1 Thursday, 14 February 2008
2 [Open session]
3 [Rule 98 bis]
4 [The accused entered court]
5 --- Upon commencing at 9.07 a.m.
6 JUDGE AGIUS: Good morning.
7 Madam Registrar -- good morning, everybody. Could you call the
8 case, please.
9 THE REGISTRAR: Good morning, Your Honours. This is the case
10 number IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.
11 JUDGE AGIUS: Thank you, ma'am.
12 For the record, all the accused are present, and I think Defence
13 teams are -- we have a full house. The prosecution, it's Mr. McCloskey.
14 Today, as scheduled, we will start with the Rule 98 bis
15 submissions, starting with Defence, of course.
16 You are aware of our scheduling order, that we gave you a time
17 limit, and you are requested not to exceed that time limit.
18 Who is going first?
19 Mr. Meek?
20 MR. MEEK: Yes, Your Honour.
21 We're going to split our argument. I'll take the first part, and
22 Mr. Ostojic will take the last part.
23 JUDGE AGIUS: Yes, yes, certainly.
24 Madam Registrar, if you could start timing now, please. Thank
1 And before you start, Mr. Meek.
2 Mr. McCloskey, is there any part of the indictment that you
3 concede hasn't been proven at all or that you would like to withdraw? I'm
4 asking you this question so that in that eventuality it would facilitate
5 the proceedings.
6 MR. McCLOSKEY: We don't intend to drop any counts, but I do
7 believe, and I think we've discussed this before, there were -- one of the
8 paragraphs relating to nine bodies in Potocari, there was no evidence on,
9 and that's the main one that I recall right now.
10 JUDGE AGIUS: Okay, all right.
11 Mr. Meek. You have started at 9.00 and eight minutes.
12 MR. MEEK: Thank you, Your Honours.
13 Good morning, Your Honours.
14 JUDGE AGIUS: Good morning.
15 MR. MEEK: Good morning to my colleagues from the Prosecution, all
16 the Defence teams, all of the accused. I welcome you here.
17 I want to say firstly that it has been a great honour and a
18 privilege for me to represent Ljubisa Beara. This may well be the last
19 time that I'm able to address this Chamber, and I hope that whatever I
20 might be able to say today might help Your Honours in your deliberations
21 on this case as we have seen it so far.
22 Now, Your Honours, I would just like to talk a little bit about
23 what has transpired in this courtroom the past 20 months and why there is
24 no case, we feel, for Ljubisa Beara to answer.
25 Your Honours, W.K. Clifford said "It is wrong always, everywhere
1 and for everyone, to believe anything upon insufficient evidence."
2 While the evidence adduced thus far in this trial must be viewed
3 in a light most favourable to the OTP, is respectfully submitted that no
4 reasonable, neutral and detached finder of fact, after deliberating and
5 analysing the evidence, can, with a clear conscience, find that there is
6 evidence that my client, Ljubisa Beara, also known as "the empty vessel,"
7 has been filled. In other words, why is there no evidence capable of
8 supporting a conviction?
9 We know, from the record and from months and months and years ago,
10 that Ljubisa Beara was an empty vessel. We found this out after both
11 sides had rested in the Blagojevic case in 2004, and Mr. McCloskey, a
12 senior trial attorney, who by the way as we all know had been intimately
13 involved in the Srebrenica cases, Krstic and Blagojevic, stated to that
14 Court, on 29 September 2004, in his closing argument, page 12377 and 378,
15 he said:
16 "Beara is an empty vessel. Until Mladic gives him those orders,
17 he doesn't have the right to command troops, he doesn't have any troops."
18 29 months later, we're here today in the instant trial, and on
19 February 28th of 2007, at page 7927 of this transcript, line 24 and 25,
20 the very same Prosecutor, Peter McCloskey, admitted once again in open
21 court, in front of Your Honours, that Beara is an empty vessel, which is
22 true, until he is filled with the orders of his commander, General Mladic.
23 Your Honours, we believe that explicitly and implicitly, there is
24 a promise by the Prosecution that they would bring forth evidence that
25 would show that this empty vessel, Ljubisa Beara, would be filled, by
1 evidence from the Prosecution side of direct orders from General Ratko
2 Mladic. Your Honours, these are the words of the Prosecutor, and we
3 believe they are a party admission that the OTP case against Ljubisa Beara
4 is based on these purported mysterious orders, but we would like to know
5 and we question where, when, how, and by which witnesses or exhibits was
6 this allegation and promise fulfilled. Where, we ask, in the entire
7 record is there any such evidence?
8 We respectfully submit, Your Honours, that the record in this case
9 thus far is devoid of any such orders from General Ratko Mladic to Ljubisa
10 Beara, either directly, circumstantially, or otherwise.
11 Ljubisa Beara stands charged before this Tribunal with eight
12 counts, pursuant to the consolidated amended indictment. My lead counsel,
13 Mr. Ostojic, will address in a moment the counts as they are set out in
14 the indictment. Your Honours, the mere fact that we may not argue every
15 count does not mean in any way, shape, or form that we believe the Office
16 of the Prosecutor is correct or has met its burden under the Rules of
17 Procedure and Evidence. As professional judges, you are, we know, aware
18 of this position.
19 The first thing that is very clear from all the evidence adduced
20 by the Prosecution thus far is that the record is devoid of any evidence
21 that Ljubisa Beara was anywhere in or around Srebrenica from the 1st of
22 July to the 12th of July, 1995, except -- except for the testimony of
23 Witness Zlatan Celanovic. His testimony, Your Honours, was uncorroborated
24 by any other evidence including the evidence of the OTP analyst, Richard
25 Butler, who on the 23rd of January, 2008, in this courtroom, at page 20230
1 of the record, line 17 through 24, stated basically that as far as he
2 knew, there was no evidence of Mr. Beara's presence during those dates, in
3 those times, at that place.
4 Further, Your Honours, this witness, Celanovic, could not even be
5 sure on which dates these purported sightings of Ljubisa Beara took place.
6 And even assuming, for the sake of argument, that Witness Celanovic was
7 not one of the bold-faced liars that Mr. McCloskey promised us, I submit
8 and we submit, Your Honours, that the mere presence of Ljubisa Beara at a
9 certain location is not in any way evidence of wrongdoing, culpability,
10 complicity, let alone guilt of any criminal conduct.
11 Furthermore, Your Honours, no evidence whatsoever has been brought
12 before this Trial Chamber that Ljubisa Beara was anywhere in or around
13 Potocari on 11 July -- from 11 July to 13th July 1995. Your Honours, not
14 one iota of evidence has been brought forth that Ljubisa Beara was in
15 Bratunac at the Fontana Hotel during the critical meetings held between
16 Mladic and Dutch-Bat and later between Mladic and other higher officers
17 from the VRS, including General Krstic, General Zivanovic, Colonel
18 Jankovic, MUP officers including Vasic, some civilian leaders such as
19 Deronjic, the Dutch-Bat representatives and the Muslim representatives.
20 Your Honours, as a result of these meetings, it was that the evacuation of
21 civilians was agreed. The agreement was reached between the
22 representatives of the parties at those meetings who were negotiating at
23 the Fontana Hotel on the 11th and the 12th of July, 1995.
24 Your Honours, I must confess that it took many hours to debate and
25 brainstorming before we actually made the decision to address Your Honours
1 today under Rule 98 bis. At the end of the day, we jointly decided that
2 an argument should be made pursuant to Rule 98 bis. However, having
3 reviewed the jurisprudence of this Tribunal, it became brutally apparent
4 that our chance of gaining much advantage by arguing this 98 bis motion
5 was realistically merely a chance for the Office of the Prosecutor to
6 understand the theory of our Defence and to understand the shortfalls in
7 their case in chief. We submit most respectfully, Your Honours, that all
8 of this, taken together, will help the OTP or could help the OTP in the
9 preparation of their rebuttal case, even though, I submit, they could have
10 called or brought forth the very same witnesses in their case in chief.
11 However, having made the decision to give an argument, we are here.
12 I have, throughout this Prosecution case, wondered a few things,
13 not only directly related to my client, but to all of the accused. We
14 wonder why the OTP and the Chief Prosecutor, who has been involved fully
15 in the first two Srebrenica cases, all involving the same facts, can, in
16 good faith, change the Prosecution theory to suit its needs. Further,
17 Your Honours, we wonder why the OTP is allowed to do so. And, more
18 importantly, we wonder how the Trial Chamber can determine which theory
19 the OTP honestly believes is true.
20 In the first two trials, the theory of the Defence was, as I
21 understand, that security did it, there was a separate chain of command
22 and security was the culprit behind this. However, as I understand it,
23 Your Honour, the Prosecution that those cases took the opposite stance,
24 insofar as their theory was very simply that these defences in the Krstic
25 and Blagojevic cases were wrong. The Trial Chamber and the Appellate
1 Chambers agreed in those cases.
2 Further, Your Honours, we seriously wonder why such a learned
3 prosecutor as my learned friend Mr. McCloskey has, from the beginning of
4 this trial and even prior to that, at the 65 ter conference on 13 July
5 2006, at page 316, line 5 to 7, stated on the record his offence to an
6 innocuous comment by co-counsel Julie Condon, quote, Mr. McCloskey said:
7 "I would prefer her to come by me before she makes statements and
8 statements that are going to go to my integrity."
9 We wonder, Your Honour, just how it is that the Prosecutor, while
10 pointing out his integrity and rejecting any notion of questioning of his
11 ethics, truthfulness, veracity, honesty and legal character, can now argue
12 that my client, Ljubisa Beara, also known as "the empty vessel," is some
13 major player in the same events, trithing Krstic and Blagojevic. Your
14 Honours, in relation to this issue, we've done much heavy thinking and we
15 are hopeful and are sure that the Trial Chamber has likewise done so. In
16 our respectful opinion, Your Honour, the notion that the Prosecution can
17 shift theories from one case to the other, when the exact facts underlying
18 them are the same, is not proper and is alien to us. Your Honours, we
19 believe that dog won't hunt.
20 Throughout this trial, we have wondered why the Office of the
21 Prosecutor never used their in-house handwriting expert to examine those
22 pages of the Zvornik officers' logbook, Exhibit 377, which had such
23 notations as: "Colonel Beara, pass on the message," page 127 of that
24 exhibit, English, and: "Colonel Beara is coming," page 129, English
25 version. "Beara to call 155," page 156, English version. And once
1 again: "Beara is coming," page 137.
14 We wonder, Your Honours, why it is that no one in the Office of the
15 Prosecutor, with their massive staff, analysts, investigators, why they
16 didn't bother to have the handwriting analysed or even thought about
17 having it analysed.
18 Your Honours, we wonder why the OTP never once showed witnesses or
19 suspect/witnesses proper photo lineups, except one, or live lineups when
20 it came to our client, Mr. Beara. We believe that the one incident where
21 a photo was shown to a witness, which Mr. Ostojic will go into in greater
22 detail, was totally worthless, from a legal standpoint.
23 Your Honour, we wonder why the OTP witnesses who claim to have
24 sighted Ljubisa Beara all gave the same general vague description, a
25 description, Your Honours, which would fit numerous VRS officers at that
1 time. A mere review of the film of General Zivanovic's retirement party
2 will confirm this fact.
3 Your Honours, we wonder why, during certain witness interviews,
4 the interviewee had his status changed from witness to that of suspect in
5 the middle of the interview, and then after the witness had given
6 incriminatory information concerning Ljubisa Beara, his status was changed
7 back to that of a witness.
8 Your Honours, we further wonder why there were off-the-record,
9 unrecorded conversations with these suspect/witnesses who suddenly changed
10 their story and, we believe, changed their story to fit the Prosecution's
11 new theory in this case.
12 Your Honours, all of these interviews that I've just talked about,
13 we believe and have unsuccessfully argued, were in violation of Rule 43 of
14 the Rules of Procedure and Evidence.
15 Your Honours, if Ljubisa Beara is who they say he is, a planner,
16 close to or part of Mladic's inner circle, why is Ljubisa Beara not seen
17 in any video, any clips, any photos, with Mladic, Krstic, Zivanovic, Vasic
18 and others? Why is that, we wonder. Your Honours, if Ljubisa Beara is
19 who they say he is, why was Ljubisa Beara not at General Zivanovic's
20 retirement party, along with Mladic and other high-ranking VRS officers?
21 Your Honours, we wonder why OTP investigators threw away and/or
22 destroyed their field notes, especially, Your Honour, field notes of an
23 unrecorded four-day interview with PW-168, the Prosecution's star witness,
24 at a time that he was still a suspect, and this investigator, the record
25 reflects, kept those notes for approximately two years before he departed
1 this Tribunal, and didn't think they were needed, so he just destroyed
3 The OTP, Your Honour, are going to tell you, when it comes their
4 time to speak, that PW-168 is a credible witness. We submit,
5 respectfully, that PW-168 is as crooked as a dog's hind leg. Make no
6 mistake about it. Please don't be fooled, like the Prosecution was
7 fooled, by his slick lies and deceptions. We ask that you think about
9 Your Honours, I fortunately or unfortunately have grown up
10 surrounded by lawyers, judges, and politicians. A bad combination,
11 without any doubt. My father was a lawyer and then a trial judge. My
12 grandfather, two aunts and an uncle were also lawyers, plus an uncle by
13 marriage who is a lawyer and a politician. I thus learned about the law
14 at a very early age, and in that process I was always taught that there is
15 a right and there is a wrong, that it's wrong to presume a person charged
16 with a crime is guilty, that it's wrong to not allow an accused person the
17 right to a fair and public trial and to effective assistance of counsel.
18 Frankly, Your Honours, my father taught me not to believe anything I heard
19 or read and only half of what I saw.
20 Your Honours, you know, I was also taught that bad facts make bad
21 law. This truth I really didn't fully understand until I started
22 practicing law and trying cases in 1979. And, Your Honours, no one who
23 has followed this trial, the Blagojevic trial or the Krstic trial, or has
24 even read the indictment in this case, can dispute that there are bad
25 facts in this case.
1 I have been reminded during this trial on several occasions that
2 hope springs eternal, and being the optimist that I am, I pray that what
3 flows from the bad facts of this case is not bad law.
4 Your Honours, I must confess that I am, truthfully and very
5 respectfully, disillusioned by the conduct of these trials in this
6 Tribunal. I believe that history will judge all of us in these
7 proceedings, and I believe that ultimately it will not be whether the
8 accused were found guilty or not guilty, nor the sentences given to those
9 convicted, but whether those accused, those human beings, like each of us,
10 received a fair trial before they were convicted and sentenced to live
11 behind bars in a steel cage for years and years. Your Honours, liberty is
12 a lucre that the OTP has to barter with for their witness testimony.
13 Liberty, the most precious commodity of all. I ask: Who would not trade
14 a year's salary for their liberty for that same period of time? I bring
15 this up only for your consideration when you are analysing the testimony
16 of Prosecution witnesses to determine if it is capable of supporting a
17 conviction. We submit it is not.
18 Your Honours, my learned friend Peter McCloskey told you, on the
19 24th of August, 2006, in this very courtroom, that in the course of
20 testimony, some ten years after these events, there's more people willing
21 to talk, more people who will directly implicate one or more of the
22 accused, and he also said that at the end of the OTP witness list, there
23 are a long list of VRS and MUP people. But a word of caution here, he
24 said, "Many of these witnesses will not be telling you the full truth.
25 Many will be going back and forth." He said, however, he was confident
1 that you would be able to glean the truth from these witnesses, and he
2 told you: "... and in fact, even in the lies, you can find the truth."
3 We submit, Your Honours, that even a half truth is a lie.
4 Further, Your Honours, my learned friend Mr. McCloskey told you,
5 "I think there is something to be had from this witness, even though he is
6 a bold-faced liar, and I think we glean something from his bold-faced
8 Your Honours, we glean something different from these bold-faced
9 liars that Mr. McCloskey was speaking about in his opening statement. We
10 glean that these liars are not credible witnesses, and it would be a
11 travesty of international justice to base any part of a guilty verdict on
12 their lying testimony.
13 Your Honours, these witnesses that the Office of the Prosecutor
14 brought forth, many, many of them came here not to testify, but they came
15 here to test a lie. And we respectfully submit that they surely did. We
16 ask Your Honours that when analysing the testimony of the OTP witnesses,
17 keep in mind that the OTP put forth witnesses it knew would lie. This
18 practice, once again, is alien to my lead counsel and myself, and we
19 believe that in most jurisdictions, if not all, it is barred and
21 Your Honours, the OTP put forth witnesses that had made deals with
22 them for a lesser sentence, for their liberty, and keep in mind that
23 common sense tells you that if you're eating a bowl of beef stew and you
24 bite into a rotten piece of beef, a rotten piece of meat, you don't throw
25 out that one rotten piece of meat and keep on eating the stew, do you?
1 Common sense tells you you throw out the whole bowl. However, the Office
2 of the Prosecutor would have you throw out the rotten meat, the rotten
3 lies in their witness testimony, and keep on listening, hoping to find
4 some truth. We believe, Your Honours, this is illogical, unfounded, and
6 In analysing the evidence given by the OTP witnesses, even in a
7 light most favourable to the Prosecution, bear in mind that many of them
8 the Prosecution did not tell us exactly which ones lied or were going to.
9 We respectfully submit that more than a few fit the category described by
10 my learned colleague Mr. McCloskey in his opening statement. For example,
11 Your Honours, for inter alia PW-168, PW-102, Witness Celanovic [Realtime
12 transcript read in error "Silanovic"], PW-161, PW-162, Bircakovic, Babic,
13 Peric, these are a few examples. Your Honour, these witnesses --
14 JUDGE KWON: Just a second. For the sake of the record, can I get
15 the correct spelling of "Celanovic"?
16 JUDGE AGIUS: It's definitely spelled out wrongly here in the
17 transcript, but it's "C" for "Charlie," "E" for "Echo" --
18 MR. MEEK: B-I-R-C-A-K-O-V-I-C, I believe Your Honour. These are
19 just a few examples. And, Your Honours, in our humble opinion and
20 analysis, these witnesses were nothing more or nothing less than walking,
21 talking pieces of deception. We merely ask Your Honours, in your
22 deliberation and analysis, to take these submissions into account, and the
23 testimony, when you look at it, evaluate it, analyse it, don't forget
24 there's a motive to lie and point the finger at others in many instances.
25 Your Honours, courts over time have always looked at an
1 accomplice's testimony with caution. In a 1680 case from England, one
2 hailing pleas of the Crown, the judge stated:
3 "The Defendant admonishes us to heed the lessons of history by
4 skewing the corrupt bargain that produces accomplice testimony. He
5 invokes vintage authority with the observation, 'Truly it is hard to take
6 away the life of any person upon such a witness that swears to saves his
8 That was 1680, Your Honour.
9 Your Honours, we submit that criminals are likely to say and do
10 almost anything to get what they want, especially if what they want is to
11 get out of trouble. This willingness to do anything includes not only
12 truthfully spilling the beans on friends and relatives, but also lying,
13 committing perjury, manufacturing evidence, soliciting others to
14 corroborate their lies with more lies. How many times have we seen that
15 in this case. Double-crossing anyone with who they come in contact with,
16 including and especially the Prosecutor.
17 Your Honour, one of the basic tenets of the jurisprudence of any
18 civilised nation is that a trial is a search for the truth, and by that it
19 is not meant the purchased truth, the bartered-for truth, but the
20 unvarnished truth. It may well be that we must live sometimes with
21 bargained-for pleas of guilty, but we don't have to give a receipt stamp
22 "paid in full for your damning testimony," or, "You will be paid according
23 to how well you can convince, even though it may be in the face of lies."
24 Your Honours, we submit trustworthiness is a keystone and hallmark
25 of any judicial system that seeks recognition for its role in a civilised
1 society, and we believe, Your Honours, that it is time for this
2 International Tribunal to announce boldly and firmly that the judicial
3 search for the truth here cannot be reconciled with the virtual purchase
4 of perjury.
5 It is respectfully submitted, Your Honours, that there is
6 something to be had from these lying witnesses only if the Trial Chamber
7 totally ignores the simple truth, that in life you can bargain for and buy
8 almost anything. You can bargain for and buy mansions, villas, priceless
9 works of art, you can bargain for and buy all the creature comforts you
10 can conjure up in your mind, but thank God there is some things you can't
11 buy or some things you can't bargain for. You can't buy or bargain for
12 wisdom. You can't buy or bargain for justice, because if you do, what you
13 get is injustice. You can't buy or bargain for love, because if you do,
14 it isn't love that you get, and you can't buy or bargain for truth,
15 because it isn't truth that you get. It's testimony, with a cloud of
16 suspicion hanging over it. You can't buy and you can't bargain for
17 testimony, and that is, we submit, what the OTP has done in this case,
18 especially with their star witness, PW-168, and that's why their case, we
19 believe, is in the state it is at the present time.
20 Your Honours, hanging on the one of the walls in the oldest
21 courthouse in England are the words: "In this hallowed place of justice,
22 the Crown never loses, because when liberty of an Englishman is preserved
23 against false witnesses, the Crown wins."
24 Your Honour, I learned many years ago that the prosecution never
25 loses. My father explained to me because if they get a conviction,
1 they've won. If they get an acquittal, they've won also because justice
2 is done. So the prosecutor never win, and they can win both ways.
3 On 21 of August, 2006, Carla Del Ponte said in her opening
4 statement page 381, line 235:
5 "The surviving victims of Srebrenica crimes yearn for justice,
6 not vengeance."
7 We say to you that we agree with this sentiment, that the
8 surviving victims yearn for justice, not vengeance, and we also submit
9 that to convict the guilty is not necessarily the end of the game, is not
10 what the OTP should be looking for. What the victims, we believe, do not
11 want to see is an innocent man convicted, as this would, Your Honours, do
12 a disservice and an injustice to the victims.
13 Again, Your Honours, to convict an innocent man would do
14 disservice to the victims of Srebrenica and is not, Your Honours, in any
15 manner, as Ms. Del Ponte told us, an important step towards a cause and a
16 cause for hope. We believe that only contributes to the pain and
17 suffering of the surviving victims.
18 Your Honour, a review of the wrongful conviction cases throughout
19 the world indicate that those who are wrongfully convicted were victims of
20 these problems: Inaccurate eyewitness identifications, unreliable
21 jailhouse informants or snitches, failure of police and prosecutors to
22 disclose exculpatory evidence and faulty forensics. We've seen some of
23 the faulty forensics through our cross-examinations in the OTP's case, and
24 we believe that in the Defence cases, should there be any, that we will
25 prove not only faulty mathematics but faulty DNA submissions also.
1 Centred on wrongful convictions, the Northwestern University
2 school of Law in Chicago, Illinois, identified four types of false and or
3 unreliable evidence, false testimony by informant or snitch witnesses,
4 two, incorrect eyewitness identification, three, false confessions which
5 tend to point the finger at others, four, false or unreliable forensic
6 evidence or junk science.
7 In closing, Your Honours, I would like to say that it has been an
8 honour to be in front of this Trial Chamber and a privilege, and it's been
9 a greater privilege to represent Ljubisa Beara as a client.
10 I would just like to share with you something that Justice
11 Jackson, who was a Justice of the United States Supreme Court, one of the
12 architects of Nuremberg, and you may have heard it but I'll say it again.
13 He said:
14 "If good-faith trials are sought, that is another matter. All
15 experience teaches that there are certain things you cannot do under the
16 guise of judicial trial. Courts try cases, but cases also try courts.
17 You must put no man on trial before anything that is called a court under
18 the forms of judicial proceedings if you're not willing to see him freed
19 if not proven guilty."
20 I want to lastly thank everyone here, the staff, the Registry, the
21 UN security people, the technical people, especially the interpreters for
22 putting up with my accent and my cadence, and likewise, Your Honours, for
23 putting up with me, and your struggle and your patience, Your Honours. I
24 also want to thank my lead counsel, John Ostojic, for his guidance, his
25 leadership, his direction and his counselling. The two of us have spent
1 quite a bit of time, two years, brainstorming, bouncing things off of each
2 other's heads, and I've got to admit, Your Honours, it's been a long,
3 strange, and interesting trip.
4 I would like to just, in further closing, quote from a great
5 American, Martin Luther King. Martin Luther King said:
6 "In justice anywhere is a threat to justice everywhere. We are
7 caught in an inescapable network of mutuality, tied in a single garment of
8 destiny. Whatever affects one directly affects all directly."
9 He wrote that in a letter from the Birmingham jail on the 16th of
10 April, 1963.
11 I thank you Your Honours very much. It's been my pleasure.
12 JUDGE AGIUS: Do I take it you are leaving us, Mr. Meek?
13 MR. MEEK: Pardon me?
14 JUDGE AGIUS: Do I read your intervention meaning that you will be
15 leaving us?
16 MR. MEEK: Anything is possible, Your Honour, and we can certainly
17 address that at a later stage.
18 JUDGE AGIUS: All right, thank you.
19 MR. MEEK: Thank you.
20 JUDGE AGIUS: Mr. Ostojic. You are starting at 9.51.
21 MR. OSTOJIC: May it please the Court, Mr. President, honourable
22 Judges, fellow colleagues and Mr. Beara, we respectfully submit that
23 despite the rigid and inflexible rules of Rule 98 bis, that indeed, based
24 on the evidence that is presented, that this honourable Trial Chamber
25 should acquit on specifically counts 7 and 8 of the second amended
1 consolidated indictment. Permit me to share with you why.
2 By way of background, we have seen the allegations, we have heard
3 the promises, and we have seen and heard the evidence, and we now know and
4 respectfully submit that the promises were unfulfilled and the allegations
5 indeed unsubstantiated.
6 The allegation that Mr. Beara planned, organised, assisted,
7 supervised, or facilitated, or otherwise aided and abetted in the
8 transportation of civilians in either Srebrenica or Zepa, was not proven.
9 Ljubisa Beara is not criminally responsible, and therefore an acquittal is
11 I hope to walk through with you some of this evidence. First I
12 would like to address Zepa and the allegations both in count 7 of forcible
13 transfer as well as count 8, deportation.
14 We've heard, in essence, from I believe ten witnesses in
15 connection with the movement of people involved in Zepa. The key
16 questions, I believe, that we have to ask ourselves in determining whether
17 Mr. Beara was involved is: First, when did the transportation begin?
18 Paragraph 71 of the indictment suggests that the movement and
19 transportation of people from Zepa commenced on July 25th, 1995. OTP
20 analyst Mr. Butler claims that it was the 26th, and admittedly he said he
21 was going off memory.
22 The next critical question, we submit, that must be asked in
23 connection with Zepa is: How long did the movement of these civilians
24 last? It lasted, as Mr. Butler suggested, one, two days maximum, which
25 would end approximately on the 28th or 29th of July. When you review the
1 evidence on whole, you'll find that there was no evidence of Ljubisa
2 Beara's involvement, either from documents, orders, intercepts, logbooks,
3 or personal diaries, suggesting that he was near or around the area of
4 Zepa when there was a commencement of the movement of the civilian
5 population. The only evidence that even Mr. Butler could find that may
6 remotely suggest any involvement by Mr. Beara with respect to Zepa in
7 general were three intercepts that purport to have been captured with his
8 voice, two on the 1st of August and one on the 2nd of August, 1995. We'll
9 deal with that specifically in a moment, but when we deal with planning of
10 the movement of people, Mr. Butler, on the 23rd of January, 2008,
11 specifically on page 20217, lines 13 through 20, stated:
12 "I have no evidence that he, Mr. Beara, was part of it."
13 With respect to organisation, assistance, supervision, or
14 facilitation of the movement of those civilians from Zepa, again we turn
15 to Mr. Butler, and on the same page, 20217, lines 21 through 24, on the
16 23rd of January, 2008, he says:
17 "I give you the same answer. I have no information. Therefore,
18 you know, on a lack of information, I agree with you."
19 Butler agrees, indeed, that there was no evidence whatsoever that
20 Ljubisa Beara was involved in the forcible transfer or deportation of the
21 civilian population in Zepa. In fact, and I believe it is undisputed,
22 that there is not a shred of evidence inferring or establishing Ljubisa
23 Beara's purported involvement in Zepa. Butler continues, when he tells us
24 on page 20213, lines 9 through 10:
25 "I don't believe we have any intercepts or any other information
1 pertaining to Ljubisa Beara, his whereabouts during that period, namely,
2 July 16th through the 31st, 1995."
3 We didn't need to ask Mr. Butler what he meant when he said "any
4 other information," but we can logically and predictably understand that
5 that meant no intercepts, no documents, no orders, no logbooks, no
6 personal diaries, no Bosnian Muslim witnesses, not even the liars that the
7 OTP from time to time paraded in this courtroom, no evidence we suggest
8 mandates an acquittal.
9 OTP, throughout witnesses -- through their witnesses, they indeed
10 concede that there was no evidence Ljubisa Beara on these two counts. If
11 forcible transfer and deportation -- and/or deportation of Zepa population
12 began on July 25th or 26th and ended on the 28th or 29th, it is rather
13 plain that the OTP, through its witnesses and in summary fashion, concede
14 that there is no evidence against Mr. Beara relating to either of these
15 two counts with respect to Zepa, and therefore, under the prevailing law,
16 as rigid and inflexible as it may be, no reasonable trier of fact could
17 ever find, respectfully, against Ljubisa Beara on these two counts, and
18 therefore must dismiss the same.
19 The Court asked Mr. President a question during some of our
20 cross-examinations, and you wondered about joint criminal enterprise.
21 Since there is no evidence, documents, intercepts or witnesses which
22 remotely link Ljubisa Beara to any involvement in the movement of
23 civilians from Zepa at any time from start to finish, this discussion, we
24 submit, is not relevant, unnecessary and unwarranted. But what about the
25 intercepts? The three intercepts, as I've identified, were from the 1st
1 of August and the 2nd of August, 1995. With respect to these two
2 intercepts -- with these three intercepts, they clearly were captured well
3 after the forcible transfer and/or deportation was planned and organised
4 and facilitated and completed. You cannot and should not, respectfully,
5 consider them in relation to counts 7 and 8 of the second amended
6 consolidated indictment.
7 However, not knowing what the Trial Chamber will do, if we assume
8 that the Trial Chamber accepts these intercepts in some fashion as some
9 sort of link with the movement or transportation of civilians, we believe
10 that a close review of these intercepts do not reflect or reveal criminal
11 conduct, and in fact support that Mr. Beara, if he was the one that was in
12 these intercepts, indeed conducted himself in a very legal and
13 professional manner in discussing prisoners of war and trying to make sure
14 that they were being registered with the International Red Cross and other
16 In a nutshell with respect to Zepa, there's only three intercepts
17 that may even be considered. I suggest that they shouldn't, and even if
18 they are considered, they are indeed exculpatory and do not prove that
19 Ljubisa Beara in any instance was involved in the movement or transfer of
20 the civilian population in Zepa, and therefore we once again request that
21 with respect to counts 7, forcible transfer, and count 8, deportation, as
22 it relates to Zepa, that they be dismissed.
23 Your Honours, in the interests of time, I'm going to move to the
24 movement of people from Srebrenica. That allegation is set out in count 7
25 of the second amended consolidated indictment, forcible transfer. The key
1 paragraphs, we suggest, that you should review, among others, is
2 specifically paragraphs 61 through 64. I think the same questions that we
3 asked about Zepa are pertinent for Srebrenica. When did the
4 transportation or movement of people commence? The movement of the
5 civilian population from Srebrenica commenced on the 12th of July and
6 ended on the 13th of July, 1995. In fact, that is undisputed, and we can
7 refer to the adjudicated facts, specifically fact 203 and 219. The
8 threshold question that we've asked from time to time, through witnesses,
9 is whether it was forcible transfer or an evacuation. We contend that it
10 was an evacuation, given the presence, assistance, and participation of
11 Dutch-Bat, among others, and not forcible transfer. We do not rely solely
12 on the presence, assistance and participation of Dutch-Bat. We believe
13 other factors may further assist this Trial Chamber in reaching the proper
14 conclusion that it was not forcible transfer, but rather an evacuation.
15 If we examine the testimony of Mr. Kingori, who was here recently
16 with us from Kenya, and specifically look at Exhibit P00493, it clearly
17 states that the inhabitants of Zepa -- I mean of Srebrenica, 80 to 85 per
18 cent were refugees themselves, taking another factor that the Bosnian
19 Muslim men, both military and non-military men, voluntarily abandoned the
20 civilians and formed a long column, seeking to go through the dark forest
21 one day before the evacuation even started.
22 Analysis as to whether it was evacuation or forcible transfer. We
23 suggest that the movement of the civilians from Srebrenica was an
24 evacuation, not a forcible transfer, and we must place it in context with
25 the full and complete picture as to what the civilians of Srebrenica
1 desired or decided at that time. Given that 80 per cent or more of the
2 population in Srebrenica, in July of 1995, were refugees or displaced
3 persons, they never considered Srebrenica their home, but rather
4 temporarily an intermittent residence. Given that the Bosnian Muslim
5 military and non-military males, for whatever reason, abandoned the
6 enclave voluntarily, and the civilians could not and would not have
7 decided anything other than to leave and permit the evacuation with
8 Dutch-Bat to commence.
9 In a general sense, that's the movement of the civilian population
10 in Srebrenica. To relate it specifically as it relates to Ljubisa Beara,
11 despite what you may decide, and even if you decide that there was
12 sufficient evidence to find forcible transfer at this stage of the
13 proceedings, respectfully, we nonetheless suggest that you must acquit
14 Ljubisa Beara on this count. Why? The evidence that was brought forth
15 here, both the video evidence, the documentary evidence, the evidence from
16 the witnesses themselves, we saw who the participants were, we saw where
17 the participants met, and we know from witnesses what was said at those
18 meetings prior to the actual evacuation or transfer or movement of the
19 population from Srebrenica.
20 Where was Mladic with regard to the events leading up to the
21 movement of the people from Srebrenica? We saw Mladic in Bratunac, Hotel
22 Fontana, on three occasions at least. We saw Mladic in Srebrenica. We
23 saw Mladic in Potocari, and we saw Mladic in Sandici. Never, ever was
24 Mladic near or even in the presence of Ljubisa Beara at any of those
25 locations, places, or times.
1 We submit that those are concrete facts that the Court must take
2 into consideration when evaluating Mr. Beara's culpability with respect to
3 this count involving the movement of the population in Srebrenica. Never,
4 ever was there evidence of any kind to suggest, infer, or establish that
5 Ljubisa Beara was near or present at the locations when purportedly
6 decisions to evacuate or forcibly transfer the population was made.
7 Butler exposed himself on this issue when we asked him
8 specifically, "Did you have any evidence of Mr. Beara being at Bratunac in
9 the Hotel Fontana?" It's a classic example, in my opinion, of how the OTP
10 and its former staff member analyst make unsubstantiated leaps of faith,
11 misguided interpretations and erroneous conclusions. When I asked
12 Mr. Butler, on the 23rd of January, 2008, to confirm that in fact there
13 was no evidence whatsoever that would place Mr. Beara at the Hotel Fontana
14 in Bratunac for any of those three meetings on the 11th or 12th of July,
15 1995, Mr. Butler could have been honest. Instead, he chose to make it up
16 as he went along. First he said, at page 20232, line 6 through 14:
17 "I believe there are some records that place him, Mr. Beara, at
18 the Hotel Fontana, that he'd had a room there during the relevant period,
19 but he's not listed as one of the participants in any of the meetings."
20 Mr. Butler went so far afield and said not only that he believed
21 Ljubisa Beara was at the Hotel Fontana, he suggested and stated explicitly
22 that he had a room there. Upon further questioning, Mr. Butler seemingly
23 realised his mistake, and for the second time, instead of just being
24 honest, he chose to waffle and to keep things vague. He said, on pages
25 20232, lines 20 through 21:
1 "I don't recall whether or not Colonel Beara was one of those
2 listed officers. I mean, we have those records, but I just don't recall
3 at the moment whether he was one of those officers who had a room or not
5 Meaning at the Hotel Fontana.
6 Indeed, as we know, based on my conversation with my learned
7 friend after that testimony, and based on a review of the records and
8 documents from the Hotel Fontana, Mr. Beara was not listed as a
9 participant in that meeting, and Mr. Beara never had a room for that
10 entire month at any time at the Hotel Fontana in Bratunac.
11 Those, in our opinion, were the critical meetings, as the
12 Prosecution suggests, where some planning and organising was done to
13 conduct the transportation of the civilian population from Srebrenica.
14 Ljubisa Beara unequivocally, I suggest, was not present at any of those
15 meetings and was not present on or around the area when those decisions
16 were being made or implemented.
17 When we look at the allegations in the indictment, I have no doubt
18 and I am confident that the OTP will concede that Ljubisa Beara is in no
19 way involved in the forcible removal of the civilian population from
20 Srebrenica. Ljubisa Beara is not even mentioned or referenced in
21 paragraph 61, 62, or 64 of count 7, which involves forcible transfer in
22 the second amended consolidated indictment. Those are the four
23 paragraphs, and I've mentioned three. With respect to paragraph 63, there
24 is a reference to Mr. Beara. Paragraph 63, in my submission, does not
25 belong in count 7 of this document. It deals not with civilians; it deals
1 with Bosnian Muslim military and non-military men from the column. The
2 Bosnian Muslims from the column who left, they left on their own volition
3 and were not, theoretically or practically, forcibly removed.
4 If this Trial Chamber, respectfully, in my view, unreasonably
5 finds that the Bosnian men from the column were indeed forcibly
6 transferred out of Srebrenica, it nonetheless, in our view, must acquit
7 Mr. Beara of the allegations in count 7 of the indictment. The questions
8 remain: Did the OTP prove, through the witnesses such as Egbers, that
9 Ljubisa Beara was in Bratunac, as alleged? Why did they not call Zoran
10 Modric, who was also there, who they have interviewed, who they have taken
11 statements from? Why did they not call other members of the 65th
12 Motorised Protection Regiment? Why didn't they call other Dutch-Bat
13 witnesses who were with Mr. Egbers on the dates he claims he saw Mr. Beara
14 at Nova Kasaba?
15 In addition to failing to provide or calling corroborating
16 evidence on the purported presence of Mr. Beara at Nova Kasaba, Egbers's
17 testimony is nothing more than speculative, conjecture, and a
18 misidentification. The description was erroneous, the time period too
19 short for him to evaluate. Egbers himself never confirmed or hinted that
20 Ljubisa Beara was involved in the purported forcible transfer of the
21 captured Bosnian Muslim males at Nova Kasaba on July 14th, 1995.
22 Needless to say, if we examine all the evidence put forth by the
23 Prosecution on this issue, we must look to three other witnesses. One,
24 Milorad Bircakovic; two, (redacted), and, again, three, again Egbers. If
25 we draw up a timeline in respect of these three witnesses, you'll find
1 that this Court cannot accept their testimony because it is in conflict.
2 Each claim to have seen Mr. Beara and had a purported meeting with him on
3 July 14th, 1995. Bircakovic claims that it was at approximately 8.30 in
4 Zvornik. (redacted) claims that it was at approximately 9.00 or 9.30 in
5 Bratunac. Egbers claims it was at 9.30 or 10.00 at Nova Kasaba.
7 This Court should and indeed must dismiss all three witnesses on
8 the basis that they're not credible, that they are not believable.
9 Despite what I believe are these blatant defects and obvious
10 flaws, the Trial Chamber may at this stage somehow view the testimony as
11 believable. It should respectfully, nonetheless, acquit Mr. Beara,
12 because the removal of the Bosnian Muslim civilian population from
13 Potocari and Srebrenica was completed on the evening of July 13th by 2000
14 hours, 1995.
15 JUDGE AGIUS: Be careful when you are mentioning names. This is
16 not just you, Mr. Ostojic, but all the others, please, to make sure that
17 you are not mentioning any protected witnesses by their name.
18 MR. OSTOJIC: I've worked hard to try to avoid that,
19 Mr. President.
20 JUDGE AGIUS: No, it should be easy, actually. You should have
21 had a list of these ready at hand. Anyway, let's proceed. We are making
22 the redaction.
23 MR. OSTOJIC: Thank you.
24 We believe that the testimony of these witnesses, be it
25 Bircakovic, PW-162, and Egbers, were not corroborated with any other
1 witnesses. All occurred the day after the completion of the movement of
2 the civilian population from Srebrenica. All three of these individuals,
3 we believe, it is impossible to suggest that they and only they saw
4 Mr. Beara at that given time. There was absolutely no one else who saw
5 Mr. Beara but these three individuals. Is it possible that he could
6 travel from one point to the next point and then the third point in such a
7 short time, and yet have meetings with these people from anywhere from 10
8 minutes to 30 minutes? I suggest that if we plainly look at a map, you'll
9 find that it is indeed impossible.
10 None of the paragraphs relevant to count 7, forcible transfer, 61,
11 62, 63 and 64, have been proven, and thus an acquittal is appropriate and
12 warranted as it relates to Mr. Beara.
13 This honourable Chamber is asked from time to time about joint
14 criminal enterprise, and the Prosecution, as reflected in the indictment,
15 has selected to declare themselves with the third form, extended joint
16 criminal enterprise. We believe the evidence, when you weigh it, not at
17 this time, but when you examine the evidence at this stage as it relates
18 to Mr. Beara, what they've proven is perhaps collective guilt, but they've
19 not proven any joint criminal enterprise or any participation of that
20 joint criminal enterprise by Mr. Beara.
21 We've tried to establish, through some of our questions, a
22 timeline for Mr. Beara. He was not, as we've heard, noticed by anyone,
23 including their analyst, who thoroughly seemed to have examined evidence
24 to find some culpability of accused, he couldn't find any evidence from
25 the 1st through the 12th of July, 1995. He couldn't find any evidence, as
1 it relates to Mr. Beara, from the 17th through the 31st of July, 1995.
2 When we discussed this third variant of extended joint criminal
3 enterprise, we speak of knowledge, and if we look at the intercepts to
4 determine what, if anything, Mr. Beara knew or should have known at that
5 time, you'll find that there's only two options for us to really examine.
6 If you accept or believe the OTP evaluation, analysis, and interpretation
7 with respect to the intercept evidence relating to Mr. Beara, the two
8 logical options are as follows: One, that Mr. Beara did not have any
9 knowledge of the events that were going on at that time. If we take, for
10 example, the intercept 65 ter 1177, a purported conversation with
11 Zivanovic, or that Beara allegedly is calling for Zivanovic on the 15th of
12 July, 1995, the question that Mr. McCloskey should have asked is: Why
13 would Ljubisa Beara, if he knew what was going on at that time, why would
14 he call General Zivanovic? Mr. Beara should have known, as everyone knew,
15 that at that time there was a replacement for the Drina Corps Command from
16 General Zivanovic to General Krstic. If this was Beara at the intercept,
17 as they allege, Mr. Beara had no knowledge. If it wasn't Mr. Beara, then
18 we shouldn't use the intercept at all to determine whether he was involved
19 or had knowledge of any joint criminal enterprise or the involvement of
20 criminal conduct based on that.
21 We discussed and we found another issue relating to this extension
22 155. Now, Mr. Butler, in an attempt to be genuine with us, he coined it
23 "a little anomaly." When asked how could Mr. Beara, if this indeed, as
24 they allege, is an extension for the Main Staff, if this is Mr. Beara
25 calling on this intercept, how could he not know the extension 155 was for
1 the Main Staff? Butler calls it a little anomaly, but indeed all it is is
2 prosecutorial parlance for saying there is reasonable doubt, and he
3 couldn't say that to us.
4 If Mr. Beara was not on that intercept, then you must not consider
5 those intercepts against him relating to joint criminal enterprise and the
6 third variant.
7 One other example, although we have many that we'll share with the
8 Court, was again 65 ter 1178. What no one wanted to discuss in that
9 interview was that purportedly Mr. Beara was there with a gentleman by the
10 name of Lukic. The Prosecution claims that it was a man by the name of
11 Milan Lukic from Visegrad who was not a commander, not an assistant
12 commander, but a mere soldier in a battalion or brigade. If we look
13 closely at that intercept, you'll find that the person who captured the
14 conversation and purports that it was Mr. Beara says that, "Lukic is here
15 with his driver. I dare say that there are two things we have to discuss
16 here: One, it's impossible that a soldier such as Milan Lukic, at the age
17 of 23 years at that time, if not younger, had his own driver. He was
18 neither a commander, assistant commander, in charge of not even a troop.
19 The prosecution offers these suggestions, but fails to explain them
21 In the brief moments that we have, I'd like to talk about
22 Mr. Celanovic which I think was an open witness. Mr. Celanovic testified
23 here and he claimed that he saw Mr. Beara in or around Bratunac. The
24 testimony, we believe, is not reliable. And I understand under Rule 98,
25 you have to determine whether you should believe it and consider it in the
1 light most favourable to the Prosecution. There's no corroborating
2 evidence as it relates to Mr. Celanovic, but if you really read his
3 testimony, he suggested that he basically had an encounter with Mr. Beara,
4 and they basically took a walk, and they took a walk from one building all
5 the way across town to the next, unseen by anyone. No one came up to
6 them, no assistants, no other colleagues, no other soldiers or members of
7 the Bratunac Brigade. Mr. Celanovic was walking supposedly across town.
8 He inspected, allegedly, the POWs, and they were planning, purportedly,
9 where the POWs would go next. There is no corroboration that Mr. Beara
10 was there at the time suggested by Mr. Celanovic.
11 Was the town empty? And I'm sorry for using that word, because I
12 know my friend is sensitive with it. Was the town vacant or desolate? Of
13 course not. He's suggesting to us that there were buses there, that there
14 were many soldiers there, many officers there, that we can draw from many
15 different witnesses. No one, other than Celanovic, saw, purportedly,
16 Mr. Beara there.
17 Even if this Court accepts and believes Mr. Celanovic, despite the
18 fact that his testimony was vague and, in my view, inconsistent and truly
19 unbelievable, given the circumstances that he described it, we believe
20 that that encounter does not involve any criminal culpability on the part
21 of Mr. Beara. Here's why: If we recall his testimony, he said the
22 conversation was short and to the point. The conversation, in all
23 respects, was about the screening and the interrogation of POWs. There
24 was no conversation about doing anything other than what's legally
25 prescribed both under the former Yugoslav and the VRS laws as well as that
1 which is indicated in the Geneva Conventions in dealing with POWs.
2 So either way, if we accept Mr. Celanovic's testimony, although I
3 don't because we believe Mr. Beara was not there at the time that he
4 claims, it nonetheless doesn't provide any scintilla of evidence for any
5 of the counts or allegations in my learned friend has asserted against
6 Mr. Beara. We are focusing, indeed, on count 7 with this testimony, and
7 we believe that even if you accept Celanovic, you must still acquit
8 Ljubisa Beara on this count.
9 There are two other brief issues that I'd like to discuss. There
10 were very few identifications, proper identifications, performed by the
11 Office of the Prosecutor. One we do have that they conducted, and that
12 was with the witness who I understand was in open session, Drazen
13 Erdemovic. With respect to Drazen Erdemovic, my learned friend and I were
14 able to come --
15 JUDGE AGIUS: Go ahead.
16 MR. OSTOJIC: There was some confusion with other testimony and
17 witnesses with this regard.
18 With respect to Drazen Erdemovic, we're really focusing on the
19 Branjevo Military Farm and Pilici. My learned friend and I made a
20 stipulation in that regard, and we filed it on the 7th of May, 2007. If
21 we closely look at that stipulation, the Court will find that it was
22 significant Drazen Erdemovic did not identify or recall ever seeing
23 Mr. Beara where others claim he may have been, but what's important to
24 note is the energy that the Prosecution used in trying to confirm that
25 Mr. Beara was there. They got word from Mr. Erdemovic that he saw the
1 individual, a lieutenant colonel or colonel, from some BBC television show
2 while he was in prison. They immediately sent their team over there, got
3 a copy of that tape, got additional copies of that tape, showed it to him,
4 and he did not confirm that that was Mr. Beara.
5 Subsequently, for the first time, they showed him a picture of
6 Mr. Beara, and it's attached as an exhibit or an annex to our filing of
7 the 7th of May, 2007, and Mr. Erdemovic confirmed at that time that that
8 individual in that picture, who is Mr. Beara, was not the individual he
9 saw at any time at either Branjevo Military Farm or at Pilici.
10 We've chosen --
11 MR. McCLOSKEY: Just to confirm and get our facts straight, which
12 I think is important, Mr. Erdemovic never said it was a colonel. He's
13 always said "Lieutenant Colonel."
14 JUDGE AGIUS: Go ahead.
15 MR. OSTOJIC: Yes.
16 The Court has heard the testimony of other Prosecution witnesses
17 who have said that they don't know if it was a lieutenant colonel or
18 colonel at any given sighting. Whether Erdemovic said it was a colonel or
19 lieutenant colonel, I believe that the Prosecution sought to implicate
20 Mr. Beara by showing he was present at that site, they would not have
21 shown him the picture of Mr. Beara had they not at least believed or
22 wanted to believe or wished to believe that it was Mr. Beara. They showed
23 him the picture, and Mr. Erdemovic rejected them. They did not do that
24 with any of the other witnesses that were brought before you who they
25 claim had encounters with Mr. Beara.
1 We've chosen, Your Honours and Mr. President, to selectively
2 isolate with respect to counts 7 and 8. By no means do we suggest they've
3 proven or met their burden of proof with respect to the other six counts.
4 We do ask that Your Honours use your discretion and decide whether other
5 counts can also be dismissed, which we believe they can.
6 We strongly feel that if this Court outlines the timeline of both
7 the evacuation and movement of people in Zepa, as well as the evacuation
8 and movement of the civilian population in Srebrenica, you'll find that
9 Ljubisa Beara not only was never near those areas, did not participate in
10 any of the meetings to plan or organise any such either evacuation,
11 forcible transfer, or deportation.
12 I humbly thank Your Honours for listening to us and for giving us
13 the opportunity address you, and we believe the evidence will speak for
14 itself that these two counts should and indeed must be dismissed as it
15 relates to Mr. Beara.
16 Thank you.
17 JUDGE AGIUS: I thank you, Mr. Ostojic.
18 We'll have a break now. I allowed us to go beyond the time.
19 Who is going next? Okay. We'll have --
20 MR. BOURGON: I will, Mr. President.
21 JUDGE AGIUS: We'll have a 25-minute break, starting from now.
22 Thank you.
23 --- Recess taken at 10.32 a.m.
24 --- On resuming at 11.04 a.m.
25 JUDGE AGIUS: Yes, Mr. Bourgon. You're starting at 11.02.
1 MR. BOURGON: Good morning, Mr. President. Good morning, Judges.
2 Good morning, colleagues.
3 As usual, my colleagues representing the accused Beara are a tough
4 act to follow, but that being said, I will endeavour to keep my
5 submissions both interesting and as short as possible.
6 Mr. President, the Prosecution closed its case on 6 February, and
7 I have the honour today of addressing the Trial Chamber in accordance with
8 the order issued on 29 November 2007. Going straight to the point, my aim
9 today is to respectfully request that Drago Nikolic, the accused I
10 represent in this case, along with Mrs. Nikolic, be acquitted at this
11 stage for counts 7 and 8, as well as count 2, pursuant to Rule 98 bis. My
12 submissions today will last no more than 90 minutes, as authorised by the
13 Trial Chamber, hopefully shorter.
14 Turning to the law applicable to Rule 98 bis submissions, a
15 procedure unknown to most continental law systems, I do not intend to
16 spend much time. That being said, the applicable standard for Rule 98 bis
17 submissions is well established in the case law of the International
18 Tribunal, and I refer the Trial Chamber to the latest decision in the case
19 the Prosecutor versus Milutinovic in Rule 98 bis. In that case,
20 Mr. President, the Trial Chamber held that the test to be applied is
21 whether there is evidence upon which, if accepted, a tribunal of fact
22 could be satisfied beyond reasonable doubt of the guilt of the particular
23 accused on the count in question. The Trial Chamber went on to say:
24 "Therefore, where there is no evidence to sustain a count, the
25 motion will be granted."
1 Furthermore, where there is some evidence but it is such that,
2 taken at its highest, a Trial Chamber could not convict on it, the motion
3 will also be granted.
4 While I won't spend much time on the applicable law to Rule 98
5 bis, I do wish to stress, Mr. President, the importance of the Rule 98 bis
6 procedure, which is directly related, in our view, to the presumption of
8 If there is no case to answer at the end of the presentation of
9 the case for the Prosecution, it would be contrary to the presumption of
10 innocence and it would be unfair to require an accused to present a
11 defence. That is why, Mr. President, the language in Rule 98 bis refers
12 to the word "shall." For any count for which there is no evidence at the
13 close of the Prosecutor's case, the Trial Chamber shall enter a judgement
14 of acquittal.
15 Consequently, Mr. President, although my submissions today deal
16 only with counts 7, 8 and 2, we -- it is our understanding that it is the
17 duty of the Trial Chamber, if it finds that there is no evidence to
18 sustain the other counts, that the accused should also be acquitted of
19 these further counts.
20 I move directly to count number 7, forcible transfer. Quickly,
21 the background to this count is as follows:
22 In our response to the Prosecution motion to amend the
23 indictments, that was on 21 July 2005, as well as in our motion alleging
24 defects in the form of the consolidated amended indictment on 29 December
25 2005, we argued, Mr. President, that the alleged joint criminal enterprise
1 to forcibly remove the Bosnian Muslim population from the Srebrenica
2 enclave and to forcibly remove the population from the Zepa enclave were
3 distinct from each other. We also argue that the Prosecution should not
4 have been authorised to add a count of forcible transfer from the Zepa
5 enclave to the charges laid against Drago Nikolic at that time.
6 Our submission, Mr. President, rested on the fact that Drago
7 Nikolic never set foot in Zepa and never had any involvement whatsoever in
8 the events which led to the forcible transfer of the Zepa population. To
9 be more precise, the alleged forcible transfer of the Zepa population. At
10 that time, the Trial Chamber ruled that proof of the allegation of the
11 existence of one joint criminal enterprise to forcibly remove the Bosnian
12 Muslim population from both the Srebrenica and Zepa enclave, was a matter
13 to be of evidence to be determined at trial.
14 Well, here we are, Mr. President. We've heard the Prosecution
15 evidence. And to us, the conclusion will remain the same.
16 In the decision I was referring to, of course, was a Trial Chamber
17 decision on the indictment of 31 May 2006, at paragraph 54. In that same
18 decision, the Trial Chamber held at paragraph 52 that in the indictment,
19 the Prosecution had pleaded with enough detail the time periods of the
20 existence of the two alleged joint criminal enterprises, the two GCE being
21 first the joint criminal enterprise to forcibly remove the Bosnian Muslim
22 population from the Srebrenica and Zepa enclaves, and the second JCE, the
23 joint criminal enterprise to kill the able-bodied men of Srebrenica.
24 In our submission, Mr. President, it follows from the above that a
25 distinction must be made between the two joint criminal enterprises
1 alleged in the indictment, and I refer here to attachment A, paragraphs 96
2 and 97. Again, I repeat, the first one -- or the first joint criminal
3 enterprise being the forcible transfer or deportation of the Muslim
4 population of Srebrenica and Zepa, and the second joint criminal
5 enterprise being or referring to the killing of the able-bodied men from
6 Srebrenica. The distinction between the two is highlighted in various
7 paragraphs of the indictment, including, amongst others, paragraph 34,
8 related to count 2, conspiracy to commit genocide.
9 The second consideration arising from the indictment is that the
10 joint criminal enterprise related to forcible transfer, as well as the
11 Trial Chamber's decision and the indictment, all confirm that its aim was
12 to remove the population from both the Srebrenica and Zepa enclaves. Both
13 of these considerations, Mr. President, we submit are highly relevant for
14 the Trial Chamber's adjudication of our submissions pursuant to Rule 98
16 I now move to the precise wording of count number 7 found in
17 paragraph 49 of the indictment. Pursuant to this paragraph, Drago Nikolic
18 is charged, together with others, for being a member of and knowingly
19 participating in a joint criminal enterprise, the common purpose of which
20 was to force the Muslim population out of the Srebrenica and Zepa
21 enclaves, to areas outside the control of the RS from about 8 March 1995
22 through the end of August 1995. For the Trial Chamber to return a guilty
23 finding against Drago Nikolic for count number 7, forcible transfer, it is
24 our submission that the Prosecution must prove beyond a reasonable doubt
25 each of the following essential elements of the offence.
1 If I may have 3D304 on e-court, please, page 1.
2 It is our submission, Mr. President, that the following essential
3 elements must be proved --
4 JUDGE AGIUS: One moment. It's still not up yet.
5 Yes, it is now. Thank you.
6 MR. BOURGON: Thank you, Mr. President.
7 From about 8 -- now, we have applied these essential elements to
8 the facts of the case so that we can best present our submissions
9 specifically as they apply to Drago Nikolic.
10 From about 8 March through the end of August, 1995, the Bosnian
11 Muslim population was unlawfully forced to leave the Srebrenica and Zepa
12 enclaves. Number 2, such forcible transfer was committed willfully,
13 meaning with the intent to permanently remove the population, which
14 implies the intention that they should not return once the situation has
15 normalised or had normalised in the area.
16 Regarding the permanent character of the removal of the
17 population, we wish to draw the attention of the Trial Chamber to the
18 commentary to the Geneva Conventions -- the commentary to Geneva
19 Convention 4, to be more precise, at page 280, which states that unlike
20 deportation and forcible transfer, evacuation is a provisional measure.
21 So what must be proved is that the measure was permanent and that it was
22 not evacuation. A distinction must be made between forcible transfer and
23 evacuation. And as we will see later, this is another important
25 The third element being the forcible transferred after -- during
1 an armed conflict, and the forcible transfer occurred, according to the
2 fourth element, in the context of a widespread, systematic attack against
3 any civilian population.
4 With respect to the fourth essential element, the Defence
5 emphasizes the importance of the victim group being a civilian population.
6 We refer the Trial Chamber to the judgement in the Sljivancanin --
7 the Prosecutor versus Sljivancanin in this regard.
8 The fifth element, Mr. President, I'm sure we can see it -- yes we
9 have it on the screen, there's a nexus between the forcible transfer and
10 the attack on the civilian population. And finally, of course, the accused
11 incurs individual criminal responsible pursuant to Article 7(1) of the
12 Statute, and that is for committing, planning, instigating, ordering, or
13 otherwise aiding and abetting in the planning, preparation, or execution
14 of the forcible transfer.
15 Regarding this last element, Mr. President, the Defence recalls
16 the Prosecution's theory in this case is that Drago Nikolic was a member
17 of a joint criminal enterprise which, in the Prosecutor's view, is a way
18 of committing forcible transfer.
19 Mr. President, it is our submission that there is presently no
20 evidence on the record that Drago Nikolic either participated or had any
21 involvement in the alleged forcible transfer from both the Srebrenica and
22 Zepa enclaves. It is also our submission that there is no evidence that
23 Drago Nikolic had the required mens rea, in other words, the intent to
24 permanently remove the Bosnian Muslim population from the Srebrenica and
25 the Zepa enclaves. In fact, Mr. President, it is our submission that
1 there is no evidence on the record on the basis of which a reasonable
2 trier of fact could conclude at this stage that Drago Nikolic was a member
3 of a joint criminal enterprise to forcibly remove the Bosnian Muslim
4 population from both enclaves.
5 Moreover, even though the indictment comprises no specific
6 allegations to this effect, it is our submission that there is no evidence
7 on the record on the basis of which a reasonable trier of fact could
8 conclude that Drago Nikolic aided and abetted in any way the forcible
9 transfer of the Bosnian Muslim population from both enclaves. I will now
10 explain why this is so, and I will begin by the alleged forcible transfer
11 of the Bosnian Muslim population from Srebrenica.
12 In order to understand the forcible transfer count, it is
13 necessary, in our submission, to view the persons living in the Srebrenica
14 enclave at the time as comprising three different groups; firstly, the
15 women, children, and elderly who allegedly went from Srebrenica to
16 Potocari before being transported by bus to Kladanj; secondly, the
17 able-bodied men who were separated from the group that made its way from
18 Srebrenica to Potocari before being allegedly transported to and detained
19 in Bratunac; thirdly, the members of the Muslim 28th Division, the
20 able-bodied men, and any other persons accompanying them who decided to
21 leave the Srebrenica enclave with a view to reaching the territory under
22 the control of the 2nd Corps of the Muslim Army in Tuzla.
23 It is our submission, Mr. President, that count 7, forcible
24 transfer, applies only to the first of these groups, namely, the women,
25 children and elderly who allegedly went from Srebrenica to Potocari before
1 being transported by bus to Kladanj. This submission, in our view, is
2 confirmed by the fact that, on one hand, the able-bodied men allegedly
3 separated in Potocari, and of course the soldiers and able-bodied men who
4 intended to reach Muslim territory, are those targeted by the second joint
5 criminal enterprise, which was allegedly to kill the able-bodied men from
6 Srebrenica that were captured or surrendered after the fall of Srebrenica
7 on 11 July 1995. These able-bodied men, Mr. President, are, in our view,
8 not included in the Bosnian Muslim population allegedly forcibly
9 transferred from Srebrenica. This submission is also confirmed by the
10 fact that the able-bodied men who were allegedly separated and detained in
11 Bratunac, that this did not amount to forcible transfer, but that it was
12 rather a detention issue, albeit possibly related to the joint criminal
13 enterprise to kill the able-bodied men from Srebrenica.
14 It is our submission that there was certainly no intention to
15 transfer the able-bodied men separated in Potocari to an area outside the
16 control of the Republika Srpska.
17 As for the third group, the first consideration is that their
18 departure from Srebrenica is not forcible transfer, as these persons did
19 have a genuine choice to remain in Srebrenica. Most of them were armed,
20 and they could remain in Srebrenica in order to fight. It was their
21 decision to depart to reach the territory under the control of the 2nd
22 Corps of the Muslim Army.
23 Moreover, Mr. President, while this group was on its way to Tuzla,
24 it represented a threat to the VRS and the Serb population in the area.
25 This was confirmed by the evidence, and this is what led to the use of
1 force by the VRS and the special police, first, to stop their progression
2 towards Tuzla, and to detain them as prisoners of war. Once again,
3 Mr. President, the capture and/or surrender of the members of the column
4 did not amount to forcible transfer. This was rather legitimate military
5 action possibly related, albeit, to the joint criminal enterprise to kill
6 the able-bodied men from Srebrenica. And once again there was certainly
7 no intention to transfer the able-bodied men from the column to an area
8 outside the control of the Republika Srpska, which is alleged in this
9 joint criminal enterprise.
10 In any event, Mr. President, as will be seen later, even if it was
11 considered that count 7, forcible transfer, does apply to the able-bodied
12 men separated in Potocari and to the soldiers and able-bodied men who were
13 in the column, it is our submission that the conclusion would be the same;
14 that is, based on the evidence on the record at the close of the
15 Prosecution case, there is no evidence which could allow a reasonable
16 trier of fact to conclude that Drago Nikolic was a member of a joint
17 criminal enterprise, the purpose of which was to forcibly transfer these
18 able-bodied men to an area outside the control of the Republika Srpska.
19 I now move quickly to factual allegations in the indictment in
20 relation to count 7, forcible transfer. These allegations are divided in
21 two categories: Firstly, paragraphs 50 to 60, which concern the forcible
22 transfer of the Bosnian Muslim population both from the Srebrenica and
23 Zepa enclaves; secondly, paragraph 61 to 64, which deal specifically with
24 the following: The alleged forcible transfer of the Muslim population
25 from Srebrenica; the alleged separation of the able-bodied men from the
1 group which assembled in Potocari; and, three, the capture and/or
2 surrender of the soldiers and able-bodied men from the column after the
3 fall of Srebrenica on 11 July.
4 Having reviewed the totality of the evidence on the record,
5 including both the witness testimony and the documentary evidence, and
6 focusing specifically on the intercept evidence as well as all of the
7 logbooks admitted on the record, and I refer to the four logbooks, the
8 operations duty officer logbook, the barracks duty officer logbook, the
9 Zvornik Brigade forward command post duty officer logbook, as well as the
10 Zvornik Brigade war diary, and having considered this evidence at its
11 highest value in accordance with Rule 98 bis, it is our respectful
12 submission, firstly, that there may be some evidence on the record which
13 could allow a reasonable trier of fact to conclude beyond a reasonable
14 doubt that the Bosnian Muslim population from Srebrenica was transferred
15 to Kladanj, an area outside the control of the Republika Srpska. But what
16 is more important, Mr. President, there is no evidence on the record which
17 could allow a reasonable trier of fact to conclude beyond a reasonable
18 doubt that Drago Nikolic either had any involvement in the events and/or
19 activities described in these paragraphs or that he was a member of a
20 joint criminal enterprise, the aim of which was to transfer the Muslim
21 population from the Srebrenica enclave.
22 Regarding the first group, the group that we say was targeted by
23 the first joint criminal enterprise, namely, the women, children, and
24 elderly allegedly forcibly transferred to Kladanj, there was no
25 involvement, Mr. President, of the Zvornik Brigade in this forcible
1 transfer, leading to the conclusion that Drago Nikolic was also not
2 involved. This was confirmed by the Prosecution military expert, Richard
3 Butler, pages 20388-389. I would like to now address why this is so and
4 what supports this conclusion.
5 Firstly, regarding the 1st Battalion, which was assembled or put
6 together from personnel taken from various units of the Zvornik Brigade, I
7 refer to the group which participated in Operation Krivaja-95 under the
8 command of Vinko Pandurevic, while this group may have been involved in
9 the forcible transfer of the Bosnian Muslim population, this battalion was
10 at the time under the command and control of the Drina Corps commander,
11 General Zivanovic, and no longer under the command and control of the
12 Zvornik Brigade, per se, as revealed by the evidence. In any event, there
13 is no evidence on the record which could allow for the conclusion that
14 Drago Nikolic was either a member of this battalion or involved in any way
15 in the planning and/or preparations leading to the deployment of this
16 battalion to take part in Operation Krivaja-95. Moreover, it stems from
17 the evidence on the record and the testimony of Witness PW-168 that the
18 Zvornik Brigade was not informed in any detail of the activities of this
19 battalion while deployed on Operation Krivaja-95.
20 Another issue which might be of interest to the Trial Chamber
21 pertains to buses which would have been provided by the Zvornik Brigade.
22 While there is some evidence on the record that the Drina Corps requested
23 the Zvornik Brigade to provide buses and minibuses for its use on 12 July
24 1995, and that the Zvornik Brigade would have provided two buses and four
25 trucks in response to this request, it is our submission that there is no
1 evidence on the record which could allow a reasonable trier of fact to
2 conclude that the Zvornik Brigade was thus knowingly involved in the
3 forcible transfer of the Bosnian Muslim population from Srebrenica or in
4 any other related criminal activity. This conclusion stems from the
6 Firstly, Witness PW-168 testified that he knew that these vehicles
7 were needed for the evacuation, and I stress the word "evacuation," of
8 residents of Srebrenica pursuant to an agreement that had been reached,
9 and that it was their wish to be transferred to Kladanj.
10 Secondly, the request from the Drina Corps, I refer to Exhibit
11 110, referred to the evacuation from the Srebrenica enclave, a legitimate
12 purpose pursuant to the Geneva Conventions.
13 Thirdly, the Drina Corps request was considered legitimate, from a
14 military standpoint, by the Prosecution military expert, Richard Butler.
15 Page 20389.
16 Next, the drivers of these vehicles, once they left the Zvornik
17 Brigade, they were under the command and control of the requesting party,
18 namely, the Drina Corps commander, confirmed by Richard Butler, page
20 Next, once the Zvornik Brigade was informed that Srebrenica had
21 fallen, there is no evidence on the record that anyone from the Zvornik
22 Brigade was aware that forcible transfer of the Muslim population from
23 Srebrenica was taking place.
24 In any event, on that day, 12 July 1995, the evidence reveals that
25 Drago Nikolic was not present. This was confirmed by Witness PW-168, by
1 the -- by Witness Richard Butler, pages 20338-20339, as well as Exhibit
2 3DP311. The evidence also reveals that Drago Nikolic was not involved in
3 sending vehicles to the Drina Corps; Butler, pages 20398-20399.
4 Another issue which might be of interest to the Trial Chamber is
5 that there is some evidence on the record that the Drina Corps requested
6 the Zvornik Brigade to provide a squad of military policemen to perform
7 traffic control duties at the Konjevic Polje intersection. I refer to
8 Exhibit 157. Of course, in response to this request, there is some
9 evidence that the Zvornik Brigade sent four or five military policemen, as
10 many as could fit in one car according to Witness PW-168, to Konjevic
11 Polje to perform traffic control duties. There is no evidence on the
12 record which could allow a reasonable trier of fact to conclude that the
13 Zvornik Brigade was thus, by sending four or five military policemen for
14 traffic control duties, knowingly involved in the forcible transfer of the
15 Muslim population from Srebrenica or in any other related criminal
16 activity. This conclusion stems from the following:
17 Witness PW-168 testified that he was in Memici when the order was
18 received and the military policemen were sent. He did not speak to Drago
19 Nikolic on this issue; page 17049. He does not know who sent the military
20 policemen. The squad was either under the command and control of the
21 Drina Corps or of the protection regiment; page 15823. And Witness PW-168
22 knows that Drago Nikolic had a day off on 12 July.
23 Richard Butler testified that the order to send military policemen
24 was, in his word, standard military order and that there was nothing
25 improper about it; page 20392, and that Drago Nikolic was not involved in
1 sending those military policemen; pages 19807, 19809. In any event, on
2 that day, again the 12 July 1995, the evidence reveals that Drago Nikolic
3 was not present. Again, this was confirmed by Witness PW-168, by Richard
4 Butler, and by Exhibit 3DP311.
5 Mr. President, it follows from the above that there is no evidence
6 on the record on the basis of which a reasonable trier of fact could
7 conclude, and I refer specifically here to the first group, the women,
8 children and the elderly, that anyone in the Zvornik Brigade, including
9 Drago Nikolic, was knowingly involved in the forcible transfer of the
10 Muslim population from Srebrenica. Furthermore, there is no evidence on
11 the basis of which a reasonable trier of fact could conclude that Drago
12 Nikolic had any involvement whatsoever in the forcible transfer of the
13 Muslim population, group 1, from the Srebrenica enclave.
14 So what is the situation concerning the other two groups, the
15 able-bodied men separated in Potocari and the soldiers and able-bodied men
16 from the column? Should the Trial Chamber conclude that count 7, forcible
17 transfer, also applies to them. As mentioned earlier, it is our
18 submission that the conclusion remains the same; that is, there is still
19 no evidence on the record on the basis of which a reasonable trier of fact
20 could conclude that Drago Nikolic was a member of a joint criminal
21 enterprise to forcibly transfer the Muslim population from the Srebrenica
22 enclave to an area outside the control of RS. This conclusion stems now
23 from the following:
24 First, there was no involvement of the Zvornik Brigade. The 1st
25 Battalion deployed on the Operation Krivaja-95, referred to earlier, was
1 neither involved in fighting the column, nor in the capture or surrender
2 of the members thereof. In fact, there is no -- based on the evidence on
3 the record, no element of the Zvornik Brigade was involved in the capture,
4 surrender and detention, that is, both in Bratunac and other sites along
5 the Bratunac-Konjevic Polje road of the able-bodied men from the column.
6 Moreover, looking at the information available to the Zvornik Brigade
7 concerning the capture, surrender and detention of soldiers and
8 able-bodied men from the column, there is some information in this regard
9 in the duty officer's -- in the duty operation officer's logbook. There
10 is, nonetheless, no evidence on the record on the basis of which a
11 reasonable trier of fact could conclude that the Zvornik Brigade had any
12 knowledge that anything other than proper military activity was being
13 conducted with respect to the column. Moreover, there is no evidence on
14 the record on the basis of which a reasonable trier of fact could conclude
15 that Drago Nikolic had any knowledge or was involved in any way in the
16 capture, surrender, and detention of able-bodied men from the column.
17 I now move, Mr. President, to forcible transfer from the Zepa
18 enclave. I begin with the factual allegations in the indictment, which
19 are found at paragraphs 65 to 71. These paragraphs deal specifically with
20 the alleged forcible transfer of the Muslim population from Zepa.
21 Once again, Mr. President, having reviewed the totality of the
22 evidence on the record, as mentioned earlier, focusing on the intercepts
23 and the logbooks, witness evidence and documents, and having considered
24 this evidence at its highest value, it is our respectful submission that
25 there may be some evidence on the record which could allow a reasonable
1 trier of fact to conclude beyond a reasonable doubt at this stage that the
2 Bosnian Muslim population from Zepa was forcibly transferred to an area
3 outside the control of RS, but what is more important, once again, there
4 is no evidence on the record which could allow a reasonable trier of fact
5 to conclude beyond a reasonable doubt that Drago Nikolic either had any
6 involvement in the events and/or activities described in these paragraphs,
7 or that he was a member of a joint criminal enterprise, the aim of which
8 was to transfer the Bosnian Muslim population from the Zepa enclave. In
9 our submission, this conclusion stems from the following:
10 While there may be some evidence that the 1st Battalion of the
11 Zvornik Brigade, or, sorry, the 1st Battalion assembled from members taken
12 from units of the Zvornik Brigade may have been involved in preparations
13 leading to attacks on the Zepa enclaves. The evidence reveals that this
14 battalion was withdrawn from the area of Zepa and returned to the area of
15 Zvornik before any force or threat of the use of force was applied on Zepa
16 with the aim of forcibly transferring the Muslim population from that
18 Moreover, as mentioned earlier, Drago Nikolic was not a member of
19 this battalion and he was not involved in the planning or preparations
20 leading to the deployment of this battalion.
21 In any event, until this battalion was returned from Zepa, this --
22 it was under the command and control of the Drina Corps commander, General
24 Furthermore, there is no evidence on the record that Drago Nikolic
25 was ever involved in the events which took place in Zepa or ever informed
1 of the events which took place in Zepa. This was our conclusion before
2 the beginning of this case, and there is no evidence on the record, now
3 that the Prosecution has closed its case, which would allow for a
4 different conclusion.
5 It follows from the above, Mr. President, that there is no
6 evidence on the record on the basis of which a reasonable trier of fact
7 could conclude that anyone in the Zvornik Brigade, including Drago
8 Nikolic, was knowingly involved in the forcible transfer of the Bosnian
9 Muslim population from Zepa, and there is no evidence on the record on the
10 basis of which a reasonable trier of fact could conclude that Drago
11 Nikolic had any involvement whatsoever in the forcible transfer of the
12 Bosnian Muslim population from the Zepa enclave.
13 While in our view, Mr. President, this demonstration is sufficient
14 to justify a verdict of acquittal at this stage for count 7, forcible
15 transfer, there is yet one more area we need to look at, namely, paragraph
16 80 of the indictment, which comprises the alleged role and actions of
17 Drago Nikolic in furtherance of the joint criminal enterprise to forcibly
18 transfer the Srebrenica and Zepa Muslim population.
19 Firstly, pursuant to paragraphs 80(a)(i) and (ii), it is alleged
20 that Drago Nikolic was in control of the movement of the Muslim population
21 out of the enclaves from 13 and 16 July by first assisting in the
22 planning, organising, and supervising of the transportation of Muslim men
23 from Bratunac and, two, supervising, facilitating, and overseeing the
24 transportation of Muslim men once again from Bratunac to detention sites
25 in the Zvornik area, always for the period from 13 to 16 July.
1 Now that the Prosecution has closed its case, it is our respectful
2 submission that there is no evidence on the record on the basis of which a
3 reasonable trier of fact could conclude that Drago Nikolic was involved in
4 controlling the transportation of Muslim men from Bratunac at any time.
5 Moreover, should the Trial Chamber conclude that Drago Nikolic was in some
6 way involved or that there is some evidence that could lead to this
7 conclusion that Drago Nikolic may have been involved in the transport of
8 prisoners during the period from 13 [Realtime transcript read in error
9 "15"] To 16 July 1995, it is our submission that any such involvement of
10 Drago Nikolic is related to the alleged joint criminal enterprise to kill
11 the able-bodied men from Srebrenica, those that were captured or who
12 surrendered after the fall of Srebrenica on 11 July 1995. Any such
13 involvement is not related in any way to the joint criminal enterprise to
14 forcibly transfer the Muslim population from the Srebrenica and Zepa.
15 Secondly, pursuant to paragraph 80 and paragraph 80(a)(iii), it is
16 also alleged that in furtherance of the joint criminal enterprise to
17 forcibly transfer the Srebrenica and Zepa Muslim population, firstly, that
18 Drago Nikolic committed the acts comprised in paragraphs 30.6 to 30.12,
19 30.14, 30.15, 31.4, 32, and 34 to 37. It is also alleged that Drago
20 Nikolic failed to ensure the safety and welfare of prisoners, which would
21 have been his duty. Now, we don't know what area is covered by this
22 paragraph, although it appears that it would be in the area of Zvornik.
23 Should the Trial Chamber conclude at this stage that there is some
24 evidence leading to the conclusion that Drago Nikolic may have been
25 involved in any of these acts or omissions, it is our submission that any
1 such involvement of Drago Nikolic is once again related to the joint -- to
2 the alleged, sorry, joint criminal enterprise to kill the able-bodied men
3 from Srebrenica, those who were captured or who surrendered after the fall
4 of Srebrenica on 11 July 1995, and accordingly that any such involvement
5 of Drago Nikolic is not related in any way to the joint criminal
6 enterprise to forcibly transfer the Srebrenica and Zepa Muslim population.
7 These acts, Mr. President, were either committed after 13 July, at
8 a time when the forcible transfer of the Muslim population from Srebrenica
9 would have been completed, and before the alleged forcible transfer of the
10 Muslim population from Zepa would have taken place.
11 As mentioned at the beginning, the Prosecution's theory in this
12 case is based on the existence of two joint criminal enterprise, and it is
13 crucial not to mix the two in all fairness to the accused. In this
14 regard, it is our submission that the analysis to be performed by the
15 Trial Chamber in order to adjudicate on our application pursuant to Rule
16 98 bis, is to assess whether there is any evidence on the record on the
17 basis of which it could conclude beyond a reasonable doubt that Drago
18 Nikolic was a member of the joint criminal enterprise to forcibly transfer
19 the Muslim population from the Srebrenica and Zepa enclaves.
20 Pursuant to the case law of the International Tribunal, membership
21 in a joint criminal enterprise depends on the following requirements.
22 If I can have in e-court, please, 3D304, page 3.
23 Mr. President, I take this opportunity to highlight an error in
24 the transcript. At page 53, line 16, there's is a mistake. It is my
25 understanding, from what I'm given, is that it says lines 13 to 16, and --
1 it's not 15, it's 13 to 16.
2 The following requirements must be met for somebody to be found to
3 be a member of a joint criminal enterprise: First, a plurality of persons
4 participated in the forcible transfer of the population from the
5 Srebrenica and Zepa enclaves; second, the existence of a common plan,
6 design, or purpose to forcibly transfer the Bosnian Muslim population from
7 the Srebrenica and Zepa enclaves; three, that the accused participated in
8 the common plan, design, or purpose, the aim of which was to forcibly
9 transfer the Bosnian Muslim population from the Srebrenica and Zepa
10 enclaves, and, four, the accused shared the purpose of the alleged joint
11 criminal enterprise; that is, the accused intended to forcibly transfer
12 the Bosnian Muslim population from the Srebrenica and Zepa enclaves.
13 Applying these elements to the evidence on the record at this
14 stage, it is our submission that there is no direct evidence on the record
15 that Drago Nikolic shared the purpose of the forcible transfer, joint
16 criminal enterprise, and that he intended to forcibly transfer the Bosnian
17 Muslim population from the Srebrenica and Zepa enclaves to an area outside
18 the control of the Republika Srpska. Moreover, even if the Trial Chamber
19 was to conclude that at this stage there is some evidence which could
20 allow the Trial Chamber to conclude that Drago Nikolic may have been a
21 member of the joint criminal enterprise to kill the able-bodied men from
22 Srebrenica, those that were captured or who surrendered after the fall of
23 Srebrenica, a conclusion of course we contest and we are confident will
24 not be shown beyond a reasonable doubt at the end of the trial, it would
25 not allow for the conclusion or the inference, whether direct or from
1 circumstantial evidence, that Drago Nikolic intended to forcibly transfer
2 the Bosnian Muslim population from the Srebrenica and Zepa enclaves.
3 Moreover, looking at the participation component of "joint
4 criminal enterprise," that is, joint criminal enterprise category 1, one
5 of the following must be proved beyond a reasonable doubt to support a
6 finding that the accused participated in the joint criminal enterprise to
7 forcibly transfer the Muslim population from the Srebrenica and Zepa
8 enclaves. Either the accused personally committed the forcible transfer
9 as a principal offender. There is absolutely no evidence of this on the
10 record. Either the accused assisted or encouraged the principal offender
11 in committing the forcible transfer. There is no evidence of this,
12 either. Or, three, the accused acted in furtherance of the common plan to
13 forcibly transfer by reason of his position of authority or function, with
14 knowledge of the nature of that system of forcible transfer and the intent
15 to further it.
16 It is our submission that there is no evidence on the record at
17 this stage on the basis of which a reasonable trier of fact could conclude
18 that Drago Nikolic met any of these three forms of participation in the
19 joint criminal enterprise to forcibly transfer the Muslim population from
20 the Srebrenica and Zepa enclaves. Consequently, Mr. President, if the
21 participation of Drago Nikolic in the joint criminal enterprise to
22 forcibly transfer the Muslim population from the Srebrenica and Zepa
23 enclaves is not a possible conclusion at this stage, the final question
24 then is: Could a reasonable trier of fact conclude, on the basis of the
25 evidence on the record, that Drago Nikolic aided and abetted the forcible
1 transfer of the Bosnian Muslim population from the Srebrenica and Zepa
2 enclaves? It is our submission that the answer to this question is,
4 If I can have 3D304, page 4, on e-court, please.
5 These elements of aiding and abetting are well established in the
6 case law of the Tribunal. I only put it up on e-court to highlight that
7 any acts committed by an accused would have to amount to practical
8 assistance which had a substantial effect on the forcible transfer of the
9 Bosnian Muslim population. Pursuant to the evidence on the record, it is
10 our submission that there is no evidence of any acts committed by Drago
11 Nikolic which had a substantial effect on the forcible transfer of the
12 Bosnian Muslim population from the Srebrenica and Zepa enclaves.
13 It is significant, in this respect, that neither Dragan Obrenovic,
14 the chief of staff of the Zvornik Brigade, nor Dragan Djukic, the chief of
15 the Zvornik Brigade, were indicted for the forcible transfer of the
16 Bosnian Muslim population from the Srebrenica and Zepa enclaves.
17 While the Prosecution's decision to indict or not these
18 individuals for the forcible transfer of the Bosnian Muslim population
19 from Srebrenica and Zepa, is of course discretionary in nature, the fact
20 that they were not charged for forcible transfer is nonetheless a powerful
21 indicator that Drago Nikolic was not involved in any way in these
23 One last consideration, Mr. President. At the time the idea of
24 forcible transfer first came up, that is, in Potocari earlier in July,
25 Drago Nikolic was not even -- sorry, the evidence on the record is silent
1 regarding either the presence or the activities of Drago Nikolic at that
2 time. This alleged plan or common purpose, if it was elaborated at such a
3 time, Drago Nikolic was not at that time involved in any event. It is
4 simply, Mr. President, a further consideration.
5 I now move, Mr. President, to count number 8, deportation of the
6 Muslim population from Zepa. I will go quickly, in light of the arguments
7 and submissions presented with respect to count 7, forcible transfer, it
8 is our respectful submission that there is presently no evidence on the
9 record that Drago Nikolic either participated or had any involvement in
10 the alleged deportation from Zepa, and there is no evidence that Drago
11 Nikolic had the required mens rea, in other words, the intent to deport
12 the Bosnian Muslim population from Zepa. In fact, it is our submission
13 that there is no evidence on the record on the basis of which a reasonable
14 trier of fact could conclude at this stage that Drago Nikolic was a member
15 of a joint criminal enterprise to deport the Bosnian Muslim population
16 from Zepa.
17 Furthermore, it is our submission, even though the indictment
18 comprises no specific allegations to this effect, that there is no
19 evidence on the record on the basis of which a reasonable trier of fact
20 could conclude that Drago Nikolic aided and abetted in any way the
21 deportation of the Bosnian Muslim population from Zepa.
22 Mr. President, regarding deportation, it is my understanding that
23 counsel representing other accused in this case will be presenting legal
24 arguments, showing that a deportation count simply cannot hold. And
25 without going into these arguments, we simply say that we join the
1 arguments which will be presented by counsel representing other accused in
2 this regard.
3 In conclusion, Mr. President, regarding counts 7, forcible
4 transfer from the Srebrenica and Zepa enclaves to areas outside the
5 control of the RS, and count 8, deportation of the Muslim population from
6 the Zepa enclave, we submit, Mr. President, that there is no case to
7 answer for Drago Nikolic and that he must be acquitted at this stage of
8 both of these counts in full.
9 I now move quickly to count number 2, conspiracy to commit
10 genocide, alleged in paragraphs 34 and 35 of the indictment.
11 Pursuant to paragraph 34, Drago Nikolic would be responsible for
12 having entered into an agreement with several others, firstly, to kill the
13 able-bodied men from Srebrenica that were captured or surrendered after
14 the fall of Srebrenica on 11 July 1995, and, secondly, to remove the
15 remaining Muslim population of Srebrenica and Zepa from the Republika
16 Srpska, thirdly, with the intent to destroy those Muslims.
17 The background to this charge, Mr. President, is as follows:
18 In the Prosecution's motion for amendments to the indictments,
19 dated 28 June 2005, the Prosecution requested to remove the charge of
20 complicity in genocide and to add a new count of conspiracy to commit
21 genocide. The Prosecution justified the new count of conspiracy to commit
22 genocide on the basis of developments in the law regarding conspiracy and
23 the fact that the law on joint criminal enterprise at the time, in any
24 event, was in a state of flux. The conspiracy to commit genocide charge
25 is a first before the International Tribunal.
1 Moreover, even though the Prosecution cites a number of cases in
2 its pre-trial brief where conspiracy to commit genocide charges were laid
3 before the International Criminal Tribunal for Rwanda, in most of these
4 cases, and I refer here to footnote 585 of the Prosecution's pre-trial
5 brief, the charge of conspiracy to commit genocide has been removed from
6 the indictment and thus is not discussed at all in those decisions.
7 Strikingly, in its discussion on the count of conspiracy to commit
8 genocide, the Prosecution omitted in this footnote and in his arguments
9 the following two cases in which the accused was acquitted of conspiracy
10 to commit genocide at the Rule 98 bis stage, even though they were later
11 convicted of genocide. Case ICTR 99-54, Alpha-Trial, Jean de Dieu,
12 Kamuhanda; the second case, ICTR 99-46-Trial, Samuel -- and I apologise
13 for my pronunciation, Imanishimwe. It is our submission that these cases
14 are especially relevant to this case and the situation of Drago Nikolic.
15 We also refer the Trial Chamber to the following three cases in
16 which the accused were acquitted of conspiracy to commit genocide, this
17 time in the final judgements. The Prosecutor versus Alfred Musema, the
18 Prosecutor versus Elizaphan and Gerard Nrakirutimana, and the Prosecutor
19 versus Juvenal Kajelijeli.
20 For the Trial Chamber to return a guilty finding against Drago
21 Nikolic for count number 2, conspiracy to commit genocide, the Prosecution
22 must prove beyond a reasonable doubt each of the following essential
23 elements of the offence.
24 If I can have 3D304, page 5, in e-court, please.
25 The first element: The accused entered into an agreement with
1 others to kill the able-bodied Muslim men of Srebrenica that were captured
2 or surrendered after the fall of Srebrenica on the 11 July 1995 and
3 removed the remaining population of Srebrenica and Zepa from the Republika
4 Srpska. The second element: The accused had the required mental element
5 for genocide.
6 As a preliminary consideration, Mr. President, I wish to state for
7 the record that our submissions in relation to count 2 at this stage are
8 not related in any way to the genocide count, nor to the essential
9 elements of genocide which must be proved beyond a reasonable doubt for an
10 accused to be convicted of that charge. At this stage, our application,
11 pursuant to Rule 98 bis, does not address genocide. It only addresses
12 conspiracy to commit genocide, and taking into consideration the essential
13 element of this count, conspiracy to commit genocide, and as mentioned
14 earlier, having reviewed the totality of the evidence on the record,
15 including the witness testimony and the documentary evidence, and
16 considered this evidence at its highest value, it is our respectful
17 submission that there is absolutely no evidence on the record on the basis
18 of which a reasonable trier of fact could conclude that Drago Nikolic
19 entered into an agreement with others to commit genocide.
20 Our submission rests on the following:
21 There is some evidence on the records concerning wrongdoings or
22 alleged wrongdoings of Drago Nikolic. We simply say that we take all of
23 the evidence and we take it at its highest value. We simply cannot
24 conclude that Drago Nikolic entered into an agreement to commit genocide
25 with others.
1 If we look at the two cases before the International Criminal
2 Tribunal for Rwanda in which the accused were acquitted of conspiracy to
3 commit genocide at the Rule 98 bis stage, and we invite the Trial Chamber
4 to look at the specific involvement of these two accused, the conclusions
5 of the Trial Chamber regarding their involvement, when they were found
6 guilty of genocide later on, this was evidence on the record at the Rule
7 98 bis stage, yet those Trial Chambers could not conclude, on the basis of
8 evidence related to such involvement of these two accused, that they had
9 entered into an agreement to commit genocide. Consequently, our submission
10 is that -- or our submissions are geared towards the actus reus of
11 conspiracy to commit genocide, the agreement part. If we compare any
12 evidence on the record concerning alleged wrongdoings of Drago Nikolic
13 with the type of involvement upon which Trial Chambers in ICTR could not
14 find that there was an agreement or that those accused had entered into an
15 agreement, our submission is simply as follows: It simply cannot be
16 concluded, based on any of these alleged wrongdoings of Drago Nikolic,
17 that he did enter into an agreement to commit genocide, and we focus here
18 on the actus reus of the conspiracy to commit genocide.
19 In conclusion, Mr. President, it is our submission that there is
20 no case to answer concerning conspiracy to commit genocide regarding
21 specifically Drago Nikolic. There's lots of evidence that can be taken
22 into consideration to justify this conclusion, such as the level of the
23 accused as a junior officer and second lieutenant, such as the knowledge
24 of the accused of either directive 7 or directive 7-1, so not only what he
25 may allegedly have done wrong, but also the over all context of this case,
1 and it is our submission that you simply cannot conclude that he entered
2 into that agreement, and that he must be acquitted of this count at this
4 In conclusion, Mr. President, we invite you to return, at the end
5 of these Rule 98 bis proceedings, a verdict of acquittal for counts 2, 7,
6 and 8, and order that the trial can continue on the basis of counts 1, 3,
7 4, 5 and 6.
8 And I take this opportunity to mention that we are confident that
9 at the end of this trial, it will not be possible for the Trial Chamber to
10 conclude beyond a reasonable doubt on the guilt of the accused for any of
11 these other counts.
12 Thank you, Mr. President.
13 JUDGE AGIUS: Thank you, Mr. Bourgon.
14 Who would be going next? Mr. Lazarevic, and how long do you
15 think --
16 MR. LAZAREVIC: Yes, that would be me, Your Honour. Well,
17 according to my best estimation, it would take approximately 40 to 45
18 minutes, so if I could kindly ask now for the break --
19 JUDGE AGIUS: The break now.
20 MR. LAZAREVIC: -- earlier break.
21 JUDGE AGIUS: Yes, fair enough.
22 Let's have a 25-minute break. The time now is, according to this,
24 Thank you.
25 --- Recess taken at 12.21 p.m.
1 --- On resuming at 12.50 p.m.
2 JUDGE AGIUS: So you're starting at 12.50, Mr. Lazarevic.
3 Go ahead.
4 MR. LAZAREVIC: Thank you, Your Honour.
5 [Interpretation] Your Honours, in the oral arguments under Rule 98
6 bis, Mr. Borovcanin's Defence will abide by the standards established in
7 the jurisprudence of the present Tribunal, avoiding the repetition of the
8 arguments presented by my learned colleague Mr. Bourgon related to the 98
9 bis jurisprudence.
10 In light of the limited scope of the analysis under this Rule and
11 the fact that it is impossible to present detailed allegations for all the
12 counts of the indictment in the time that we have for our presentation,
13 Mr. Borovcanin's Defence will limit itself only to counts 2 and 8 of the
15 Mr. Borovcanin's Defence would like to stress that there is no
16 direct evidence proving that Mr. Borovcanin, first, entered into any kind
17 of agreement with any person about the commission of crimes; second,
18 ordered anyone to commit any crime; and, third, personally committed any
19 crime or instigated or in any other way aided and abetted the planning,
20 preparation and commission of the crimes he has been charged with under
21 the indictment.
22 Conspiracy to commit genocide is an agreement on the part of two
23 or more persons with the aim of committing the crime of genocide. This
24 definition is quoted from the Niyitegeka and others case, the appeals
25 judgement, case number ICTR-99-46A. The date is the 7th of July, 2006,
1 paragraph 92.
2 The actus reus of this crime is the entering into the agreement
3 itself. As for the mens rea of this crime, it is the intention to enter
4 into such agreement. This is a quote from the Nahimana et al case, the
5 appeal judgement. The case number is ICTR-99-52- A, the date is 28th of
6 November, 2007, paragraph 894. And another case, the Bagosora et al case,
7 the number is ICTR-98-41-T. It is the decision on Rule 98 bis. The date
8 is the 2nd of February, 2005. Paragraph 12.
9 In count 2 of the indictment, laid out in greater detail in
10 paragraphs 34 through 37, Ljubomir Borovcanin is charged with the crime
11 conspiracy to commit genocide, punishable under Article 4(3)(b) of the
12 Statute. In paragraph 34 of the indictment, it is alleged that
13 Mr. Borovcanin entered an agreement with several other persons, including
14 Radovan Karadzic, Milenko Zivanovic, Radislav Krstic, Zdravko Tolimir, and
15 the other accused in the present case, whose names are listed in Annex A
16 to the indictment, to kill able-bodied Muslim men from Srebrenica who had
17 been captured or had surrendered after the fall of Srebrenica on the 11th
18 of July, 1995, and to remove the remaining Muslim population of Srebrenica
19 and Zepa from Republika Srpska in order to destroy those Muslims.
20 Further, in the same paragraph, it is alleged that the facts --
21 the underlying facts for this count of the indictment are the same as the
22 facts alleged in the indictment in relation to the joint criminal
23 enterprise. And in the next paragraph, paragraph 35, it is further
24 alleged that the agreement was entered with the intent to destroy, in
25 part, the Bosnian Muslims as a national, ethnic, racial or religious
1 group, as such.
2 In paragraph 36 of the indictment, it is alleged that Ljubomir
3 Borovcanin, together with the other officers in units of the VRS and the
4 MUP, listed in annex A of the indictment, actually implemented the
5 conspiracy and the joint criminal enterprise, and that he was a conscious
6 participant in the enterprise which was aimed at the summary execution and
7 burial of thousands of captured Bosnian Muslim men and boys. It is
8 alleged further that the initial plan was to execute summarily more than
9 1.000 Muslim men aged between 16 and 60 who were separated from the rest
10 of the population on the 12th and the 13th of July, 1995. But on the 12th
11 or the 13th of July, the plan encompassed the summary execution of more
12 than 6.000 Muslim men and boys taken prisoner from the column in which
13 they tried to flee the Srebrenica enclave in the period between the 12th
14 of July and the 1st of November, 1995, or about that date.
15 Further, in paragraph 37, it is alleged that Mr. Borovcanin and
16 the other participants in the enterprise could have envisaged that in the
17 course of and after the joint criminal enterprise, the VRS and MUP forces
18 would commit isolated, opportunistic murders and persecutions described in
19 paragraphs 31 through 48 of the indictment.
20 The indictment further alleges that the alleged plan to murder
21 hundreds of Muslims in Potocari had been elaborated by Mladic and others
22 in the evening hours of the 11th of July and in the morning of the 12th of
23 July, 1995, and this plan was allegedly extended or amended to include a
24 large number of Muslim men who had started surrendering to the Serb forces
25 in other locations on the 12th of July. I'm quoting from paragraphs 27
1 and 29 of the indictment.
2 The Defence would like to note that there is no specific
3 information in the indictment as to where and, in particular, with which
4 other persons this agreement was entered into, and whether this was an
5 explicit or an implicit, tacit agreement. In the pre-trial brief
6 submitted by the Prosecution, we find no additional details regarding this
8 The Defence would like to state that in the course of its case,
9 the Prosecution failed to adduce any evidence that would show where or
10 indeed when Mr. Borovcanin allegedly entered into this agreement. Even if
11 the Prosecution believes that it did call some circumstantial evidence,
12 Mr. Borovcanin's Defence would like to show this Trial Chamber the ruling
13 standard and the jurisprudence of this Tribunal and the Rwanda Tribunal
14 regarding reliance on circumstantial evidence; to wit, in the appeal
15 judgement in the Nahimana et al case, the so-called "media case," the
16 number is ICTR-99-52-A, the date is the 28th of November, 2007, this is
17 how the Appeals Chamber commented on the use of indirect or circumstantial
18 evidence used to prove conspiracy to commit genocide:
19 "The question at this stage for the Appeals Chamber is to know
20 whether, insofar as such institutional coordination has been established,
21 a reasonable trier of fact could conclude thereof that the only reasonable
22 inference would be to say that this institution coordination was a result
23 of a resolution to act with a view to commit genocide, but there is no
24 doubt that all these factual findings are compatible with the existence of
25 a common goal, aiming at committing genocide. Nonetheless, we are not
1 only providing here the only reasonable inference." Paragraph 910.
2 This test, applied by the Appeals Chamber, is similar to the
3 standard that should be applied at this stage in the proceedings, in
4 accordance to Rule 98 bis, which reads:
5 "Would any reasonable trier of fact be able to convict on the
6 basis of the evidence presented?"
7 Revising the conclusion of the Trial Chamber regarding the
8 conspiracy, the Appeals Chamber in the Nahimana et al case stressed the
10 "The Appeals Chamber holds that even if these elements can
11 coincide with a degree of agreement between the participants with a view
12 to committing genocide, nevertheless it is not enough to just establish
13 that such an agreement has been made beyond any reasonable doubt."
14 Paragraph 906.
15 The conspiracy requires the existence of an actual real agreement
16 entered into by several persons. Although this agreement may be implicit
17 or tacit, it has to be a real agreement, and its objective must be the
18 commission of a crime. The importance of this criterion stems from the
19 fact that the crime was committed by the very dint of entering into an
20 agreement. Unlike the joint criminal enterprise in this case, the
21 perpetrators need not actually succeed in committing the crime, the
22 underlying crime, in order to -- for their guilt to be established, their
23 guilt for conspiracy. And here I quote the Nahimana et al case, Appeal
24 Judgement 894, that's the judgement from 2007, Bagosora et al,
25 ICTR-98-41-T, the 98 bis decision, the decision dated the 2nd of February,
1 2005, paragraph 12; Bizimungu et al, the case number is ICTR-99-50-T, a 98
2 bis decision dated the 22nd of November, 2005, paragraph 23; the
3 Niyitegeka case, the number is ICTR-96-14, the date is the 16th of May,
4 2003, the paragraph is 423.
5 In summary, the agreement itself constitutes a crime.
6 Mr. Borovcanin's Defence claims that no reasonable trier of fact would be
7 able to conclude, on the basis of circumstantial evidence presented in
8 court, that Mr. Borovcanin entered into any kind of agreement to commit
9 genocide with anyone. This allegation, I'm talking about the allegation
10 that he actually entered into an agreement, is indeed quite incredible for
11 the following reasons:
12 If this alleged plan to kill able-bodied Muslims from Srebrenica
13 is a result of an agreement, in the opinion of the Prosecution,
14 Mr. Borovcanin's Defence would like to stress that in the course of the
15 Prosecution case, no evidence was called to corroborate in any way the
16 claim that Mr. Borovcanin had actually entered into such an agreement in
17 any way. To support this argument, the Defence would like to invoke the
18 fact that in the course of its case, the Prosecution failed to prove that
19 Mr. Borovcanin had been present at any meeting where such an agreement
20 might have been reached. It likewise failed to call any evidence to prove
21 that if any such agreement existed, that Mr. Borovcanin was in fact aware
22 of it.
23 As for this fact, the Defence relies on the evidence of Witness --
24 Prosecution Witness Zoran Petrovic, a journalist with Studio B Independent
25 Television, who during the course of his stay in the Srebrenica and
1 Bratunac area on the 13th of July 1995 accompanied Mr. Borovcanin at
2 almost all times. So if the position taken by the Prosecutor and
3 expressed in the indictment is correct, that is, that in the night between
4 the 11th and the 12th July 1995, Mr. Borovcanin entered into an agreement
5 with other participants to commit genocide, which alleged agreement was
6 extended at a later stage on the 13th of July, a logical question is: Why
7 would Mr. Borovcanin, if he had known of such an agreement and accepted
8 it, have allowed a journalist from an independent TV channel to come to
9 this area and to film everything that he considered to be of interest?
10 The fact -- the very fact that this reporter, Mr. Petrovic, was present in
11 this area where, on the 13th and 14th of July, 1995, the fighting was
12 still going on, and the footage that he made on that occasion and that
13 this Trial Chamber has had an occasion to see in the course of the
14 Prosecution case several times, and the fact that the footage taken by
15 Mr. Petrovic was broadcast on Studio B, a Belgrade TV channel, confirm
16 that Mr. Borovcanin did not know and could not have known what would
17 actually be happening in this period. All of this confirms that
18 Mr. Borovcanin did not enter into any kind of agreement for the commission
19 of the crime of genocide, as alleged in the indictment.
20 In this respect, the Defence would like to quote short excerpts
21 from the transcript of Mr. Petrovic's testimony which best serve to
22 illustrate the claim that Mr. Borovcanin did not know at all what would be
23 happening in those days.
24 In the examination-in-chief, answering the Prosecution questions,
25 Witness Petrovic stated, at transcript page 18811, on the 5th of December,
1 2007, the following:
2 [In English] "As far as I know, he was physically and mentally in
3 good health. Otherwise, only a madman would work against himself to his
4 own detriment to film something if you know that your own lot are planning
5 to kill somebody or do something improper. This is something I think is
6 only proper of me to tell you. I think it's a rare thing that somebody
7 would allow you to do something like that, even in the US Army."
8 [Interpretation] Furthermore, in the examination-in-chief on the
9 5th of December, 2007, the same witness, at transcript page 18804, stated
10 the following, and I quote:
11 [In English] "Now, did Mr. Borovcanin ever try to censor what you
12 were filming, or, tell you to 'film this, don't film that,' or were you
13 completely freelance independent in what you took video of?"
14 Answer: "Now we are coming to what I wanted to ask you. Do you
15 think that anyone -- anyone who is in their right mind would allow a
16 journalist to film war crimes and to leave him alive? Do you think
17 it's -- it would be a normal thing for me to sit here, as I do sit today,
18 had this indeed happened? Did you ever see, and let's refer to this most
19 recent war in Iraq, did you ever see anyone film anything from 2003
20 onwards, anything of the sort? Did you ever see a journalist, especially
21 an embedded one, film anything of the sort? So why should this army react
22 differently? All the rules of the military are the same. He permitted me
23 to work, and I didn't have any reason to tell the untruth, and that was
24 reason enough for this individual to let me film this. Perhaps some
25 others wouldn't have allowed me to. It was down to mutual respect."
1 [Interpretation] And, finally, Mr. Borovcanin's Defence would like
2 to quote another segment of the evidence provided by this witness in the
3 cross-examination on the 6th of December, 2007. The page reference is
4 18858 and 18859:
5 [In English] "I was just interested in your assessment and
6 impression, so that will suffice as far as I'm concerned for the moment.
7 And now just one more question with regards to the meadow in Sandici. You
8 were free to film. Mr. Borovcanin never told you not to film the people
9 in the meadow. He didn't say, 'Don't film what's going on there, don't
10 film the people in the meadow,' nothing like that. Can you confirm that
11 that was so?"
12 Answer: "Of course he did not. Well, let me remind you, as I
13 told Mr. Nicholls earlier on, I had two experiences with that unit during
14 the war, and I conducted myself professionally. I did my job
15 professionally, so there was no need for anybody to supervise me in any
16 way, absolutely no need for them to supervise and see what I was filming
17 if they had already given me permission to film."
18 [Interpretation] So bearing in mind the standards that we've
19 already presented, Mr. Borovcanin's Defence claims that the possibility or
20 the probability that Mr. Borovcanin actually enter into an agreement to
21 commit the crime of genocide is much less probable than the possibility
22 that Mr. Borovcanin had no knowledge of the existence of any kind of
23 agreement for the commission of this crime. And Mr. Borovcanin's Defence,
24 therefore, proposes to this Trial Chamber to acquit Mr. Borovcanin on
25 count 2 of the indictment, pursuant to Rule 98 bis.
1 I am about to move on to our part of the presentation which has to
2 do with count 8 of the indictment.
3 Count 8 of the indictment charges Mr. Borovcanin with the crime of
4 deportation as a crime against humanity, punishable under Article 5(d) of
5 the Statute. Similar to forcible transfer, deportation is a forced
6 displacement of civilians from an area in which they lawfully reside, in
7 which case there is no basis allowed or envisaged within the framework of
8 international law. Under the basis allowed by international law, we
9 understand the basis provided in the Geneva Convention number 4 and
10 protocol 2, the crime of deportation is different from forcible transfer,
11 since in the case of deportation, it is necessary that the population is
12 being displaced outside the territory it resides in, whilst with the
13 transfer, this element does not exist. In all other elements, both crimes
14 are identical.
15 The crime of deportation, as envisaged by Article 5(d) of the
16 ICTY's Statute, and according to the appeal judgement in the Stakic case,
17 number IT-97-24-A of the 22nd March 2006, in paragraph 278 it states:
18 "The actus reus of deportation is forcibly displacing persons by
19 expelling them or using other types of force out of an area in which they
20 lawfully reside across the djura, state boundary, or in certain situations
21 across the de facto border, without the existence of the basis allowed by
22 international legal regulation. The Appeal Chamber believes that it is
23 not necessary that in order to have the required mens rea, the perpetrator
24 intends to permanently displace these persons across the boundary.
25 Forcible transfer, which can be seen as an underlying act in relation to
1 other inhumane acts, pursuant to Article 5(i) of the Statute, is defined
2 as a forcible displacement of persons which can take place within state
3 boundaries, and I refer to the Stakic case appeal judgement and Naletilic
4 appeal judgement, which is case IT-98-34-A of the 3rd of May, 2006,
5 paragraph 154.
6 Going by the title just above paragraph 50 of the indictment and
7 all the way down to paragraph 71, one concludes that the Prosecution
8 believe that the enterprise of forcibly removing the Muslim population
9 from Srebrenica and Zepa is a unified criminal enterprise. No evidence
10 was adduced to that effect during their case. It is quite the contrary.
11 It is the position of this Defence that during the Prosecution case, it
12 was clearly established that the decision to execute a military attack
13 against the Zepa enclave was made only after VRS forces had taken over the
14 enclave of Srebrenica, and that up until that point, the only aim of the
15 military operation of the VRS was to physically separate the two enclaves
16 and to prevent communication between them, which was fully justified in
17 military terms.
18 Paragraph 84 of the indictment contains a Prosecution position on
19 the fact that Mr. Borovcanin, together with the accused Popovic, Beara,
20 Nikolic, Miletic, Gvero, and Pandurevic, allegedly committed the crime of
21 deportation in the following way and by using the following means: By
22 forcibly moving men, Bosnian Muslims, out of Zepa, across the Drina, into
23 Serbia, due to unbearable conditions being imposed upon the enclave
24 through limiting the supply of aid to the enclave and intimidating and
25 terrorizing the population by shelling civilian areas and carrying out
1 attacks on the enclave, as described in paragraph 71 of the indictment.
2 Mr. Borovcanin's Defence will analyse this Prosecution hypothesis
3 contained in paragraph 84(a) of the indictment and will analyse each of
4 the alleged ways and means used to commit the crime of deportation, with a
5 special focus on Mr. Borovcanin and the units he commanded.
6 The first way which was used to allegedly commit the crime of
7 deportation as a crime against humanity, the indictment states the
8 creation of unbearable living conditions in the enclave of Zepa by
9 limiting the supply of aid into the enclave. Not a single piece of
10 evidence adduced during the Prosecution case points to the fact that
11 either Mr. Borovcanin or any of his subordinate units had any direct or
12 indirect influence on the distribution of aid to the enclave, and
13 therefore they had no ability to limit it.
14 When talking about forwarding aid to the Zepa enclave, it can only
15 be viewed during the time period prior to the military operation, during
16 which time neither Mr. Borovcanin nor any of his subordinate units were in
17 the area of Srebrenica and Zepa.
18 Something that was not in dispute from the outset of this
19 proceedings between the Prosecution and Mr. Borovcanin's Defence is the
20 fact that on the 11th of July, 1995, he arrived in the territory of
21 Bratunac Municipality and that only after his arrival the units he
22 commanded began arriving in the territory. Therefore, it is clear that
23 Mr. Borovcanin had no ways to influence any alleged forwarding of the aid
24 to the enclave.
25 As another way or as the second way of committing the crime of
1 deportation of the Bosnian Muslims from Zepa is the intimidation and
2 terrorizing of the population by shelling civilian areas and carrying out
3 attacks on the enclave, as described in paragraph 71 of the indictment.
4 During the Prosecution case, not a shred of evidence was adduced that
5 would point to the fact that either Mr. Borovcanin or any of his
6 subordinate units participated in the shelling of any part of the enclave
7 of Zepa, including, of course, the civilian areas of it, or that they
8 participated in any attacks on the enclave.
9 Concerning the aforementioned allegations of the indictment,
10 namely, that the forcible removal of the Muslim population from the
11 enclaves of Srebrenica and Zepa presents a joint criminal enterprise,
12 Mr. Borovcanin's Defence wishes to point to Exhibit P00181, which is an
13 order of the Main Staff of the VRS of the 10th of July, 1995, sent to the
14 Command of the Drina Corps and the 65th Protection Motorised Regiment. In
15 item 4 of the order, it is stated that offensive combat operations against
16 the enclave of Zepa should begin on the 12th of July, 1995. It is obvious
17 that the decision on such offensive operations, which could potentially
18 lead to the military occupation of the Zepa enclave, was made only after
19 the VRS forces managed to take over the enclave of Srebrenica, and until
20 that time or, rather, before that, there could have been no plan in
21 existence to occupy the Zepa enclave.
22 From the same document, we can also see that none of the units
23 commanded by Mr. Borovcanin was included in this order. This order was
24 not sent to Mr. Borovcanin, even by way of information. In particular,
25 Mr. Borovcanin's Defence wishes to point out that during the Prosecution
1 case, there was no dispute between the Defence and Prosecution concerning
2 some of the units commanded by Mr. Borovcanin participating in the combat
3 at Baljkovica, which is in a different direction to the enclave of Zepa,
4 and it is some 100 kilometres away from it. Therefore, during the
5 Prosecution case, not a single piece of evidence was adduced which could
6 point to the fact that Mr. Borovcanin in any way participated in any
7 potential planning of attacks on the enclave of Zepa. Also, no evidence
8 was adduced which would point to the fact that Mr. Borovcanin was informed
9 of it or consulted by anyone within the VRS.
10 Finally, this Defence would like to invoke the Prosecution's
11 military expert's testimony, Mr. Richard Butler, of the 25th of January,
12 2008, page 20500. I quote:
13 [In English] "When you were analysing the documents and as you
14 were preparing your expert reports about the Zepa operation, you did not
15 come by any proof about the participation of any units under the command
16 of Mr. Borovcanin or his participation in the Zepa operation; is that
18 Answer: "Yes, sir, I have no information pertaining to
19 Mr. Borovcanin's role in what we would call the Zepa operation."
20 [Interpretation] Therefore, this Defence asserts that as regards
21 Mr. Borovcanin, the Prosecution did not present a single piece of evidence
22 which would corroborate count 8 of the indictment, this being the crime of
23 deportation as a crime against humanity. Therefore, the Defence
24 respectfully requests that Mr. Borovcanin, in keeping with Rule 98 bis, be
25 acquitted on this count of the indictment.
1 Nearing the end of our presentation, we would briefly like to
2 refer to paragraph 31.1 of the indictment. The reason for it is the
3 Prosecution motion which has to do with paragraph 31.1(b) of the
4 indictment, submitted on the 25th October 2006; namely, in paragraph 31.1
5 of the indictment, under (a) and (b), we see the murder of nine Bosnian
6 Muslims. Under (a), it is stated that their bodies were found in the
7 woods near the UN compound on the Budak side of the main road, whereas
8 under (b) it is stated that the bodies were found in a creek near the
9 white house, some 700 metres from the UN compound.
10 As I just said, the Prosecution, in its Prosecution motion
11 regarding paragraph 31.1(b) of the indictment of the 25th of October,
12 2006, state that it is their position that this is one and the same event
13 and that they will agree to a motion to issue a judgement of acquittal
14 concerning subparagraph 31.1(b), which can be seen on page 2 of the
16 In addition to that, in paragraph 31.1(c), it is stated that in
17 the morning of the 13th of July, the bodies of six Bosnian Muslim women
18 and five Bosnian Muslim men were found in a stream near the UN compound in
19 Potocari. Concerning this allegation of the indictment, not a single
20 piece of evidence was adduced or tendered during their case. Therefore,
21 Mr. Borovcanin's Defence respectfully suggest that the Chamber, in
22 relation to paragraphs 31.1(b) and (c) issues a judgement of acquittal
23 under Rule 98 bis.
24 Your Honours, although Mr. Borovcanin's Defence decided to present
25 its position only in relation to the aforementioned counts of the
1 indictment, it in no way means that this Defence believes that the
2 Prosecution proffered sufficient evidence based on which a reasonable
3 trier of fact could ascertain the guilt of Mr. Borovcanin for any of the
4 crimes he was charged with. Therefore, this Defence appeals to the
5 Chamber to use its discretion and authority in making their decision
6 whether a judgement of acquittal can be issued in relation to 98 bis as
7 well as in relation to other counts of the indictment.
8 Thank you.
9 JUDGE AGIUS: Thank you, Mr. Lazarevic.
10 Let's try and figure out how long the other submissions are
11 expected to take.
12 Mr. Zivanovic, will you be making submissions?
13 MR. ZIVANOVIC: No, Your Honours, we will not have a submission on
14 Rule 98 bis. Thank you.
15 JUDGE AGIUS: Thank you.
16 Madame Fauveau, if you are going to make submissions, how long do
17 you expect?
18 MS. FAUVEAU: [Interpretation] [No interpretation]
19 JUDGE AGIUS: No translation, but it's an hour, an hour and 15
20 minutes, yeah.
21 Mr. Josse or Mr. Krgovic.
22 MR. JOSSE: Your Honour, we are going to make a submission. I'm
23 assuming that the Court are rejecting our request for a right of reply.
24 JUDGE AGIUS: You have to work on the assumption that we are not
25 granting any replies, so -- that's the assumption, and then we'll see --
1 MR. JOSSE: Then I'm going to attempt to use up exactly my 90
2 minutes, because in those circumstances I clearly need to say as much as I
4 JUDGE AGIUS: Okay. And that leaves you, Mr. Haynes.
5 MR. HAYNES: The model of my submission has -- will be
6 substantially similar to that of Mr. Bourgon's and has thus this morning
7 got very much shorter. I'll be about 20 minutes, I would say.
8 JUDGE AGIUS: So we might finish tomorrow, basically, if you put
9 Ms. Fauveau and Mr. Josse together, that may take a maximum of three
10 hours, which would still leaves us the 35 minutes -- 45 minutes, sorry,
11 for Mr. Haynes to finish his, which means that you're being put on notice
12 that on Monday, you will be starting with your response.
13 MR. McCLOSKEY: Thank you, Mr. President.
14 And just in the event that someone decides to change their
15 strategy, if we could just have a guarantee that we could start on Monday,
16 to have the weekend to gear up and cut, I think we should be able to get
17 done in one day and maybe a morning. We're not going to take the whole --
18 the whole time, certainly.
19 JUDGE AGIUS: Okay.
20 All right. We stand adjourned until tomorrow morning at 9.00.
21 Thank you.
22 Sorry, Mr. Bourgon, I thought you were --
23 MR. BOURGON: Mr. President, I'd just like to at this time take
24 this opportunity to seek leave from the Trial Chamber, pursuant to Rule
25 126, to reply to the response which was filed by the Prosecution to the
1 joint Defence motion challenging the admissibility of the report of
2 Richard Butler.
3 JUDGE AGIUS: Okay. All right, granted.
4 MR. BOURGON: Thank you, Mr. President.
5 --- Whereupon the hearing adjourned at 1.39 p.m.,
6 to be reconvened on Friday, the 15th day of
7 February, 2008, at 9.00 a.m.