and I undertook an initiative with Karadzic for Mladic
25 to come here. He showed with his example what a JNA officer should be
1 like. You have the right person. If you support him, you will get what
2 you want."
3 Now, this account that's reflected in General Mladic's notebook
4 was corroborated by Radovan Karadzic at the 50th session of the Bosnian
5 Serb Assembly in April of 1995. You'll find that at P312, page 317.
6 Now, I mention the 16th session because the 16th session was critically
7 important session in the development of the Republika Srpska. Besides
8 the announcement of and the establishment of the VRS and besides the
9 announcement that General Mladic was to be its commander, it was
10 important for another reason: At that session President Karadzic
11 announced and discussed strategic objectives of the Serbian people in
12 Bosnia. Now, the mere announcement of those objectives wasn't an
13 epiphany, those objectives had been known before their formal
14 announcement at the 16th session. The text of this portion of Karadzic's
15 exposition on the strategic objectives is found in P188.
16 Now, if we can turn, Your Honours, to the strategic objectives
17 themselves, which is P334, they are before you, there are six strategic
18 objectives. Three are directly relevant to this case. Strategic
19 objective number 1 was: "The demarcation of the state as separate from
20 the other two national communities." In other words, the separation of
21 the Serbs from the non-Serbs.
22 Third strategic objective, "establishment of a corridor in the
23 Drina River valley, the eradication of the Drina River as a border
24 between the Serbian states," is relevant because it relates to the events
25 that took place in and around Srebrenica. Strategic objective number 5
1 is relevant because it relates to the events that we have described in
2 the indictment relating to Sarajevo. It reads: "Partition of the city
3 of Sarajevo into Serbian and Muslim sections and the establishment of an
4 effective state authority in each section."
5 Now, according to Momcilo Krajisnik who was at the time president
6 of the Bosnian Serb Assembly, Mr. Krajisnik has subsequently been
7 convicted in this Tribunal for various crimes. He, after the enunciation
8 of the strategic objectives by Karadzic -- he stated the followed, and
9 this is, I think, very important, he stated -- and this is what he says:
10 "The first goal," in other words, the goal of ethnic separation,
11 "is the most important one, and in relation to all other goals, all other
12 goals are sub-items of the first one."
13 Now, according to Defence witness Dusan Kovacevic, who was the
14 former RS minister of defence and a member of the 30th Personnel Centre,
15 the strategic objectives were military as well as political objectives,
16 and the military implemented those objectives.
17 If we could, Your Honours, go to a map of Bosnia. This is an
18 ethnic map. It's P2963. It's the ethnic map as of 1991. And as you can
19 see -- I am sorry, I misquoted the exhibit numbers. 2693 my colleague is
20 kind enough to bring that to my attention.
21 As you can see, Your Honours, in this map, Bosnia is a patchwork.
22 The ethnic communities are intertwined. It is -- in fact, it was the
23 richness of Bosnia that it was multi-ethnic and it appears to be
24 reflected in that map. According to the testimony before Your Honours,
25 and I would also submit according to common sense, separation was an
1 objective that was impossible to achieve without the use of force or
2 immediate or credible threat of force.
3 Unravelling the ethnic communities was an impossibility. It
4 could be done one way and that's the way it was done. From the evidence
5 that we have received in this trial, the Bosnian Serb forces, the VRS,
6 implemented strategic objective number 1 robustly. They reconfigured the
7 map of Bosnia.
8 What's important for this case, Your Honours, and very important
9 for this case, is that the strategic objectives of the Bosnian Serbs
10 never changed throughout the war. They never changed throughout the
11 period when General Perisic was chief of the VJ General Staff.
12 General Perisic was aware of the strategic objectives of the Bosnian Serb
14 If we go to Prosecution Exhibit 2933, Your Honour, this is a --
15 another excerpt from General Mladic's diary. It reflects a meeting that
16 took place on the 13th of December, 1993. That meeting was attended by
17 General Perisic. It was attended by Slobodan Milosevic, and from the
18 Republika Srpska it was attended by Karadzic, Mladic,
19 General Milovanovic, General Djukic, General Miletic, president of the
20 Bosnian Serb Assembly Momcilo Krajisnik, who believed that the strategic
21 objective number 1 was the most important, and it was attending by
23 During this meeting, President Karadzic described and what is
24 reflected in the report, he identified the strategic objectives of the
25 Bosnian Serb people. Number 1, to be separated from the Muslims and
1 Croats. Number 3, for the Drina not to be the border. And he says, 6,
2 to have our part of Sarajevo.
3 Thus, Your Honours, throughout Perisic's tenure as the VJ Chief
4 of the General Staff and at all times he was providing arms and
5 ammunition and personnel, critical assistance that the VRS needed to
6 prosecute the war, he was fully aware of the objectives of the Bosnian
7 Serbs and their intentions toward the non-Serbs. He knew their
8 attitudes, that's why he rejected becoming chief of the VRS Main Staff,
9 he knew of their strategic objectives and he knew from common sense that
10 ethnic groups, non-Serbs, would not willingly abandon their homes, their
11 villages, except through the use of force.
12 Your Honours, on the 19th of May, 1992, about six weeks after the
13 war in Bosnia started, the JNA officially withdrew from Bosnia. Of
14 course, that was an artifice. In truth and in fact, the JNA support, and
15 later the VJ support, of the VRS continued undiminished.
16 The JNA had stockpiles of arms, ammunition, military equipment in
17 various warehouses in Bosnia. Before the JNA left Bosnia, some of that
18 material was seized by Bosnian Muslim and Bosnian Croat forces. However,
19 the JNA left the vast majority, vast stockpiles of arms, ammunition, and
20 other war materiel to the VRS, and it was that arsenal in the earliest
21 stages of the war that sustained the VRS war machine.
22 Now, as those, I will say those supplies, Your Honour, were not
23 inexhaustible, and after the break, I will make submissions on that.
24 10.15 is when we break, is that right, Your Honour, or 10.30?
25 JUDGE MOLOTO: You are right, Mr. Harmon.
1 MR. HARMON: This is an appropriate time.
2 JUDGE MOLOTO: We'll take a break and come back at quarter to
3 11.00. Court adjourned.
4 --- Recess taken at 10.14 a.m.
5 --- On resuming at 10.46 a.m.
6 JUDGE MOLOTO: Mr. Harmon.
7 MR. HARMON: Thank you, Your Honours.
8 Now, following the JNA's departure on the 19th of May, 1992, from
9 Bosnia, the war continued for another 15 months before General Perisic
10 became chief of the VJ General Staff. The war was a ferocious and
11 unforgiving war, and in that period of time the VRS and the VJ
12 participated in joint military operations in the Podrinje region and
13 elsewhere in Bosnia. The objectives of the military campaign in Podrinje
14 can be seen in directive 4 that was issued by General Mladic on the 19th
15 of November, 1992, and in particular in his instructions to the
16 Drina Corps. Now, the Drina Corps, as Your Honours are aware, is the
17 corps that in 1995 was responsible for the atrocities that were committed
18 in Srebrenica.
19 But if we could go to P866, we can see directive 4 that was
20 issued by General Mladic, and it was issued to various corps. I have
21 isolated the particular section that deals with the Drina Corps, and his
22 orders to the Drina Corps were as follows, and I'll read in part what
23 those orders were:
24 "From its present position, its main forces shall persistently
25 defend Visegrad, the dam, Zvornik, and the corridor while the rest of the
1 forces in the wider Podrinje region shall exhaust the enemy, inflict the
2 heaviest possible losses on him, and force him to leave the Birac, Zepa,
3 and Gorazde areas together with the Muslim population."
4 Now, the VJ's participation in that operation was publicly
5 denied. We have submitted to Your Honours a series of exhibits which are
6 exhibits from the Uzice Corps, the VJ corps that was participating in the
7 Podrinje region. If we could go to one of those, I'll show Your Honours
8 as an exemplar. It's P2162, and this is an exhibit that was a document,
9 it was to the command of the Drina Corps issued by the commander of the
10 Uzice Corps, that was General Ojdanic. Now, General Ojdanic is someone
11 who has been convicted in this institution.
12 Your Honour, you can see from this particular document that if we
13 go to a portion of it, this is pursuant to the orders of the
14 General Staff of the Yugoslav Army. He then gives his orders, or his --
15 he then describes what his forces, the VJ forces, have been doing in the
16 area where they are operating. And you can see from this document,
17 Your Honours, that they have been engaged in combat operations.
18 JUDGE MOLOTO: What is the date of this document, sorry?
19 MR. HARMON: This is the 27th of January, 1993. So -- and as I
20 say, Your Honours, this is at a time when the Federal Republic of
21 Yugoslavia was denying any involvement in the events in Bosnia. This
22 document illustrates they, in conjunction with the Drina Corps, were
23 engaged in combat operations directed at Muslim villages, and you'll see
24 that, Your Honour, in subpart (3) and you'll see that in another part of
25 this document where there is a direction to carry out an attack against
1 various portions within the area of responsibility.
2 Now --
3 JUDGE MOLOTO: While you are talking about this, I'm tempted to
4 ask a question which I was reserving for the end of your argument. And
5 my question is what is the authority for the proposition that being
6 jointly involved in combat makes the one party guilty of crimes that are
7 committed during that combat?
8 MR. HARMON: Your Honour, are you referring to the period before
9 General Perisic becomes the Chief of the General Staff?
10 JUDGE MOLOTO: No, it has nothing to do with the period, it's
11 just got to do with the proposition, the legal proposition.
12 MR. HARMON: Your Honour, first of all, at this period of time we
13 have not charged any crimes in the Podrinje region.
14 JUDGE MOLOTO: I understand.
15 MR. HARMON: What we are saying is that these two forces operated
16 together in pursuit of a common objective. The common objective was, to
17 the Drina Corps and the participation of the Uzice Corps, was to remove
18 the Muslim population. So we say they acted jointly.
19 JUDGE MOLOTO: Okay. Then I'll ask you the same question at the
20 end of your argument. Carry on.
21 MR. HARMON: If I haven't answered the question I'd like to try
22 to do so. So let me try again. This is evidence of the Uzice Corps
23 participation. It is evidence, one, that the forces of the
24 Federal Republic of Yugoslavia, the military forces adhered to the
25 strategic objectives of the Bosnian Serbs. They were providing aid to
1 them in the period before General Perisic became Chief of the General
2 Staff. That aid was both in terms of armaments and it was in terms of
3 military forces engaged in the ethnic cleansing operations. Our position
4 is, Your Honour, that that proposition -- that that assistance did not
5 change throughout the -- that is, the pursuit of those strategic
6 objectives did not change during General Perisic's tenure as Chief of the
7 General Staff, that there were operations with -- joint military
8 operations in pursuit of the strategic objectives while General Perisic
9 was Chief of the General Staff. So the relevance of the Uzice Corps
10 document is it shows a continuation of the policies that persisted in and
11 through General Perisic's tenure as Chief of the General Staff.
12 JUDGE MOLOTO: Let me try again. When reading the indictment,
13 the kind of crimes that I see the accused charged with are crimes of
14 murder, persecutions and what have you which are -- he is not charged,
15 for instance, with driving the Muslims out of the area. And making the
16 corridor clean. He is charged with actual murders and other things that
17 are committed during that. My question really is, and it is a question
18 that relates to the indictment, even though I'm asking it at a time when
19 we are talking about issues that are still outside the period of the
20 indictment, my question is what is the authority for the proposition
21 that, if an army assists another army in war and crimes are committed of
22 the nature that are charged in this indictment, that the assisting army
23 or the commander of the assisting army is guilty of aiding and abetting
24 those crimes.
25 MR. HARMON: Your Honour, General Perisic provided assistance
1 knowing that that assistance was going to assist the VRS and it was
2 likely that that assistance would be used in the commission of crimes.
3 JUDGE MOLOTO: Okay. Let me paint you an analogous scenario and
4 get your comment on it. A war began in Afghanistan in 2001 and it is
5 generally known that there are allegations of crime having been committed
6 at least since 2002 to date. Does that make the commanders of the
7 various NATO armies that are jointly participating in that war guilty of
8 the crimes that are alleged to have been committed and are still being
9 committed, like detentions in Guantanamo, in Bagram, in Kabul and all
10 these places.
11 MR. HARMON: Your Honour, you can asking me obviously, an
12 explosive political question.
13 JUDGE MOLOTO: No, no. It's a legal question.
14 MR. HARMON: I would like to answer your question. The
15 objectives, as I understand, of the NATO forces isn't to ethnically
16 cleanse parts of Afghanistan. It is to be engaged in a military campaign
17 against the Taliban. It is --
18 JUDGE MOLOTO: Mr. Perisic is not charged with ethnically
19 cleansing. He is charged with murders. That's why I say I'm making the
20 distinction between the actual crimes that are charged in the indictment.
21 He is charged with murders, persecutions and what have you, he is not
22 charged with ethnic cleansing.
23 MR. HARMON: Your Honour, he is charged in count in -- in respect
24 of the crimes in Srebrenica he is charged with inflicting inhumane acts
25 one of which is the forcible transfer of the population from Srebrenica.
1 That is, in our view and our respectful submission, forcibly transferring
2 25- to 35.000 people out of an area where they were living is ethnic
4 JUDGE MOLOTO: Okay. I concede that, but still my question still
5 stands, my question still stands that how -- what is the authority for
6 that proposition and I'm saying can you comment on the -- on the analogy
7 that I've drawn because all the other commanders of the NATO nations that
8 are involved in Afghanistan are aware of the kind of crimes that have
9 been committed there and are still continuing with that war. It's not a
10 political question, it's an analogous situation to this one.
11 MR. HARMON: I draw the distinction as I say, as follows,
12 Your Honour, the first situation is it's a war, it's a war in Bosnia and
13 it was a war in and it is an on-going war in Afghanistan. Where I make
14 my distinction is the purpose in objectives. The objectives of Bosnian
15 Serbs, in part from strategic objective number 1, was to ethnically
16 cleanse, if you will, that is a much broader term, it was to separate the
17 Serbs from the non-Serbs. That act gave rise to conduct, long-standing
18 conduct that lasted throughout the war of the VRS taking populations of
19 Muslims and Croats and removing them from their homes by force. That was
20 no mystery. General Perisic was aware, as we say in our brief, was fully
21 aware of the conduct of the Bosnian Serbs, and with the knowledge of that
22 conduct he provided them with assistance that enabled them to continue to
23 conduct the war, continue to commit crimes, and that assistance that he
24 provided had a substantial effect on the commission of those crimes. So
25 I make a distinction between the Afghan war, where there is not the
1 stated purpose which is to remove and ethnically cleanse, I also make one
2 other observation about the Afghan war. In the Afghan war, I'll take the
3 United States as an example, because I'm familiar with the United States'
4 participation in part in that. When they were crimes that were committed
5 by American soldiers, those crimes were prosecuted in the United States
6 and people are serving life prison sentences as a result of those crimes
7 committed against Afghan civilians. In this situation, there were no
8 prosecutions whatsoever, either in the VRS or in the Federal Republic of
9 Yugoslavia for war crimes.
10 JUDGE MOLOTO: There are some people who are not being prosecuted
11 in the United States.
12 MR. HARMON: There may well be, Your Honour.
13 JUDGE MOLOTO: What I'm saying is, okay, I hear what you say on
14 the forcible transfer, but all I'm saying is there are also other crimes
15 charged against the accused in this case which like the murders, you
16 know, which were which were committed in combat or while they were there.
17 These are similar crimes as the crimes that are being committed in the
18 Afghanistani war.
19 MR. HARMON: Your Honour, there are deaths that were committed in
20 combat both in Afghanistan and Bosnia. The crimes that we charge are not
21 combat deaths. They are deaths of civilians purposefully committed so in
22 Afghanistan, for example.
23 JUDGE MOLOTO: The detentions are not combat crimes, those are
24 detentions that are made after people have been captured, some of them
25 away from the theatre of war.
1 MR. HARMON: We are not charging General Perisic with detentions.
2 JUDGE MOLOTO: I understand that.
3 MR. HARMON: We are charging General Perisic with murder, which
4 is the likely consequence of providing aid to a military machine whose
5 objective is to forcibly separate the ethnic populations. It was
6 foreseeable Your Honour, and General Perisic's assistance makes him
7 guilty of the foreseeable consequences of that assistance which includes
8 murder, which includes the wounding of civilians, it includes the
9 forcible transfer of civilians. So that's how we make --
10 JUDGE MOLOTO: You see, unfortunately, we don't seem to be on the
11 same wavelength. The detentions that I'm referring to in the
12 Afghanistan -- how do you pronounce this word, Afghanistani war, I know
13 that General Perisic is not charged with such, but they are the type of
14 crime, like the murders that he is charged with, that are committed away
15 from the theatre of war, not in combat and but still they are crimes,
16 they are war crimes, so they are crimes against humanity and -- but the
17 point I'm asking simply is because the armies, the commanders of the
18 remaining NATO countries that are participating in Afghanistan are aware
19 of the fact that crimes have been committed, crimes against humanity have
20 been committed, and yet those commanders are still continuing to
21 participate in that war, are they then guilty of those crimes that are
22 being committed?
23 That's just -- you either say they are not guilty or they are
24 guilty. If anybody is guilty of those crimes, then they are equally
25 guilty with those people of those crimes, because they are aware of those
1 crimes being committed and yet they are continuing to participate in that
3 MR. HARMON: I draw a distinction, Your Honours, between
4 continuing to participate in the war. The position that we assert here
5 is identical to the situation in your hypothetical situation.
6 JUDGE MOLOTO: It is identical, you are right.
7 MR. HARMON: Yes, I don't resile from that, Your Honour.
8 JUDGE MOLOTO: And, therefore, if it is identical, then you are
9 saying, yes, they ought to be guilty if anybody else is guilty.
10 MR. HARMON: Your Honour, I don't want to go that far. I'm
11 saying that the situation is identical in terms of the framework of our
13 JUDGE MOLOTO: I won't force you to go any further than that.
14 MR. HARMON: Thank you.
15 JUDGE MOLOTO: Thank you for your answers.
16 MR. HARMON: Thank you, Your Honour.
17 I believe they were at the Uzice Corps document and what -- I
18 want to come back to this document just for a minute, Your Honour. What
19 I want to say about this document is that the VJ's participation in this
20 campaign really demonstrates the political decision to support the
21 Bosnian Serbs. If we look at the map of Bosnia, the ethnic map of Bosnia
22 after the Podrinje campaign, months after this statement or this document
23 I've shown you from General Ojdanic, it looked considerably different.
24 It looked different because Muslims in the Podrinje area were forced out
25 of their homes and into a small geographic region in and around
1 Srebrenica. In that location, tens of thousands of Bosnian Muslims were
2 facing a humanitarian disaster and it was a disaster that was only
3 thwarted by the UN intervention, or the intervention by the international
4 community. Had that intervention not occurred, those people who had been
5 forced in that region would have been forcibly transferred out of it,
6 many of them would have been killed. What is important, Your Honour, to
7 recognise is that the creation of the Srebrenica enclave frustrated the
8 fulfillment of strategic objective number 1, the separation of the
9 Muslims from the other ethnic groups, because sitting in the bosom of the
10 Republika Srpska was an enclave that was filled with tens of thousands of
11 Muslims. The creation of the enclaves did not, in any way, diminish the
12 desire of the Bosnian Serbs to complete their goal, and in fact, the days
13 of reckoning for those people who were living within the enclave were to
14 come in July of 1995 with the crimes that we have described in our
16 Now, General Perisic came to his position as chief of the VJ
17 General Staff in August of 1993. He came at a critical phase of the war
18 in Bosnia because the VRS was confronted with two acute problems that put
19 at risk the VRS's ability to prosecute the war and impeded their ability
20 to achieve their strategic objectives.
21 The first problem was that a large number of active military
22 personnel in the VRS were abandoning their units without permission of
23 the VRS and were being accepted into the VJ. This was quite damaging to
24 the VRS because it threatened their ability to maintain combat readiness
25 of the units in the VRS. Now, I won't make any submissions on this,
1 Ms. McKenna will be discussing this with Your Honours shortly, but I will
2 discuss the second acute problem that was facing the VRS, and that was
3 that after 15 months of constant warfare, the VRS had exhausted its
4 materiel reserves. Without ammunition, without war materiel, the VRS
5 would cease to become an effective military force and its strategic
6 objectives would be unobtainable.
7 Now, we had some evidence in this case, I think it was
8 Mr. Kovacevic who said to Your Honours that the VRS had no problems with
9 its ammunition stocks in 1993. We take issue with his testimony and I'd
10 like to show you a series of documents that we presented. If we go first
11 to Prosecution Exhibit 2915. 2915, Your Honour, is a document that
12 was -- is dated the 18th of July, 1993. This is approximately five weeks
13 before General Perisic became chief of the VJ General Staff. And it's on
14 the screen before you. You can see what it is. It is a document from
15 the VRS Main Staff. It's dated the 18th of July, and it's entitled
16 "replenishment need of the Army of the Republika Srpska." It is
17 submitted directly to General Perisic's predecessor General Panic.
18 And in this document, I believe this document was signed by
19 General Milovanovic who was the second in command of the VRS,
20 General Milovanovic says the following, he says:
21 "During the last six months, the Army of Republika Srpska has
22 been engaged in continuous combat activities aimed at the liberation of
23 ancient territory of the Serbian people. In that combat, we suffered a
24 huge number of casualties and we -- and have also spent huge quantities
25 of materiel means which we cannot replenish from our own resources."
1 If you look down on that document you'll see there is a request
2 to General Panic that the VJ provide large quantities of materiel, I
3 think there's approximately 1.200.000 rounds of 7.65 millimetre
4 ammunition, just the first three items.
5 If we take a look at the next document, P2917, this is nine days
6 before General Perisic became chief of the VJ General Staff. And this is
7 a document that is from -- this is from General Mladic's notebook and it
8 records a meeting of the inner circle of the VRS Main Staff. In other
9 words, they are talking privately amongst themselves and the agenda, the
10 first item on the agenda is the "situation in the army of RS problems and
11 how to solve of them." And if we go down into this document you'll see
12 that one of the participants, General Miljanovic, is recorded as saying.
13 "Materiel reserves have been exhausted."
14 If we go to yet another document, Your Honour, this is after
15 General Perisic has become Chief of the VJ General Staff. This is
16 Prosecution Exhibit 2918. This is a document that was addressed to the
17 government of the Republika Srpska. It is dated 1 November, 1993, it is
18 from General Mladic. And if we go into this -- it's top secret,
19 classified top secret. If we go into this document, which is entitled
20 "problems of logistics support for the army" you'll see that
21 General Mladic says to the government of the Republika Srpska, "The
22 materiel reserves of the army is the main source of supply from the
23 beginning of the war until the present, have been exhausted."
24 He goes on to say, "148 types of ammunition, 35 per cent of
25 these, the reserves of military and PA ammunition is zero."
1 If we turn to the next document I'd like to show Your Honours,
2 it's P2766. This is a document, Your Honour, that is dated the 15th of
3 May, 1994. It's authored by President Karadzic, and it's sent personally
4 to General Perisic. The document says to General Perisic:
5 "I am compelled to inform you about the dangerous developments in
6 the military situation here." He goes on to say:
7 "Our army is exhausted and stretched out over a long front line.
8 This too could be overcome however, but the shortage of every type of
9 ammunition cannot be overcome but through the provision of ammunition."
10 Finally, Your Honours, if we could take a look at P149 which is a
11 document, an internal document, it's an analysis of the combat readiness
12 of the activities of the VRS in 1992. It was -- it's dated in April but
13 retrospectively looks back at the situation of the army in 1992, and in
14 that particular document it says:
15 "Reserves of materiel resources, starting with those of
16 significance for troops, are exhausted." It goes on to say that:
17 "Materiel needs for the successful combat operation in the
18 territory are being met from the existing reserves and by relying on the
19 FRY army. The materiel base is insufficient and its characteristics
21 One of the bullet points says: "Materiel reserves have been
22 exhausted and their present levels are critical."
23 "There are no imports, except from the FRY."
24 So, Your Honours, when Perisic became chief of the VJ General
25 Staff, the VRS was in crisis. Perisic, General Perisic appreciated that
1 grave risk that confronted the VRS and months after, he appreciated and
2 he expressed the problem many months later, but the quotation and his
3 appreciation is reflected in the particular quotation that he made at the
4 21st session of the SDS -- SDC on the 7th of June, 1994. This is P766.
5 What he said was the following:
6 "Both presidents know that their position is such that they can
7 no longer wage war without our help. If we stop helping them in the area
8 of education, financing of educated personnel, and materiel assistance
9 for certain combat operations, they will start losing territories. If
10 they lose territories, combat morale will gradually decline and the enemy
11 will achieve its goal. If the enemy achieves its goal, everything we've
12 done so far will have been futile, and besides, we can't stop the war
13 from spreading to this territory. This means we have to help somehow."
14 Now, the desperate situation that was confronting the VRS
15 required urgent attention if the FRY's policy objectives in Bosnia were
16 successfully to be implemented. Finding the solution required people to
17 act, it required people to lead, it required a person like
18 General Perisic. And he did act. And he acted in a number of ways. He
19 created and maintained strong and reliable life-lines for the VRS and in
20 so doing, he aided and abetted the crimes committed in Sarajevo and
22 First, Your Honour, he created two new formations, the 30th and
23 the 40th Personnel Centres. They were formations within the VJ General
24 Staff and they -- those formations brought order and stability to the
25 situation of the VJ personnel who were serving in the VRS. Again,
1 Ms. McKenna will make some submissions in respect to the personnel
2 centres, I won't go further.
3 Secondly, to address the critical ammunition and materiel
4 deficits to the VRS he -- just a minute, Your Honour. Okay. I think I'm
6 To create those deficiencies in the ammunition, the ammunition
7 crisis in the VRS, he requested that the SDC grant him authority to
8 provide the SVK and the VRS with weapons and military equipment on which
9 their war effort depended. The SDC granted him that authority. You can
10 see that, Your Honours, in Prosecution Exhibit P1009 which is on the
11 monitor. And this is an order of President Lilic on the supplying of
12 30th and 40th Personnel Centre with weapons and military equipment. Two
13 parts to this order. The first part is:
14 "The Yugoslav Army shall supply the 30th and 40th Personnel
15 Centre with weapons and military equipment." And we know from testimony
16 that the 30th and the 40th Personnel Centres referred to the VRS and the
18 Second of all, in this order of President Lilic:
19 "The Chief of the General Staff of the Yugoslav Army is hereby
20 authorised to reconcile the requests of the 30th and 40th Personnel
21 Centre with the means of the Yugoslav Army and specifically regulate the
22 method and procedures for providing supplies from item 1 of that order."
23 General Perisic discharged that authority effectively. Without
24 the materiel assistance Perisic provided from the VJ's reserves, the wars
25 in Bosnia and Croatia could not have been prosecuted, nor could the
1 crimes have been committed. Perisic's contributions had a substantial
2 effect on the commission of crimes in Sarajevo and in Srebrenica.
3 The importance of General Perisic's assistance to the VRS was
4 underscored by Defence witness and former RS minister of defence
5 Dusan Kovacevic. He stated, and I quote and this will -- his quotation
6 is appearing before you, Your Honours:
7 "Especially in 1995, more combat materiel was spent in 1994,
8 especially compared to 1993 because during this period, from August 1994
9 until the end of the war, the biggest combat operations took place.
10 There was Podrinje, Srebrenica, there was the defence of the western
12 He goes on also affirm his statement:
13 "I'm going back to what I said, August 1994 till the end of the
14 war in 1995, that was the period when the greatest combat operations were
15 carried out with the most resources spent, fuel, victims, and everything
16 else in that period."
17 Mr. Thomas, Your Honour, will make submissions on logistics. I
18 won't address this any further. Thirdly, General Perisic assisted the
19 VRS by ordering VJ Special Unit Corps units to Sarajevo to participate in
20 the siege of Sarajevo. Ms. Carter is going to make submissions on that,
21 I won't go further.
22 The fourth way in which General Perisic assisted and aided and
23 abetted the crimes in Sarajevo and Srebrenica was by perpetuating an
24 environment of impunity. When General Perisic became Chief of the
25 General Staff he inherited an environment of impunity. General Perisic
1 had a duty under international law to prevent his subordinates' crimes
2 and to punish them for their occurrence. His persistent failure to
3 fulfill his duty to uphold military discipline throughout his tenure
4 perpetuated that environment of impunity.
5 The environment perpetuated by General Perisic had a positive
6 impact on the commission of the crimes in Sarajevo and Srebrenica in that
7 it afforded his subordinates serving in the VRS the comfort of knowing
8 that they could not be punished, they would not be punished, and so
9 encouraged them to continue committing crimes.
10 Now, General Perisic's remarkable laissez-faire attitude after
11 learning of crimes committed by his subordinates in the VRS is reflected
12 by what he did when Slobodan Milosevic informed him sometime between the
13 15th and the 20th of July, 1995 of the killings in Srebrenica and of
14 Mladic's possible involvement in them. According to General Perisic:
15 "When I heard from Milosevic about the terrible crime, believe it
16 or not, since then I did not want to know anything about it. I distanced
17 myself from that because it was unbelievable that something like that
18 happens in the 20th" -- and then the answer is cut off.
19 General Perisic acted like an ostrich, burying his head in the
20 sand in the face of what was the single largest atrocity committed by the
21 VRS in the war. Of course, General Perisic had an opportunity to inquire
22 of General Mladic. If we could go to Prosecution Exhibit 2805, you can
23 see that on the 18th of July, in other words, in the time-period when
24 General Perisic learned from Slobodan Milosevic, General Perisic drove to
25 the VRS command centre in Han Pijesak, he met with General Mladic. And
1 if we go to the next exhibit, 2803, he also met with General Gvero, who
2 is the gentleman on the far left of this photograph. In other words,
3 General Mladic [sic], who said he didn't want to know anything about it,
4 was meeting with people who were responsible for those crimes.
5 Now, it's worth noting, Your Honours, that five weeks after this
6 rather incredible reaction or lack of reaction by General Perisic to the
7 killings in Srebrenica, the Markale marketplace was shelled on the 28th
8 of August, 1995. It's our position, Your Honour, that this environment
9 of impunity had a substantial effect on the commission of crimes in
10 Sarajevo and Srebrenica.
11 Now, turning to General Perisic's 7(3) responsibility, as we
12 discussed this morning, General Perisic is also charged with criminal
13 responsibility under Article 7(3) of the statute. What we allege is that
14 he was the superior officer to personnel in the personnel centres. I'll
15 be making some submissions on that after I finish this presentation and
16 after my colleagues have finished their presentations. General Perisic
17 was aware that his subordinates had committed or were about to commit
18 crimes, and he failed to take the reasonable and necessary measures to
19 prevent them or to punish his subordinates for having done so. Again, as
20 I say, I will make some submissions on Article 7(3) after my colleagues
21 have concluded.
22 But that concludes, Your Honour, my overview. I am prepared to
23 answer any questions you may have, otherwise I will turn the podium over
24 to Ms. McKenna.
25 JUDGE MOLOTO: You say you will make some submissions on
1 Article 7(3) later.
2 MR. HARMON: Yes, I will, Your Honour. I intend to, after my
3 colleagues have made their submissions. Then I'm going to address.
4 JUDGE MOLOTO: Let me put this question, and you can either deal
5 with it now or you can deal with it later, or Madam McKenna can deal with
6 when she speaks. Would you agree to the proposition that the
7 establishment of the 30th and 40th Personnel Centres is analogous to a
8 re-subordination arrangement?
9 MR. HARMON: Well --
10 JUDGE MOLOTO: Actually, it's actually a re-subordination put on
12 MR. HARMON: Re-subordination is a very technical term, I know,
13 in the VJ jargon, on the lexicon of the army's act. I don't remember all
14 of the elements but I would say this, Your Honour, that the people who
15 were in, I'll make these submissions later, the people who were in the
16 personnel centres were VJ personnel. Whether I call it re-subordination,
17 transfer, they were VJ soldiers who were operating in Bosnia. Now, I
18 don't want to characterise it as subordination, re-subordination, but our
19 position is they were VJ soldiers.
20 JUDGE MOLOTO: Okay. Put aside the word "re-subordination". If
21 you accept that they were VJ soldiers transferred to another army, would
22 you accept that command and control of them would then go over to the
23 army to which they are subordinated or transferred.
24 MR. HARMON: Your Honour, I'm going to make some submissions on
1 JUDGE MOLOTO: Thank you so much. I'll wait for them.
2 MR. HARMON: Good, I will look forward to making those
3 submissions, Your Honour.
4 Now, I have just one minute, I would like to just adjust our
5 podium. Thank you.
6 JUDGE MOLOTO: Madam McKenna.
7 MS. McKENNA: Thank you, Your Honours.
8 As Mr. Harmon outlined, I will be making brief submissions on the
9 applicable law followed by submissions on the personnel centres. As
10 regards the submissions on applicable law, I intend to deal briefly with
11 statements of law in the Defence brief which the Prosecution disputes or
12 statements of law in the Prosecution or Defence briefs which the
13 Prosecution seeks to clarify.
14 I'll be dealing with my submissions with respect to Article 7(1)
15 and Article 7(3) in turn. As regards Article 7(1), I'll be making three
16 submissions. Firstly, that the assistance provided need not be
17 specifically directed to a crime, nor need Perisic have had direct intent
18 to commit the crime. Secondly, that proof of Perisic's knowledge of
19 precise scheduled incidents is not necessary. And thirdly, I will be
20 making submissions on the aiding and abetting by perpetuation of an
21 environment of impunity.
22 As regards my first submission, assistance need not be
23 specifically directed to a crime, nor need Perisic have had direct intent
24 to commit the crime. The actus reus of aiding and abetting requires only
25 that assistance was provided and that that assistance had a substantial
1 effect on the commission of the crime. The mens rea for aiding and
2 abetting requires that the aider and abettor knew of the probability that
3 a crime would occur and that his acts would assist in the commission of a
5 The Defence misapplies this legal standard by suggesting or by
6 implying in its brief that the Prosecution must prove either that
7 Mr. Perisic's acts were specifically directed towards a crime or that he
8 had direct intent to commit the crime. For example, at paragraph 794 of
9 the Defence brief, the Defence states that there is no evidence that the
10 VJ training of the VRS was, and I quote, "designed to assist or
11 facilitate criminal conduct."
12 The Prosecution need not prove such a criminal design, either for
13 an individual element of the assistance provided, or for the totality of
14 that assistance. Nor once again must the Prosecutor prove that the aider
15 and abettor had direct intent to commit the crime. Rather, the
16 Prosecution must prove that Perisic provided assistance, that that
17 assistance had a substantial effect on the crime, that when Perisic
18 provided that assistance, he knew of the probability that crimes would
19 occur, and he knew of the probability that his assistance would have a
20 substantial effect on those crimes.
21 Turning to my second submission.
22 JUDGE MOLOTO: Before you do that.
23 MS. McKENNA: Certainly.
24 JUDGE MOLOTO: Now that you were the one talking about the law,
25 Madam McKenna, would you please apply that law to the question that I put
1 to Mr. Harmon about the Afghanistani war.
2 MS. McKENNA: Your Honour, I wouldn't like to go further than
3 what Mr. Harmon said, other than to say that on the applicable law before
4 this Tribunal, the jurisprudence provides the mens rea and actus reus are
5 as I have just set out.
6 JUDGE MOLOTO: Sure. But I would like to see how this would
7 operate in the situation in Afghanistan, because as we have agreed, the
8 situations are identical, if I may borrow Mr. Harmon's word. And that
9 there is substantial provisional arms and ammunition and soldiers by the
10 various NATO commanders in Afghanistan, crimes are committed there, they
11 don't have the intention to commit crimes, they don't supply the
12 assistance with the intention to commit crimes, but nonetheless crimes
13 are committed, and therefore every commander should be held responsible
14 for whatever crimes are committed in Afghanistan, all of them.
15 MS. McKENNA: Your Honours.
16 JUDGE MOLOTO: By that analogy.
17 MS. McKENNA: Your Honour, I would submit that the underlying
18 crimes with which Perisic is charged are part of a widespread and
19 systematic attack against the civilian population or a violation of the
20 laws and customs of war. Once again, if in hypothetical situation --
21 JUDGE MOLOTO: I have painted no hypothetical situation. I've
22 given you a situation that is existing on the ground in Afghanistan.
23 It's not a hypothetical.
24 MS. McKENNA: In my own opinion, Your Honour, and I not
25 knowing -- not being able to speak for the applicable law -- the law
1 applicable in general to the crimes in Afghanistan, in my own opinion,
2 the crimes -- any crimes committed in of Afghanistan would not be part of
3 a widespread and systematic attack against a civilian population, and
4 therefore again --
5 JUDGE MOLOTO: They are crimes against humanity, ma'am,
6 Mr. Perisic is also charged with crimes against humanity.
7 MS. McKENNA: Your Honours, once again I would prefer not to go
8 any further than Mr. Harmon.
9 JUDGE MOLOTO: Thank you very much, Madam McKenna.
10 JUDGE DAVID: In relation to the questions by which the
11 Prosecution has addressed in reply to Judge Moloto, my feeling is that
12 it's very difficult for me to make comparisons between this specific case
13 that we got in hand and any case for instance, of the Nuremberg trial or
14 the Tokyo trial or Afghanistan or any other event like Libya today.
15 First, because we cannot extrapolate the specific structure of a given
16 case to any piecemeal instances of any other trial or possible trial or
17 possible events. While it may be legitimate to extrapolate from present
18 circumstances of the war around certain elements, to infer
19 generalizations that may apply to this case, the reasoning itself for me
20 is faulty. And I'm not saying anything about the questions of my
21 distinguished president. In fact, for me, it's faulty, misleading and
22 out of place. This is my opinion about the questions raised so far.
23 Thank you very much.
24 JUDGE MOLOTO: You may proceed.
25 MS. McKENNA: Thank you, Your Honour. Turning to my second
1 submission, proof of Perisic's knowledge of precise scheduled incidence
2 is not necessary. As regards the mens rea element of aiding and
3 abetting, the Defence in its brief adopts an overly restrictive
4 interpretation of applicable law. For example, regarding the siege of
5 Sarajevo, at paragraph 803 of the Defence brief, the Defence states that
6 the Prosecution failed to prove that Mr. Perisic had any knowledge
7 whatsoever about any of the specific schedule B incidents. This analysis
8 is incorrect as a matter of law. While the Perisic -- while the
9 Prosecution must show Perisic's knowledge of specific crimes, this
10 relates to the type of crimes at issue and not the precise scheduled
12 Regarding the mens rea for aiding and abetting, the Haradinaj
13 Appeals Chamber at paragraph 58 of the judgement, gave examples of
14 murder, extermination, rape and torture as the specific crimes of which
15 the aider and abettor must be aware. At paragraph 86 of the Simic
16 Appeals judgement, the Chamber held that it is not necessary that the
17 aider and abettor knows either the precise crime that was intended or the
18 one that was, in the event, committed.
19 So the Prosecution need not prove, for example, Perisic's
20 knowledge that scheduled incident B-6 would occur. Rather, the
21 Prosecution must establish that Perisic knew of the probability that
22 attacks on Sarajevo civilians, including murder and inhumane acts, would
24 Turning to my third submission, regarding the aiding and abetting
25 by the perpetuation of an environment of impunity. At paragraph 57 to 65
1 of the Defence brief, the Defence disputes the legitimacy of aiding and
2 abetting by omission as a theory of criminal liability. Contrary to the
3 Defence contention, aiding and abetting by omission is settled law in
4 this Tribunal and that's at paragraph 49 of the Mrksic appeals judgement.
5 However, as Mr. Harmon has set out the form of aiding and abetting
6 alleged in the present case is not, strictly speaking, aiding and
7 abetting by pure omission, but rather it is aiding and abetting by
8 encouragement, and this is a distinction made in the Brdjanin appeals
9 judgement in paragraphs 273 to 274.
10 The Appeals Chamber has on a number of occasions acknowledged
11 factually the encouraging effect of a superior's failure to prevent or
12 punish. So for instance, in the Celebici appeals judgement at paragraph
13 739, in the context of sentencing, the Appeals Chamber found that a
14 superior's consistent failure to act, in relation to the conditions and
15 unlawful conduct within the camp, must have had an encouraging effect.
16 Equally at paragraph 301 of the Strugar appeals judgement, the Appeals
17 Chamber stressed, in the context of discussion of Article 7(3) liability,
18 that a superior's failure to punish a crime of which he has actual
19 knowledge is likely to be understood by his subordinates, at least, as
20 acceptance, if not encouragement, of such conduct, with the effect of
21 increasing the risk of new crimes being committed.
22 THE INTERPRETER: Kindly slow down, thank you.
23 MS. McKENNA: My apologies to the interpreters. So in the
24 circumstance of this case, Perisic's persistent failure to prevent or
25 punish his subordinate's crimes perpetuated the environment of impunity
1 which he inherited. This environment had a positive impact on his
2 subordinates' actions and a substantial effect on their commissions of
3 crimes in Sarajevo and Srebrenica.
4 Your Honours, I now turn to my submissions on Article 7(3), and
5 I'll be making two brief submissions. Firstly, regarding the existence
6 of a superior-subordinate relationship and secondly regarding the
7 mens rea required for 7(3).
8 As regards the existence of a superior-subordinate relationship,
9 the Defence brief asserts at paragraph 72 that:
10 "It must be proven that through his role or position, a personal
11 relationship of subordination, vis-a-vis the perpetrators, was
12 established and was acknowledged by both parties to that relationship."
13 This, Your Honours, is legally incorrect. A superior-subordinate
14 relationship arises where a superior has effective control over the
15 subordinate, being the material ability to prevent or punish the
16 subordinate's acts. As repeatedly affirmed, indicators of effective
17 control are more a matter of evidence than of substantive law. An
18 acknowledgement by a subordinate of a relationship of subordination may
19 be a factual indicator of effective control, but it is not a prerequisite
20 for finding a superior-subordinate relationship.
21 Turning to the mens rea requirement for Article 7(3). Under
22 Article -- under Article 7(3) liability, it must be shown that Perisic
23 had knowledge or reason to know that crimes had been or were to be
24 committed by his subordinates. On the Strugar appeals judgement at
25 paragraphs 302 and 304 states that this standard is met if Perisic
1 possessed sufficiently alarming information, putting him on notice of the
2 risk that crimes might subsequently be carried out by his subordinates
3 and justifying further inquiry.
4 In discussing the requisite mens rea, the Defence misstates the
5 law. In paragraphs 82 and 91 of the Defence brief, a number of tests are
6 put forward citing ICTY and ICTR trial chamber jurisprudence and Bosnian
7 state court jurisprudence in support. These tests suggest a higher mens
8 rea standard. For example, at paragraph 82 of the Defence brief, the
9 Defence states that there must be information putting a superior on
10 notice of a present and real risk or likelihood of a legal act by his
11 subordinates. The tests cited by the Defence are incorrect. If Perisic
12 possessed information sufficiently alarming, putting him on notice of the
13 risk that crimes might be subsequently carried out by his subordinates
14 and justifying further inquiry, he had the requisite mens rea for
15 liability under Article 7(3).
16 The Defence brief at paragraph 83 states that knowledge of the
17 commission of crimes generally is not sufficient. This point merits
18 clarification. Paragraph 155 of the Krnojelac appeals judgement is
19 authority for the proposition that, with regard to a specific offence,
20 for example, murder, the information available to the superior need not
21 contain specific details on the unlawful acts which have been or are
22 about to be committed. Rather, the information must provide general
23 notice of the type of crimes charged.
24 At paragraph 83 of the Defence brief, the Defence cites the
25 Oric appeals judgement at paragraph 59 of the Oric appeals judgement,
1 which states that knowledge of a crime and knowledge of a person's
2 criminal conduct are, in law and in fact, distinct matters. This is
3 correct. But the Oric appeals judgement in the same paragraph goes on to
4 say that the latter may be inferred from the former. So as with the
5 mens rea standard for Article 7(1), Perisic need not have had notice of
6 the precise scheduled incidents. Rather the Prosecution must prove that
7 Perisic had notice of the attacks on civilians, the murder, and the
8 inhumane acts being committed by his subordinates as part of the campaign
9 of shelling and sniping in Sarajevo, and equally, the Prosecution must
10 prove that he had had notice of the murders, extermination, inhumane acts
11 and persecutions committed by his subordinates in Srebrenica.
12 Your Honours, unless you have any further questions on the
13 applicable law, I will turn to my submissions on the personnel centres.
14 As Mr. Harmon outlined, Perisic aided and abetted the crimes in
15 Sarajevo and Srebrenica by the provision of assistance which had a
16 substantial effect on those crimes. The first element of the assistance
17 provided by Perisic was personnel through the 30th and 40th Personnel
18 Centres. I'll be making three main submissions in respect of the
19 personnel centres.
20 Firstly that the personnel centres addressed an essential need of
21 the VRS. Secondly, that the VJ remained the ultimate arbiter of whether
22 an individual returned to the FRY from the VRS or the SVK. And thirdly,
23 that the regulation of status provided by the personnel centres was
24 vitally important.
25 Turning to my first submission. The personnel centres addressed
1 an essential need of the VRS. Prior to the creation of the personnel
2 centres, the provision of VJ officers to the VRS and the SVK was ad hoc
3 and unregulated. This created serious problems for those armies. It
4 resulted in a drain of personnel giving rise to both damage to combat
5 readiness and damage to combat morale. And these problems were set out
6 in detail in a March 1993 request from Mladic to the to the then VJ Chief
7 of General Staff, Perisic's predecessor, regarding the prevention of
8 personnel from leaving the VRS. And that's P1529 that Your Honours will
9 see on the screen before you.
10 And Your Honours, I intend to go through this letter in some
11 detail. In this letter, Mladic highlighted that a large number of VRS
12 personnel were abandoning their units without permission to leave for the
13 VJ, and at this point I'll just note that there is a revised translation
14 of this document which the Defence have agreed, and I'll just point out
15 the revised wording. The revised -- the Prosecution will be making a
16 written submission on this but the revised wording will read that "a
17 large number of active military personnel and army employees abandoned
18 their units without permission and leave for the Yugoslav Army."
19 Mladic went on to emphasise that: "The damage stemming from this
20 to combat readiness, especially combat morale in the Army of Republika
21 Srpska is multifaceted. A large number of officers in command posts with
22 high responsibility leave units without handing over their duties,
23 because of which units suffer losses or their tactical position is
24 jeopardised along the front line; troops remain uncared for and left to
25 their own devices; units remain without officers for an extended period;
1 and the negative influence on morale is extremely harmful since active
2 officers are involved."
3 Mladic proceeded:
4 "Based on the above and in order to overcome negative
5 consequences and maintain the necessary level of combat readiness in the
6 units of the Army of Republika Srpska, please take the necessary measures
7 in your authority to put a stop to the unauthorised return to the
8 Yugoslav Army of active military personnel and civilian employees who are
9 engaged in the Army of Republika Srpska ..."
10 JUDGE MOLOTO: And we say that letter is dated the 31st of March,
12 MS. McKENNA: 1993.
13 Mladic emphasised the necessity of VRS agreement prior to the
14 return of those officers stating:
15 "Every individual request to return to the VJ will be reviewed by
16 the relevant commands and officers of the VRS, who will issue the
17 appropriate agreement. Among other things, your measures are necessary
18 to prevent the admission and assignment and especially promotion of all
19 those who return without this agreement."
20 Mladic went on to underline the VRS's continuing need for
21 additional personnel, stating:
22 "Please adopt an enactment making it obligatory for all active
23 military personnel who come from the former Bosnia-Herzegovina to join
24 the Army of Republika Srpska at the request of the Main Staff of the Army
25 of Republika Srpska ...
1 "All those who refuse to comply with this request must be removed
2 from the Yugoslav Army in an appropriate procedure."
3 On this last point he urged the termination of those who refused
4 to go, stating:
5 "If they are not prepared to defend their own homeland, they will
6 not want to fight for someone else's."
7 Finally, Mladic highlighted the unequal treatment of personnel
8 serving in the VRS in housing and status matters and requested that
9 subordinated commands be prevented from adopting enactments with negative
10 status decisions for active military personnel who are engaged in the
11 Army of Republika Srpska while they are with us."
12 MS. McKENNA: If I may have a moment, Your Honour. Your Honour,
13 I note the time.
14 JUDGE MOLOTO: Is that the appropriate time for you, you have a
15 minute or two still. If you are going to another point, we can stop.
16 MS. McKENNA: I'm moving on to another point, thank you.
17 JUDGE MOLOTO: We'll take a break and come back at 12.30 p.m.
18 --- Recess taken at 11.59 a.m.
19 --- On resuming at 12.33 p.m.
20 JUDGE MOLOTO: Madam McKenna.
21 MS. McKENNA: Thank you, Your Honour.
22 Your Honours, before the break we had done a detailed review of
23 P1529 which was Mladic's letter from March 1993 highlighting the problems
24 which the VRS had at that point. When Perisic became VJ Chief of General
25 Staff some five months later these problems remained unresolved. Indeed
1 the issues highlighted by Mladic in that letter are precisely those which
2 were emphasised by Perisic both in his written submission to the SDC on
3 the formation of the personnel centres and his discussions in his
4 discussions with the SDC on the personnel centres.
5 In the next series of slides, we'll do a comparison between the
6 issues as highlighted by Mladic and as addressed by Perisic in these
7 discussions. Turning to the first issue, Mladic had highlighted the
8 problem of morale in the VRS, and again, Your Honours will recognise this
9 text as the text that we had previously reviewed before the break.
10 On the topic of morale, Perisic in his written submissions before
11 the SDC, and that's P1872, document ID 0630-6544, stated that:
12 "Considering the fact that VJ officers born in Bosnia-Herzegovina or
13 Croatia who did not respond to the VRS are or SVK call-up, "were better
14 provided for in everything regarding service, housing, and so on in
15 relation to the active servicemen who stayed behind or were subsequently
16 dispatched, we must accept that there is a reason for constant
17 misunderstandings, various requests, and moral dilemmas with reference to
18 these active servicemen and problems regarding their actual obligations
19 based on the service in the VJ."
20 Secondly, Mladic had urged of additional officers born in
21 Bosnia-Herzegovina to the VRS requesting than an enactment be adopted
22 making it obligatory for those personnel to join the VRS at the request
23 of the VRS Main Staff or be terminated from the VJ. Again, in Perisic's
24 written submission on this topic, Perisic echoes or, rather, responds to
25 this need. The submission states that:
1 "In the proposed order of the FRY president to be put into effect
2 by the VJ Chief of General Staff, all professional soldiers and civilians
3 serving in the VJ who were born in Croatia or Bosnia-Herzegovina and sent
4 to do their training or service in the JNA from these territories, would
5 be obliged to respond to call-up from the Main Staff of the Army of
6 Republika Srpska or the Republic of Serbian Krajina, or else their
7 service in the Yugoslav Army would be terminated."
8 On this issue of termination, Mladic's position had been very
9 clear stating that if they were not prepared to defend their own
10 homeland, they would not be -- they would not want to fight for someone
12 This stated position by Mladic resonates throughout Perisic's
13 statements on this topic to the SDC. At the 14th SDC session on the 11th
14 of October, 1993, Perisic stated:
15 "If those men refuse to go there, then we need to view them as
16 deserters who don't want to defend their homes."
17 That's at page 33 of P709.
18 Later in the same session at page 36 of the exhibit, Perisic
20 "If such an individual is not ready to go fight anywhere, and
21 this is a single people, we need to think about whether he should be in
22 this army at all."
23 And then at the next SDC session, the 15th session, on the 10th
24 of November, 1993, this is P780, page 5, Perisic states:
25 "If someone flatly refuses to go, then I'll do everything I can
1 to help him leave the army, because, if he doesn't want to defend his
2 people when they are most threatened, when will he defend them?"
3 Mladic had also highlighted the problem of unequal regulation of
4 status of officers serving in the VRS, and requested that an enactment be
5 made regularising that service. Again, Perisic made repeated submissions
6 on this issue to the SDC. With reference to those VJ officers serving in
7 the VRS and the SVK, he stated, and this is in his written submission at
9 "The legal position and personal status of all those persons
10 (those who stayed behind and those who were dispatched there) has not
11 been equally regulated, regarding salary, promotion in rank and service,
12 provision of care for the families in the FRY, right to provision of
13 housing, and other service rights."
14 Before the 14th session of the SDC, Perisic stated, at page 32 of
16 "In order to have a foothold, we have paved the way for the
17 president of the state, in his capacity as supreme commander, to issue an
18 order regulating their status and that of officers here." And later that
19 same session he emphasised that: "I'm insisting that they should get the
20 same status as officers here."
21 Finally, Mladic's 1993 letter had highlighted the problem of the
22 return of officers to the VJ without VRS consent, and the impact that the
23 drain of officers was having on VRS combat readiness and combat morale
24 and the need for VRS consent to be mandatory prior to an officer's
25 return. To that end, the instructions on the personnel centres signed by
1 Perisic provided for the consent of the personnel centre commander prior
2 to the return of an officer to the VJ. These instructions are at P734
3 and the relevant page is page 7 and the relevant provision provides that:
4 "In keeping with service requirements, professional soldiers and
5 civilian personnel sent or transferred to the personnel centre may be
6 returned, assigned, or transferred to the VJ units or institutions with
7 the consent or on the recommendation of the personnel centre Main Staff."
8 This provision ensured that the needs of service of the VRS and
9 the SVK would be considered, that the drain of personnel would be
10 prevented, and that the army's combat readiness would be protected.
11 The Defence gives an incomplete and inaccurate account of
12 Starcevic's testimony on this particular provision of the instructions.
13 Paragraph 264 of the Defence brief cites a direct Starcevic quote, and I
14 quote that:
15 "If this paragraph stipulates that they can return to the VJ, at
16 this point in time, they must not have been in the VJ, since this
17 paragraph provides for their return. There is no other reasonable or
18 legal understanding of this term."
19 In fact, in an exchange beginning at T-6924, line 4 of the
20 transcript, Defence counsel had asked Mr. Starcevic: "If this paragraph
21 stipulates that they can return to the VJ, am I right in understanding
22 it, that at this point they were not in the VJ, since this paragraph
23 provides for their return?"
24 Mr. Starcevic responded:
25 "To put it simply, there is no other reasonable or legal
1 understanding of this item. But if you view this paragraph separate from
2 everything else that we have seen."
3 Mr. Starcevic then went on to elaborate at T-6925, line 2 of the
4 transcript that:
5 "The counsel has offered an interpretation for which I said there
6 could be no other reasonable or legal understanding of this item. But,
7 if we perceive this item separate from other provisions that we have seen
8 before, but only if we perceive this item separate."
9 JUDGE MOLOTO: What does that mean? I don't understand that last
11 MS. McKENNA: Your Honours, this means that this document, in
12 common with the other documents with which the Trial Chamber has before
13 it, cannot be viewed in isolation, but and as Mr. Harmon will discuss
14 further in his submissions on Article 7(3), Mr. Starcevic testified that
15 the personnel centres were members of the VJ as a matter of law [sic].
16 JUDGE MOLOTO: You may proceed.
17 MS. McKENNA: In summary, the personnel centres proposed by
18 Perisic addressed the needs highlighted by Mladic by formalizing the
19 support being provided by the VJ to the VRS and the SVK by, firstly,
20 creating a mechanism to staunch the flow of personnel from those armies
21 by ensuring that the VRS and SVK commanders could act as gatekeepers,
22 preventing the unauthorised return of officers to the FRY. Secondly, by
23 ensuring that the rights of those officers serving in VRS and the SVK
24 would be fully protected and enjoyed in the same manner and scope as
25 those of other VJ members. And thirdly, by providing the VJ, in
1 Perisic's words, with legal cover to ensure that it could continue to
2 transfer officers to the VRS and SVK in order to maintain and support
3 their war efforts.
4 Perisic was the architect of the personnel system through which
5 the VRS and the SVK commands were provided the security of knowing that
6 the VJ would continue to support them by providing further officers,
7 preventing a personnel drain, and thereby ensuring that the command
8 structure remain solid. And the officers themselves were given the
9 security of knowing that their livelihoods would be protected, and
10 together this ensured that the combat readiness and the combat morale of
11 the VRS and SVK would be sustained.
12 Turning to my second submission. Throughout this period,
13 however, the VJ remained the ultimate arbiter of whether an individual
14 returned to the FRY from the VRS or the SVK. The Defence brief at
15 paragraph 304 states that requests from officers in the VRS and the SVK
16 to rejoin the VJ were decided by the VRS and SVK commander and that
17 Perisic played no role in the decision, nor is there any evidence that he
18 was able to overrule and influence any decision in other armies.
19 The purpose of the personnel centres was to sustain and maintain
20 the VRS and SVK officer corps and for this reason, as we have seen, the
21 instructions on the personnel centres provided for VRS or SVK consent
22 prior to the return of officers to the FRY. The Prosecution doesn't
23 dispute that the VRS and the SVK made the majority of decisions as to
24 assignment to duty within those armies, and that the duties to which
25 officers were assigned in the personnel centres reflected the decisions
1 that had been made by the VRS and the SVK commands. And that's set out
2 in paragraphs 176 and 183 of the Prosecution brief. And Your Honours,
3 this is consistent with the purpose of the personnel centres, namely, to
4 supply officers in accordance with the VRS and SVK needs of service.
5 However, it's clear from the documents in evidence that Perisic
6 and the VJ retained the ultimate authority as to who could return to the
8 Paragraph 193 of the Prosecution brief discusses P2864, which is
9 a instruction from the VJ General Staff personnel administration to the
10 40th Personnel Centre Main Staff and it provides that -- dealing with the
11 issue of officers transferring out of the 40th Personnel Centre, and the
12 instruction provides that:
13 "Recommendations for transfer from the 40th Personnel Centre may
14 be submitted only through the 40th Personnel Centre Main Staff and with
15 the 40th Personnel Centre Main Staff commander's signature. The transfer
16 can be executed only after reception of response - approval from the VJ
17 General Staff personnel administration."
18 The examples cited by the Defence at paragraph 304 of its brief
19 all relate to instances where an officer himself requested transfer.
20 Given the VJ's purpose in supplying the officers to the VRS and the SVK -
21 namely to support the war effort, it's unsurprising that the approval of
22 those officers' immediate superior was standard before they came back to
23 the VJ or to the FRY. Ultimately, however, the determination as to
24 whether an officer stayed in the personnel centres or returned to the FRY
25 rested with the VJ, and its needs of service overrode all others.
1 D335 is a VRS Main Staff personnel sector response to an
2 officer's request for transfer out of the 30th Personnel Centre. The
3 officer is of informed that his case was discussed at the VRS Main Staff
4 commander advisory board and that:
5 "A decision was made to forward your request to the 30th
6 Personnel Centre with a proposal to the officer in charge to issue an
7 order for transfer to the VJ outside the 30th Personnel Centre."
8 So the VRS considered the case and decided to propose to the VJ
9 that the officer be transferred. The VJ remained the ultimate arbiter.
10 Equally, paragraph 192 of the Prosecution brief discusses the
11 case of VJ Major-General Branislav Petrovic, who had been deployed to
12 serve in the 11th Corps in the Slavonia Baranja district. That's P2754.
13 This case the Slavonia Baranja Corps chain of command requested to
14 Perisic personally that Petrovic be permitted to stay in the Slavonia
15 Baranja corps until after completion of the operations in the territory.
16 The office of the VJ Chief of General Staff responded stating that
17 Perisic -- that Petrovic was required to return to duty in the VJ General
18 Staff air force administration and "his re-engagement in the defence of
19 the Slavonia and Baranja district shall be duly regulated based on the
20 indicators of the beginning of the aggression against this district."
21 That is, the VJ refused the request to resend him, but informed
22 the Slavonia Baranja Corps command that they would reconsider resending
23 him in the event that there was aggression against it.
24 So in summary, contrary to the Defence contention, the VJ
25 remained the ultimate arbiter as to whether individuals returned to the
1 FRY, and Perisic himself could overrule other armies' decisions.
2 Turning to my third submission, regulation of status was vitally
3 important. Proper record-keeping, necessary to regulate status and
4 protect status rights, was an integral function of the personnel centres.
5 That's acknowledged at paragraph 255 of the Defence brief and paragraph
6 200 and 201 of the Prosecution brief.
7 As is evident from Mladic's 1993 request, this regulation was
8 vitally important to the effective functioning of the armies. It
9 reassured VJ officers and their families of their livelihood, giving them
10 security in a chaotic time and providing them both with a financial
11 life-line and moral support. And this enabled them to serve in the VRS
12 and the SVK as part of the VJ assistance provided to the VRS and the SVK
13 war effort.
14 The Defence concedes in its brief that the regulation of status
15 and the protection of status-related rights was necessary and important.
16 The status-related rights regulated included those relating to salary,
17 pension, housing, and promotions, and there is a wealth of evidence
18 showing the importance of status-related rights to officers and their
19 families as outlined at paragraphs 201 and 209 to 210 of the Prosecution
21 Defence witness Stamenko Nikolic testified that personal records
22 in relation to members of the VJ were exceptionally important. It's
23 important for regulating the position and status of a member within an
24 army. He proceeded to testify regarding the failure to keep records of
25 those former JNA members serving in the VRS and the SVK that those
1 persons were facing such a situation that "unless their status was
2 resolved and the rights they enjoyed under their status, this would have
3 utterly destroyed their families and made their survival as human beings
4 entirely impossible."
5 Perisic understood the importance of status regulation and the
6 salaries being received by the officers and in June 1994 at the 21st SDC
7 session, that's P776, having set out the numbers of VJ officers serving
8 in the VRS and SVK and the amounts that were allocated annually for their
9 salaries, he stated, "that's a great help to them."
10 In November 1994, following the FRY sanctions against the
11 Republika Srpska, Mladic complained that stopping the salaries to VJ
12 members serving in the VRS had caused "an enormous existential crisis for
13 their families. A situation has been created in which the attention is
14 necessarily drawn from combat tasks. Deferring of this issue is making
15 the matters worse for the professional soldiers of the VJ and their
17 And again Defence Nikolic testified in relation to resolving this
18 problem that -- and witness Nikolic was dealing with the families at
19 issue. He stated:
20 "This agony went on for a full five months and I have never in my
21 life faced a crisis as severe as that."
22 Indeed, following the imposition of these sanctions, in September
23 1994, Perisic sent 500.000 dinars to Mladic for salaries for VJ officers
24 serving in the VRS. And that's P851.
25 Actions taken by officers, including Dragomir Milosevic and
1 Mladic, to enforce their status-related rights including compensation for
2 unused annual leave, injury compensation, separation allowance and unpaid
3 salaries are discussed at length in paragraphs 788 to 799 of the
4 Prosecution brief. One element of this status regulation was promotions.
5 The Defence wrongly limits its analysis or its discussions of promotions
6 in the VJ to a 7(3) context. However, promotions and their regulation
7 were also a clear component of the assistance provided by Perisic under
8 Article 7(1). The Defence argues that promotions of VJ officers serving
9 in the VRS were made final in the VRS and that the only steps taken in
10 the VJ were to verify those promotions to regulate the status rights of
11 an officer. This is incorrect and Perisic's active role in this regard
12 will be discussed by Mr. Harmon in the context of his submissions on
13 Article 7(3).
14 However, the Defence accepts at paragraph 383 of its brief that
15 an officer's rank formed part of the basis of payment for increased
16 salary and other attendant benefits, such as pension entitlements. The
17 Defence also accepts at paragraph 415 to 420 of its brief, that any
18 change in salary, pension contributions, housing priorities or other
19 status-related rights only became effective when a VJ officer was
20 promoted in the VJ. As with the other elements of status regulation,
21 this was important to officers serving in the VRS.
22 For example, in Galic's VRS exit interview at P1760 on the 12th
23 of August, 1994, the first point that Galic made was: "Before the
24 adoption of a decision on the termination of my professional military
25 service, I wish my appointment to my current post of commander of the SRK
1 establishment rank Lieutenant-General PG-4 rank group, to be verified."
2 Promotions were also good for morale, and Perisic strongly
3 advocated for promotions of VJ officers serving in the VRS and the SVK on
4 that basis. At the 15th SDC session on the 10th of November, 1993, and
5 that's P780, page 23, Perisic stated in relation to promotions:
6 "We'll be giving them moral support. It's not just the matter of
7 a flat or something like that. These men are fighting and by doing so,
8 they are ensuring peace to us. I urge - and that's why I proposed - that
9 they be given this since it would greatly motivate them. In doing so, we
10 would recognise what they have done."
11 In summary, Your Honours, the regulation of status-related rights
12 relating to salary, pension, housing, and promotions, and the security of
13 access to those rights, enabled VJ officers to serve in the VRS and the
14 SVK for as long as they were so regulated. It gave the officers serving
15 in the VRS the comfort to stay as long as they were needed in the
16 knowledge that they weren't giving up their VJ benefits. No such
17 security was available for former JNA officers serving in the ABiH or the
19 Through sustaining and maintaining the VRS officer corps, the
20 assistance provided through the personnel centres had a substantial
21 effect on the crimes committed in Sarajevo and Srebrenica.
22 That concludes my submissions on the personnel centres,
23 Your Honours. Unless you have any further questions, I will hand over to
24 my colleague Mr. Thomas. Excuse me, one moment, Your Honours.
25 My apologies, Your Honours, Mr. Harmon has just pointed out an
1 error in the transcript which is at page 62, line 16. And it currently
2 states that personnel centres were members of the VJ as a matter of law.
3 And it should of course read that persons serving in the personnel
4 centres were members of the VJ as a matter of law.
5 JUDGE MOLOTO: Thank you, Madam McKenna.
6 MS. McKENNA: Again, unless Your Honours have any questions, I
7 will hand over to my colleague Mr. Thomas who will make submissions on
8 the second element of the assistance provided by Mr. Perisic, namely the
9 logistical and materiel assistance.
10 JUDGE MOLOTO: Thank you very much, Madam McKenna.
11 MR. THOMAS: Thank you, Your Honours.
12 JUDGE MOLOTO: Thank you, Mr. Thomas.
13 MR. THOMAS: Your Honours, in the time left before we break, I
14 will endeavour to discuss the aspects of the logistics case, namely the
15 assistance provided by the VJ to the VRS in weapons, ammunition and other
16 logistics assistance. In doing so, I don't propose to discuss the
17 Prosecution case in any detail. I don't wish to summarise it in any way.
18 The Prosecution allegations are substantiated by an analysis of the
19 wealth of evidence that has been tendered in this case and which is
20 described in our final trial brief. I don't -- we don't seek to augment
21 that analysis or qualify that analysis in any way today.
22 What I would like to do, Your Honours, however, is just to take
23 the opportunity to address a number of misconceptions under which the
24 Defence appear to be operating when it comes to this part of the case.
25 The first of those is the interrelationship between the VJ and the FRY
1 Ministry of Defence. The Defence have made the assertion that in the
2 budget planning and production phase, namely the phase during which funds
3 are being made available for the VJ and production requirements are being
4 assessed and paid for, the Defence have asserted that during this period,
5 the VJ is operating or was operating under the authority of the MOD, the
6 FRY MOD, and that assertion, Your Honours, is found at paragraph 613 of
7 the Defence final trial brief.
8 That misstates the true relationship between the VJ and the FRY
9 Ministry of Defence. At the time that General Perisic took his position
10 as Chief of the General Staff, there had been the restructure of the
11 Federal Secretariat of National Defence and as a result of that
12 restructure, the VJ and the FRY MOD were each -- sorry, neither the VJ
13 nor the MOD were subordinated to the other. In practical terms, what
14 that meant was that the FRY MOD had the responsibility for submitting a
15 national defence budget to the FRY Assembly. For the purposes of that
16 national defence budget, let me go back a step Your Honours. The
17 national defence budget provided for the VJ requirements and it provided
18 for the FRY MOD requirements. In other words, funds were put aside for
19 the functioning of both the VJ and the functioning of the MOD in the
20 national defence budget. By far, the larger component of the national
21 defence budget was to meet VJ needs.
22 Although the MOD was responsible for preparing the draft national
23 defence budget, because the vast proportion of the VJ national budget
24 went to providing for VJ needs, it would seek from the VJ General Staff a
25 draft VJ budget plan. The VJ would essentially provide a submission to
1 the FRY MOD seeking funds for its operations. That was prepared by the
2 General Staff of the VJ. In it, they would seek funds for the coming
3 year for all of their needs.
4 The single biggest need was salary, or the single biggest need
5 during the indictment period was the payment of salaries. And
6 incorporated in that request for funds for salaries from the VJ included
7 the amounts that were payable to VJ officers serving in the 30th and 40th
8 Personnel Centres. Also sought by the VJ General Staff in its budget
9 plans would be the other requirements or other needs for it to properly
10 function, including the replenishments of its reserves. Once the
11 VJ General Staff had prepared that budget plan and it was forwarded to
12 the FRY Ministry of Defence, we've heard evidence that there would, on
13 occasion, be discussion as to whether or not that VJ budget plan was
14 realistic, in other words, whether given the state of the FRY at that
15 time that the FRY Assembly would likely pass a budget that contained such
16 requests or whether the VJ budget plan would need to be amended to make
17 it a little more realistic in that respect.
18 However, ultimately, the two entities reached a position where
19 the VJ budget plan for the coming year had been submitted by the General
20 Staff to the MOD. The MOD incorporated it in the draft national defence
21 budget, which was then sent for approval to the FRY Assembly. Once the
22 FRY Assembly approved the budget, the MOD was responsible for disbursing
23 funds against that budget in large measure. In particular, the MOD was
24 responsible for disbursing the individual salaries to the individual
25 officers concerned, but, of course, this was against the funds put aside
1 for that purpose in the national defence budget as requested by the
2 General Staff. The FRY MOD was also responsible for ensuring that the
3 funds that had been approved for the replenishment of VJ reserves were
4 put to that purpose, and in practical terms that meant that the FRY MOD
5 would arrange for the necessary production from the special-purpose
6 industry facilities that Your Honours have heard about during the course
7 of this trial. And those special-purpose industries being subordinated
8 to the Ministry of Defence would produce the necessary material, and upon
9 production of that material, it would be sent to the VJ to replenish VJ
11 Now, the evidence on all of that comes from two Defence witness,
12 General Stamenko Nikolic, who was the FRY MOD head of administration for
13 systems and status-related administration affairs, and General Jovanic,
14 who was FRY MOD head of finance and budget administration.
15 General Nikolic also provided Your Honours a piece of evidence that
16 corroborates other evidence in this trial, but which is important when it
17 comes to the logistics case, because notwithstanding that relationship
18 between the VJ and the MOD, once material that had been produced by FRY
19 special-purpose industry formed part of VJ reserves, it came under the
20 control of General Perisic. It was General Perisic as Chief of the
21 General Staff who had authority to decide the use to which the VJ
22 reserves would be put.
23 And it's important, Your Honours, when we look at P1009, which we
24 could have on the screen for a moment, to view the document in that
25 context and Your Honours will recall this document from Mr. Harmon's
1 presentation and also from the occasions that we have seen it during the
2 course of this trial. This is the order where the -- this is the order
3 where President Lilic authorises the Yugoslav Army - not the MOD, but the
4 Yugoslav Army - to supply the 30th and 40th Personnel Centres with
5 weapons and military equipment. And this is where President Lilic
6 authorises General Perisic to regulate the requests submitted to the VJ
7 by the VRS and the SVK with the means of the VJ to fulfill those requests
8 from the reserves which he had authority over.
9 This order exists, Your Honour, because General Perisic asked for
10 it. General Perisic knew full well his legal obligations and the state
11 of the law when it came to disbursing military equipment. He understood
12 that he had no right to send military equipment, weapons and ammunition,
13 to another army. He understood that the materiel wasn't his to give in
14 the first place, because ownership of it vested in the Ministry of
15 Defence. Nevertheless, it was he who advocated for the issue of this
16 order, so that the Yugoslav Army could provide this materiel to the 30th
17 and 40th Personnel Centres, and so that he could control that process.
18 This comes from the 18th session of the Supreme Defence Council.
19 At a session on the 7th of February, 1994, which preceded by a matter of
20 days the order being issued by President Lilic, and if we can move,
21 please, to the first highlighted section. Thank you. And this is
22 General Perisic, Your Honours, addressing the members of the SDC. They
23 are discussing the provision of assistance to the SVK and the VRS or the
24 specifically the provision of VJ assistance to the VRS and the SVK.
25 He states:
1 "The property law which entered into force does not give the
2 Chief of General Staff any right to misappropriate any resource,
3 especially in terms of assistance and specifically now to
4 Republika Srpska and the Republic of Serbian Krajina."
5 JUDGE MOLOTO: Can we put a [sic] after misappropriation.
6 MR. THOMAS: Yes.
7 JUDGE MOLOTO: Thank you.
8 MR. THOMAS: Can we move to the second part of the quote please.
9 "Either things should remain the way they are regulated by law,"
10 in other words I can't send it, "or the supreme council should adopt the
11 decision to authorise me to give them something that this body decides
12 upon. So they make a request to the supreme council, I convey it to you
13 and say whether this is justified or not. You make a decision and then
14 it is implemented by the Chief of the General Staff. This is the way I
15 propose because we really have to bear this in mind. If the two Krajinas
16 are not defended, we will be significantly jeopardised and they certainly
17 can't be defended without our assistance and weapons and military
19 So as I've said, Your Honour, the result of that submission by
20 General Perisic so the SDC on the 7th of February was for President Lilic
21 to issue the order that we have just been looking at, ordering the VJ to
22 provide weapons and ammunition to the VRS and SVK, and also authorising
23 General Perisic to reconcile the requests. In other words, to say
24 whether this is justified or not as he has pleaded before the SDC on the
25 7th of February.
1 The second misapprehension that I'd like to address is related to
2 the first, namely the relationship between the VJ and the MOD. In a part
3 of its final trial brief entitled, "VRS knowledge" -- sorry, "VRS
4 understanding of request process," and this is at paragraph 633 of the
5 Defence final trial brief, the Defence quote General Dusan Kovacevic.
6 General Kovacevic testified that if the VRS needed anything, the VRS
7 would go to the RS Ministry of Defence. The RS Ministry of Defence would
8 go in turn to either its own special purpose abilities or to the FRY MOD,
9 not to the VJ but to the FRY MOD, to source what had been requested by
10 the VRS.
11 If the FRY MOD were not able to provide what the RS MOD was
12 seeking, then President Karadzic would go to see Slobodan Milosevic and
13 see if Mr. Milosevic could find a way to provide what was needed. Now,
14 what is patently missing from that description of the process is what
15 actually occurred. General Kovacevic was the minister of defence for the
16 Republika Srpska at that time and what he was testifying about was the
17 role that the FRY MOD had in securing materiel for the needs of the VRS.
18 But what his testimony fails to take into account is the reality of the
19 situation which was that, in furtherance to the order that we've seen
20 from President Lilic, General Perisic established a system whereby
21 requests would go direct from the Main Staff of the VRS to the General
22 Staff of the VJ. We've had plenty of testimony on that during this trial
23 and there are plenty exhibits showing that process and operation.
24 Mladic or somebody else from the VRS Main Staff would send a
25 request to the General Staff. It would find its way to General Perisic,
1 he would direct that the request be forwarded to the appropriate
2 logistics organ for an opinion as to whether or not the materiel could be
3 supplied. If the materiel could be supplied, then General Perisic or his
4 cabinet would issue an order to that effect and the materiel would be
6 This was a process that bypassed both the RS MOD and the FRY MOD.
7 It was nothing to do with the MOD. This was Perisic carrying out Lilic's
8 order, the order obtained at his request to directly supply, VJ to VRS,
9 the 30th Personnel Centre with weapons and ammunition, to regulate the
10 requests and to provide an opinion based on the ability of the VJ to meet
11 those requests, and to provide that assistance to the extent that the VJ
12 could meet those requests.
13 The next misapprehension I'd like to discuss, Your Honours, is a
14 submission by the Defence that it was the Serbian MUP who controlled
15 official border crossings. And that submission is made at paragraph 681
16 of the Defence final trial brief. First of all, the Prosecution accepts
17 that official border crossings were under the control of the police, the
18 Serbian MUP. However, official border crossings were only part of the
19 picture and the reality was that unofficial border crossings played as
20 much a role, if not more, in the provision of assistance than anything
22 First of all, it was General Vuksic, the VJ General Staff
23 assistant chief of relations with foreign armies who explained the
24 difference between MUP control of border crossings and VJ control of the
25 border. And if we could move to his testimony. He was asked by my
1 learned friends for the Defence: " Why was the VJ not in a position to
2 control in full the so-called border?"
3 And his answer was: "If we are talking about borders in the
4 standard meaning of the term, the military never controlled the entire
5 border-line, only the stretches between official border crossings. At
6 the official border crossings, there was the police as well as customs."
7 And this becomes important testimony when one considers,
8 Your Honours, that the official border crossings were bypassed and they
9 were bypassed deliberately, which means that supplies were going through
10 the parts of the border that were controlled by the VJ.
11 Could we go -- I am sorry, Your Honour.
12 JUDGE MOLOTO: I'm not quite sure I understand what you are
13 saying, read with what has been said here and I just want you to clarify
14 this. If we are talking about borders in the standard meaning of the
15 term, the military never controlled the entire border-line, "only the
16 stretches between official border crossings." What does that last phrase
18 MR. THOMAS: The VJ controlled the entire border-line, was
19 responsible for controlling the entire border-line, Your Honour, with the
20 exception of official crossing points.
21 JUDGE MOLOTO: Okay.
22 MR. THOMAS: So the official crossing points would have police
23 and customs but the rest of the border was the responsibility of the VJ.
24 And as I've said, Your Honour, this becomes important when one considers
25 that effectively unofficial crossings were used. And if we could move
1 very briefly, Your Honours, into closed session.
2 JUDGE MOLOTO: May the Chamber please move into private session.
3 [Private session]
20 [Open session]
21 THE REGISTRAR: We are we are back in open session, Your Honours.
22 JUDGE MOLOTO: Thank you so much. Yes, Mr. Thomas.
23 MR. THOMAS: Thank you, Your Honour. Further support for that
24 proposition comes from General Djukic, Your Honour, who was the VRS
25 deputy chief for logistics and I'm reading now from his 92 quater
2 "I know that the transfer of the weapon and ammunition was
3 carried out secretly," in the areas stated, "by civilian trucks avoiding
4 border crossings where there were UNPROFOR observers." So while it might
5 be true, Your Honours, that the Serbian MUP and customs and UNPROFOR
6 observers were present at official border crossings, there are, as you
7 can see, self-evident reasons why unofficial crossings were used to
8 transport this material.
9 The next matter that I'd like to briefly address, Your Honour, is
10 again similarly related to this concept of VJ versus MOD. At paragraph
11 718 of the Defence final trial brief, the Defence accept that there is
12 evidence showing that certain entities provided materiel to the VRS and
13 they list three. They list Kragujevac, they list the depot at Mrsac and
14 they list Krusik factory and Valjevo. They assert in their paragraph
15 that these three entities, however, were not VJ entities or subordinated
16 to the VJ. However, in this respect they are wrong, both Kragujevac and
17 Mrsac were, in fact, VJ entities and a concession more appropriately that
18 these two as VJ entities sent weapons and ammunition to the VRS and that
19 Krusik as an MOD entity sent materiel. The authority for that
20 proposition first of all, comes from General Kodzopeljic who was in
21 charge of Kragujevac. He was the VJ General Staff chief of technical
22 administration. And he was asked specifically about the status or the
23 subordination of the Kragujevac Technical Institute. If we could move to
24 that testimony, please.
25 Starting about halfway down that quote, Your Honours:
1 "What I'd like you to do if you could, is I'd like you to explain
2 to us the technical institutes and how the Military Technical Institutes
3 and specifically the Military Technical Institutes with regard to repair,
4 fit into your duties, if you could."
5 And his answer:
6 "I can only speak of the technical and maintenance institutes
7 that were under me." In other words as chief of the technical
8 administration of the VJ General Staff. "It was the institute in
9 Kragujevac and Cacak."
10 MP-14 testified about the subordination of the Mrsac military
11 depot to Kragujevac, thereby establishing its status at a VJ military
12 unit. In discussing a particular materiel list, Your Honour --
13 JUDGE MOLOTO: Earlier you asked to go into private session where
14 you discussed this witness, are you happy to do so now in open session.
15 MR. THOMAS: Yes, this was testimony given in open session,
16 Your Honour.
17 JUDGE MOLOTO: Thank you.
18 MR. THOMAS: In discussing a particular materiel list, MP-14
19 stated that "Kragujevac is the sender and the place, Mrsac, that's
20 probably a depot somewhere in Serbia. I wouldn't know where it was. And
21 it belonged to the main military post in Kragujevac. Just as the
22 27th base was my main military post and Kragujevac was subordinate to it,
23 so the main command would be at Kragujevac and the depot would be in
25 Placing both of those, Your Honour, under the authority of the VJ
1 General Staff chief of technical administration, General Kodzopeljic.
2 Further support for the status of Mrsac comes from a document,
3 several, but this is one of several which will suit our purposes. This
4 is an order issued by the 1st Army of the VJ, in July 1994. "Further to
5 a decision," so this is, first of all, Your Honours, it's important to
6 note that this is a VJ order. "Further to decision confidential number
7 85-35, dated 21 April 1994, issued by the Chief of the General Staff of
8 the VJ, issued to the 30th Personnel Centre, the following types and
9 quantities of ammunition from herein below listed military posts."
10 And amongst those listed we have military post 5292, Mrsac, 7.9
11 millimetre bullet, 1 million rounds; 7.62 millimetre bullet, 750.000
13 So from those pieces of evidence, Your Honour, you have
14 established, as well as from others, that the Defence concession that
15 these entities provided materiel to the VRS is a concession that these VJ
16 installations provided the materiel.
17 The final matter I'd like to very briefly address, Your Honours,
18 is one that was the subject of much discussion by my learned friends in
19 the Defence final trial brief and that is General Mladic's report to the
20 50th Bosnian Serb Assembly session on the 15th of April, 1995. And this
21 is discussed from paragraph 732 onwards in the Defence final trial brief.
22 At this Bosnian Serb Assembly session, General Mladic was invited
23 to address the delegates on the state of the war, the state of the VRS,
24 its activities, its combat readiness and its needs. And during the
25 course of that address, he described materiel that had been used, that
1 had been consumed by the VRS from the very beginning of the war through
2 until December 1994, and the various sources of that materiel. For
3 example, he stated that the VJ had provided 47.2 per cent of infantry
4 ammunition consumed by the VRS in that period, and he gave other
5 percentages of other items.
6 However, Your Honours, it's important to not look at this
7 document in isolation. This is a theme that has been picked up by others
8 who have gone before me. First of all, well, not least of all, the
9 time-period referred to by General Mladic was from the beginning of the
10 war in Bosnia through to December 1994, in other words, it includes a
11 large period that preceded General Perisic as Chief of the General Staff
12 of the VJ, and significantly in that period, as we've seen from documents
13 referred to by Mr. Harmon, it was during this early period that the VRS
14 had the benefit of being able to rely very heavily on reserves left
15 behind by the retreating JNA. The point is, the document is useful only
16 when it is placed up against the entire body of evidence that
17 Your Honours have in relation to logistics.
18 As I've said, that discussion appears more fully in our final
19 trial brief. I can do no more at this point, Your Honours, than to
20 simply state that we rely on the entire body of evidence and for the
21 conclusions that Your Honours feel that you can draw from that entire
22 body of evidence, but our position is that from the testimony and from
23 the exhibits, it was clearly articulated FRY policy to assist the RS and
24 the RSK. It was FRY policy for the VJ to directly supply the VRS and the
25 SVK with weapons, ammunition, and other logistics assistance. Perisic
1 was authorised to make sure that happened. He set in place procedures
2 necessary to make that happen. He continued to involve himself in those
3 procedures throughout his tenure. Throughout this time, the VJ did
4 supply materiel to the VRS on repeated occasions and that throughout the
5 indictment period, when the VRS had no more JNA reserves left, this
6 assistance was crucial and substantial.
7 Your Honours, those are my submissions. Unless you have any
8 questions, I will leave it at that point.
9 JUDGE MOLOTO: Thank you very much, Mr. Thomas.
10 Yes, Mr. Harmon, who is next?
11 MS. CARTER: Your Honour, the next submissions will be made by
12 me. I see that we only have five minutes left for today's session, I'm
13 happy to begin. However, clearly with as fast as I talk I still can't
14 get my entire submission done in the five minutes.
15 JUDGE MOLOTO: Thank you very much, Madam Carter. I understand
16 that to be saying we should take an early break.
17 MS. CARTER: I'm at the leave of the discretion of Your Honours.
18 I'm happy to begin or happy to begin in the morning, whichever you
20 JUDGE MOLOTO: We'll take a break then and come back tomorrow.
21 Court adjourned to tomorrow morning, 9.00. Same court.
22 --- Whereupon the hearing adjourned at 1.41 p.m.
23 to be reconvened on Tuesday, the 29th day of March,
24 2011, at 9.00 a.m.