1 Tuesday, 29 March, 2011
2 [Prosecution Closing Statement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.00 a.m.
6 JUDGE MOLOTO: Good morning to everybody in and around the
7 courtroom. May we have the appearances for the day, starting with the
9 MR. HARMON: Good morning, Your Honours, good morning, counsel,
10 good morning everyone in and around the courtroom. Mark Harmon,
11 April Carter, Bronagh McKenna, Barney Thomas, Rafael La Cruz and
12 Carmela Javier for the Prosecution.
13 JUDGE MOLOTO: Thank you so much. And for the Defence.
14 MR. LUKIC: [Interpretation] Morning, Your Honours. Good morning
15 to all the participants in the proceedings. General Perisic is
16 represented as in yesterday, Novak Lukic, Gregor Guy-Smith, Chad Mair,
17 Tina Drolec, Deirdre Montgomery and Boris Zorko.
18 JUDGE MOLOTO: Thank you very much, Mr. Lukic.
19 Madam Carter.
20 MS. CARTER: May it please the court. I will address the third
21 prong of Perisic's 7(1) responsibility, specifically the provision of men
22 from the VJ Special Unit Corps to participate in the Pancir operation to
23 take Mount Zuc. The Defence has argued in paragraph 814 of its final
24 trial brief that no unlawful acts have been alleged in conjunction with
25 the Pancir operation to take Mount Zuc, and more specifically, that
1 there's no nexus between the Mount Zuc operation and the scheduled
2 incidents. It's the Prosecution submission that the Defence
3 fundamentally misunderstands the crimes of which Mr. Perisic is charged.
4 The indictment lays out in paragraphs 40 through 46 that the underlying
5 crime base is a protracted campaign of shelling and sniping upon Sarajevo
6 resulting in the killing and wounding of thousands of citizens. One must
7 look at the scheduled incidents as representative of this campaign. I'd
8 like to first turn to the campaign itself.
9 The campaign against Sarajevo began in May of 1992. By 30th of
10 1992, Slobodan Milosevic had already declared the bombardment of Sarajevo
11 to be bloody and criminal, for which there was no justification.
12 30th Personnel Centre members Ratko Mladic, Stanislav Galic,
13 Dragomir Milosevic and, for a brief period, Cedo Sladoje, orchestrated
14 and executed this campaign. Martin Bell described the siege. He
15 indicated: "It was a little bit as if the Great War was being refought
16 in a modern urban environment. No one was spared from VRS sniper
17 artillery. This was Russian roulette on a grand scale."
18 In his final trial brief even Perisic himself does not dispute
19 that civilians were targeted in Sarajevo. This can be found in the
20 Defence final trial brief at paragraph 554. The first scheduled victims
21 were a mother and their child who were struck by a VRS sniper bullet
22 while walking down the street on September 3rd, 1993. This is scheduled
23 incident B-1. Following Perisic's promotion to the Chief of General
24 Staff in August of 1993, fire intensified over the winter. If we can now
25 briefly move into private session.
1 JUDGE MOLOTO: May the Chamber please move into private session.
2 THE INTERPRETER: Could we ask the speaker to slow down or
3 provide the text to the interpreters, thank you.
4 JUDGE MOLOTO: You heard that, ma'am.
5 MS. CARTER: Yes, Your Honour.
6 [Private session]
14 [Open session]
15 THE INTERPRETER: Could the speaker please be asked to slow down.
16 Thank you.
17 JUDGE MOLOTO: Please slow down, Madam Carter.
18 MS. CARTER: I'm doing my best, Your Honour.
19 THE REGISTRAR: We are in open session, Your Honours.
20 JUDGE MOLOTO: Thank you very much, Mr. Registrar.
21 MS. CARTER: During the winter of 1993, two sniping and three
22 shelling indents occurred during these months. The first, a man working
23 to clear rubbish was shot on 2 November, 1993, and that's scheduled
24 incident B-2. A woman was shot while riding her bicycle on 6 January,
25 1994, scheduled incident B-3. Six children were playing when a VRS shell
1 fell upon them, killing all six and injuring three more. Eight more
2 people were killed and 18 were injured when shells fell on a Dobrinja
3 residential area on 4 February, 1994. Finally the Markale market was
4 struck on 5 February, killing 60 and injuring over 140 more; scheduled
5 incident A-3.
6 As will be described further, the Pancir operation to take
7 Mount Zuc in which Perisic deployed VJ Special Unit Corps members also
8 took place between December 1993 and February 1994. However, even during
9 non-peak periods, civilians were not safe. Scheduled incidents B-4, B-5
10 and B-6 took place in the summer of 1994 where three adults and a child
11 were sniped in a tram on 19 June, 1994. Two teenage girls were shot
12 while walking down the street on 26 June, 1994. And a 13-year-old boy
13 window shopping was struck by a sniper's bullet on 26 June, 1994.
14 If we can please move into private session.
15 JUDGE MOLOTO: May the Chamber please move into private session.
16 [Private session]
1 [Open session]
2 MS. CARTER: The Bascarsija market --
3 JUDGE MOLOTO: Wait a minute, ma'am.
4 MS. CARTER: I'm sorry.
5 THE REGISTRAR: We are back in open session, Your Honours.
6 JUDGE MOLOTO: Thank you so much. Yes, now you may proceed,
7 Madam Carter.
8 MS. CARTER: Thank you, Your Honours. The Bascarsija market was
9 shelled during this peak, killing two and injuring seven on 22 December,
10 1994. Afeza Karacic and Sabina Sabanic were sniped on a tram on 23rd
11 November, 1994. The Court may remember in Mr. Harmon's opening remarks
12 that Ms. Karacic still bears the wounds that she suffered on that fateful
14 A woman was shot gathering firewood in her own backyard on
15 1 December, 1994 and three more people were sniped on a tram on
16 27 February, 1995.
17 If we can move into private session.
18 JUDGE MOLOTO: May the Chamber please move into private session.
19 [Private session]
2 [Open session]
3 THE REGISTRAR: We are back in open session, Your Honours. Thank
5 JUDGE MOLOTO: Thank you very much, Mr. Registrar. Yes, Madam
7 MS. CARTER: Two more people were sniped on a tram on 3 March of
8 1995. This spring also saw the introduction of air-bombs against
9 Sarajevo, although even the Defence expert Djokic acknowledged it to be
10 totally inappropriate and wrong to use air-bombs in an urban environment.
11 Nonetheless, two air-bombs were launched on 24 May, 1995 alone, killing
12 two and injuring seven in scheduled incidents A-5 and A-6. In response
13 to this firing and aggression, the UN Rapid Response Forces were deployed
14 in June of 1995. This month was particularly dangerous due to VRS firing
15 150 artillery and mortar rounds per day as described by witness
16 Per Anton Brennskag.
17 This included the firing on the water distribution centre,
18 killing seven and injuring 12 on 1 July, 1995. The summer culminated
19 with the killing of 35 persons and the injury of 78 more at the Markale
20 market on 28 August, 1995. The VRS continued this campaign against
21 Sarajevo until 21 November, 1995. The scheduled incidents give detail to
22 405 of the thousands of victims subject to this siege. Perisic served as
23 VJ Chief of General Staff for 26 months of this siege.
24 Turning now to the Mount Zuc operation that occurred in the
25 context of the siege. The Mount Zuc operation and Perisic's assistance
1 to it detailed at paragraphs 483 to 502 in the Prosecution's final trial
2 brief. Perisic met with Slobodan Milosevic, Ratko Mladic,
3 Radovan Karadzic, and Momcilo Krajisnik and others on 13 December of
4 1993. At that meeting, Karadzic identified the strategic objectives of
5 the Bosnian Serbs, one of which was to partition Sarajevo. Karadzic
6 emphasised that Sarajevo is a priority and a key to the war. He went on
7 to say that, "In Sarajevo we have to capture some elevation points that
8 will ensure our drive." Finally, he indicated that Zuc is especially
10 On 14 December, 1993, Perisic and Mladic met twice. In the first
11 meeting, Perisic committed weapons. In the second meeting, he committed
12 to providing about 100 professionals by 20 December, 1993, all to the
13 disposal of the SRK and equipped for combat. On 14 December, 1993,
14 Mladic also issued a supplement to his Directive 6, which stated that in
15 addition to SRK, VJ Special Forces up to 120 men would carry on an attack
16 along the Vogosca, Zuc and Popovici axes. The VJ Special Forces were men
17 from the 72nd Special Brigade, the Guards Brigade, the 63rd Parachute
18 Brigade and the Armoured Brigade. Each of these brigades formed parts of
19 the VJ Special Unit Corps that were directly subordinated to Mr. Perisic.
20 Readiness for the attack was to take place on 19 December.
21 However, prior to that on the 15th, Perisic directly met with members of
22 the 72nd Special Brigade and ordered them to deploy and to take part in
23 the VRS offensive operation against Zuc. When the men from the
24 72nd Brigade arrived, 30th Personnel Centre member Galic briefed them on
25 the upcoming actions. He told them if Zuc was taken, all of Sarajevo
1 would be under SRK control.
2 A similar sentiment was given by Perisic when he spoke with the
3 men of the 72nd, where he indicated that Zuc was a strategic location and
4 needed to be controlled by Bosnian Serb forces.
5 If we can now move into private session.
6 JUDGE MOLOTO: May the Chamber please move into private session.
7 [Private session]
25 [Open session]
1 JUDGE MOLOTO: That's part of slowing down, ma'am.
2 THE REGISTRAR: We are back in open session, Your Honours.
3 MS. CARTER: In excess of the numbers described in the supplement
4 to Directive 6, by 31 December 1993 approximately 200 members of the
5 guards Brigade alone had deployed to the front line. While there, the
6 Guards Brigade engaged in offensive and defensive combat operations and
7 trained snipers. On 7 January, 1994, the UN Security Council president
8 condemned the actions in Sarajevo, particularly condemning the continuing
9 military pressure and relentless bombardment by the Bosnian Serb forces.
10 This can be found at Exhibit P2475.
11 As described in the annexes to the Commission of Experts' report,
12 admitted as P1535 at page 36, from 4 to 7 January alone, Sarajevo was
13 struck by 3.915 shells. As an aside, the Defence claims in paragraph 520
14 of its final trial brief, that the Prosecution has not stated the purpose
15 for the commission of experts' report. The Trial Chamber admitted both
16 P112 -- 1112, the Commission of Experts' report as it was published in
17 instalments in the newspaper Borba, and P1535, the annexes to the report
18 without restriction in its decision of 21 December, 2009 relating to MFI
19 documents. P1536, the report in its official form was limited to notice
20 at transcript page 7382, lines 2 through 6.
21 Moving back to the facts of the Zuc campaign. The day after the
22 condemnation by the UN Security Council president, Perisic arrived in
23 Vogosca and met with VJ and VRS commanders, as well as RS politicians.
24 30th Personnel Centre members Mladic and Galic were present along with
25 the head of the VJ Special Unit Corps. These corps, the men part of the
1 corps would not pull out until 27 to 30 January, 1994. As seen by
2 placing the Mount Zuc campaign into context, these actions by
3 General Perisic did assist in the continued bombardment of Sarajevo for
4 which he is charged.
5 I will wait for questions from the Chamber or I'll turn it over
6 to Mr. Harmon.
7 JUDGE MOLOTO: Thank you, Madam Carter.
8 Yes, Mr. Harmon.
9 MR. HARMON: Good morning again, Your Honours.
10 JUDGE MOLOTO: Morning, Mr. Harmon.
11 MR. HARMON: I just need to change the volume on this.
12 Yesterday evening and yesterday, I reflected on the proceedings,
13 I read the transcripts of the proceedings yesterday. And before I make
14 my submissions on 7(3), there are two points from the transcript that I
15 need to address and would like to address. The first deals with an
16 answer that I gave Your Honour, Judge Moloto, which is found at 14661,
17 where the question and where my answer was:
18 "The position we assert here is identical to the situation in
19 your hypothetical situation."
20 A few lines later, I said, "I'm saying that the situation is
21 identical in terms of the framework of our case."
22 Now, the facts of the hypothetical were not identical and are not
23 identical. What is is the applicable legal principles are the same in
24 this case, and aiding and abetting does not differentiate, Your Honours,
25 whether the substantial assistance to crimes is provided to armed forces
1 or whether they are national or international. So my statement in
2 respect of being identical dealt with the legal framework with which to
3 apply the law as to any given factual situation.
4 Now, Your Honours, the other point --
5 JUDGE MOLOTO: Before you move to the next point then.
6 MR. HARMON: Yes.
7 JUDGE MOLOTO: Let me just remind you that, one, that was not a
8 hypothetical case; it's a practical case. Secondly, that, in fact, it
9 was given as an analogy. The underlying question that I put to you has
10 not been answered and I don't know whether you to intend to answer it.
11 My question to you was, what is your authority for the proposition that a
12 commander is guilty of aiding and abetting the crimes of his subordinate,
13 merely for the fact that he gave them arms and ammunition, paid their
14 salaries, send them to war and while they were at war, committed crimes.
15 MR. HARMON: Your Honour.
16 JUDGE MOLOTO: You can also I'm asking for authority from the
17 Tribunal's jurisprudence and case law.
18 MR. HARMON: Well, Your Honour, I don't have case law at my
19 fingertips. What I do have is the law that says that aiding and
20 abetting -- first of all, there is no case like this case in the
21 Tribunal, okay. This case is unique on its facts and this case will make
22 case law. So I can't give you authority, Your Honours, to your question,
23 Your Honour. There is authority --
24 JUDGE MOLOTO: Thank you, that was the question I asked.
25 MR. HARMON: Fine. Thank you very much, Your Honour.
1 Now, the second point that we started out yesterday's
2 proceedings, Your Honour, with a question that you posed on cumulative
3 charging, 7(1) and 7(3), the question was not answered, I know, to your
4 satisfaction. So I have asked Ms. McKenna to make a submission on this
5 point, then I'll -- after she makes that submission, I will then proceed,
6 Your Honours, with 7(3) submissions.
7 JUDGE MOLOTO: Thank you. Madam McKenna.
8 MS. McKENNA: Thank you, Your Honour. As Mr. Harmon said, I'm
9 going to make just a very brief submission on the issue of cumulative
10 charging to provide a little more detail on the Prosecution's position on
11 this issue.
12 In the Prosecution's submission, liability under Article 7(1) and
13 Article 7(3) are not mutually exclusive. The Blaskic appeals judgement
14 at paragraph 91 provides that the provisions of Article 7(1) and Article
15 7(3) connote distinct categories of criminal responsibility, and so,
16 where both categories or where both modes are charged in the same case,
17 each mode of liability reflects a different aspect of an accused's
18 alleged criminality. So with specific reference to this case,
19 Your Honour, aiding and abetting is a form of accessory liability, and it
20 requires a principal perpetrator who carries out the crime. The OTP's
21 submits that Perisic is liable for aiding and abetting the principal
22 perpetrators of the crime, but that Perisic himself is not the principal
23 perpetrator. Rather his liability rests on his aid or his provision of
24 positive acts of assistance to the crime.
25 And under Article 7(3), Perisic is charged with liability for his
1 failure to prevent or punish the acts of his subordinates and this legal
2 characterisation would be best if the Trial Chamber feels that Perisic's
3 criminal conduct is better categorised as a failure to act in respect of
4 his subordinates, when he was under a duty to do so.
5 So on the facts of the present case, the Prosecution submits that
6 the Perisic's is liable under both Article 7(1) and Article 7(3),
7 however, as you recognised yesterday, the case law of the Tribunal
8 accepts that it's illogical to find an accused liable for both -- for
9 failing to prevent and punish the very acts that he aided and abetted,
10 and therefore the Trial Chambers usually decide where they find that the
11 that both convictions could be entered, they enter the one that is more
12 direct, that is, Article 7(1). Yes, Your Honour.
13 JUDGE MOLOTO: I just note that you probably moved slightly away
14 from the question I put. You are talking about cumulative charges in the
15 same case. I asked cumulative charges that are mutually exclusive for
16 the same conduct. But you may sit down. I just want you to remember
17 that that was my question.
18 MS. McKENNA: Thank you, Your Honour.
19 JUDGE MOLOTO: You are welcome.
20 Yes, Mr. Harmon.
21 MR. HARMON: The first point I would like to address,
22 Your Honour, is the issue of whether the regulations on the applicability
23 of international laws of war on the armed forces was applicable to
24 General Perisic. You will recall that the regulations were discussed by
25 Mr. Starcevic. There's a discussion on the regulations in our
1 pre-trial -- our final brief at paragraph 717 to 720. The exhibit is
3 Now, a violation of those regulations could constitute a
4 violation of military discipline of which Perisic was required to
5 enforce. The Defence position on the applicability of the regulations is
6 found in the Defence brief, paragraphs 975 to 979, the Defence asserts
7 that the regulations did not impose a obligation on General Perisic
8 because, one, Mr. Starcevic testified that those provisions applied only
9 in cases of armed conflicts of an international nature. And, two, during
10 the period of the indictment, there was no international armed conflict.
11 Our position is those regulations did apply to General Perisic
12 and they did impose obligations on him. We say that because
13 Mr. Starcevic, shortly after he explained to Your Honours that the
14 provisions applied only in a conflict of an international nature, went on
15 to say that because the offences were so grievous and so terrible, the
16 parties in the SFRY in the conflict signed a special memorandum
17 committing themselves to apply all the rules that would otherwise be
18 applicable only in an international armed conflict.
19 You can find Mr. Starcevic's testimony at page 6976 through 6977.
20 Now, on the basis of those regulations, the VJ General Staff
21 issued two orders requiring adherence to the provisions of International
22 Humanitarian Law. Now, there was a transition between the SFRY and the
23 FRY. The P198, which is a newspaper report relating to the declaration
24 of the new Federal Republic of Yugoslavia constitution, on that date the
25 FRY issued a declaration in which they said, and I quote:
1 "The FRY shall adhere strictly to all obligations which the FRY
2 undertook in the past on the international stage."
3 Moreover, Your Honour, P1183, the Federal Republic of Yugoslavia
4 Law on Defence, Article 19, states: "Members of the Armed Forces of
5 Yugoslavia taking part in armed combat shall, under all circumstances,
6 adhere to the rules of international laws of war and other rules ..."
7 And it carries on.
8 So our submission is, Your Honour, that the regulations on the
9 applicability of the international laws of war in armed conflict
10 situations did in fact impose an obligation on General Perisic. Those
11 obligations continued after the SFRY became the FRY.
12 Now I'd like to turn to 7(3), Your Honours. In respect of 7(3),
13 there are three elements to the offence. The first is, there must be is
14 superior-subordinate relationship established. The second, the superior
15 knew or had reason to know that his subordinate was about to commit or
16 had committed the underlying crime. And three, the superior failed to
17 take reasonable and necessary measures to prevent the subordinate from
18 committing the crime or punish the subordinate for having done so. I'm
19 not going to address the second and third elements. We have addressed
20 the knowledge element of 7(3) extensively in our brief, and that's found
21 at paragraphs 563 to 683.
22 The Defence concedes that Mr. -- General Perisic failed to punish
23 his subordinates. You can find that in the Defence pre-trial brief
24 paragraph 135, subpart (v), and they take the position that he did not
25 have effective control and therefore he could not have prevented his
1 subordinates from having committed crimes.
2 What I want to take focus on is that the issue of
3 superior-subordinate relationship, and the existence of a
4 superior-subordinate relationship. Now, the test of a whether a
5 superior-subordinate relationship exists is whether there is effective
6 control, which means whether there is a material ability of the superior
7 to prevent or punish the subordinate from having perpetrated offences.
8 It's a fact-based determination. It is not -- it is a fact-based
9 determination. Your Honours have to take a look at the evidence in this
10 particular case, and the parties have defined for the court in their
11 briefs, what are the indicators of effective control. You can find in
12 our brief at paragraph 697, and in the Defence brief, paragraph 75. But
13 those indicators that we cite are not the only indicators. There are a
14 range of possibilities, and they include: The position held by the
15 superior, the capacity to issue orders, the nature of the orders which
16 the superior had capacity to issue, whether his orders were actually
17 followed, the power to take disciplinary action, the authority to promote
18 officers, and the authority to remove officers.
19 Our position is, Your Honour, that personnel centre members
20 serving in the -- VJ personnel serving in the personnel centre members
21 were VJ officers, and as such Perisic had effective control over them.
22 The Defence position, which is found at paragraph 207 of its brief, is
23 that the VJ officers serving in the VRS and the SVK were members of those
24 armies and not of the VJ. So that's where we part company.
25 I'd like to take a look at the evidence, Your Honour, that
1 supports our position. First of all, let me take a look at the evidence
2 that shows there was de jure authority over personnel serving in the
3 personnel centres. First, Perisic was, of course, the highest ranking
4 officer in the VJ. He was superior to all other officers. Two, the
5 personnel centre formations, if we could have -- the personnel centre
6 formations, as you can see on the screen before you, were part of the VJ
7 General Staff. They were under the sector on manning, mobilisation and
8 systematic issues under the personnel administration. So they were part
9 of the VJ General Staff.
10 Three, Mr. Starcevic testified that persons who were assigned to
11 the 30th and 40th Personnel Centre were VJ members according to the law.
12 You can find that testimony at page 5489, lines 12 to 15. And as a
13 matter of law, Perisic had authority over VJ personnel.
14 Now, in addition, Your Honour, there were -- there was
15 considerable litigation in the FRY relating to the status of persons
16 serving in the personnel centres. The first litigation I'd like to refer
17 to -- by the way, you can find that discussion in our brief at paragraphs
18 789 to 792. The first case I'd like to discuss with Your Honours was the
19 case of Colonel Blagojevic. Colonel Blagojevic was somebody this
20 Tribunal is familiar with. He was convicted for his participation in
21 crimes in Srebrenica. But prior to coming to The Hague, he sought
22 compensation for unused annual leave. His request for compensation was
23 denied by the 30th Personnel Centre. And he appealed. He appealed
24 claiming that he took part in armed operations in Bosnia on the basis of
25 orders he received from his superior and that he was a member of the VJ.
1 The Supreme Military Court agreed with Mr. Blagojevic. They stated in
2 the judgement that's in front of Your Honours: "It is not contentious
3 that Blagojevic was outside the VJ during the period for which he is
4 seeking compensation, i.e., as a VJ member, he was part of the former --
5 he was in a part of the former SFRY territory on the orders of a superior
6 officer, and he did not take his annual leave" for the years that are
8 So the court in the Blagojevic case held that he was a
9 professional VJ soldier, VJ law applied to his request for compensation,
10 and they granted his request.
11 The second case involves Dragomir Milosevic, who as you know, was
12 convicted in this Tribunal for crimes committed in Sarajevo.
13 General Milosevic brought a charge, brought a claim, I should say, for
14 compensation for wounds that he received in combat in Sarajevo. The FRY
15 challenged his claim. They asserted that he was performing duties on
16 behalf of the VRS, and as part of its military. The court rejected the
17 FRY's position. The court said, and on the monitor before you: "It was
18 established beyond a reasonable doubt that the plaintiff was a
19 professional soldier of the VJ at the time of his wounding, and was on
20 its payroll at that time."
21 There's another judgement I won't go into in detail, Your Honours
22 can find it, it's Prosecution Exhibit 872. It holds essentially the same
23 thing. It is a claim by Dragomir Milosevic for family separation
25 Now, the judgements of the Supreme Military Court were followed
1 in decisions by the 30th Personnel Centre. So when a claimant
2 subsequently went before a -- the administrative body to make a claim, he
3 was granted compensation.
4 If we could take a look at the claim in the decision, the
5 administrative decision by General Mladic for unused annual leave, that
6 is Prosecution Exhibit 1919. And you will see that in -- on the monitor
7 in front of you, that there's a finding that General Mladic was serving
8 in Military Post 3001, which we know is the military post for the 30th
9 Personnel Centre. And they go on to say that:
10 "In accordance with the position of the Supreme Military Court in
11 Belgrade, that the law was violated, given that it is undisputable that
12 the above-mentioned did not receive the fixed salaries for the duration
13 of the period in question and was serving, that is, working in the
14 Yugoslav Army, the above-mentioned is entitled to a salary pursuant to
15 the cited provisions of the law."
16 So it is our submission, Your Honour, that as a matter of law,
17 persons serving in VJ personnel centres were VJ members, but that doesn't
18 conclude the inquiry that's required of Your Honours in assessing whether
19 or not General Perisic had effective control over members of the
20 personnel centres. It's only some evidence that he had effective
21 control. You have to look, Your Honour, at other factors which we, both
22 parties, have identified as factors indicative of effective control.
23 I would like to go through some of those with you. The first is
24 that the salaries and benefits for persons in the personnel centres were
25 paid by the Federal Republic of Yugoslavia. They were not paid by the
1 Republika Srpska. They were not paid by the Republic of Serbian Krajina.
2 Those entities paid salaries and benefits to their soldiers, not to VJ
4 Another indicator of effective control is whether or not
5 General Perisic had the capacity to promote his subordinates serving in
6 the personnel centres. The Defence argues, in its Defence brief
7 paragraphs 414 et seq, that promotions in the VRS were made final in the
8 VRS, and the only steps taken in the VJ were to verify those promotions
9 to protect the status rights of an officer.
10 Now, we certainly accept part of that proposition. There were
11 promotions within the VRS and the SVK. However, the process of
12 verification as its referred to, was not merely to protect status rights.
13 The process of verification was a determination of whether or not the
14 person who was serving in the VRS or the SVK merited a promotion in the
15 VJ. In other words, promotions were discretionary; they were not
17 Now, there are two types of promotions that occurred in the VJ.
18 There were regular promotions and there were extraordinary or exceptional
19 promotions. It depended -- Perisic's authority depended on the rank of
20 the person to be promoted. In respect of the rank of generals, the
21 president of the FRY had the authority to make a promotion.
22 General Perisic had the authority to make a promotion of his subordinates
23 serving in the personnel centres, up to and including the rank of
25 I'd like to focus on the promotions to the rank of general.
1 Normally the procedure would be that the SDC would be advised by
2 General Perisic whether the person who was seeking -- for whom a
3 promotion was sought merited the promotion. The SDC was not a rubber
4 stamp. They needed guidance and advice from General Perisic. They
5 turned to him to make recommendations on the merits of the officer to be
7 If we can go to the next visual aid which is Prosecution Exhibit
8 709, which is a text from the 14th session of the SDC in October of 1993
9 where General Perisic said in relation to the promotion of VJ officers in
10 the 30th and 40th Personnel Centre:
11 "The standard there is how the men have demonstrated themselves
12 in combat and in the specific work they do."
13 You can find that, as I say, at Prosecution Exhibit 709, page 39.
14 Now, at that same session, Slobodan Milosevic said the following:
15 "If we are going to resolve this matter, I think we should
16 resolve it in conformity with a proposal by General Perisic, instead of
17 being an instrument of transmitting the proposals they have given,
18 whereas we are not familiar with the criteria. I think that
19 General Perisic should ask General Mladic for an opinion about all this
20 and come up with his own views and then present us with proposals to
21 address the issues individually."
22 Now, this required General Perisic to make a qualitative analysis
23 on the persons from the personnel centres for whom promotions of an
24 equivalent rank were sought in the VJ. General Perisic exercised that
25 discretion and that authority. He recommended for some generals and he
1 recommended against the promotions of other generals in the VJ.
2 If we can turn to Prosecution Exhibit 786, which is a text from
3 the session of the 37th session of the SDC on June 7th, 1995. Perisic
4 reported to the SDC that the SVK was seeking promotions of two persons,
5 Celeketic and Loncar, to the ranks lieutenant-general and major-general
6 respectively. General Perisic advised the SDC as follows:
7 "Given that they are guilty for the situation over there, the
8 General Staff has assumed a stance that these should not be verified."
9 And the SDC adopted General Perisic's recommendation.
10 Now, at the same session, he proposed 12 generals and he made
11 recommendations positively for promotions for six and proposed that the
12 SDC reject the remaining six. And you can see that in the text that is
13 before you, that is Prosecution Exhibit 786, page 32. And you can see
14 some familiar characters from this Tribunal. You can see that he
15 positively recommends the promotion to the rank of general to
16 General Gvero, General Miletic, General Tolimir, but he rejects six
17 others including Dragomir Milosevic, "who is a commander of the Sarajevo
18 Corps and who was also an SDS member." So he rejects six, I won't name
19 them all.
20 Those recommendations as well were accepted by the SDC.
21 Now, if we turn to the issue of exceptional promotions, because
22 there was two types of promotions, as I say, there were regular
23 promotions and exceptional promotions. In respect of the exceptional
24 promotions, the same qualification applied. The FRY president could make
25 those exceptional promotions for persons up to the rank of general. The
1 rank of general, I should say, and General Perisic could make exceptional
2 promotions for persons up to the rank of, and including, the rank of
3 colonel. The president could make those recommendations at the
4 proposal -- exceptional promotions at the proposal of General Perisic.
5 Now, you'll find the description of the law in P197. It's Article 46.
6 The exceptional promotion, what did it mean? It meant that there was
7 going to be special recognition for exceptional contributions of officers
8 in the line of their duty. I refer Your Honours to the transcript 5498.
9 Now, Perisic, General Perisic did exercise his authority to
10 exceptionally promote members of the VRS and the SVK and he did so
11 frequently. We will take a look first at P1731, if we can. Now this,
12 Your Honours, 1731 is a -- from the personnel file of Vinko Pandurevic,
13 who we are familiar with in this institution.
14 Vinko Pandurevic was promoted three times, exceptionally, by
15 General Perisic. The first two entries you can see were before
16 Srebrenica. The third exceptional promotion to infantry colonel was on
17 the 31st of December, 1995. This was months after General Perisic had
18 been informed by Slobodan Milosevic that thousands of people had been
19 killed in Srebrenica. And after he had ample opportunity to inquire as
20 to the events in Srebrenica.
21 If we could turn to Prosecution Exhibit 1897 which is another
22 example. This is a file from -- personnel file of Dragan Obrenovic, who
23 we are familiar with in this institution, who has been convicted of
24 crimes committed in Srebrenica. Both he and Vinko Pandurevic were
25 members of the Drina Corps, the corps that was responsible for the
1 atrocities in Srebrenica. We can see in Mr. Obrenovic's personnel file,
2 three exceptional promotions given by General Perisic, the third after
3 the events in Srebrenica.
4 Now, as I say, he also made exceptional promotions for people in
5 the SVK. So if we could turn to Prosecution Exhibit 2866. This is an
6 individual by the name of Veljko Bosanac. He was a member of the
7 40th Personnel Centre and we can see that this is an order that was
8 issued by General Perisic to exceptionally promote Mr. Bosanac. So he
9 turned to a different promotion and a different -- of a different
10 individual which is also an indicator of effective control, and that is
11 the promotion -- the extraordinary promotion or exceptional promotion of
12 General Mladic, which occurred in the VJ. If we could have that on the
13 screen, please. This is the exceptional promotion of General Mladic that
14 occurred on the 16th of June, 1994. It was pursuant to an order of
15 President Lilic and you can see in the text, you'll see underneath the
16 exceptional promotion, if you go down a little bit lower, directly
17 underneath that, Your Honour, you'll see it says, "Ratko Mladic, son of
18 Nedzo, Commander of the Main Staff of the 30th Personnel Centre."
19 You can see that this exceptional promotion -- as I say
20 exceptional promotions were made on the recommendation of General Perisic
21 pursuant to Article 46. This exceptional promotion, Your Honour, came
22 into effect on the 16th of June, 1994. It came into effect two weeks
23 before General Mladic received an equivalent promotion in the SVK. So if
24 we could turn to Prosecution Exhibit 1903.
25 JUDGE MOLOTO: Sorry, I'm not sure I'm with you. You say it came
1 into effect two weeks before General Mladic received an equivalent
2 promotion in the SVK.
3 MR. HARMON: That's right, Your Honour.
4 JUDGE MOLOTO: In the SVK.
5 MR. HARMON: I didn't mean the SVK, I misspoke. Thank you. The
6 VRS. Okay.
7 So two weeks before General Mladic received the promotion to the
8 rank of colonel-general in the VRS, he had been promoted in the VJ. That
9 promotion, Your Honour, of General Mladic had nothing to do with the
10 process of verification. It had nothing to do with the protection of
11 status rights. It was a straight promotion in the VJ.
12 In our -- I think we can conclude, or it's our submission,
13 Your Honour, in respect of promotions that General Perisic was in fact a
14 critical figure in the promotion process of members of the VJ. He
15 advised on promotions, he made promotions, and it's clear that those
16 promotions were not promotions that were rubber stamped.
17 Now, let me turn to a different element, another indicator of
18 effective control. That's the issue of whether Perisic had the authority
19 to issue orders and issue commands. We had a discussion, a very
20 illuminating discussion, I should add, by Mr. Starcevic who told us the
21 distinction between orders and commands in the VJ. He described what I
22 will say is an order, or a "naredba", which he described as an order
23 defining the duties, rights and responsibilities of individuals. He gave
24 an example of transfer orders as a naredba. He described a command,
25 "naredjenje," as an operational command and, as such, a part of the chain
1 of command. You can find his testimony, Your Honour, at 5462 to 5463.
2 Now, I'd like to focus first of all on transfer orders, naredba.
3 General Perisic could issue transfer orders personally. Otherwise they
4 were issued by the personnel administration, the branch to which he had
5 delegated that authority. What we have seen from the evidence is that
6 General Perisic and the personnel administration transferred people to
7 and from the VJ to the 30th Personnel Centre, to the 40th Personnel
8 Centre, sometimes between the 30th and the 40th Personnel Centre,
9 sometimes to the Ministry of Defence. People in the VJ were fungible.
10 They could be -- they were required to follow orders, they were
11 transferred wherever the needs of service required. In fact, when you
12 look at some of these personnel files, the career trajectory looks like a
13 pinball bouncing back and forth between the different units within the
14 personnel centres.
15 Now, these orders to transfer back and forth were obeyed. That's
16 another indicator of effective control. They were obeyed both by SVK
17 personnel and -- I am sorry, by 30th Personnel Centre members and
18 40th Personnel Centre members. Now, we know that some of those orders
19 were not obeyed. We also know, Your Honours, that that was a
20 disciplinary offence. Insubordination. But we also know that it was not
21 in the public interest of the FRY to proceed against people who had been
22 insubordinate for refusing to transfer from the VJ to a different
24 So what did the VJ do? The VJ found other ways to get rid of
25 people who were insubordinate. I believe, I don't have it in the top of
1 my head, I believe it's in the 14th session of the SDC where
2 General Perisic says, if people won't go, we'll find another way to get
3 rid of them. But let me show you, Your Honours, some of the orders that
4 were transfer orders that were issued personally by General Perisic.
5 If we could go to Prosecution Exhibit 1524, please. Now, this,
6 Your Honour, is an order issued by General Perisic. It was issued on the
7 5th of October, 1994 for an individual by the name of Bogdan Sladojevic.
8 Mr. Sladojevic was being transferred on General Perisic's order from the
9 40th Personnel Centre to the 1st Army of the VJ. If we could go to
10 Prosecution Exhibit 1893.
11 Your Honour, I don't have a visual on 1893, but let me direct
12 your attention to 1893. This is a personnel file and in the personnel
13 file you'll see that General Perisic transfers General Krstic, who we
14 know from this Tribunal, from the 30th Personnel Centre to the VJ school.
15 If we go to 16 -- Prosecution Exhibit 1690, this is a personnel
16 file for an individual named Smiljanic. Mr. Smiljanic, as you'll see at
17 the bottom of the personnel file for Mr. Smiljanic, he was deployed in
18 accordance with the needs of the service to the Federal Ministry of
19 Defence, this is on General Perisic's order.
20 Finally, if we go to Prosecution Exhibit 1522, we'll see the
21 personnel file once again of Bogdan Sladojevic. And in this situation,
22 you'll see that Mr. Sladojevic, who had been at the VJ school in Belgrade
23 was ordered by General Perisic to go to the 30th Personnel Centre.
24 Now, there's more -- naredba didn't only apply to transfer
25 orders. If we could have Prosecution Exhibit 1777, that is doc ID
1 601-0672. This, Your Honour, is a 16 September 1995, it is a command
2 issued by General Mrksic.
3 JUDGE MOLOTO: A naredjenje.
4 MR. HARMON: No. I'm going to get there, Your Honour. This is a
5 command issued by General Mrksic, a naredjenje based on a naredba that he
6 received from General Perisic. And you'll see that, Your Honour, in the
7 top highlighted portion with the objective of carrying out the order of
8 the chief of the VJ General Staff of the Yugoslav Army, and if you go to
9 the parallel text in B/C/S, you'll see that's a naredba. And in that
10 order that is issued to General Mrksic who was the commander of the SVK,
11 he asked certain things be done, that General Novakovic do certain
12 things. And then he says in subpart (3): "Give a briefing on the
13 dismantling upon reporting to the General Staff of the VJ in Belgrade."
14 This is an order -- this is the naredba that was ordered by
15 General Perisic to General Mrksic is being complied with in the command
16 that he issues.
17 JUDGE MOLOTO: Are you saying that what Mr. Mrksic is giving here
18 is a naredjenje, and not a naredba.
19 MR. HARMON: I am saying that, Your Honour. That's correct, he
20 receives an order from General Perisic, issues a command to enforce
21 General Perisic's order. So you can see, as you'll see on the left in
22 upper case letters it says "order". To the right, it says naredjenje.
23 That's the command that General Mrksic is giving to his subordinates to
24 execute General Perisic's order. If you have any questions on that,
25 Your Honour, I'm happy to assist.
1 JUDGE MOLOTO: You said to the right, it says naredjenje, I'm
2 trying to look for that.
3 MR. HARMON: It says "naredjenjum," Your Honour. I'm sorry. You
4 see the top two yellow highlights? In between there's a word that says
5 order, that's not highlighted. That is the command.
6 JUDGE MOLOTO: Okay. Thank you.
7 MR. HARMON: Okay. Now, I'd like to turn to commands, because
8 General Perisic had the authority to command and issue commands to
9 persons who were in the personnel centres. And those -- he did so and
10 those commands were obeyed. If we could turn to Prosecution Exhibit
11 2412. Now, this, Your Honour, is a report from Slobodan Peric, who at
12 the time he issued this document was the commander of the 18th Corps of
13 the SVK, and he sends this document to General Perisic. So it is
14 addressed to the Chief of the General Staff of the VJ.
15 And it's a report about the performance of officers who were
16 serving in the SVK. And what he says, what he -- Mr. Colonel Peric says
17 is "based on your oral" and it says "order," but if you go over to the
18 B/C/S version of it, it's "based on your oral naredjendje" or "command".
19 So with this document, Your Honour, you can see that there was a command
20 issued orally by General Perisic to Colonel Peric who was a commander of
21 the SVK 18th Corps and Colonel Peric is obeying it.
22 If we can turn to Prosecution Exhibit 1925. Now, this,
23 Your Honour, is a document from General Perisic. It is a command. It is
24 dated the 24th of March, 1995, and it is a command to form a
25 co-ordinating staff for assistance to the 40th Personnel Centre. Now,
1 just direct Your Honours, you'll see where it says order for the
2 formation of a co-ordinating staff for the assistance. If you go over to
3 the equivalent part in B/C/S, is "naredjendje". And if you go to the
4 word "order" in the English, it's "command," "naredjenje". In that list
5 of people who were supposed to participate in the, this particular
6 co-ordinating staff were two members of the 40th Personnel Centre.
7 Mr. Starcevic was shown this document and shown the two people who were
8 in the 40th Personnel Centre. Mr. Starcevic testified that
9 General Perisic was properly exercising command over members of the
10 40th Personnel Centre when he issued this command. You can find that
11 testimony at 6761 through 6763. This command, Your Honour, was obeyed.
12 Now, Your Honours, let me turn to another indicator of effective
13 control, and that is the ability of the superior to discipline and to
14 punish his subordinates. General Perisic believed he had that capacity.
15 If we could turn to Prosecution Exhibit 2413, please. Now, this is a
16 document, to put it into context, Your Honour, this is a document that
17 was issued on the 9th of November, 1995. It was a document that was
18 issued after the debacle in the Krajina, after the defeat of the forces
19 in the Krajina. And this is a document that was issued by
20 General Perisic and it says:
21 "With the aim of establishing responsibility and solving the
22 status of service for professional soldiers of the Yugoslav Army who
23 served in the 40th Personnel Centre," and then he gives an order. And
24 his order is, if you go down to subpart (2) of this order:
25 "For officers for whom reasonable suspicion that they had
1 committed a violation of discipline or a crime has been established,
2 disciplinary investigation will be initiated through authorised officers,
3 and it will be completed latest by 20 November, 1995."
4 Now, I note, Your Honour, in the context of this order which
5 applies to VJ members who served in personnel centres, this is many many
6 many months after rockets with cluster warheads fell on the city centre
7 of Zagreb. General Perisic is not exercising his authority, his
8 disciplinary authority because persons in the 40th Personnel Centre
9 committed war crimes. He is issuing his order because he is dissatisfied
10 with the conduct of persons who had been responsible in his view for the
11 debacle in Croatia.
12 Now, disciplinary proceedings in fact took place. We've heard
13 evidence of that, Your Honour. I'll cite only one. This is discussed
14 generally in our brief starting at paragraph 269, but I'll discuss one of
15 those incidents. It's the situation, Your Honour, of Colonel Bulat.
16 Colonel Bulat was an individual who was the commander of the 21st Corps
17 of the SVK. He surrendered the 21st Corps to the enemy. General Perisic
18 was quite upset with that, and if we go to P2204. Go to 2204. If it's
19 not there, I am sorry, Your Honour, I did not make a visual aid for
20 Your Honours' benefit. In P2204, General Perisic was upset with Bulat
21 and others and what he said in respect of Bulat was:
22 "I can dismiss him, but I will not dismiss him." So he
23 acknowledges that he has the capacity to dismiss Bulat. Instead he says,
24 "You will instigate a criminal report." That's found at P2204. And
25 thereafter, Your Honours, the VJ did in fact complete, they conducted and
1 completed an investigation against Colonel Bulat into his conduct as the
2 21st Corps commander. Five witnesses were called at that proceeding.
3 The VJ investigative committee recommended that proceedings be instituted
4 against Bulat and that he be punished.
5 Now, you'll see a complete description, discussion in our brief
6 in other examples in paragraphs 738 and 739.
7 Your Honour, I can see the time and this would be -- about to
8 take a break.
9 JUDGE MOLOTO: Just before we do so, was he punished?
10 MR. HARMON: Your Honour, that's an interesting question, it's
11 answer is we don't know because we had the testimony of Mr. Novakovic.
12 General Novakovic who was a Defence witness who appeared. He said to his
13 knowledge he knew Colonel Bulat, he didn't know if he was or didn't think
14 he had been, but let me just say, Your Honour, that it was in the
15 interest of -- I'll be discussing that after the break. It was in the
16 interest of the FRY not to make public these kinds of events.
17 JUDGE MOLOTO: Sure, but they --
18 MR. HARMON: The answer is I don't know the answer.
19 JUDGE MOLOTO: There are inquiries going on, we just want to know
20 how far it went. That's all I'm asking.
21 MR. HARMON: It went so far as having witnesses called and having
22 a recommendation that it should proceed further. Thereafter, I don't
23 know whether he was actually punished.
24 JUDGE MOLOTO: Can we take it up later. We'll take a break and
25 come back at quarter to 11.00. Court adjourned.
1 --- Recess taken at 10.15 a.m.
2 --- On resuming at 10.48 a.m.
3 JUDGE MOLOTO: Yes, Mr. Harmon.
4 MR. HARMON: Thank you, Your Honours.
5 We were talking before the break about General Perisic's ability
6 to discipline and punish his subordinates. I'd like to turn --
7 JUDGE MOLOTO: I just wanted to find out, is there any other
8 person? You said you didn't know whether this particular person was
9 punished, is there any other person that was ever punished?
10 MR. HARMON: Yes, I'm about to address four of them, Your Honour.
11 JUDGE MOLOTO: Okay.
12 MR. HARMON: Your Honour, I'm going to address the situation of
13 the four SVK generals. Generals Celeketic, Novakovic, Mrksic and
14 Bjelanovic. They were viewed by General Perisic as being responsible for
15 the defeat of the SVK and General Perisic had a problem, however, because
16 of their high profile. He had the authority, of course, to institute
17 disciplinary proceedings against them, but he took a more cautious
18 approach, he consulted with the SDC.
19 If we turn to Prosecution Exhibit 2203, we can see the text of
20 the collegium of the Chief of the VJ General Staff from the 6th of
21 November, 1995, and this is General Perisic. This is his approach to the
22 SDC, he says: "As I wrote to the Supreme Defence Council that all four
23 of them should be prosecuted, 'Is it in your interest that they would be
24 prosecuted?' They said yes. And 'Is it in your interest that that would
25 not be made public?' Yes. And now if we pension them off and then
1 prosecute them, there are different sanctions than if we do not pension
2 them off and prosecute them. And they said as it was necessary to calm
3 things down and not to make public, then they made a Solomonic decision
4 to pension off all four of them and they pensioned them off."
5 Now, we know from the evidence that the -- this collegium text is
6 the 6th of November, 1995. We know that those four generals served in
7 the SVK, I think until October of 1995. But based on a decision that was
8 taken by the SDC, they were retroactively retired to the 31st of
9 December, 1994. Now, Your Honour, we assert that that was punishment of
10 those four generals for their conduct while they were serving as VJ
11 members in the SVK. They were covert punishments because as the SDC
12 said, they didn't want to make these public. There weren't tangible
13 effects of that punishment beside the loss of prestige. These four
14 generals were entitled to pension benefits through the full period of
15 their active military service which was in October of 1995. They were
16 deprived of those benefits, because the pension benefits only went up to
17 the 31st of December, 1994.
18 Now, Your Honours, the SDC's fears about public trials were
19 justified. It would have exposed the truth about the personnel centres.
20 A trial would have exposed what the personnel centres were in fact. It
21 would have reveal the way logistics were supplied to the personnel
22 centres. In short, Your Honours, it would have exposed the deception of
23 the personnel centres, and I just refer Your Honours to paragraphs 753
24 and 754 of our brief. Your Honour, you had a question to ask me.
25 JUDGE MOLOTO: Yes, I do. I just wanted to say given just that
1 scenario that you have painted, what did you then say was the effect of
2 this requirement to keep things under the carpet on the material ability
3 to punish the subordinates by the accused?
4 MR. HARMON: I don't think it had any -- what I think,
5 Your Honour, is they were punished period, whether it was covert or not
6 covert. General Perisic had the authority and at the direction of the
7 SDC he could get rid of people whether there were public trials, public
8 disciplinary proceedings and the like. As he said in the 14th session,
9 we'll find another way to get rid of them. In this situation, this is a
10 covert punishment of these four generals. So while General Perisic had
11 had fully the capacity and the authority over VJ members to institute
12 disciplinary proceedings, the way those disciplinary measures were
13 implemented against people were either overt in some sense or covert. So
14 I don't think it had, you know -- I think frankly that's the way the
15 situation was, that's the way General Perisic received his directions
16 from the SDC and that's the way people were punished.
17 JUDGE MOLOTO: I'm actually thinking in particular punishment for
18 the crimes alleged in the indictment, not only these four, but everybody
19 that the Prosecution alleges should have been punished.
20 MR. HARMON: I think General Perisic had a duty and a
21 responsibility as a commanding officer to institute proceedings against
22 people he knew had committed crimes. The political environment doesn't
23 relieve him in any way of that responsibility. He had the responsibility
24 to take measures which he failed to take. He had the capacity, he
25 exercised the capacity. He just didn't do it in respect of war crimes.
1 JUDGE MOLOTO: But do you -- from what you've been saying this
2 morning, it looks like the political environment which you say is --
3 should not be taken into account was the very political environment that
4 constrained him in punishing people.
5 MR. HARMON: Your Honour, we have no evidence before this Chamber
6 that General Perisic was relieved of his responsibilities as a commander
7 at the direction of his political superiors. He had an obligation,
8 regardless of the political climate, to discharge his responsibilities.
9 He could not, he could not rely on the climate, if you will, to discharge
10 responsibilities. He could have done a number of things. He could have
11 taken ameliorative steps when he knew there were war crimes were being
12 committed. He could have issued orders, commands, directions, he could
13 have brought people in, consulted with his people, he could have even
14 resigned if there was a direction to not proceed. He did none of those.
15 In fact, Your Honour, as I'll discuss later, he assisted war criminals
16 avoiding justice.
17 JUDGE MOLOTO: Thank you.
18 MR. HARMON: I'd like to turn next to the case of Mr. Antic and
19 Mr. Vujic. Those two cases are described in our brief at paragraphs 741
20 to 746. Those are both members of the 30th Personnel Centre, the VRS.
21 Both these individuals went AWOL from the VRS. Both these individuals
22 were prosecuted in a VRS military disciplinary court and in the case of
23 Antic and Vujic, their sentence was the loss of status as an active duty
24 serviceman. The VRS forwarded those judgements to the VJ and asked the
25 VJ to take further action. It was up to the VJ then, Your Honours, to
1 decide what to do about its personnel who had committed disciplinary
2 measures in the VRS and in these cases, Your Honour, they took different
3 actions. In the Antic case, they considered the matter and they
4 discharged him from the VJ. In the Vujic case, they came to a different
5 conclusion. They kept Mr. Vujic, they didn't terminate his service.
6 Mr. Vujic continued to serve in the VJ until 2005. So ultimately,
7 Your Honour, the decision-maker was the VJ on the offences that had been
8 committed in the VRS.
9 Now, Your Honour, let me turn to the -- another issue of
10 determinations which is another indicator of effective control.
11 General Perisic had the authority to terminate members of the VJ who were
12 serving in the personnels and he did so. I have described or we have
13 described in our brief in paragraph 761 a number of such incidents, but I
14 will like to show you Prosecution Exhibit 1904 which is a VJ order issued
15 by General Perisic. It is in relation to Ljubisa Beara. Mr. Beara was
16 convicted in this court of genocide. And it is dated the 6th of August,
17 1997. And you can see that pursuant to General Perisic's order,
18 Mr. Beara is terminated from the VJ.
19 Now, he also exercised that authority when it came to members of
20 the SVK. If we could turn to Prosecution Exhibit 1684, you'll see in
21 this case, Your Honour, this is the case of an individual by the name of
22 Bora Poznanovic, and Mr. Poznanovic was serving in the -- he had served
23 in the 40th Personnel Centre as the SVK 7th Corps commander. Now, he was
24 retired from the VJ three years after the debacle in Croatia. He was
25 retired on the 30th of June, 1998 by General Perisic.
1 The next issue, Your Honour, another indicator of effective
3 JUDGE MOLOTO: These two, I see the reasons for these two people
4 given is that they've had 40 years of pensionable service.
5 MR. HARMON: Yes, that's correct. And that was -- that's under
6 Article 107 of the Law on the VJ. There are a number of criteria by
7 which you can -- someone can be terminated from service. What is
8 interesting, frankly, about 40 years or 30 years of effective service,
9 within that framework there was the opportunity for General Perisic to
10 discipline people who didn't follow his orders, and he says so in one of
11 the SDC sessions. He says, we can find another way to get rid of them.
12 You know, we can say they've met their pensionable service years. So
13 yes, they relied on that law, that provision of the law, but they relied
14 on that provision of the law also to covertly sanction members of the
15 personnel centres who had committed disciplinary infractions and the
17 JUDGE MOLOTO: I guess then my question would be, these two, had
18 they also committed some infractions?
19 MR. HARMON: We assert in our indictment that Colonel Beara was
20 one of the persons responsible for the massacres committed in Srebrenica.
21 JUDGE MOLOTO: I understand that, but what I'm saying is although
22 the ostensible reason is 40 years pensionable service, was in fact the
23 authentic reason the fact that they were being punished.
24 MR. HARMON: I can't say that, Your Honour, I kind of doubt it
25 myself. I think that probably the reason was was that he had completed
1 40 years of service. What is interesting to note about this retirement
2 on the termination of the 30th of June -- I'm sorry, let me get the right
3 date on Mr. Beara -- on the 6th of August, 1997, is it's two years after
4 the crimes that were committed in Srebrenica, two years after
5 General Perisic knew about what happened in Srebrenica and had time to
6 investigate and inquire about what happened in Srebrenica. He could have
7 terminated Colonel Beara much sooner than two years after the crimes.
8 JUDGE MOLOTO: Thank you.
9 MR. HARMON: Now, Your Honour, I'd like to turn to another issue
10 that's raised in the Defence brief. That a deals with
11 General Djordje Djukic's evidence. General Djukic, for your information,
12 was a member of the 30th Personnel Centre. He was on the VRS Main Staff,
13 he was in charge of logistics. We have asserted, Your Honour, that VJ
14 officers who were serving in the personnel centres retain their VJ
15 identification cards. The Defence takes a contrary position. They
16 assert in paragraph 220 of their brief that the Prosecution failed to
17 prove that officers who were serving in the VRS were given VJ identity
18 cards. Secondly, they assert that the VJ did not issue military identity
19 cards to officers serving in the VRS during the conflict period. That
20 Djukic's evidence that he possessed a VJ identity card has not been
21 corroborated and cannot be relied on, and that this failure of proof
22 demonstrates the existence of three separate, independent and autonomous
24 If we could have Prosecution Exhibit 1653. This --
25 General Djukic had two identity cards when he was arrested. He had this
1 card which was issued in Han Pijesak. It's a VRS card. And if we could
2 turn to the next element, this is General Djukic's VJ identity card that
3 was issued to him on the 25th of January, 1995. And you'll see the
4 translation of what is on the cover in Cyrillic in the lower left-hand
5 side of this image is: "Federal Republic of Yugoslavia, Yugoslav Army,
6 military identity card."
7 So you must judge, Your Honours, you've heard testimony from
8 Defence witnesses who said they didn't receive a VJ identity card. I ask
9 you to consider their evidence in light of the evidence that
10 General Djukic had received a VJ identity card.
11 Now, Your Honour, let's take a look, if we can, at what
12 General Perisic has to say whether VJ personnel were serving in the VRS
13 and the SVK. I'm going to play a portion of a film for Your Honours and
14 it has script underneath it. Please.
15 [Video-clip played]
16 MR. HARMON: May I have just a moment, Your Honour, I just want
17 to check something.
18 JUDGE MOLOTO: You do have it.
19 MR. HARMON: That is not the film, Your Honour, that I wanted
20 played. I will read the text of Prosecution Exhibit 2879. Unless you
21 have it. Your Honour, let me read the text. This text, Your Honour, is
22 found P2879, the timer number is 1:01:35 to 01:02:23.
23 This is the clip of film, Your Honour, that is relevant. Did
24 that come up on Your Honours' screens?
25 JUDGE MOLOTO: We have a transcript on our screens.
1 MR. HARMON: Okay, this isn't very successful, Your Honour. Let
2 me try reading the text then into the record. I have given Your Honours
3 the citation. Let me read this to you:
4 "Almost no decision in the Republic of Serbian Krajina, although
5 it had its political leadership, nor in Republika Srpska, was made
6 without an agreement of the state leadership of the Federal Republic of
7 Yugoslavia at the time. Analogously, the army also had close time, and
8 there were several reasons for that. Firstly, because that was one of
9 single army. Secondly, because it had its members in all those areas,
10 and thirdly, because it had equipment which was getting its logistics
11 support mostly from the Federal Republic of Yugoslavia."
12 If Your Honours go to the actual film, which is P2879, there is a
13 text that's underscored.
14 Now, Your Honours, I want to turn to a slightly different
15 element, but related, and that is the issue of General Perisic's material
16 ability to punish the criminal conduct of his subordinates serving in the
17 personnel centres. We assert that it was concurrent with the material
18 ability of Karadzic, Martic, and commanders of the VRS and the SVK.
19 The Defence takes a number of positions on this account.
20 Paragraph 155 of the Defence brief, the Defence says that the
21 Prosecutor's Office is articulating a novel theory is that both legally
22 and factually unfounded. The principal position of the Defence, which is
23 repeated throughout their brief, paragraphs 154, 857 and 858, is that the
24 principle of unity of command excludes the existence of any superior
25 position being held by someone who is outside the chain of command. And
1 what they assert is that upon receiving their assignment on duty in the
2 VRS, personnel centre members entered the exclusive and sole chain of
3 command of the VRS with Karadzic as the supreme commander of VRS. As
4 such and in accordance with the principle of unity of command, both
5 Perisic -- Perisic, both legally and practically, could not exercise
6 control over members of the VRS, who were regulated via the 30th
7 Personnel Centre.
8 It's our position, Your Honour, that the Defence confuses two
9 concepts. The principle of unity of command, and the concept of
10 effective control. They are separate and distinct principles. In
11 respect of whether the position is legally unfounded, I draw
12 Your Honours' attention to the case, the Popovic judgement, paragraph
13 2025 where the Court stated at follows:
14 "It is necessary to distinguish the military concept of the
15 singleness of command from the assessment of effective control. For the
16 proper functioning of an army, there can only be one individual in
17 command of any particular unit at one time. However, the test for the
18 superior-subordinate relationship rests on the ability to effective
19 control. There is no -- sorry, let me read that again, I misread it.
20 However, as the test for the superior-subordinate relationship rests on
21 the ability to effectively control - as opposed to the exercise of that
22 control - there is no exclusivity to the determination of effective
23 control." In the next paragraph, Your Honour, paragraph 2026, the Court
24 goes on to say:
25 "In addition, given the purpose of the law relating to superior
1 responsibility, a superior cannot rely on a principle of singleness of
2 command, described to ensure army efficiency, in order to escape
3 responsibilities which relate to the suppression of the gravest of
5 So it's our submission, Your Honour, that in respect of the
6 jurisprudence of in Tribunal, it has been -- there is a legal recognition
7 of the Prosecution's theory.
8 Second of all, I'd like to assert, Your Honour, and I will have
9 to go into closed session, that there in fact existed a parallel chain of
10 command between General Perisic and the SVK.
11 If we could go into closed session for just a moment.
12 JUDGE MOLOTO: May the Chamber please move into closed session.
13 You want closed, not private.
14 MR. HARMON: Private session is fine, Your Honour.
15 JUDGE MOLOTO: Private session.
16 [Private session]
1 [Open session]
2 THE REGISTRAR: We are back in open session. Thank you.
3 JUDGE MOLOTO: Yes, Mr. Harmon.
4 MR. HARMON: Your Honour, it's our submission that we have
5 established through the evidence that there was in fact a parallel chain
6 of command between General Perisic and the SVK. The command -- the
7 parallel chain of command went like this: In the SVK, and using
8 General Mrksic as an example, in the SVK, the supreme commander was
9 Martic, and the head of the SVK, the commander of the Main Staff was
10 Mrksic. So there was a line of command that went from Martic to Mrksic
11 to the subordinates. We also say that the parallel chain of command went
12 from Perisic to Mrksic who was a member of the 40th Personnel Centre.
13 The evidence shows the following, Your Honour: As I mentioned,
14 Martic was the RSK supreme commander. Immediately, immediately before
15 Mrksic became chief of the SVK Main Staff, he was a VJ officer, that is,
16 he was the assistant chief of the VJ General Staff for the land army. He
17 assumed his duty in -- as SVK commander on the 17th of May, 1995 pursuant
18 to a decision in the SVK.
19 If we could go into closed session, Your Honour.
20 JUDGE MOLOTO: May the Chamber please move into closed session.
21 I assume you want private session actually.
22 MR. HARMON: I do, Your Honour, I'm sorry.
23 [Private session]
20 [Open session]
21 THE REGISTRAR: We are back in open session, Your Honours. Thank
23 MR. HARMON: Your Honour --
24 JUDGE MOLOTO: Thank you so much. Yes, Mr. Harmon.
25 MR. HARMON: Your Honour, we've seen some of these documents.
1 They are commands. If we could go to P2412. Your Honour, this is the
2 command that we saw earlier today. A command issued by General Perisic
3 to Slobodan Peric and let me just pull it up. So this is corroboration,
4 Your Honour, that General Perisic was issuing commands to personnel in
5 the SVK. This is the 20th of June, 1995, about five weeks after Mrksic
6 had become commander of the SVK.
7 If we go to P177, Your Honour, we have seen this document also.
8 JUDGE MOLOTO: Just for the record, I see on the monitor here
9 it's P1777, not double 7.
10 MR. HARMON: If I said double 7, I made a mistake.
11 JUDGE MOLOTO: You said 177.
12 MR. HARMON: I seem to recall I made that mistake as well in the
13 trial. Sorry, 1777, Your Honour.
14 JUDGE MOLOTO: I still see that -- thank you so much.
15 MR. HARMON: You can see, Your Honour, this is an order, a
16 naredba, that was issued on the 16th of September, 1995, to
17 General Mrksic who was the commander of the SVK and had been the
18 commander of the SVK since the 17th of May, 1995. Additional
19 corroboration, Your Honour, is found in P1925, which is interesting
20 because this is a command that was issued to the SVK before
21 General Mrksic became commander of the SVK. It was issued on the 24th of
22 March, 1995.
23 Now, finally, if we could turn to Prosecution Exhibit 1340, this
24 is an intercepted communication between Slobodan Milosevic and
25 General Perisic. The relevant text for this part of the submissions,
1 Your Honour, if we could have that up, is Slobodan Milosevic, is making a
2 request to Perisic. "Request contact with Mrksic only and he should not
3 take any orders from Martic." General Perisic's response is quite
4 revealing: "He hasn't been taking any for a long time."
5 Finally, Your Honours, to corroborate the testimony we've been
6 talking about, there is Mr. Borovic's evidence. Mr. Borovic was a
7 Defence witness who was Chef de Cabinet of the VJ General Staff, who
8 testified that General Perisic toured the units of the SVK 11th Corps in
9 the fall of 1995. That testimony is found at 14092.
10 Now, it's our submission, Your Honour, that the principle of
11 unity of command is not a bar to General Perisic having effective control
12 over the personnel centre members. The facts of the case, in our
13 submission, demonstrate that General Perisic did have effective control
14 over VJ members serving in the personnel centres. He had the material
15 ability to prevent them from committing crimes and punishing them. It
16 was concurrent with the material ability of the commanders of the VRS or
17 the SVK.
18 Now, let me just add, Your Honours, the failure of the VRS and
19 the SVK to exercise their material ability to punish the perpetrators of
20 crimes of VJ members who committed crimes in Croatia and in Bosnia does
21 not relieve General Perisic of his responsibility to punish his
22 subordinates. Otherwise you'd have a gross loop-hole in the law. A
23 commander could send his troops into a different state. They could
24 commit crimes. The receiving state would not punish them, and is that an
25 excuse for General Perisic or the commander who has effective control
1 from the sending state to do nothing? It's our submission it is not. In
2 fact, it would undercut the protective measures offered by international
3 law. General Perisic was obliged, Your Honour, to take action against
4 his subordinates, if he knew they had committed crimes while they were
5 serving in Croatia and in Bosnia.
6 JUDGE MOLOTO: Hence my question yesterday about
8 MR. HARMON: Your Honour, ask me your question again.
9 JUDGE MOLOTO: I'm not asking it again, but I just say hence my
10 question yesterday.
11 MR. HARMON: Your Honour, let me find your question from
12 yesterday because I have my transcript here.
13 JUDGE MOLOTO: Well, if you want to address it, the question was
14 simply whether by going over to the other army, is this not a re-
16 MR. HARMON: Well, I do recall, Your Honour, we had the
17 discussion on the terms because there's re-subordination, there's
18 subordination, and we didn't want to get hung up by the lexicon.
19 JUDGE MOLOTO: Subordination is where you, well --
20 MR. HARMON: We are saying that these people, as I said,
21 Your Honour, were VJ personnel serving in Bosnia and in Croatia, and as
22 such, Perisic had effective control over them and had the responsibility
23 to deal with their disciplinary measures. Notwithstanding the fact that
24 operational control may have been in the situation of the armies for
25 awhile. The operational control may have existed in the VRS and the SVK.
1 So we say, yes, he did have a responsibility, notwithstanding the
2 whatever we call it, the transfer, the service in those countries.
3 That concludes, Your Honour, my remarks in respect of 7(3). I
4 have some remarks in respect of sentencing. If you'd like me to make
5 them now, I'll happy to do so.
6 JUDGE MOLOTO: You are in control, sir.
7 MR. HARMON: Yes, Your Honour, I'd be happy to do it.
8 Your Honour, we have briefed the sentencing considerations in our
9 brief. I said we weren't going to repeat the brief in its entirety, but
10 I want to touch on some points. The primary consideration in sentencing
11 and in determining a sentence is the gravity of the crime. Making that
12 assessment, there are two elements that the Court has to consider. The
13 seriousness of the underlying crimes, and the form and degree of
14 participation of General Perisic.
15 Now, the seriousness of the underlying crimes, the Sarajevo cases
16 have been litigated twice; the Zagreb missile attack has been litigated
17 before this institution; Srebrenica has been litigated four or five times
18 before this institution; courts in this institution have found those
19 crimes to be serious. I don't intend to expand or make any additional
20 comments on the seriousness of those crimes, Your Honour. Decisions in
21 this court have spoken for themselves. The facts speak for themselves.
22 I'd like to turn to the form and the degree of participation of
23 the accused, which in this case, Your Honour, is somewhat detached, if
24 you will. General Perisic never fired a bullet, he never personally
25 killed anyone, he never personally set fire to a house in Bosnia or in
1 Croatia, he never personally drove a non-Serb from his home. The conduct
2 which he participated is criminal conduct by virtue of those facts may
3 seem less repugnant to us, much less repugnant to our sensibilities, I
4 understand is most always the case. We have a reaction to people who we
5 see who are the hand-on killers, the people who have blood on their
6 hands. The people who terrorise people, force them to leave from their
7 homes, destroy their cultural sites and their monuments. Physical
8 distance, however, Your Honour, from the actual crimes or lack of a
9 hands-on involvement of those crimes is certainly less jarring, it's
10 natural to our sensibilities. General Perisic is charged with aiding and
11 abetting the people who did all of those things, who killed people, who
12 forcibly displaced people, who ran a sniping and shelling campaign. In
13 our submission, Your Honour, given the protracted nature of the crimes
14 and the magnitude of the crimes, that form of participation should not
15 lessen his responsibility. His assistance to the VRS endured throughout
16 his tenure as Chief of the General Staff, and it was during that period
17 of time some of the most significant crimes occurred.
18 Now, another consideration, and I touched on it earlier, that
19 Your Honours should consider is that General Perisic harboured
20 General Mladic. General Mladic is one of the only two remaining
21 indictees who has not been arrested. We submit, Your Honour, that those
22 acts are relevant to your consideration when deciding what sentence to
24 Now, the Defence brief sets forth a number of mitigating factors.
25 Let me just say his co-operation with the Office of the Prosecutor, he
1 did agree to sit down and have a meeting with the Prosecutor. There was
2 a succession of interviews with us. However, General Perisic was not
3 entirely forthright and it's our submission that that co-operation should
4 attract no weight in mitigation. General Perisic voluntarily
5 surrendered. The Tribunal has given consideration to that, I'm fully
6 aware of that. It's our submission, however, that measured against the
7 magnitude of the crimes that we are considering in this case, that
8 voluntary surrender should also attract little weight.
9 Now, we heard through the trial a number of witnesses who
10 testified about General Perisic's opposition to Slobodan Milosevic.
11 Let's be perfectly clear: During the period through the war,
12 General Perisic was not in opposition to Slobodan Milosevic. The two of
13 them were two of the most important people in the assistance that was
14 given to the VRS and the SVK. Moreover, the opposition to Slobodan
15 Milosevic, which is at the end of his tenure, and we heard testimony
16 about the Kosovo war, General Perisic was not opposed to using the army
17 in Kosovo had there been a declaration of war, but there wasn't, and
18 under those circumstances, he was opposed. He wasn't opposed to the war,
19 however. It's our submission, Your Honour, that his opposition to
20 Milosevic at the end of his tenure should have no weight in terms of
21 mitigating a sentence for these enormous crimes.
22 Your Honour, it is our request that Your Honours convict
23 General Perisic on all counts in the indictment and that you impose a
24 sentence of life for the commission of those crimes. Thank you,
25 Your Honours.
1 JUDGE MOLOTO: Thank you, Mr. Harmon.
2 Mr. Lukic.
3 [Defence Closing Statement]
4 MR. LUKIC: [Interpretation] Your Honours, Mr. Gregor Guy-Smith
5 will be the first to address the Court. That is how we have divided
6 our -- just a moment, please.
7 MR. GUY-SMITH: We are just doing a quick podium transfer,
8 Your Honour, then I'll be ready to speak.
9 JUDGE MOLOTO: No problem at all.
10 MR. GUY-SMITH: Can you hear me?
11 JUDGE MOLOTO: Yes, Mr. Guy-Smith, except that there is an echo
12 that I'm hearing.
13 MR. GUY-SMITH: So am I.
14 JUDGE MOLOTO: It's not coming through here because I hear it
15 even when I remove the earphone. I don't know what noise that is. You
16 may proceed, Mr. Guy-Smith.
17 MR. GUY-SMITH: Thank you so much.
18 Initially, I would like to echo the thanks that was --
19 [Trial Chamber and Registrar confer]
20 JUDGE MOLOTO: I am sorry about that.
21 MR. GUY-SMITH: Not a problem, not a problem at all.
22 Initially I would like to echo the thanks that was given by
23 Mr. Harmon to all of the participants who work at this institution, who
24 have worked with us during this trial. Some of you we know by name, many
25 of you we know by face, all of you have been invaluable to these
1 proceedings. I would like to thank and I'm sure that it's one of the
2 difficulties that one has when we list those that we thank, you always
3 inevitably forget somebody and I'm positive that both the Prosecution and
4 the Defence are equally grateful to those that transcribe our words, put
5 them down on paper so that they can be read, however wise or foolish they
6 may be. And I also would like to thank D. Montgomery who has worked with
7 the Defence for some considerable time.
8 I was actually struck yesterday in terms of some of the
9 conversation that was had. I don't know to what extent we would involved
10 in some of that same conversation, but one of the matters that came about
11 I thought needed some comment. I'm an officer of the court, as all of
12 these people on both sides of the aisle are, and we believe in the law.
13 We may disagree about it, we may dispute the interpretation of it, but we
14 believe in it. There would be no law if there was no precedent, and we
15 believe in precedent, and we rely on precedent to present our cases to
16 you. Without precedent, we would have no guidance. Without precedent,
17 without the Nuremberg case, without those situations that existed
18 historically, and without those analogies that are drawn presently, we
19 would not be in a position to comment on or, indeed, to figure out the
20 difficult questions that are presented in these institutions.
21 We believe in a foundation of values, rules, and regulations
22 which we trust and hope all people live by. Once again, without the
23 benefit of history, I don't think my grandfather was the first person to
24 say it, I don't believe that when I say it to my grandchildren I will be
25 the last, but if we do not learn from history, we are doomed to repeat
2 And I was somewhat concerned yesterday that there was an attitude
3 voiced that each and every time that a case is tried, it is tried
4 tabula rasa. I hope that is not a sentiment. I trust that is not a
5 manner in which this Chamber will engage in its deliberations. If it
6 was, then I would be remiss at this point in not making a motion to
7 strike all of the adjudicated facts that have been introduced. Now, I
8 don't think that that would be reasonable. I don't think that that would
9 be sensible, nor do I believe that would be logical.
10 When dealing with the kinds of cases that present themselves
11 here, we deal with the unfortunate back-drop of a war, and although
12 flowers do bloom in a war, that's not what we usually pay attention to.
13 JUDGE MOLOTO: May I just interrupt you a little bit. Are you
14 done with the concept of precedent? I just wanted to make a comment.
15 MR. GUY-SMITH: Sure, sure.
16 JUDGE MOLOTO: I just wanted to make a comment that much as you
17 indicated that we all officers of the law and much as we learn from
18 precedent and history, we also do create precedent.
19 MR. GUY-SMITH: I am in absolute agreement with you.
20 JUDGE MOLOTO: Thank you. You may proceed.
21 MR. GUY-SMITH: And I think we would agree, and Mr. Harmon has
22 actually alluded to this that this is a unique case and a unique
23 situation, which perhaps we'll talk about a bit later in terms of some of
24 the ideas, but I think we would agree that when new law is created, that
25 law is predicated upon the rich tradition of precedent. It may depart
1 from it. It may evolve. It may revolutionise the law. But it does not
2 discount it and it does not disregard it. And a careful analysis
3 requires that which has come before us, because in its absence, we would,
4 of course, be reinventing the wheel, which I don't think any of us wish
5 to do.
6 I was discussing for a moment the issue of war and that when the
7 gods of war unleashed, which is what occurred here, which is what brings
8 us here, that the fragile fabric that we all cherish that keeps order is
9 indeed torn asunder and after those wars are completed in whatever
10 fashion they are completed and peace is achieved, we attempt to make
11 sense on what occurred and we attempt to place some semblance of order in
12 a chaotic time.
13 Now, if that was all that we were doing here, and this was only a
14 matter of history, our task would be in many senses easier, but as a
15 matter of fact, what the task is here, primarily, is to make a
16 determination on the guilt or the innocence of General Perisic. And in
17 that regard, we have a system that requires a very simple but exacting
18 standard, and that standard is the Prosecution must establish guilt
19 beyond a reasonable doubt.
20 What does that mean? In Martic, it was defined as follows:
21 "There is no reasonable explanation of the evidence other than
22 the guilt of the accused."
23 And measured against that exacting burden of proof, it is clear
24 that the Prosecution here cannot prove that its interpretations are
25 entirely plausible, let alone that they are the only reasonable
1 explanations of the evidence. And the reason that I'm spending some time
2 here in terms of what is the job at hand is because we have been in trial
3 for a long time and we have seen an astounding amount, weight of
4 evidence, but that in and of itself does not prove a case.
5 And with regard to the evidence that has been received, it is
6 important to recall that much of the evidence, as Mr. Harmon indicated -
7 and we certainly agree on this point, and we agree and many others - was
8 documentary evidence. Written words, open to interpretation. And the
9 reason that is of importance from the outset to remember and to think
10 about is that you are tasked, the three of you, with having to interpret
11 those words. The Prosecution's view may be attractive or may not, but if
12 there are two explanations, plausible explanations, one which points to
13 guilt and the other which points to innocence, you must adopt that which
14 points to innocence. That is your job. That is your duty. That is the
16 With that in mind, I think it is extremely important, and we ask
17 that you very very carefully review the Prosecution's final brief and
18 final argument to determine whether or not they have actually applied the
19 right burden of proof to the arguments that they advance. And as I'm
20 sure you are aware, it needs not be dwelled upon, each of the elements of
21 the crimes that they have charged must be proved beyond a reasonable
23 Now, because much of the evidence that you have is circumstantial
24 evidence, evidence which is open to an inference, the question becomes,
25 in terms, once again, of your analysis, whether or not the evidence that
1 has been presented by the Prosecution because they bear the burden, we
2 bear no burden, is complete, or whether or not it involves
3 cherry-picking. Cherry-picking is a term which is used, and I think it's
4 used so often that many times people have it go in one ear and out the
5 other because it's seemed to be kind of an unpleasant accusation about a
6 party may have done, but actually it's something much more profound.
7 Cherry-picking is the act of pointing at an individual case or
8 piece of data that seems to confirm a particular position while ignoring
9 a portion of related cases or data that may contradict that position and
10 with regard to the duty of the Prosecution not only to see that justice
11 is done, but also to maintain its burden of proof, the act of
12 cherry-picking is an act in which their burden is lessened.
13 It also falls victim to being, I'm trying to figure out the
14 kindest way of putting this, I suppose we say it falls victim to a number
15 of what would be considered to be logical fallacies. And we have seen
16 that in this case and I will speak to a number of those issues
18 Lastly, just in terms of thinking about how to analyse the
19 evidence before you, one of the things that we have seen happen a fair
20 amount involves another logical fallacy and that logical fallacy is
21 simply as follows: Just because there is a correlation between two
22 matters does not mean that there is causation. Simplest one that I
23 thought of presenting is there's certainly a correlation between an
24 ordinary alarm clock ringing and daybreak. There is no causal
25 relationship between these two phenomena. And there have been a number
1 of occasions, both in the arguments made today as well as those arguments
2 made in the brief, where that logical fallacy, which is known in Latin
3 which we speak about here every once in awhile as cum hoc, ergo propter
4 hoc, and has been vigorously pursued.
5 In the context of what you have heard, it is critical to remember
6 that this case is not static and the evidence that was presented to you
7 was evidence that came from a highly dynamic situation, a situation that
8 was in flux. From the beginning of the difficulties before Perisic's
9 tenure through the Dayton Peace Accord, the parties involved in this
10 conflict took different positions, maintained different interests, and
11 had different agendas. And specifically in that regard. FRY, the
12 government for which General Perisic was working as the Chief of Staff of
13 the military, had distinct political and strategic differences from that
14 of the Republika Srpska and the Republika Srpska Krajina.
15 I note the time.
16 JUDGE MOLOTO: Complete your point.
17 MR. GUY-SMITH: I can stop there.
18 JUDGE MOLOTO: Okay. Thank you. We'll take a break and come
19 back at half past 12.00. Court adjourned.
20 --- Recess taken at 12.00 p.m.
21 --- On resuming at 12.32 p.m.
22 JUDGE MOLOTO: Mr. Guy-Smith.
23 MR. GUY-SMITH: Thank you, Your Honour.
24 We too, of course, rely on our brief and we are not here at this
25 point in time to reiterate those arguments that have been made before.
1 It's not my intention, nor do I believe it's Mr. Lukic's intention to do
3 Before I discuss the issue of cherry-picking or the artful
4 writing that I found in the Prosecution's brief which I think causes some
5 not only difficulty, but also requires a fuller and complete analysis
6 than perhaps one might expect in terms of the actual evidence, I would
7 like to mention a couple things that the Defence contends the
8 Trial Chamber should disregard with regard to the Prosecution's
10 On the 28th of September, 2008, this Chamber issued a decision on
11 motions for judicial notice of ICTY convictions. In that decision at
12 paragraph 20, the Chamber held:
13 "In case the Prosecution wishes to place on the record the mere
14 fact that there exist the convictions of the subordinates by the
15 Tribunal, it remains free to do so by referring to the relevant
16 judgements in court during its case."
17 It is for you to interpret whether or not at closing argument and
18 in closing briefs, when it has not been done heretofore, those allusions
19 to convictions are appropriate. And there are quite a number of them in
20 the brief. For example, you may find them at paragraph 5, 62, 197, 438,
21 464, 469, 474, 505, 510, 513, and they go on. It is our submission that
22 they should be not considered.
23 Apart from that, in a couple of places, Prosecution makes the
24 following statements: In paragraph 450 at footnote 619, the Prosecution
25 relies on the indictment as a basis for proof, stating, "Perisic is
1 liable under Article 7(1) of the statute for aiding and abetting the
2 crimes committed by the VRS at Sarajevo and Srebrenica." Similarly 450,
3 footnote 1620, the same reference is made to the indictment.
4 At paragraph 598, footnote 1968, the Prosecution alludes to the
5 indictment saying that "the FRY leadership and Perisic had actual
6 knowledge that crimes were being committed in Sarajevo as a basis for the
7 authority of proof." As we all know an indictment is not proof.
8 And finally, in paragraph 818, footnote 2565, the Prosecution
9 similarly relies on the indictment. Finally, it is an artful way of
10 writing, but it is not evidence, it should not be considered, and it is,
11 in fact, a form of testimony which is impermissible, the Defence submits.
12 At footnotes 239, 251, 280 and 291, the Prosecution states the following:
13 "A limited number of," and then they refer to either operation
14 reports, duty team reports, intelligence security section reports or
15 intelligence administration reports, "were made available to the OTP."
16 As if to explain the failure of proof. Now, there's no evidence that a
17 limited number of reports were made available to the OTP. Nobody
18 testified with regard to the difficulty of any reports being obtained by
19 the OTP. There is no evidence of such a condition and the comment as
20 written should be disregarded.
21 Turning to the arguments contained in the Prosecution brief. I
22 wish to start with paragraph 67 in which the Prosecution says:
23 "The negative impact of such assistance on the VJ war reserves
24 was again highlighted to the SDC by VJ General Blagoje Kovacevic in July
25 1994 who stated, 'by giving large quantities of weapons, ammunition,
1 explosive and war materiel, 3.640 tonnes to the VRS and SVK, reserves
2 were further depleted and the number of critical ordnance stocks below 50
3 per cent of the requirement level was increased.'"
4 He did say that. Absolutely. He also said in that same
5 colloquy, page 9, this is P785:
6 "Despite the marked difficulties through increased efforts over a
7 long period combat readiness has been built up and maintained. It
8 provides stability in crisis areas, peace at our borders and conditions
9 or for improving combat readiness according to the developments in the
10 immediate surroundings. Pursuant to the directive on special measures of
11 continuous combat readiness we have the following long-term forces ready
12 for operation."
13 Now, if one were to rely solely on the quoted material contained
14 in the paragraph and not read the full discussion, the impression that
15 would be had would be starkly different from that which was actually said
16 by this gentleman. And this occurs again and again and again, and to the
17 extent that yesterday the Defence was criticised -- and once again, we
18 have no burden of proof, we have no burden here. But to the extent that
19 the Defence was criticised for isolating documents and the Prosecution
20 made the request that you look at the totality of the evidence, we make
21 both the same criticism and the same request. It is another place where
22 the Prosecution and the Defence agree, at least conceptually, that you
23 have to look at the entire evidence that's presented and you have to go
24 through each and every one of these documents, and by that, I'm referring
25 most specifically to the Supreme Defence Council sessions, because there
1 is a wealth of information that is contained in them that gives a much
2 different picture than that which is painted by the Prosecution.
3 Turning to paragraph 69, I won't read the entire paragraph, I
4 will only focus on the portion of the paragraph which discusses a cable
5 that came from Karadzic in which the Prosecution says he pleaded:
6 "General, sir, I kindly request that you inform yourself through
7 our Main Staff about the equipment situation and you will realise that it
8 is worse than what I could write you in a telegram. The consequences are
9 grave already, while they can become tragic also," and then there's a
10 bracket, and the information is left out.
11 Continuing with his plea:
12 "If this does not change soon, the Muslims will not sign the
13 agreement on the suspension of hostilities, but will instead continue
14 with the fighting. We are doing our utmost to obtain financial means and
15 to secure assistance from abroad, but for this we need time. If we
16 withhold the attacks and break their offensive, we will then sign a truce
17 for four months and during this time, we will secure the production or
18 purchase of equipment in the event that the war continues."
19 That's been left out.
20 They conclude his quote with the following:
21 "I kindly ask that you consider this matter and to provide us
22 with any response. The responsibility of all of us is historical."
23 I ask you honestly, and I ask you to consider honestly, that if
24 you had not heard that particular section which is contained in the
25 document upon which the Prosecution relies, whether or not your
1 impression of what was being asked for and what the considerations of the
2 parties were would remain the same. I would hazard a guess it would not.
3 Turning to paragraph 70, the Prosecution states:
4 "At this meeting D. Kovacevic," another Kovacevic, "reiterated
5 that the situation is critical for the RS and the RSK."
6 My first question which I ask you, the Chamber, is, based upon
7 what I have just read to you, what is your belief? "At this meeting
8 Kovacevic reiterated that the situation is critical for the RS and the
9 RSK." Obviously he was there. Had to be, from reading this. Going to
10 P784, the document from whence this particular quote comes, here is the
11 full quote:
12 "Milosevic: They can't. They can only do it with the federal
13 ministry and the General Staff. They have no business ties with
14 producers of weapons and military equipment nor can they be delivered
15 directly. They can only be delivered under the control of the ministry
16 and via the VJ. No country allows that. This Kovacevic is minister of
17 defence in the Republika Srpska, yes?" It's a question. "Listen to what
18 he proposes: 'Kovacevic reiterated that the situation is critical for
19 the Republika Srpska, and the RSK.'
20 "I don't know what he has to do with the RSK. He proposes
21 'first, to re-examine the prices and find reserves held by the
23 "'Second, to organise a system of joint import of weapons and
24 military equipment, the federal government, the VJ, the MUP, in order to
25 import the most necessary goods and that this is to be resolved at the
1 level of the federal government.
2 "'Third, a way of collecting debts via the SDPR and the National
3 Bank of Yugoslavia.
4 "'Fourth, again the issue of returning conscripts!?'"
5 Once again an exclamation point and a question mark.
6 "He is proposing things that have nothing to do with his job. He
7 has nothing to do with any of these issues. I propose," says Milosevic,
8 "that the Russians give Japan the Kuril islands."
9 The transcript reflects laughter.
10 From what I read to you from the Prosecution brief, the part that
11 they picked out, the part that was, as I suggested inappropriate awhile
12 ago when I was using the general term of cherry-picking, is this
13 statement by Milosevic anything that comports with the suggestion that is
14 made by the Prosecution?
15 JUDGE MOLOTO: Mr. Guy-Smith, just so that we are able to follow
16 you, is it possible to give us topics that are being discussed as go
17 through this paragraph.
18 MR. GUY-SMITH: Surely.
19 JUDGE MOLOTO: What is the context?
20 MR. GUY-SMITH: This particular area is where the Prosecution is
21 discussing the importance of assistance to the VRS was emphasised to
23 The next topic that is in the Prosecution's brief is under the
24 heading of: "The VRS Relied on the VJ to Wage War." Paragraph 75. And
25 we'll have to go into private session.
1 JUDGE MOLOTO: May the Chamber please move into private session.
2 [Private session]
11 Page 14776 redacted. Private session.
3 [Open session]
4 THE REGISTRAR: We are back in open session, Your Honours. Thank
6 JUDGE MOLOTO: Thank you so much.
7 Yes, Mr. Guy-Smith.
8 MR. GUY-SMITH: Yes, I was briefly discussing paragraph 77 which
9 dealt with an intercepted communication between Mladic and Milosevic.
10 Milosevic states: "Listen, I was in contact with Americans yesterday and
11 I'm in contact with the Russians constantly. They pressed to have the
12 agreement on the cessation of hostilities signed. They ordered Tudjman,
13 they condemned Tudjman and that will be finished today. Yesterday the
14 agreement was accepted at the government in Krajina. Today, they are to
15 do it with these ones. Akashi's deputy is visiting both parties and that
16 is to be finalised today. Those, Akashi's proposals, pertained to the
17 highway being put back under control of the United Nations, that there
18 are no forces, no one's forces are present within the 2 kilometre
19 distance down ward and upward from it, and that the withdrawal at the
20 starting line be initiated."
21 The conversation goes on for a period of time and then Milosevic
22 says: "I said, unfortunately, you have a completely mad political
23 leadership which is dragging you to death. That is the problem."
24 Mladic responds: "I apologise, Mr. President. That is why I'm
25 calling you, for people are suffering. What shall we do with people? I
1 do care about people. I do not care about a certain individual from any
2 leadership here, for people are being driven crazy by all kind of
4 Milosevic: "To tell you, Ratko, when I requested for Martic not
5 to close the highway, he then told me, 'People are complaining, so I have
6 to close the highway.' There was that problem."
7 Mladic: "I'm listening to you."
8 Milosevic: "I've some other line interfering. Therefore, Ratko,
9 people are to be led and explained and not to be driven crazy, and that
10 is where you ought to intervene, for nevertheless, you are the commander
11 and you can tell it is a disgrace to have such news broadcast, that is a
13 Mladic: "I know it is a disgrace and I know that it's a worse
14 form of doing, for I know this is not the truth."
15 And here is the quote what was relied on by the Prosecution:
16 "And without Serbia and its help, hitherto, and from this moment on, we
17 would not be able to live, but that is obvious and that is why I think I
18 would have to meet with a strong team in that area there to explain to
19 the people what the situation is like."
20 I think that it's, as I said a moment ago, this is a fine example
21 of word-smithing and it leaves me, and I hope that it leaves you, with
22 the understanding of what is the labour that you will have to undertake
23 in order to make a determination about whether or not that which is
24 represented by the Prosecution in fact accurately meets the burden that
25 they have.
1 And I said at the very beginning because there were so many
2 documents and there was the ability for interpretation, that there was
3 going to be a need for you to carefully analyse the documents. That
4 would be independent of what anybody's slant or view or choice of
5 presentation of what the meaning of these documents may be, and
6 specifically in that regard the Prosecution's. But I think it's terribly
7 important that when viewing the brief, and also the arguments that have
8 been made here that you recognise the -- not only the wealth of
9 information, but the wealth of interpretations that can be made on the
10 statements upon which the Prosecution relies that they contend to point
11 to Mr. Perisic's guilt. Because I would suggest that the assertion made
12 in paragraph 77 has very little to do with the content of the
13 conversation that was being had between Mladic and Milosevic at the time.
14 Now, there's one other example that I'd like to spend a moment
15 with, and that's paragraph 72. Paragraph 72 is actually a fascinating
16 issue. In paragraph 72, the Prosecution states:
17 "As Milosevic emphasised to Perisic the quantity of assistance
18 provided by the VJ at the 27th SDC session on 27 September 1994, stating:
19 'Momo, God knows how much materiel was sent to the RS and the RSK from
20 the (VJ)'." And that is P792.
21 Now, that particular quote is at page 46. But the discussion
22 that is being dealt with is that Perisic made a determination that an
23 individual in the VJ was a thief, that he was abusing his position, that
24 he was stealing and he dismissed him. And the SDC took umbrage because
25 it was their opinion, and they make it very clear, that he, Perisic, was
1 acting outside of his authority.
2 At page 30, Milosevic asks Perisic with regard to --
3 JUDGE MOLOTO: Page 30 of?
4 MR. GUY-SMITH: Page 30 of P782. Sorry, P792. Milosevic asks
5 Perisic, "How did he abuse vehicles?" Because Perisic had contended that
6 he misused vehicles. Perisic responds:
7 "He sent people to all sorts of places. He gave them official
8 vehicles for private use and spent gasoline."
9 Lilic says, trying to be a bit jocular: "We would have to
10 dismiss half of the officers of the Army of Yugoslavia because of that.
11 They all drive around Belgrade also for private purposes."
12 Perisic trying to maintain his position that what he has done is
13 proper says: "He does not have -- here is the proof, he does not have as
14 much ammunition as he should have because he gave it out of his combat
16 Milosevic says: "Momo, before our ban, everybody gave out
18 Perisic says: "He gave it out after the ban."
19 And there is further discussion. And finally Milosevic says on
20 page 46, which is what is relied on by the Prosecution:
21 "Momo, God knows how much materiel was sends to the
22 Republika Srpska and the Republika Srpska Krajina from the Army of
24 And Perisic responds: "There is no need to argue. From now on,
25 I will keep silent. My conscience is satisfied by the fact that I
1 proposed what I proposed on the basis of arguments and whatever you
2 decide. I am a soldier and I execute orders. If we are going to
3 tolerate borrow issuing materiel we don't have without our order, okay, I
4 will appoint him back to his post, but by doing that we are creating
5 conditions for more such things to be done and I will not allow things to
6 be done that way. If you think that should be done that way, okay, he
7 did it cunningly, he would call directly without a written order and he
8 would order such and such to be issued."
9 Now, when you think about what Perisic said there and you take
10 into account the entirety of the conversation that was being had at the
11 time, it is something that goes directly into one of the contentions that
12 we have made, which is, that sources other than the VJ supplied logistic
13 materiel, many sources of all different shapes and forms. The amount and
14 extent of that assistance, we do not know. The timing of that
15 assistance, we do not know. That it occurred we do know, and the
16 evidence is clear, as we've set forth in our brief with regard to that
17 issue. And for the presentation to be made here as it relates to what is
18 seemingly a statement of, Well, we've given them so much, when in the
19 entirety of the conversation it is clear that many other things are being
20 discussed, not only, we submit, is disingenuous, but it is also avoiding
21 what in fact occurred. It is misleading and it is a way of attempting to
22 prove something by avoiding the actual evidence that exists in the case
23 and exists in this particular situation. And that is impermissible.
24 Mr. Thomas, in his arguments yesterday with regard to the issue
25 of the borders, suggested that we misapprehended the reality of the
1 situation and that in fact an examination of the evidence established
2 something entirely different, and he relied on the testimony of a
3 gentleman which requires that we go into private session.
4 JUDGE MOLOTO: May the Chamber please move into private session.
5 [Private session]
14 [Open session]
15 THE REGISTRAR: We are back in open session, Your Honours, thank
17 JUDGE MOLOTO: Thank you so much. Yes, Mr. Guy-Smith.
18 MR. GUY-SMITH: I think most importantly, there is, with regard
19 to, and I now am dealing with the issue of assistance, I gave you
20 examples in the brief where there was a discussion about assistance, the
21 evidence that you have received clearly establishes that assistance was
22 received by the VRS from a number of sources, including the VJ. In our
23 brief we took the position that we do not resile from that, and we do
24 not. But the difficulty that we have here is that the no distinction has
25 been made, for your purposes, between assistance that was received from
1 the Ministry of the Interior, assistance that was received from FRY
2 proper, assistance that was received from the Ministry of Defence, all of
3 which are independent state organs for which this gentleman had no
5 JUDGE MOLOTO: You make the distinction to us, please.
6 MR. GUY-SMITH: Sure. Perisic's authority under the law --
7 JUDGE MOLOTO: No, no, I know it under the law, I'm talking about
8 on the ground, tell us what came where from where.
9 MR. GUY-SMITH: I can't, because we don't know. And if I could,
10 and if I could --
11 JUDGE MOLOTO: Thank you.
12 MR. GUY-SMITH: And if I could, I would. In our brief we have
13 pointed out those areas where we have been able, to the extent that we
14 can, identify where certain supplies, logistical assistance came from but
15 we can't say how much. We can't say when. We don't have that
16 information, nor for purposes of the discussion, as I have said on a
17 number of occasions, is it our burden. What we have been able to
18 establish is that there were multiple sources of logistic assistance that
19 came to the VRS which were not under the control of the VJ. We have
20 established that there was an independent factory of some importance to
21 the VRS, that being Pretis, which goes directly into some of the
22 discussion that we'll have a little bit later with regard to the issue of
23 Zuc, but in terms of how much, you don't know. And what you are being
24 asked to do here, which is extremely unfortunate and I suggest under the
25 standard that we have of proving the case, as I indicated earlier on,
1 faulty, is you are being asked to speculate. There was a lot of
2 assistance given, therefore it must have come from the VJ. Because there
3 was substantial assistance given for purposes of prosecuting a war, that
4 substantial assistance that was given had a substantial effect on the
6 Now, we don't know to what extent the assistance that was given
7 for purposes of prosecuting the war came from the VJ. We don't know how
8 much was in situ. We have heard testimony that at least with regard to
9 one issue, the issue of mines, that there was absolutely no reason for
10 the requests that were made for mines to have been made in the first
11 instance. We have no -- you have no information whether or not a series
12 of the requests that were made to the VJ were ever fulfilled. And you
13 are being asked to assume that because they were made, they were
14 fulfilled. But there's no evidence of that. And in the absence of there
15 being evidence, you can't make the finding because there's been a failure
16 of proof.
17 Whether or not there was a state policy which has become in a
18 certain sense the watch-word for culpability is an open issue. Mr. Lukic
19 will speak about this. I'll touch on it briefly. I think that we have
20 established that during the entire conflict period, the number of times
21 that the FRY leadership sued for peace was legion, the number of times
22 that they were successful was limited. And the complexity of the
23 international relations that existed leave one in a position to scratch
24 their heads in terms of how these matters operate.
25 You had dealt with earlier the question of Afghanistan. There
1 are in Afghanistan, I'm sure, because I've seen the news and seen it on
2 the Internet and heard it on the radio, that there are various attempts
3 for peaceful resolutions. While those various attempts for peaceful
4 resolutions are occurring, there is no doubt that various forces continue
5 to receive arms and logistics for purposes of prosecuting the war, or
6 depending on what spin you wish to take, for keeping the peace. It seems
7 to be part and parcel of that particular international formula. And in
8 the context of it being part and parcel of that international formula, I
9 think it is very dangerous to take the position that supplying logistics
10 for purposes of prosecuting a war necessarily exposes a commander of a
11 non-participating force or country or a commander of a participating
12 force or country to criminal liability. Because that is ultimately what
13 is being suggested here.
14 And if that, in fact, is what the outcome is that's being
15 requested, then each and every political leader throughout the world and
16 each and every commander in the world better take heed, because I think
17 it is difficult, if not -- well, I'll leave it at difficult to say that
18 in a war, crimes are not committed. And I don't know whether or not that
19 is the standard that we wish to adopt. And I mean this as a legal
20 matter, not as a political matter. In essence, what is being suggested,
21 as I understand the conversation is, not the direct, but the indirect
22 criminalisation of the waging of war.
23 I make a parenthetical remark right now: I envy you. Usually in
24 arguments when speaking to the fact-finders, which is who you are, we say
25 we don't envy you because the job that you have before you is so serious
1 or so difficult. I envy you. I think you have a phenomenally hard and
2 interesting task before you on this issue. I don't think the issue is as
3 simple as parts of it were being discussed yesterday, which is if the
4 waging of the war is a bad war, then one can be held liable. If it is a
5 good war, then one will not be held liable. And I think ultimately
6 yesterday Mr. Harmon, I think he may have in some fashion retreated from
7 that position upon consideration in the discussion that he had with you
8 today, with regard to what is the effect of that assistance.
9 But I go back again to now the specific case before us because
10 the question that you have before you is whether or not the assistance
11 that was given had a substantial effect on the crimes. How are you to
12 gauge that? You don't know how much ammunition they had before. You
13 don't know how much ammunition they used. You don't know how much
14 ammunition they received. You don't know whether or not the ammunition
15 that was used in any respect whatsoever - and by ammunition I'm using
16 that term in a generic sense for the moment - was in fact involved in
17 the criminal behaviour. What is being suggested is that, pretty much,
18 there was a war. We have defined the war as being a bad war, not a good
19 war. Crimes were committed. Prosecution contends that Mr. Perisic knew
20 about some of those crimes, therefore he should be found liable.
21 Now, I started awhile ago by saying that just because you have
22 the alarm clock in the morning and the sun rising, there isn't
23 necessarily that causation. And you may suspect it, but that's not proof
24 beyond a reasonable doubt, and you are being asked here with regard to
25 the issue of substantial assistance to engage in conjecture, to engage in
1 speculation in the absence of hard evidence. And that is something I
2 trust that you won't do.
3 I want to move on to a discussion that was had yesterday with
4 regard to the issue of aiding and abetting by the perpetuation of an
5 environment of impunity which was raised by Ms. McKenna, pages 14676
6 through 14677. Ms. McKenna says at line 5:
7 "However, as Mr. Harmon has set out, the form of aiding and
8 abetting alleged in the present case is not, strictly speaking, aiding
9 and abetting by pure omission but rather it is aiding and abetting by
10 encouragement. And this is a distinction made in the Brdjanin appeals
11 judgement in paragraphs 273 to 274."
12 Well, that being the case, turning to Brdjanin, Brdjanin Appeals
13 Chamber at pages 273 says:
14 "The Trial Chamber may have intended to imply in this case the
15 theory of aiding and abetting by tacit approval and encouragement. An
16 accused can be convicted for aiding and abetting a crime when it is
17 established that his conduct amounted to tacit approval and encouragement
18 of the crime and that such conduct substantially contributed to the
19 crime, citing Aleksovski, Kayishema and Ruzindana in the footnote. This
20 form of aiding and abetting is not, strictly speaking, criminal
21 responsibility for omission. In the cases where this category was
22 applied, the accused held a position of authority, he was physically
23 present on the scene of the crime." We don't have that component. And,
24 "His non-intervention was seen as tacit approval and encouragement. The
25 Trial Chamber in Kayishema and Ruzindana held that the individual
1 responsibility pursuant to Article 6(1), (that is individual criminal
2 responsibility under 7(1) of the Tribunal statute) is based in this
3 instance not on a duty to act, but from the encouragement and support
4 that might be afforded to the principals of the crime from such an
5 admission. In such cases" --
6 JUDGE MOLOTO: Did you say that support that might be afforded to
7 the principals or to the principles?
8 MR. GUY-SMITH: Yes. "... principals of the crime from such an
9 admission. In such cases, the combination of a position of authority and
10 physical presence on the crime scene allowed the inference that
11 non-interference by the accused actually amounted to tacit approval and
13 Adopting Ms. McKenna's argument, based on Mr. Harmon's position,
14 we cannot be found responsible or liable under this theory.
15 Ms. McKenna continued:
16 "The Appeals Chamber has on a number of occasions acknowledged
17 factually the encouraging effects of a superior's failure to prevent or
18 punish." She cited to both the Celebici and the Strugar appeals
19 judgement in which she discussed it in the context of 7(3) liability.
20 Both of those cases were clearly in the 7(3) context and not in a 7(1)
21 context and since we seem to have been bouncing back and forth a little
22 between the two, I think it's important to note, and I will just touch
23 it, Mr. Lukic will be spending some time on the 7(3) component of this
24 case, but I think that it's fair to say that the Prosecution's own
25 authority defeats the argument with regard to Perisic's liability on --
1 under the theory that they have suggested of an environment of impunity.
2 There are a couple of ideas that have been batting about
3 throughout this trial that I think are really important to make some
4 distinctions. One is the question of influence versus control. They
5 don't mean the same thing, they've never meant the same thing, and in
6 this specific case we know they are not the same. And the reason we know
7 that is because we received testimony on this particular issue. That
8 testimony came from a gentleman which requires that we go into private
10 JUDGE MOLOTO: May the Chamber please move into private session.
11 [Private session]
4 [Open session]
5 THE REGISTRAR: We are back in open session, Your Honours. Thank
7 JUDGE MOLOTO: Thank you so much.
8 Yes, Mr. Guy-Smith.
9 MR. GUY-SMITH: I note that at line 19 I may have misspoken, if I
10 do, I do apologise to the court reporter and to the people who are
11 translating my words, it should be 14547. And that's lines 3 through 12.
12 Now, those, the issue of influence versus control is clearly an
13 issue that arises when dealing with the likes of Mladic, and one of the
14 finest examples of an attempt to influence Mladic stems from the
15 conversation that was had between Lilic and Perisic over the question of
16 the release of the French pilots. Because they are trying to figure out
17 a way of essentially tricking him into working with them and there is --
18 I'm trying to get it pulled up right now because it escapes me, there was
19 a conversation in which they came up with a plan. That would be P886.
20 They came up with a plan to trick him. That's influence.
21 Now, had they had -- had Perisic had control over Mladic, then he
22 would have ordered him. Didn't do that. And this record in this
23 trial is replete with instances of, to put it in civilian terms, what do
24 we do with Mladic because nobody controlled Mladic. He controlled
25 himself. He did what he wanted to do, he did it when he wanted to do it,
1 and he did it from what we can tell and we submit was without regard to
2 pretty much what anybody else wished to have occur or was interested in.
3 I will be moving to another point topic, I note the time, I
4 suggest we take the break.
5 JUDGE MOLOTO: Thank you very much, Mr. Guy-Smith. We'll take a
6 break and come back tomorrow at 9.00, same court. Court adjourned.
7 --- Whereupon the hearing adjourned at 1.43 p.m.
8 to be reconvened on Wednesday, the 30th day of
9 March, 2011, at 9.00 a.m.