080218ED

Page 21392

1 MR. THAYER: Good morning, Mr. President.

2 JUDGE AGIUS: Good morning.

3 MR. THAYER: Good morning, Your Honours. Good morning, everyone.

4 Mr. McCloskey apologises for his absence this morning. We spoke

5 with him yesterday. He is immobilized with a recurring back injury that

6 kicked in Saturday, so he has been flat on his back and unable to do

7 anything, other than pick up the phone. I spoke with him this morning. He

8 is still flat on his back, so he will not be joining us today.

9 JUDGE AGIUS: All right.

10 MR. THAYER: We are prepared to proceed with all of our

11 submissions. I will take up Mr. McCloskey's anticipated submission with

12 respect to Mr. Borovcanin. I think we're fairly confident that we will be

13 able to finish today.

14 JUDGE AGIUS: Thank you. Please send him a message from the Trial

15 Chamber, wishing him a quick recovery, and not to get the impression in

16 his mind for even a minute that this is a knock-out by the Defence teams.

17 So let's start.

18 If you finish today, I think that would be better because it gives

19 us more time, and also we can come back with our decision a couple of days

20 earlier than we had anticipated.

21 Yes, Mr. Thayer.

22 MR. THAYER: Thank you, Mr. President, and may it please the

23 Court.

24 I will address the Court now regarding the accused Gvero and

25 Miletic.

Page 21393

1 JUDGE AGIUS: Together or one after the other?

2 MR. THAYER: One after the other, but to some degree it will

3 necessarily be overlapping, as I will shortly describe.

4 JUDGE AGIUS: Okay.

5 MR. THAYER: I'm going to discuss, for a few minutes, some of the

6 evidence about how the VRS Main Staff operated, and then the evidence, how

7 the Main Staff directives flowed through the subordinate commands. What I

8 hope, Your Honours, is that this will be helpful both in responding to

9 certain issues which were raised on Friday, particularly by the Miletic

10 Defence in its submissions, and also when I turn to review just some of

11 the evidence necessary for 98 bis purposes which shows the two accuseds'

12 contributions toward the forcible transfer, JCE, and to showing the

13 forseeability of the opportunistic killings.

14 JUDGE AGIUS: Mr. Josse.

15 MR. JOSSE: I'm sorry to interrupt at an early stage, but perhaps

16 I should make this objection now.

17 We do not understand why my learned friend needs to address my

18 client's role at all. The submissions that we made were purely legal ones

19 relating to deportation. There was a small subsidiary submission in

20 relation to opportunistic killings. Neither of those submissions touched

21 at all on General Gvero's role in this indictment. We made no mention

22 whatsoever about that. We do not purport to make any submissions so far

23 as that is concerned; and if it would help, a concession in relation to

24 all counts, bar the opportunistic one and count 8, then we're quite

25 prepared to make that concession.

Page 21394

1 We never made any submission, and we fail to understand why the

2 Prosecution are entitled to respond, let alone need to.

3 JUDGE AGIUS: Thank you, Mr. Josse.

4 One moment. Do you wish to comment or reply to that?

5 MR. THAYER: Just very briefly, Mr. President.

6 I'm very much aware that the Gvero team did not submit on count 7,

7 and my presentation, such as it is with respect to the evidence concerning

8 count 7, is limited and, again, was designed to provide the underpinning

9 for my discussion of the foreseeability of the opportunistic killings. I

10 could dispense, should the Court deem it appropriate, with the vast, vast

11 majority of my submission with respect to count 7, as it pertains to the

12 accused Gvero. I'll take guidance from the Trial Chamber on that. I'm

13 certainly prepared to keep this as short as necessary for the purposes for

14 which we are here today.

15 JUDGE AGIUS: One moment.

16 Yes, Mr. Josse.

17 MR. JOSSE: I could help further on the foreseeability of the

18 opportunistic killings. That was not the submission. The submission was

19 purely the actus reus of the offences set out in paragraph 31, nothing to

20 do with my client's state of mind whatsoever. Conceded.

21 JUDGE AGIUS: Thank you.

22 [Trial Chamber confers]

23 JUDGE AGIUS: We have no doubt in our mind, the four of us, that

24 Mr. Josse is right, so please limit your submissions to address the points

25 raised by Mr. Josse in his intervention, and the same applies -- I don't

Page 21395

1 know what you were going to say in relation to Miletic, but we come to

2 that if and when.

3 MR. THAYER: I was certainly happy -- I'm happy to do that, Your

4 Honour. I was prepared to limit my remarks with respect to General Gvero

5 and count 7. So I'll proceed.

6 With respect to the Miletic submission --

7 JUDGE AGIUS: One moment. Something occurs to my mind, that when

8 Mr. Josse started his submissions last week, he said that he was not going

9 to deal with count 7; however, in relation to count 7, he did refer to the

10 submission made by Mr. Bourgon earlier on and expressed his opinion, and

11 suggested that the legal issue raised by Mr. Bourgon should not be decided

12 at the Rule 98 bis stage. I don't know, with that, if you or Mr. Nicholls

13 meant to address that when dealing with the Nikolic case; however, that's

14 the only thing that Mr. Josse raised in relation to count 7.

15 MR. THAYER: Thank you, Mr. President.

16 In responding to the submissions of the Miletic team from last

17 Friday, I think it would be helpful to spend just a few minutes, again,

18 talking about the evidence of the operation of the Main Staff. The

19 presentation from the Miletic Defence team was quite far-reaching and

20 all-embracing in some respects. It was quite factually based. I

21 certainly don't intend to respond point by point; but in order to provide

22 the basis for responding to some of these issues, I'd just like to go into

23 some of the evidence concerning the Main Staff, in general, and the

24 directives.

25 There was evidence adduced on the record that the VRS was a

Page 21396

1 disciplined army, where the chain of command and rank were respected and

2 where orders were followed. There was a clear reporting chain which

3 linked the Main Staff to its subordinate commands, and there was also

4 evidence that these subordinate commands were expected to report back up

5 that chain. In fact, there was testimony that they were duty-bound to do

6 so.

7 With respect to the higher-level officers, there was evidence that

8 the former JNA officers who comprised the VRS officer corps filled those

9 positions from the top down and that those officers were well trained and

10 highly educated.

11 There was evidence that starting from the Main Staff, through the

12 subordinate commands, there were regular inspections of the subordinate

13 commands, and that deficiencies were corrected as a result of those

14 inspections.

15 There is evidence on this record, Your Honours, that the VRS

16 consistently sent its representatives forward in connection with its

17 military operations; for example, let me turn to just one particular

18 document, the 1993 Main Staff combat readiness analysis. That's Exhibit

19 414, where it observed that the "presence of the commander of the Main

20 Staff or representative of the Main Staff, in the units carrying out the

21 mission of the liberation of Podrinje, is a specific way of giving weight

22 to and steering combat operations towards a single goal."

23 Now, on the 1st of May, 1993, we see a Main Staff combat order for

24 the liberation of Zepa and Gorazde, and the Main Staff, we see there,

25 established an IKM at Rogatica from which it was to coordinate this

Page 21397

1 operation; and, again, this touches on some themes that were brought up in

2 the submissions.

3 In this case, indeed, General Miletic was to be responsible, from

4 that Rogatica IKM, for merging, planning, linking, and command and control

5 of the forces engaged in the liberation of Zepa.

6 Now, you heard General Smith's observations about the VRS practice

7 of placing assistant commanders forward with the subordinate command, and

8 this is also discussed in his expert statement. I want to briefly just

9 discuss, read to you a quote from General Tolimir's address to the

10 RS National Assembly on 6 August 1995, and I think this really

11 encapsulates and will give you the flavour of how this Main Staff and its

12 officers operated.

13 He said, and this is at the transcript 17810 to 17811, and this is

14 Exhibit 2953: "We are the smallest General Staff in the world among all

15 General Staffs, either in peace or war; and all the officers of the

16 General Staff are at the front. General Miletic is currently in the

17 General Staff, and it was always so. General Milosevic will not be left

18 alone, as he never was in the past. We were always sending someone from

19 the General Staff, and we are still doing it.

20 "There is a forward command post that is stronger than his command

21 is, and it is located in that part of the Sarajevo front. There are two

22 forward command posts of the General Staff in his zone. We have been

23 keeping General Milovanovic as the most experienced commanding officer, as

24 well as General Mladic at Granovo-Glamoc front, and in line with the part

25 of the Main Staff and the operations for four to five months.

Page 21398

1 "We make expert analyses, we prepare directives, and based on

2 those directives we all go to the field and work in accordance with the

3 assignments we receive."

4 Your Honours, there is also evidence in this record that the Main

5 Staff officers, as general officers, carried out their commander's intent

6 via his derived authority. We heard this from Generals Milovanovic,

7 Smith, PW-168, and, finally, Mr. Butler. And these generals, the evidence

8 has shown, were equipped to handle their responsibilities qua generals.

9 Here's how General Milovanovic described it: "Every general, by

10 virtue of the fact that he was promoted into general, loses his branch

11 designation. By virtue of being promoted into general, every general is

12 practically promoted into a general military commander. He can command

13 any type of unit, infantry, artillery, and so on."

14 And he goes on to say that, by virtue of being a general, they had

15 the skills and knowledge to conduct military operations; that is, to lead

16 troops into combat.

17 Now, what did General Smith have to say about his observations on

18 the ground? This is what he said concerning his observations of Generals

19 Gvero and Tolimir: "They could cover the full range of the

20 responsibilities for the matter for which he was put forward to handle.

21 The title covers the general area of a specific staff function and ensured

22 that when the Main Staff were all together and forward headquarters aren't

23 out there... --

24 THE INTERPRETER: Would you kindly slow down.

25 MR. THAYER: -- ... you've got someone focusing on making sure

Page 21399

1 that's going on in the direction everyone wants it to go.

2 "But if you've put one of these forward headquarters forward, and

3 if you put one of these senior commanders in it, then he's commanding in

4 your name," in this case, in General Mladic's name, "across the whole

5 range of responsibilities."

6 JUDGE AGIUS: Yes, Mr. Josse. I suppose you're going to reply to

7 what you said earlier.

8 MR. JOSSE: Yes. With respect, he seems to be going against the

9 ruling, and, Your Honour, the point is this: I chose not to make a speech

10 like this.

11 JUDGE AGIUS: You are right, Mr. Josse. I don't think you need

12 to.

13 Please, I think we made ourselves clear. Ms. Fauveau did deal

14 with count 7, but not Mr. Josse. So I know this may have been prepared

15 beforehand and you had General Gvero and General Miletic put together in

16 the same basket, but --

17 MR. THAYER: Mr. President, I have already excised much of my

18 Gvero references but this is relevant to what happens, and I'll get into

19 this, when somebody like PW-168 calls the Main Staff and asks for any

20 general. And that is why I'm continuing with that type of a recitation to

21 the Court, so that we get that larger context.

22 JUDGE AGIUS: Yes. But each time you mention General Gvero, you

23 are prompting Mr. Josse to stand up, and asked to agree with him, come

24 back to you, and we've lost five minutes in the meantime.

25 MR. THAYER: If I see the "G" word, Mr. President, I'll just move

Page 21401

1 about the description of the military situation in the Podrinje and the

2 Drina Valley. We see how, from the very beginning, there was this shared

3 goal of pushing the Muslim population out. We see the Drina Corps

4 communicate this to the Zvornik Brigade in November of 1992, and this is

5 in Exhibit 29, pursuant to directive 4: "Force the Muslim population to

6 leave the area of Cerska, Zepa, Srebrenica, and Gorazde." Again, picking

7 up directly from directive 4 from November of 1992.

8 Now, Mr. McCloskey referred on Friday to the VRS's success in the

9 Cerska campaign and how that forced the population into Srebrenica, and I

10 recognise that some of these are adjudicated facts that the Court has

11 found, so I'm not going to dwell on. But, again, I refer Your Honours to

12 the April 1993 Main Staff combat readiness analysis, which specifically

13 stated that: "The VRS was accomplishing," at that early stage, "the

14 Supreme Command's strategic objectives through its operations in the

15 Podrinje."

16 And, again, that's relevant to General Miletic because we see, on

17 1 May 1993, him drafting a combat order for that liberation of Zepa and

18 Gorazde; and if you look at that combat order, you see it reflects his

19 deep understanding of not only the military situation but the larger

20 political and, indeed, diplomatic situation in which this planned military

21 operation nested.

22 By July of 1994, we see the brigades, again, picking up on this

23 shared goal. The commander of the Bratunac Brigade sent to all members

24 these words: "We must continue to arm, train, discipline, and prepare the

25 RS Army for the execution of this crucial task: The expulsion of Muslims

Page 21402

1 from the Srebrenica enclave.

2 "There will be no retreat when it comes to the Srebrenica enclave.

3 We must advance. The enemy's life has to be made unbearable and their

4 temporary stay in the enclave impossible, so that they leave the enclave

5 en masse as soon as possible, realising that they cannot survive there."

6 JUDGE AGIUS: Which exhibit?

7 MR. THAYER: That's Exhibit 3177, Mr. President, from Commander

8 Ognjenovic.

9 About the same time, we see, in 2667, 24 July 1994, the Drina

10 Corps Commander Zivanovic, pursuant to briefings with and orders from the

11 Main Staff, ordering the Srebrenica, Zepa, and Gorazde enclaves reduced to

12 their urban areas, which, as the evidence has been presented to the Court,

13 would trigger the same resulting humanitarian crisis as we saw in 1993.

14 And, of course, this is what brings us to P5, directive 7, drafted by the

15 accused Miletic, 8 March 1995.

16 I won't quote the entire language, which I think by now you've

17 heard so many times, but the lineage from directive 4 through all these

18 various planned operations, through these orders down through the corps to

19 the brigades, is here again: "The unbearable situation of total

20 insecurity, with no hope of further survival or life for the inhabitants

21 of Srebrenica and Zepa." Then there is the portion with respect to the

22 restrictive issuing of permits, limiting the logistical supply of

23 UNPROFOR, and the supply of material, resources to the Muslim population.

24 Now, while I'm at this point, I'd like to correct one statement

25 from my learned friend from the Miletic team from last Friday, when she

Page 21403

1 said that, at page 11277 of the transcript: "General Milovanovic stated

2 that President Karadzic may have added this sentence against the will and

3 wish of General Miletic and that, anyway, even if General Miletic had

4 opposed this, this opposition would have led to nothing."

5 Let's look at the actual question and answer.

6 Question: "You, yourself, have told us that you were not present

7 in the Main Staff when this directive was drafted. Is it true that you

8 don't know whether General Miletic objected to the decision made by

9 Radovan Karadzic on carrying out this task? Did he oppose Radovan

10 Karadzic?"

11 The answer was: "I don't know. But even if he had, it would have

12 been in vain."

13 But he doesn't know. He doesn't admit that that may have been the

14 case. He just doesn't know.

15 There is no evidence on this record, I submit, that General

16 Miletic in any way opposed any of the directives. The evidence,

17 particularly at this stage of the proceedings, is quite to the contrary;

18 and we'll see just one example in his meticulous and relentless execution

19 of the restrictive convoy policy and his active contributions to the

20 attacks on Srebrenica and Zepa.

21 Now, my friend from the Miletic team also argued that directive

22 7-1 somehow overroad or overruled directive 7 and removed that language

23 with which we are all so familiar from directive 7. However, if you look

24 at the Drina Corps and brigade orders, and I believe Mr. Nicholls will

25 address one of these, which flowed from directive 7 and 7-1, you'll see

Page 21404

1 that directive 7-1 was decidedly not overwritten by 7-1; that is,

2 obviously directive 7 was not overwritten by 7-1. For example, both the

3 Drina Corps order and the actual attack order to the brigades for

4 Krivaja-95 specifically refer to directive 7 and 7-1 of the VRS Main

5 Staff.

6 As we all know, in Exhibit 107, that attack order for Krivaja-95,

7 it states that, pursuant to directive 7 and 7-1 of the VRS Main Staff, the

8 objective is to split apart the enclaves of Zepa and Srebrenica and to

9 reduce them to their urban areas. Again, evidence, at this stage of the

10 proceedings, supports that there was the knowledge that this would create

11 this humanitarian crisis again. And I would invite Your Honours to look

12 at the last page of that Krivaja-95 attack order, which states that it was

13 typed in two copies and, in fact, delivered to the VRS Main Staff; and,

14 again, that's Exhibit 107.

15 Now, my learned friend Mr. Haynes, in his remarks of last Friday,

16 I believe, misstated the evidence when he stated that: "They had PW-168

17 here, they had Miodrag Dragutinovic here, they had Mirko Trivic here; and

18 neither of those men, those latter men active in tactical Group 1, gave

19 evidence of their understanding of the purpose or the objective of

20 Krivaja-95 were." That was at pages 75 and 76.

21 Now, I asked Colonel Trivic, the 2nd Romanija Motorised Brigade

22 commander, specifically, and this was at page 11810: "And, sir, what was

23 the main objective, as you understood it, of this operation?"

24 His answer was: "The main objective of the operation that was set

25 out by the corps command, as a result of the events in the previous years

Page 21405

1 and months in advance that preceded this decision, was to separate the

2 protected areas of Zepa and Srebrenica."

3 And he went on, on page 18, 11811, to state that: "These units had

4 the task of separating the enclaves, and that implied a narrowing down of

5 the territory in which they were active."

6 He continued on the next page: "First came the separation, and

7 from that follows automatically a narrowing down of the area."

8 And prompted by an intervention by Mr. Meek about whether that

9 meant reducing the geographic size or the population somehow, the answer

10 was: "Sir, I presume we've been understanding each other, that we are

11 talking about the geographical size of the enclaves, and not the ..." --

12 Actually, I'm sorry, that was my question: "... not the numbers

13 of the population; is that correct?"

14 And his answer was: "Yes, yes."

15 So, clearly, Mr. Trivic did have -- Colonel Trivic did have a very

16 clear idea, from his perspective, what the Krivaja-95 operation was

17 designed to do.

18 Now, Mr. Haynes also claimed that: "There is not one word of

19 evidence in this case which would support a finding that Vinko Pandurevic

20 knew one of the main objectives of the attack was to force the Muslim

21 population to leave the Srebrenica and Zepa enclaves." That's at page 75.

22 Well, that simply ignores General Pandurevic's 16 July interim

23 combat report, Exhibit 330, from which I will quote to you the last line:

24 "I consider that the Krivaja-95 operation is not complete as long

25 as a single enemy soldier or civilian remains behind the front line."

Page 21406

1 I would add, incidentally, that Nedeljko Trkulja, Colonel Trkulja,

2 testified that he believes that General Pandurevic's 16 July interim

3 combat report was, in fact, sent to the Main Staff at that time.

4 So, Your Honours, this is a compelling example, I would submit, of

5 the longstanding, consistent, and shared goal of expelling the Muslim

6 population coming full circle back to the Main Staff. It's against this

7 contextual backdrop that I would like to turn to discussing how General

8 Miletic contributed to this goal of forcibly removing the Muslim

9 population from Srebrenica and Zepa.

10 We heard a lot from General Milovanovic about General Miletic's

11 role both as chief of operations and when he was standing in for the chief

12 of staff, General Milovanovic. Let me just begin by saying that

13 Milovanovic testified that General Miletic arrived in July of 1992, just a

14 couple of months after the VRS Main Staff itself was formed; and General

15 Milovanovic singled him out as a particularly goods operation --

16 particularly good operations officer. He described what he called the

17 collegiums, the daily Main Staff meetings, which would be attended by the

18 assistant commanders.

19 And allow me to quote somewhat extensively from some of General

20 Milovanovic's testimony because my learned friend really challenged the

21 clarity of General Miletic's responsibilities and authority, and I think

22 there is plenty of evidence, particularly at this stage, which shows what

23 those responsibilities and authorities were.

24 This is at the transcript pages 12188 to 12189: "Every morning at

25 7.00, there is a meeting of the Main Staff. Usually, it is the inner

Page 21407

1 circle, which means General Mladic, with all his assistants; and regularly

2 these morning meetings were attended by the chief of operations

3 administration, the chief of intelligence administration, and the security

4 administration, in addition to the assistant commanders.

5 "And it would usually be the commander, General Mladic, who would

6 call the meeting to order, and he would give the floor to General Miletic,

7 standing in for the chief of staff, and then we, either me or him, would

8 inform all the present about the problems in the theatre of war, and we

9 would draw each sector's chief to what they had to pay attention. After

10 the meeting, chiefs of sectors would study the details that their

11 attention had been drawn to and that they provide proposals to the

12 commander. Usually, it would happen immediately during the first meeting.

13 If there was a lot of such thing, then there would be a need for us to

14 meet either once or twice during the course of the same day.

15 "This was a system that was in place; and based on this system,

16 Miletic obtained this particular information. It did happen that the

17 commander was not in staff, the chief of staff was not in the staff, and

18 then the most senior general would chair the meeting. But Miletic, again,

19 was the one who explained the situation, who provided an insight into the

20 situation based on the reports."

21 General Milovanovic went on further to describe how critical

22 General Miletic's contribution was to this nerve centre. He said, at page

23 12305 to 12309: "Miletic's trench was to design documents, to make plans,

24 to coordinate the work of subordinated units, with a view to accomplishing

25 the uniform task of all VRS units, and that is to defend Republika Srpska.

Page 21408

1 Miletic did this as an officer of the staff. The value of every

2 operations officer is great, is crucial, but operations officers are

3 considered to be the soul of the army."

4 In this case, he was the soul of the Main Staff of the VRS. He

5 knows everyone. He is able to advise everyone to give them the

6 appropriate information. Indeed, he was "a figure who united and

7 coordinated the work of the Main Staff and was always present."

8 Now, again, my learned friend said that there was confusion, that

9 nobody really knows what "standing in for the chief of staff" really means

10 and what exactly are the functions and duties. And, again, I think

11 General Milovanovic made that pretty clear, and this is at 12305 of the

12 transcript: "When he substituted for me, he had to coordinate the work of

13 assistant commanders, but not in an order-issuing sense, but rather in an

14 advisory role. I don't know which word to use. Perhaps the best word is

15 a non-binding sense.

16 "As deputy chief of staff, it was his duty to tell a general that

17 he has a problem in his sector. So he was the one that coordinated, but

18 not in the sense of issuing orders. That was something that General

19 Mladic could do, or I in Mladic's absence.

20 "But he could tell Gvero, 'Go to that logistical unit and check

21 why there are so many violations and infractions. It's beginning to

22 affect morale.' He could tell Djukic, 'Find those units and materiel.' So

23 he could not really speak in a commanding tone.

24 "He could tell others, 'This sector needs such-and-such supplies

25 and assistance.'"

Page 21409

1 And in response to a question from His Honour Judge Agius, General

2 Milutinovic stated that General Miletic would "certainly do it without

3 consulting me, because in order to consult me he would have had to

4 establish contact with me across 600 or 700 kilometres, and there would be

5 no need for the enemy to be allowed to listen in."

6 In response to another question, he continued: "If General Mladic

7 was at the Main Staff, then my role would be the same as the role I have

8 described for Miletic a moment ago. I was also an assistant commander,

9 except that I was the first among equals, in a way. However, if Mladic

10 was not around, then I did have a command role. I could order Miletic or

11 Djukic to give Gvero what he needed. Miletic was never in a position to

12 issue orders to assistant commanders."

13 Now, again, in response to a question by His Honour, in the event

14 that neither Generals Mladic or General Milovanovic would be present, who

15 would be in a position to issue orders, he answered: "No one. In that

16 case, General Miletic would have had to call him, regardless of distance;

17 but if the case in question called for it, if it was an emergency, he

18 could have called General Milovanovic, or if General Mladic were closer,

19 he would have had to call General Mladic, so that one of them could issue

20 appropriate orders."

21 General Milovanovic continued: "However, in practice, in the

22 practice of the Main Staff, such situation never arose because, after all,

23 the Main Staff was a harmonious whole. We had a good mutual

24 understanding, and I can't imagine a situation in which General Gvero

25 would refuse the advice of General Miletic, and I can't imagine any of the

Page 21410

1 assistant commanders having any quarrel with what Miletic proposed. We

2 just never experienced such incidents."

3 He said it a number of times, and he finally said it again at

4 12309: "I have already said a number of times that General Miletic

5 substituted for me in performing day-to-day staff duties during my

6 absences from the staff."

7 So it's no surprise that Colonel Sladojevic testified that when he

8 reported to the Main Staff on the morning of 13 July: "I was received by

9 General Miletic. He told me that he was the chief of the operations and

10 education administration..." --

11 THE INTERPRETER: Thank you for slowing down.

12 MR. THAYER: -- "... and that he was also performing the duties

13 of the chief of staff in the chief of staff's absence." That's at 14359

14 of the transcript.

15 With respect to General Miletic's role as an adviser, General

16 Milovanovic stated that General Miletic was certainly not General Mladic's

17 main man, but whether he ever provided any advice to General Mladic:

18 "Well, he probably did. Sometimes when my functions were

19 distributed to others in my absence, then Miletic would suggest to Mladic

20 how to use units, and advising the commander amounts to giving the

21 commander your opinion how that should be done. And Miletic could do that

22 because he was the best informed on the situation in various theaters of

23 war in Republika Srpska when I was not there." And, again, that's at

24 12311 of the transcript.

25 General Miletic, according to General Milovanovic, had influence

Page 21411

1 in the sense that when General Milovanovic was in Western Bosnia: "When I

2 asked for three brigades, he answered that the Main Staff could not send

3 me those brigades, and he explained why.

4 "Also, if I approached the Main Staff in order to request

5 additional materiel, ammunition, fuel, and so forth, he would convey my

6 messages to the commander of the Main Staff or the assistant commander for

7 logistics; or if I had problems with the state of morale, he would convey

8 those as well.

9 "In other words, he was my intermediary in my communication with

10 the other members of the Main Staff and very often even with the Supreme

11 Command." That's at 12317 to 12318.

12 And, finally, General Milovanovic testified at 12319 again: "Of

13 course, General Miletic could participate in discussions because he was

14 standing in for me, and he could convey proposals to the commander, just

15 like me, because he was familiar with the corps reports. He was familiar

16 with the situation, based on my conversations with him; and he could

17 explain the situation in Western Bosnia as well as I could have myself."

18 Now, I want to spend just a few minutes discussing the evidence

19 concerning General Miletic's role in enforcing the VRS restrictions on

20 convoys, and I won't subject everyone to secondary convoy terror by

21 throwing out individual convoy reports ad nauseam.

22 But my friend asked: Do we have evidence that the restrictions --

23 or the restriction to humanitarian aid increased after the directive.

24 The answer is: Absolutely.

25 PW-106, and I'll just cite, I won't read from all these

Page 21412

1 selections, but I'll just draw the Court's attention to the testimony of

2 PW-106 on November 15th of 2006 at page 3938; the testimony of Major Ruten

3 November 29th, 2006, page 4797; the testimony of PW-155, 5 February 2007,

4 pages 6829, and that's at line 17 through 23, and page 6830, beginning at

5 line 3; the testimony of Meho Dzebo the 28th of March, 2007, page 9595.

6 With respect to the restrictions and the effect of those

7 restrictions on the operational state of effectiveness for the Dutch-Bat

8 Battalion, I barely need to mention the names of Franken, Koster, Van

9 Duijn, Runin, and others, to remind the Chamber that there is ample

10 evidence that the restrictions on the Dutch-Bat re-supply tightened even

11 further after directive 7 was issued. Specifically, there was the

12 testimony about the fuel convoys. Not limited to that, but that's

13 something that certainly stood out in witnesses' minds with particular

14 clarity as to the date.

15 General Milovanovic testified that even after the cooperation

16 committee was formed, the VRS continued to control the convoys, and that

17 was at 12290 of the transcript. You heard that there was Colonel Djurjic,

18 a member of the Main Staff, on that commission.

19 Let me just recite some exhibit numbers. Again, I want to spare

20 you putting them up again: 2651A invites you to look at the detail of

21 General Miletic's restrictions there; 2714, 2 June 1995, denying school

22 supplies, fuel for saws; 2717, restricting rotation of an NGO; 2497, the

23 18 June 1995 document, General Miletic demanding a detailed check; 2551,

24 29 June, referring to the UNMO rotation and working with Momir Nikolic;

25 2570, General Miletic telling the Bratunac Brigade that the brigade

Page 21413

1 security organs must monitor the Medevac. We've seen the exhibits, the

2 documents showing that the brigades implemented these restrictions.

3 I invite you to recall Colonel Trivic's testimony about what would

4 happen if the brigade didn't carry out General Miletic's instruction; for

5 example, on 27 -- I'm sorry, 2497, demanding the accounting of the items.

6 He said it's inconceivable that they wouldn't comply, and he presumes that

7 they reported back to the Main Staff. That's at 12043.

8 And, again, my learned friend made a big point of arguing that

9 General Miletic was not in the field, was not on the ground during the

10 attacks on Srebrenica and Zepa. Of course, he wasn't. That's because, as

11 we've seen, General Smith -- I'm sorry, long weekend -- General Miletic is

12 performing the critical job of running the Main Staff during this period

13 of time, holding the fort down while his chief of staff is forward. You

14 bet he's at the Main Staff.

15 I want to turn to some of the evidence capable of sustaining a

16 conviction under counts 7 and 8 and focus on General Miletic's activities

17 and his contributions during the attack on Srebrenica and Zepa.

18 We have Exhibits 2889 and 2890, the 2nd and 3rd July Main Staff

19 daily combat reports, and I'll talk about those in a little while, where

20 he reports to President Karadzic that the Drina Corps is preparing for

21 combat. And, again, recall this is the date of General Zivanovic's attack

22 order, Krivaja-95. Again, we have this evidence that it was, in fact,

23 sent to the VRS Main Staff on the last page.

24 By the 6th of July, in Exhibit 2895, in the Main Staff daily

25 combat report of that date, General Miletic mentions the combat operations

Page 21414

1 towards Srebrenica and Zepa. Then we start seeing a lot of activity

2 surrounding these events intersecting at the Main Staff, some of which

3 General Miletic has direct participation in, some of which a reasonable

4 inference, based on the evidence presented to Court, establishes that he

5 would have known about.

6 For example, we have Exhibits 2899 and 13. We have the 12 July

7 request from General Skrbic to the Ministry of Defence for buses and the

8 follow-up documents from the Ministry of Defence out to get those buses

9 for the transportations at Potocari. We have Exhibit 156, 12 July Drina

10 Corps request to the Main Staff, requesting additional fuel. This is for

11 moving out the population pursuant to the Main Staff's order.

12 We have Exhibit 1111, an intercept of 12 July at 1220 hours, again

13 involving discussion of fuel and General Miletic's involvement in that.

14 Exhibit 1112, a 1240 hours intercept of 12 July. Panorama, the code name

15 for the Main Staff, is told about the transportations.

16 Then we have two follow-up intercepts, one of which my learned

17 friend talked about, 1113, at 1250 hours on 12 July, where General Mladic

18 says: "We'll evacuate them all, those who want to and those who don't

19 want to."

20 Now, my friend said that doesn't involve the Main Staff, but I

21 think the evidence supports, clearly, when we see how this Main Staff

22 operated, that that just cannot be the case.

23 Also, that date we have 2748, a Main Staff daily combat report,

24 where General Miletic is reporting on women and children hitting a

25 minefield trying to withdraw from the enclave. He specifically notes that

Page 21415

1 Krivaja-95 is proceeding according to plan. He refers to the

2 transportations, Zepa, and MUP laying ambushes. This is at 19848 to 19850

3 of the transcript.

4 We'll see on the 13th, as well, a similar daily combat report from

5 the Main Staff to President Karadzic, again mentioning the transferring of

6 the population. On the 14th of July, we have a 2102 hours intercept where

7 Jokic is telling Colonel Beara to call 1155. He says they're having huge

8 problems with the people, "I mean the parcel," Jokic's words, and that the

9 higher house urgently needs Colonel Beara.

10 I invite Your Honours to look at Exhibit 1146, a 14 July intercept

11 at 2227, and this is the one where one of the participants is identified

12 as Vilotic. There is evidence in the case that this is, in fact, General

13 Miletic, and he is speaking with Jokic.

14 I would just invite the Chamber to look at the tone, the language

15 that's used by Miletic in this intercept: "Don't talk to me about that.

16 Do as I order you."

17 Is it the Prosecution's case with respect to this, as one example,

18 but we have others, that General Miletic is originating orders, that he's

19 issuing orders? No, that's never been our case. The evidence from which

20 a reasonable tribunal of fact could find is that General Miletic was

21 passing on orders consistent with the intentions of his commander, under

22 the derived authority of that commander, General Mladic.

23 We have another example. This is Exhibit 2754. I think it's also

24 been doubly numbered as 2518. This is a 15 July document in which General

25 Miletic is moving troops; and I submit, again, that the language here is,

Page 21416

1 to use Rick Butler's terminology, directional. There are a lot

2 of "shall"s. General Milovanovic said this is the kind of work that

3 General Milovanovic -- that he would have expected General Miletic to be

4 doing standing in for him, warning General Pandurevic, then Colonel

5 Pandurevic, to expect men. Again, he's not, in the Prosecution's

6 submission, originating his orders; he's passing them on under the derived

7 authority of General Mladic.

8 Now, regarding the Zepa operation, we have Exhibit 183, a document

9 dated 15 July, from General Tolimir to General Miletic, wanting to ensure

10 that they've got secure communications in place for the Zepa operation.

11 Then we see, again in the Main Staff daily combat report of that day,

12 General Miletic updating President Karadzic on Zepa.

13 If we look at 377, the duty operations officer --

14 JUDGE AGIUS: What's the reference of this last?

15 MR. THAYER: Forgive me, Mr. President. It's 183.

16 JUDGE AGIUS: Yes. 183 is a document dated 15 July from General

17 Tolimir to General Miletic, wanting to --

18 MR. THAYER: The daily combat report?

19 JUDGE AGIUS: Yes, exactly.

20 MR. THAYER: That is 49, and that was discussed at 19114.

21 JUDGE AGIUS: Yes.

22 MR. THAYER: We see another reference in the duty officer notebook

23 on 16 July, Beara to call Panorama 155 at 0930, and I won't recite the

24 testimony concerning that extension at the Main Staff.

25 As we move through this period, we also have Exhibit 1199, a

Page 21418

1 JUDGE AGIUS: We are in open session.

2 MR. THAYER: Again, with respect to the Zepa operation, Exhibit

3 1231 is a 17 July intercept from General Mladic to General Krstic.

4 General Mladic says in this intercept: "Get in touch with Miletic on the

5 secure line. Full steam ahead. I didn't accept the Turk's conditions."

6 There is evidence in this case that this is referring to the Zepa

7 operation.

8 And, again, in Exhibit 3015, we have a 20 July request from the

9 Drina Corps forward command post, from General Krstic to General Miletic,

10 to get the 65th Motorised Protection Regiment to Zepa. That's at 19936 of

11 the record.

12 We have Exhibit 2517, the notorious 21 July Tolimir chemical

13 weapons document, and I won't go into that any further. I think you're

14 all familiar with that.

15 With respect to the events on the ground in Zepa, we have Exhibit

16 191, a 25 July communication from General Tolimir to Generals Gvero or

17 Miletic, stating that they have a copy of the Zepa agreement, and

18 discussing further General Tolimir's view of the situation. That night,

19 we see, in Exhibit 190, the same date, General Miletic continuing his

20 active role. This document reflects that General Miletic was in

21 discussions with Mr. Bujajic, who was the head of the Serb delegation,

22 meeting at the Sarajevo Airport to try to come to some agreement with

23 respect to the men of Zepa. That's at 19941 of the transcript.

24 I'll address the Court probably after the break about the issue of

25 the status of the men from Zepa who crossed the Drina River. For now, we

Page 21419

1 have references in the daily combat reports from General Miletic to

2 President Karadzic, information he's passing on concerning these swimmers,

3 these men who were crossing the river. That's in 3023 and 3025.

4 We have 3036, the Tarkic report to General Miletic, referring to

5 these "balijas."

6 With respect to these daily combat reports which Colonels

7 Sladojevic and Trkulja both testified General Miletic personally signed,

8 General Milovanovic testified that they were important for President

9 Karadzic to receive. In response to them, President Karadzic would

10 occasionally issue tasks. Colonel Trkulja, not surprisingly, testified

11 that he always expected that President Karadzic would read them. These

12 are at 12176 and 15098 of the transcript respectively.

13 Finally, we have the testimony from General Milovanovic as to the

14 strict procedures for reporting up from the corps in writing; and then,

15 orally, there were specific times during the day when this was to be done

16 to ensure that they had the most up-to-date information to convey to the

17 subordinate commands, the discussion within the Main Staff, and ultimately

18 to President Karadzic. That's at 12187 of the record.

19 Mr. President, if I may --

20 JUDGE AGIUS: Feel free to suggest a break time.

21 MR. THAYER: I think I'd like to do that.

22 JUDGE AGIUS: We'll accommodate you.

23 MR. THAYER: I have that one issue I referred to which I'll

24 address after the break.

25 JUDGE AGIUS: All right. Okay.

Page 21420

1 [Trial Chamber confers]

2 JUDGE AGIUS: We'll have a 25-minute break now. Thank you.

3 --- Recess taken at 10.21 a.m.

4 --- On resuming at 10.50 a.m.

5 JUDGE AGIUS: Yes, Mr. Thayer.

6 MR. THAYER: Thank you, Mr. President.

7 I'd like to address now the issue concerning count 8 that was

8 raised on Friday.

9 JUDGE AGIUS: In relation to ...

10 MR. THAYER: To two issues. The first is with respect to the

11 status of the men from Zepa who crossed the Drina River to Serbia.

12 Let me just say, preliminarily, that we're all aware of the

13 overall issue being currently on appeal, and our position clearly adopts

14 the Prosecution's appellate brief in Mrksic and in Martic. So I don't

15 have too much more to say in terms of performing any exegesis on the

16 judgement. But let me speak for a few minutes about this issue of whether

17 all of these men who crossed are soldiers.

18 Some, without a doubt, among the men who crossed the river were

19 soldiers who had been active participants in the hostilities and who had

20 abandoned their positions and weapons to flee. Also among the men were

21 men of military age, like PW-155, who the evidence shows were not

22 participants in the hostilities. I'll have more to say about PW-155 in a

23 bit.

24 Now, my friends, understandably, focused on the VRS's perception

25 of the swimmers, and I'll refer to them as swimmers as a shorthand, as all

Page 21421

1 combatants; and we can, indeed, see, from some of the documents themselves

2 from the VRS, that that's the premise that underlies the argument that the

3 VRS considered any able-bodied men, male, to be a combatant.

4 If you look at Exhibit 188, that's a Tolimir report regarding the

5 situation in Zepa, dated 13 July 1995. Just to bring you back a little

6 bit, Your Honours, this is where Witness 49 testified that he meets with

7 General Tolimir on that date. General Tolimir tells him, "Srebrenica has

8 fallen, and now it's your turn," and he puts forward two options: The

9 complete evacuation of the entire population or a military solution. And

10 that's at 9724.

11 Corresponding to that meeting, we note in the report that Tolimir

12 states: "We have also required that all able-bodied men are registered

13 and exchange for our war prisoners in the Muslim prisons."

14 Now, just because the VRS considered any able-bodied Muslim male

15 to be a combatant doesn't make it so, and I'm aware of no case law to

16 support that thesis, especially when we take a look at the evidence which

17 obviously must be viewed in the most favourable light to the Prosecution.

18 Let me start with General Smith. My friends cited to some of his

19 testimony, but they, in my respectful submission, ignored his most

20 relevant testimony on this issue. This is at page 17451, 6 November 2007.

21 General Smith put it very concisely. With respect to Zepa, what he saw

22 going on there, based on his observations and discussions, being briefed,

23 there is a group of people who are fighters, who are more or less armed;

24 and then in the pocket, in the enclave as well, there are the families and

25 so forth, and there are men of military age who may or may not be

Page 21422

1 fighters, and it was always going to be a problem of differentiating those

2 people. "That I'd always understood, and wasn't going to be a problem you

3 could easily solve."

4 That was after I put a question to him in which I had asked:

5 "Just to be specific, we're talking about not only any men who may

6 have been in the center of Zepa, but the men of military age who were in

7 the hills and still fighting?"

8 It was my reference, I submit, to "still fighting" that prompted

9 General Smith to correct me as to what he saw what was the situation on

10 the ground at that time. And, indeed, Your Honours, after correcting me,

11 General Smith specifically challenged my learned friend Madame Fauveau

12 during cross-examination when she asked, at page 17634:

13 Question: "Speaking about Zepa, men of military age, members of

14 the armed forces of Bosnia-Herzegovina in Zepa, they never surrendered to

15 the Serbs, did they?"

16 General Smith's answer was: "Are you saying that all men of

17 military age were members of the armed forces?"

18 And my friend answered: "Not yet. But before answering my

19 question, maybe you could tell me what your opinion was on that particular

20 issue."

21 General Smith replies: "Well, I'm very happy to answer your

22 question, but I wanted to understand the question I was being asked, and

23 you were putting two things together which I wasn't convinced is so."

24 There are a series of questions and answers concerning the

25 conscription policies in the VRS and within the armija.

Page 21423

1 Then at 17636, General Smith says: "If I can make only one other

2 point: It isn't so much the manpower, it's their weapons in these

3 circumstances; and while, of course, all those men had the potential to be

4 a soldier, they didn't necessarily have the capacity to be one."

5 This reality is certainly reflected in the testimony of

6 Witness 49, whose testimony I say, with respect to my learn friend for the

7 Gvero team, characterized rather selectively, in my opinion.

8 My friend quoted from page 9818, so let me go directly and read it

9 instead of characterizing.

10 The question that was put to Witness 49 was: "That is a fair

11 assessment, is it not, from UNPROFOR, that the 1.500 people who remained

12 were, in fact, BiH troops?"

13 The answer was: "That is quite a correct assessment, but these

14 were men of the age group from 18 and maybe even under that, from 18 to 55

15 years of age. To what extent they were involved and engaged during the

16 war, that's another matter, but I'm sure there weren't 1.500 who were

17 actually armed."

18 Witness 49 also specifically testified, and this is at 9721 of the

19 transcript, that: "There were about 1.200 able-bodied men in Zepa, of

20 whom only 600 to 700 were armed, and they were commanded by Colonel

21 Polic."

22 There is other evidence which puts the estimate of civilians left

23 in Zepa even higher. At the transcript 18322, there is a document which

24 refers - it's a UN document - to the UN estimating that there were 2.000

25 to 3.000 people left in Zepa after the transportations were completed.

Page 21424

1 This document notes that the Serbs said they were all army, but the UN

2 thought at least half were civilians. Again, not surprisingly, the VRS

3 documents themselves reflect these differing perceptions and observations.

4 Look at, and I invite the Court to read, P190, where it is clear

5 that there are these categories being described by General Smith. P190 is

6 from Lieutenant-Colonel Karanovic to General Tolimir, updating him on the

7 events in Zepa on the 28th of July, 1995. Specifically, he's updating him

8 with respect to the negotiations still ongoing at the Sarajevo Airport.

9 In this document, Lieutenant-Colonel Karanovic writes that: "In

10 order to sign this agreement, Muslims are willing to secure release of all

11 prisoners of war demanded by the VRS. It is emphasised that it is

12 important that civilians, disarmed soldiers, and able-bodied men are

13 evacuated together from Zepa, and they demand guarantees that they are not

14 going to be killed."

15 Now I'd like to turn to PW-155.

16 On cross-examination, on three occasions at 6873, 6876, twice on

17 one of those pages, PW-155 specifically stated that he was not in the

18 army. There was no evidence that he was participating in the hostilities,

19 save for running to the lines when the VRS was about to crash the

20 defences. There is evidence from him that once he took his family to

21 Stitkov Dol, he never returned to the lines.

22 I refer you to Colonel Savcic's testimony that by the 24th or the

23 25th of July, the 25th being when P-155 recalls bidding his family goodbye

24 at Stitkov Dol, Colonel Savcic testified that the organised defence and

25 resistance in Zepa had ceased. That's at 15279 of the record.

Page 21425

1 Let's look at the circumstances PW-155 was in from the 25th of

2 July through the 1st of August, when he made the decision to cross the

3 river. He and about 50 other men were in caves, hiding up in the canyons.

4 This is at 6837 of the transcript.

5 My friend characterized PW-155's testimony as simply standing up

6 to no examination at all. Well, this was a witness who became so overcome

7 with emotion when he testified about bidding his family goodbye, the

8 decision he had to make, that he had to take a break and leave this

9 courtroom.

10 He had to make another decision, to leave his brothers behind. He

11 said that the men he was with did not know what to do. His mind was

12 filled with thoughts of killing himself. They ultimately decided to break

13 up into smaller groups, thinking that that would be the best way to

14 survive. He made it across with one other person. This was no Dunkirk,

15 this was no organised retreat, this was unarmed men fleeing for their

16 lives.

17 Again, using Witness 49's numbers, 500 to 600 men he believed were

18 armed. His estimates were that 950 made it over.

19 [Trial Chamber confers]

20 JUDGE AGIUS: Go ahead, Mr. Thayer.

21 MR. THAYER: When you do the math, that leaves a few hundred

22 civilians, in the purest sense of the word, who made it across. Our

23 position clearly is that P-155 was never a soldier; he was a civilian for

24 the purposes of this period of time. Clearly, he stated that he

25 participated in the village guards at some point. Clearly, he went to the

Page 21426

1 line. But, certainly, at this stage, we have to accept his testimony, his

2 clear and consistent testimony, that he was a civilian. And even if Your

3 Honours find that he was a soldier, he was a combatant for that period of

4 time, certainly when he turned his back and made for Serbia, he was

5 hors de combat.

6 Mr. McCloskey on Friday already referred to those men not having

7 an option to surrender and that that was a reasonable fear.

8 I respectfully submit to Your Honours, based on the evidence taken

9 in the light most favourable to the Prosecution, that the evidence before

10 the Chamber is that P-155 was a civilian; and to the extent that he had

11 ever participated in hostilities, he had laid down whatever arms he had

12 access to.

13 Related to Mr. McCloskey's submission on Friday that the unlawful

14 attack began really on 8 March of 1995, I just want to draw the Chamber's

15 attention to the Stakic appeal judgement, which points out that force is

16 "not limited to physical force, but includes the threat of force, or

17 coercion, such as that caused by fear of violence, duress, detention,

18 psychological oppression, or abuse of power against such person or

19 persons, or by taking advantage of a coercive environment."

20 I think the evidence has been overwhelming that that environment

21 was coercive. That's got to be the understatement of 2008 so far.

22 Let me just conclude by calling your attention, again, to a piece

23 of evidence which directly speaks to that reasonable fear in those men

24 from Zepa held, the 8 August 1995 daily combat report from Colonel Kusic

25 referring to killing remaining "balijas" and describing specifically

Page 21431

1 There's some more evidence that I'll talk about later. Again, is

2 it fair or accurate to say that there's no evidence on the record, when

3 Drago Nikolic was fully engaged in preparations to receive the prisoners,

4 to detain them, and he meets the convoy once they get to Zvornik, or to

5 Divic, just outside?

6 One legal point, a small -- well, it's not a small point, but I

7 think it's an obvious point. At 21263, Mr. Bourgon stated that the

8 mens rea for forcible transfer required the intent to permanently displace

9 the population, and cited to a commentary to the Geneva Conventions. I

10 just refer the Trial Chamber to the Stakic Appeals Judgement at paragraphs

11 307 and 317, which made clear, and it's a quote: "The mens rea does not

12 require the intent to transfer permanently."

13 I think we've shown that mens rea, that this forcible transfer was

14 intended to be permanent, but it's not an element that we need to prove.

15 I want to talk briefly now about the two JCEs in the case as they

16 relate to forcible transfer under Article 7. The elements of forcible

17 transfer are pretty clear and simple under Article 5. It's the forced

18 displacement of persons by expulsion or other forms of coercion from the

19 area in which they are lawfully present within state borders.

20 As Mr. Thayer said, "forced" does not to be physical force or

21 violence, it involves coercion as well. The mens rea requires simply the

22 intent to displace a person from that place where they are lawfully

23 present.

24 Now, the fact that there are two JCEs in this case, forcible

25 transfer and the murder operation, does not mean that these crimes, the

Page 21432

1 forcible transfer and the murder operation, are distinct. They're

2 completely intertwined, they're overlapping, and they're all involved with

3 the same objective, which is to get rid of the entire Muslim population,

4 not just the women and children, not just the men, but the population from

5 Srebrenica and Zepa enclaves. So it would be artificial and unnecessary

6 to somehow try to separate the forcible transfer and the murder operations

7 from each other.

8 The indictment is also clear that the common purpose of the JCE

9 was to force the Muslim population, as a whole, all of the Muslims, out of

10 the Srebrenica and Zepa enclaves. Just to make it clear, at one point,

11 counsel for Mr. Nikolic and Mr. Beara both tried to argue that somehow the

12 forcible transfer was over by 13 July. The forcible transfer pled, in our

13 JCE as we've pled it, continued after 13 July, continued through to the

14 end of August 1995.

15 The language to areas outside the control of the RS does not

16 define either the purpose or the goal of that crime. It is not a

17 necessary element of the crime of forcible transfer. What the core of

18 that crime is, that we need to prove and that we have proven at this

19 stage, for the purposes of 98 bis, is that there was a common purpose to

20 remove the population from the enclaves, the entire population.

21 Now, clearly, you'd go right back to 1992, May 1992, the strategic

22 objectives, many of the documents cited by my friend. It's clear. What

23 was the goal? The goal was the creation of a Serb state, and the goal was

24 to remove permanently the populations from these two enclaves, and a large

25 part of that was to areas outside of the RS. But, again, it's not an

Page 21433

1 element that needs to be proven, that they would all go outside the RS, or

2 the area of control of the VRS. The core is that they are all removed

3 from the enclaves unlawfully and then transported.

4 I'd like to go through the parts of the indictment which make it

5 clear that notice has always been, for all of the accused, that the JCE

6 encompassed and included the transfer of all of the men out of the

7 enclaves.

8 Paragraph 62 specifically puts the Defence on notice that the men

9 who were bussed from Potocari to Bratunac were victims of forcible

10 transfer.

11 Paragraph 63 - and I'll go over these in a bit more detail - puts

12 the Defence on notice that the men from the column who surrendered or

13 captured were victims of the same forcible transfer.

14 Paragraph 48(e), under persecutions, count 6, states with absolute

15 clarity that the men separated and those who surrendered or were captured

16 from the column were victims of forcible transfer.

17 All of these pieces of the whole of forcible transfer occurred

18 within the common purpose outlined in paragraph 49.

19 So, to sort of sum it up, there was always the JCE to cleanse,

20 remove the population from the enclaves in their entirety. Along the way,

21 there was a JCE to kill and murder the able-bodied men. That never

22 negated, changed, or in any way altered the purpose that these men, all of

23 them, be forcibly transferred out of the enclaves. It's that forcing of

24 the men, that transfer of the men forcibly, along with the rest of the

25 population out of the enclaves, that constitutes the criminal purpose and

Page 21434

1 element of this JCE.

2 Just one example, before I move on to the indictment. PW-118 is

3 the Luca School survivor. He tried to survive by getting on the buses at

4 Potocari and was taken off right before, right before he would have made

5 it over and was separated at the border of the ABiH territory in Kladanj,

6 and was taken to be executed and survived that execution. That man was

7 forcibly transferred, whether or not he made it the remaining few yards

8 into the "free territory," as they called it.

9 If I could now go specifically to a couple of points in the

10 indictment which both go to notice and show and illustrate my explanation.

11 Paragraph 48(e), the forcible transfer of Bosnian Muslims from

12 Srebrenica and Zepa by means of the forced bussing of the women and

13 children to Bosnian Muslim controlled territory and the forced bussing of

14 the men separated at Potocari or captured or having surrendered from the

15 column, up to the Zvornik area, where they were ultimately executed.

16 Count 7, forcible transfer. Just above paragraph 61, the

17 heading: "The forceful removal of the Muslim population from Srebrenica."

18 Paragraph 61 refers to women, children and the elderly. The next

19 paragraph, 62, under forcible transfer, refers to the men separated at

20 Potocari who were all removed from that area.

21 The next paragraph, 63, the men captured or surrendered from the

22 column. It begins: "On 13 July 1995, approximately 5.000 to 6.000

23 Bosnian Muslim men from the column of men escaping from the Srebrenica

24 enclave were captured or surrendered," and it goes on.

25 If we come now to the paragraphs outlining the role and actions of

Page 21435

1 the accused in the JCE to forcibly transfer and deport, it also makes

2 clear that all these men are included because they are part of the

3 population. They are lawfully present in the Srebrenica and Zepa

4 enclaves, and they are forcibly removed from those enclaves.

5 Ljubisa Beara, paragraph 78 - I won't read them all out - but

6 subparagraphs 1, 2, and 3 under 78(a) are listed as his acts and

7 contributions to controlling the movement of the Muslim population out of

8 the enclaves.

9 Just as an aside, there was a lot of talk about, "Well, I wasn't

10 in Zepa; my client wasn't in Zepa; Zepa is far away." This is a JCE. The

11 same contributions to Srebrenica, or contributions to the JCE to remove

12 the population from both enclaves. That's made clear - I don't have the

13 date - on Your Honour's decision to the challenges on the indictment and

14 the challenges to the JCE pled.

15 Paragraph 71(a)(1), (2), and (3) describe the actions of Vujadin

16 Popovic also related to the forcible transfer of the Muslim men from

17 Srebrenica, including his presence in Potocari on the 12th and his actions

18 in the transfer of the men.

19 Sorry, Your Honours, I was referring earlier to the 72 decision of

20 31st May 2006.

21 Drago Nikolic, paragraph 80, which outlines his contributions, his

22 acts in the JCE to forcibly transfer; 80(a), controlling the movement of

23 the population out of the enclaves; (1) and (2) show his actions; (2)

24 specifically, the evidence I've alluded to, his actions in making sure and

25 insisting that the men captured or separated were brought from Bratunac up

Page 21436

1 to Zvornik and then to different locations, and the continuing chain of

2 their expulsion from the enclaves.

3 Now, of course, these paragraphs overlap with his contribution to

4 the murder JCE. They're part of the same thing. But from these

5 paragraphs, it's clear, and the notice is clear, that the JCE included the

6 men separated from Potocari and those who surrendered and captured from

7 the column, and the actions of the accused in that forcible transfer.

8 Let me very briefly discuss Drago Nikolic's -- some of the

9 evidence regarding his actions in the forcible transfer.

10 The 13 July, 65 ter 647, that's the IKM log which shows that he

11 was extraordinarily relieved from duty that night. We know, from the

12 evidence I've just quoted in private session, why he was relieved from

13 that duty and where he went next.

14 We know from the evidence that late at night on the 13th, the

15 night he's relieved from duty, he's at the Orahovac School when the first

16 prisoners arrive. The prisoners arrive that night and then the next day.

17 To the very best memory of PW-143, who went to the Orahovac School from

18 the Zvornik barracks on the 13th, it is Nikolic, not Jasikovac the police

19 commander who was there controlling the MPs that night, positioning them

20 around the school, telling them where they should be guarding the

21 prisoners. That's at 6532 to 6533.

22 I asked him: "When you saw Drago Nikolic at the Orahovac School

23 that evening, what was he doing?"

24 Answer: "They assigned us to the places where we would be

25 spending the night and guarding those prisoners."

Page 21437

1 Question: "And, specifically, who was assigning you? You can say

2 the name. Who was telling you where to go, where to spend the night?"

3 Answer: "I think that was Drago Nikolic, specifically he assigned

4 us to the places where we would be spending the night."

5 Then he explains that includes all the military police, as well.

6 Also, the same witness at 6612 on redirect: "Just to be very

7 clear on this issue, to the best of your memory today, Drago Nikolic or

8 Jasikovac, who was assigning you to the places?"

9 "In my opinion, it was Drago Nikolic."

10 Of course, we know from the evidence -- well, lots of evidence of

11 the command and structure and relationship of the chief of security to

12 military police to the security police that, whether it's Nikolic or

13 Jasikovac, and even if Jasikovac is present, that these MPs have formally

14 been placed at the disposal of Drago Nikolic.

15 I'm not going to go over that evidence about the relationship of

16 the security organs to the military police, other than to refer Your

17 Honours to the way it was put very clearly and very well by General

18 Milovanovic during cross-examination by my friend Mr. Bourgon. That's at

19 12394 to 12395, and I have a large quote.

20 But just at the end, General Milovanovic asks: "I suppose you

21 meant the commander, who is the chief of security superior; is that what

22 you mean?"

23 "Exactly, General, simply for you to confirm that although he,

24 Drago Nikolic, may have a coordination or controlling role, he does not

25 issue orders that come from him to the military police; he has no

Page 21438

1 authority to do that?"

2 Answer: "Correct. He does not have the authority to command the

3 police. He can propose the commander to use the military police; and if

4 the commander agrees to that, then he conveys the commander's orders and

5 he gives instructions to the commander of the military police battalion or

6 company as to what to do, how to proceed."

7 Just a little bit above that, the General states, of the security

8 chief: "He has the controlling role when it comes to the police."

9 Lastly, again in regard to the actions of Drago Nikolic in the

10 forcible transfer, look at 65 ter 905. That's the vehicle log for the car

11 assigned to Drago Nikolic, driven by Milorad Bircakovic, which shows 13 of

12 July, amongst others, Standard, IKM, Zvornik, Orahovac, Bratunac; 14 July,

13 Standard, Orahovac, Divic, Orahovac, Rocevic, Orahovac, Zvornik; all the

14 places where prisoners from Bratunac are brought to.

15 On the 14th of July, again, according to Drago Nikolic's driver,

16 Drago Nikolic meets the convoy of prisoners coming from Bratunac, puts

17 Bircakovic on the front bus, and then the column of buses goes to

18 Orahovac.

19 Also, on the 14th of July, at 11603 to 11607, the testimony from

20 Mr. Ostoja Stanisic that Drago Nikolic is with Beara at the crossroads

21 near Petkovci. This is confirmed by the testimony of Marko Milosevic at

22 13301 to 13307.

23 The evidence I've just described, the acts referred to in

24 paragraph 80, demonstrate Nikolic's conduct and direct participation in

25 the forcible transfer of the men separated from Potocari or who were

Page 21439

1 surrendered and were captured from the column. He's a vital link in this

2 chain of the movement and transfer of these men. He gets them from

3 Bratunac and brings them to the schools, to where for most of them the

4 transfer ends.

5 His contribution also includes these actions and the actions in

6 the murdering of the men, because we've seen the effect that had -- the

7 coercive effect that had on the population in Zepa. I refer you to 65 ter

8 2941. These are notes of General Smith's meeting at 1420 in the afternoon

9 of 13 July with Prime Minister Silajdzic.

10 Parts of the notes state: "Both the prime minister and Minister

11 Muratovic raised their concerns as to the as-yet unconfirmed reports of

12 atrocities in the Srebrenica area."

13 And further on, significantly: "They are also worried about

14 reports of refugees being segregated into groups and men between the ages

15 of 60 and 16 being sent to different locations."

16 So, in addition to all the direct contribution to the men being

17 transferred under his control, he's contributing to the coercive

18 environment, to the terror in Zepa.

19 There was also the argument made, how would Drago Nikolic, the

20 same for Vinko Pandurevic's counsel made, how would they even know about

21 directive 7, how would they even know about this forcible transfer?

22 Mr. Thayer's gone through some of those documents, and I'll go

23 through just a few. I'm not going to read out from all of them, but to

24 just give you the ones which I think are significant, which show clearly

25 that this criminal purpose, to remove the population from the enclaves as

Page 21440

1 stated in many, many documents, reached all the way down to the battalion

2 level and directly, in some cases, directly to the chief of security,

3 Drago Nikolic.

4 I'll start with directive 4, 65 ter 29 of 19 November 1992. I

5 won't go through the text. But on page 5 of the English, it states that

6 the Drina Corps' task is to force the Muslim population to leave the

7 enclaves.

8 65 ter 3029 from the 24th of November, 1992, from the Drina Corps

9 to the Zvornik Brigade, the first paragraph of the order: "Wear the enemy

10 out, break it up, force them to surrender, and force the Muslim population

11 to leave the area of Cerska, Zepa, Srebrenica, and Gorazde."

12 65 ter 3177 from the Bratunac Brigade Command to the 3rd Infantry

13 Battalion, going down to the battalion commander level. If you look at

14 page 3, my friend read it out --

15 JUDGE AGIUS: Yes, Mr. Bourgon.

16 MR. BOURGON: Thank you, Mr. President.

17 I hate to interrupt my colleague, but maybe he can tell us where

18 Drago Nikolic was in 1992.

19 Thank you, Mr. President.

20 MR. NICHOLLS: If I could just continue, Your Honour.

21 This is the information going to all of the brigades, all of the

22 units, and down to the battalion level; and this one again states that the

23 goal is to make life impossible so that the population leaves the enclave

24 en masse, realising they can't survive there.

25 2667, 24th of July, 1994, a Drina Corps debriefing to the Zvornik

Page 21441

1 Brigade, again to reduce the enclaves to Srebrenica town and Zepa. I

2 won't go through directive 7, which has been discussed.

3 65 ter 838, which I believe is also 6D7, Krivaja-95, and we've

4 already seen how the commander was fully aware of the goals of that

5 operation and the Zvornik Brigade.

6 65 ter 817, a preparatory order for Krivaja-95, again distributed

7 directly to the Zvornik Brigade on 2nd July 1995, paragraph 2 referencing

8 that this order is carried out pursuant to directive 7. I think it's

9 unlikely to cite to directives to the Command and assume that the brigade

10 command has no idea what those directives being cited are.

11 65 ter 837, again related directly to Krivaja-95, directed to the

12 Command, to the chief of security, to Drago Nikolic, referring to the

13 preparatory orders which refer to directive 7.

14 Paragraph 2.1D requires the formation of a protection squad of the

15 commander and four soldiers from the military police company. So that's

16 telling Drago Nikolic that the commander and four MPs need to be prepared

17 for this operation.

18 You could also look at 65 ter 110. This is the order from the

19 Drina Corps to the Zvornik Brigade, requiring them to send buses and

20 trucks for the forcible transfer to Bratunac. Of course, it's called an

21 evacuation in the document.

22 65 ter 322, again the 12th of July, the response from the Zvornik

23 Brigade. In paragraph 2: "We sent one Praga with crew to the area of the

24 8th Battalion in Kajici, which is near Kravica. We sent to Bratunac,

25 pursuant to your order, eight buses from Drinatrans, two buses from our

Page 21442

1 military post, and four of our trucks. One military police detachment was

2 sent to Konjevic Polje pursuant to your order."

3 Then 65 ter 330, the interim combat report from Vinko Pandurevic

4 on the 16th of July, 1995. I won't read it out again, but he states that

5 Krivaja-95 will not be complete as long as a single enemy civilian remains

6 behind the front line.

7 So, if you look at the evidence from Richard Butler, all the

8 evidence, the role of the security chief of the brigade, for purposes of

9 98 bis certainly the argument that Drago Nikolic would have no idea about

10 directive 7, no idea about the purpose of this operation, is simply not

11 credible.

12 The question of whether there was an attack on the civilian

13 population, on a predominantly civilian population, that was raised by my

14 friends. I don't think I really need to go into this, just to say that

15 the evidence supports that there was an attack. The very same evidence

16 before in Krstic and Blagojevic has been found to constitute legally, I'm

17 speaking not about the evidence, but legally an attack upon the civilian

18 population.

19 I would refer you, though, to the testimony of Kingori on the

20 11 January 2008, at 19440 to 19442, where he describes how the reason the

21 population fled, the reason they left, was not because they wanted to flee

22 the enclave, leave the enclaves of their own free will. They were afraid

23 of being killed. They are afraid of being bombarded. They were looking

24 for any way out in order to survive. This testimony from Major Kingori is

25 confirmed if you look at the testimony of Ahmo Hasic, PW-106, PW-110,

Page 21443

1 PW-111, PW-112, PW-117, PW-120, and PW-127. It's also clear from the

2 intercept, which has been referred to with General Mladic, 65 ter 1113,

3 that everybody's going, those who want to go and those who don't.

4 I won't go over -- I was going to go over the same topics for Zepa

5 and that this was a coercive environment, but that's been covered by

6 Mr. Thayer.

7 I have less to say, and now I'll move on to Mr. Beara's

8 submissions. Again, to begin with, I want to respond to submissions which

9 I think have inadvertently, incorrectly, stated facts in the record.

10 First, Mr. Ostojic stated that the record contains no evidence

11 that Beara was anywhere in and around Srebrenica from 1 to 12 July 1995,

12 except for the evidence of Celanovic, which he says is uncorroborated.

13 Celanovic is one of three viva voce witnesses who saw Mr. Beara in the

14 Srebrenica area in the time frame of 10-11-12 July. Celanovic stated he

15 saw Beara and Popovic together in front of the Bratunac Brigade building

16 on 10-11 July. That's at 6654 to 6655.

17 Second, Bozo Momcilovic testified that he saw Beara and Popovic at

18 the Pribicevac IKM in this time period 11 July, 14085-14088. PW-161

19 stated that he saw he saw Bratunac -- saw Beara in Bratunac one or two

20 days before 13 July at the -- once in the Hotel Fontana and once passing

21 by the Hotel Fontana. That's at 9362.

22 The second assertion I want to address is that the only evidence

23 that places Beara in Bratunac on the night of 13 July was the testimony of

24 Celanovic and his evidence was unreliable, that this is the only evidence

25 now about the 13th, not the days beforehand, and that the only questions

Page 21444

1 Beara had with Celanovic was about questioning prisoners, which was

2 entirely lawful.

3 Remember, Mr. Beara, this is again relating to the forcible

4 transfer, comes to Celanovic and tells him, "The prisoners are coming.

5 They're coming to Bratunac, and you should check them. You should talk to

6 them and look for IDs." There were other witnesses who saw Beara in

7 Bratunac on that night.

8 There is a -- there is the testimony from PW-161 again, that he

9 met Beara in Deronjic's office in the SDS. He wasn't completely sure

10 about the date; and that at about 1.00 or 2.00 a.m., on the morning of

11 July 14th, PW-161 again met Beara at the SDS premises. That's at a time

12 when there's a discussion about where to dig the graves for the people who

13 were being killed. Mr. Beara states there were going to be a lot of

14 bodies.

15 There was again, in the duty officer notebook, 377 for 13 July, a

16 reference: "The president of the municipality of Mitrovic called and

17 asked that the flatbed trailer, Colonel Beara," which has been crossed

18 out, "be sent to Bratunac and that they are passed along the message."

19 It's also not correct to say that the only discussion was about

20 questioning of the prisoners with Celanovic.

21 If you look at 6639 to 6640, Celanovic explains that he said to

22 Mr. Beara: "And I said that I was worried because I went home or I needed

23 to change because it was hot, and I saw there were too many people who

24 were prisoners in town and too few soldiers, I mean Serb soldiers."

25 And Beara replied: "All right. We'll have a look at that, and

Page 21445

1 I'll hope they make it through the night. And we will, too, because I

2 guess they're going to Kladanj tomorrow."

3 And during the walk later that Mr. Celanovic has with Beara, where

4 they see the Muslim prisoners on buses at the Vuk Karadzic School, on

5 towards the stadium, this is at 6637, 6643, 6647, 6653, 6690 to 6700,

6 there's a conversation during these places where they discuss not

7 questioning of the prisoners but what's going to happen to the prisoners.

8 Question: "What did he say about them?"

9 Answer: "I asked him why these people weren't leaving

10 immediately, why they were standing there; and he," Beara, "said that the

11 transport had to be reorganised, that there were many people on the

12 vehicles, that it wasn't safe to transport them that way, and that the

13 vehicles had to be returned. The vehicles that took the women and

14 children, that they would be reorganised and they would go to Kladanj the

15 next morning."

16 Question: "You said there were too many people on the vehicles

17 for them to be transported that way?"

18 Answer: "Actually, he said there were too few vehicles in order

19 to transport them."

20 In other words, Beara's response was: "Well, those vehicles are

21 being used now to transfer out the women and children. We have to wait

22 for them to come back, and then we'll start moving the prisoners."

23 And, again, regarding his knowledge of what's going to happen to

24 the prisoners, where they're going to be going, he told PW-161 that

25 machinery would need to be prepared to go to Milici because there would be

Page 21447

1 assertion that there was no evidence that Beara was near or around the

2 area of Zepa at the commencement of the civilian population's transfer.

3 There is, however, uncontested evidence that Beara was in Zepa during the

4 operation.

5 PW-109 saw Beara at the UN check-point near Zepa with Generals

6 Mladic and General Krstic. This is at 14603 to 14604.

7 Question: "Did you know a person by the name of Colonel Beara at

8 that time?"

9 Answer: "Yes."

10 Question: "Did you see Colonel Beara anywhere around the Zepa

11 area during the Zepa operation?"

12 Answer: "I saw Colonel Beara at that check-point probably near

13 the end of the Zepa operation. He was -- he was in that check-point.

14 That's the only time I saw him there."

15 "What was he doing?"

16 "Well, he was in the company of General Mladic, General Krstic,

17 and those security points of, you know, United Nations."

18 The next page, 14605.

19 Mr. Meek: "Your Honours, you'll be happy to know we have no

20 questions."

21 The next point, again on Zepa, Mr. Ostojic argued that his

22 client's only involvement in Zepa could be seen by the three intercepts

23 which were taken after the forcible transfer/deportation had ended.

24 That's not accurate. Those intercepts are from the 1st and 2nd of August,

25 and they are actually exculpatory because they show Beara acting in a very

Page 21448

1 legal and professional manner.

2 I won't go through those. I just ask Your Honours to take a look

3 at those intercepts and see if you agree with Mr. Ostojic's assertion.

4 Another of the Defences' argument is that Beara's only alleged

5 involvement --

6 JUDGE AGIUS: Just to make things simpler, do you have the

7 references for the three intercepts?

8 MR. NICHOLLS: Yes, Your Honour. That would be 1380, 1381, 1395

9 is one I would also ask you to look at, and 1378.

10 JUDGE AGIUS: Thank you.

11 MR. NICHOLLS: Very briefly, talking about the column, the men

12 captured from the column or who surrendered, Mr. Ostojic said: "It deals

13 not with civilians, it deals with Bosnian Muslim military and non-military

14 men from the column. The Bosnian Muslims in the column who left, they

15 left of their own volition and were not theoretically or practically

16 forcibly removed."

17 Well, first, I don't understand the distinction, saying that

18 non-military from the men -- non-military men from the column and military

19 men are not civilians, that non-military men are civilians. And, again,

20 I'm not going to go through it again, but the coercion that forced the

21 entire population to leave the enclave applied. These men were

22 transferred, once they are captured, detained, and moved up to Bratunac

23 from Sandici or wherever they had been brought and then to Zvornik.

24 The last couple of points where I go to Mr. Ostojic's argument

25 that Mr. Beara had nothing to do with men and the movement of men from the

Page 21449

1 columns. If you look at 377 again, the duty officer logbook, 14 July at

2 1500, Colonel Beara is coming and order - there's a blank word -

3 "Orahovac-Petkovci, Orahovac-Pilica." He's going to the places where many

4 of these prisoners end up.

5 Also, PW-104, at 7940 to 7942, he's at a meeting at Standard, at

6 the Zvornik Brigade, with Mr. Beara, and Mr. Beara says, "We have a lot of

7 prisoners, and it's very hard for us to control them. There are various

8 locations in the Zvornik Municipality. We have to get rid of them." This

9 is part of -- it's part of the chain. It's the movement, it's the end for

10 many of them, the forcible transfer.

11 Lastly, we heard the "empty vessel" argument and phrase again. If

12 you look at 65 ter 1179, that's the intercept from the 15 July at 10.00

13 a.m.: "That vessel is completely filled." He is having difficulty

14 carrying out the orders which he's been given, and he's under stress from

15 it, if you read through this intercept.

16 Beara begins: "General Furtula didn't carry out the boss' orders."

17 Next he says: "I need 30 men, just like it was ordered."

18 Further down: "I need 15 to 30 men with Boban Indjic. I can't do

19 anything."

20 He's talking about the orders he's received, and Krstic says at

21 the end: "Now I will be the one to blame for these order not getting

22 filled out, completed."

23 The last point, Mr. Ostojic said there were no photographs of

24 Beara with Mladic. Well, if you look at the video at 2025, we've got

25 Beara, Mladic, Krstic, at the celebration for the Drina Wolves towards the

Page 21450

1 end of the year.

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted) The

6 meeting at Standard that Mr. Bircakovic testified about, where Beara and

7 Popovic come to meet with Drago Nikolic, it's very early in the morning,

8 beginning sometime he says around 7.00 or 8.00, he goes to fetch Drago and

9 brings him to the meeting, and it's a short meeting of 15 to 20 minutes.

10 That's at 11012 until 11015, 11097, and 11101 to 11102.

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 Lastly, Mr. Ostojic argued that adjudicated facts 203 and 219 show

18 that the transfer of the population was complete by 2000 hours on 13 July

19 1995. That's not entirely accurate. Those facts relate just to what's

20 going on with the civilian population in Potocari. Those facts don't

21 state and there is no adjudicative fact that forcible transfer ended at

22 that time. The indictment's clear that the forcible transfer ...

23 [Trial Chamber confers]

24 JUDGE AGIUS: The protected witness has been mentioned by mistake.

25 I'm going to deal with it.

Page 21451

1 [Trial Chamber and registrar confer]

2 JUDGE AGIUS: Sorry for the interruption. Mr. Nicholls, go ahead,

3 please.

4 MR. NICHOLLS: Thank you, Your Honours. I do realise I did

5 mention that name. Thank you for catching it. I apologise.

6 JUDGE AGIUS: Judge Kwon did.

7 MR. NICHOLLS: Thank you, Your Honour.

8 Again, the indictment is clear when the forcible transfer, we say,

9 ended. It was not 13 July, in the evening.

10 That concludes my responses to my friends' representations last

11 week.

12 JUDGE AGIUS: Thank you.

13 Is there anything else?

14 MR. NICHOLLS: We're just about at the break, I think.

15 JUDGE AGIUS: Yes. But I want to know whether you are -- are you

16 coming back, Mr. Thayer, on other things?

17 MR. THAYER: Mr. President, I'm prepared to submit with respect to

18 Mr. Borovcanin.

19 JUDGE AGIUS: Thank you.

20 Yes, Mr. Bourgon.

21 MR. BOURGON: Thank you, Mr. President.

22 Mr. President, when we come back from the break, and although the

23 Trial Chamber has said that there would be no replies on behalf of the

24 Defence, I respectfully submit that my colleague has raised some issues

25 which were not addressed in my Rule 98 bis application, specifically in

Page 21452

1 respect of events which took place in Orahovac, and I would like a short

2 right of reply which will last no more than ten minutes, Mr. President.

3 Thank you.

4 JUDGE AGIUS: We'll deal with that a little later.

5 We'll have a 25-minute break now. The time is, according to the

6 transcript, 12.19.

7 --- Recess taken at 12.19 p.m.

8 --- On resuming at 12.50 p.m.

9 JUDGE AGIUS: Mr. Thayer.

10 MR. THAYER: Thank you, Mr. President.

11 I think we'll certainly be able to finish the submission with

12 respect to Mr. Borovcanin today. As I mentioned, Mr. McCloskey originally

13 was going to provide the Prosecution's submission, but I'm standing in

14 today. So I'll get right to it.

15 The evidence we heard begins on the Trnovo battlefield on or about

16 the 10th of July, when the RS Ministry of the Interior issues its order to

17 Mr. Borovcanin to assemble a task force, a combined combat group. He then

18 reports to Bratunac, and we're underway.

19 The evidence before the Chamber establishes that Mr. Borovcanin

20 was in command of forces which entered Potocari on the morning of 12 July

21 1995. Among those forces were members of the Special Police Brigade,

22 2nd Sekovici Detachment, as well as members of the Jahorina training

23 facility whom I will refer to as deserters for ease of reference.

24 You heard testimony from, among others, PW-160; from Mendeljejev

25 Djuric, known as Mane Djuric; from various PJP members; from Special

Page 21453

1 Police Brigade members, and I'll talk about the testimony of Messrs. Celic

2 and Pepic; and, of course, we heard the testimony of PW-100. This is in

3 addition to various Dutch-Bat officers who encountered members of

4 Mr. Borovcanin's forces in Potocari on the 12th and 13th of July.

5 On the 12th, there is evidence before this Trial Chamber that

6 various members of this combined unit deployed throughout Potocari in part

7 to surround the compound, to clear the surrounding areas and homes, and,

8 as we'll hear, ultimately to assist in the separation of the Muslim men

9 from their families.

10 JUDGE AGIUS: Yes, Mr. Lazarevic.

11 MR. LAZAREVIC: I apologise. I hate to interfere in my

12 colleague's submission, but it has really nothing to do with the

13 submission that I made pursuant to 98 bis. I had only two topics. These

14 were paragraph 8 and paragraph 2 of the indictment. All this has nothing

15 to do with the submission that I made.

16 JUDGE AGIUS: Yes. What's your comment on that?

17 Thank you, Mr. Lazarevic.

18 MR. THAYER: Well, Mr. President, I think, I hope we've --

19 JUDGE AGIUS: You're supposed to be replying. You're moving

20 nothing, as such. The ball is in actually the court of the Defence for

21 the Rule 98 bis purposes. Your task is to just respond to what the

22 Defence submitted.

23 MR. THAYER: As I understand it, then, that will pretty much be

24 limited to the conspiracy count.

25 JUDGE AGIUS: That's count 2 and count 8.

Page 21454

1 MR. THAYER: Count 2 and count 8.

2 Now, to the extent that, I think, we've tried to make our position

3 clear, that the road to Zepa, as it were, has a beginning in Potocari,

4 then I'll just limit my comments to what we've already stated, that with

5 respect to the men who were deported in Zepa, who made that fateful choice

6 to cross the river, that was -- those coercive conditions were created

7 through the actions of Mr. Borovcanin's forces in Potocari along the road

8 from Konjevic Polje to Bratunac. The VRS doesn't get to go to Zepa until

9 the men are separated out in Potocari, until the men who are trying to

10 break through are captured, and that element is removed.

11 It is, again, Mr. Borovcanin's men who are assisting in separating

12 these men in Potocari who are marked for death. It is his men who are

13 arresting, capturing, robbing, detaining, and transporting the unarmed

14 prisoners in the area of Sandici to the Kravica warehouse; and they, too,

15 are marked for death.

16 JUDGE AGIUS: Yes, Mr. Lazarevic.

17 MR. LAZAREVIC: I apologise again, and I really have to say if my

18 colleague is suggesting something, then he could, he should go straight to

19 our arguments. I mean, again this is not something that we argued in our

20 submission.

21 JUDGE AGIUS: Yes. Thank you, Mr. Lazarevic.

22 Mr. Thayer, why don't you go straight and answer or reply to the

23 submissions of Mr. Lazarevic, such as his relationship with Petrusic or

24 the journalist and his non-involvement in relation to the last count?

25 MR. THAYER: Certainly, Mr. President.

Page 21455

1 [Trial Chamber confers]

2 JUDGE AGIUS: Sorry, go ahead.

3 MR. THAYER: Mr. President, where I believe the relevance lies in

4 the evidence I've just described is that this is, at the very least, the

5 type of circumstantial evidence from which a reasonable tribunal of fact

6 could infer the intent necessary under the conspiracy to commit genocide

7 count.

8 Now, with respect to, for example, Mr. Petrovic, I don't know if

9 the Chamber has had an opportunity to read the article or, for that

10 matter, really familiarise itself with the transcript of the recording,

11 but Mr. Petrovic testified that he and Mr. Borovcanin had mutual respect

12 for each other.

13 The question was raised: Well, why would anybody who is part of a

14 JCE permit that to happen? Well, first, when we actually look at the

15 tapes, as they were edited by Mr. Petrovic, and you'll recall

16 Mr. Nicholls' careful presentation of that evidence, there was an attempt

17 to -- for the tapes that were made public, to take that portion of the

18 Kravica warehouse execution clip out of sequence.

19 It's our submission that that's evidence of a consciousness of

20 what that really meant and what that was really portraying, that there

21 were these efforts by Mr. Petrovic to move things around. You'll recall

22 there's certain black spots or gaps on one of the versions. And when you

23 are spending this type of time with somebody with whom you have a

24 relationship of mutual respect, well, I think it's not controversial that

25 you're going to trust that other person not to hurt you, not to do

Page 21456

1 anything that's going to damage your interests.

2 My friend stated that there's no evidence that Srebrenica and Zepa

3 was a unified objective, and I hope we've made it clear that this was a

4 unitary objective from the beginning, that Srebrenica and Zepa were linked

5 from the inception of this common purpose to move out the Muslim

6 population from these enclaves. They were perceived as one, one threat,

7 one obstacle, to a border between the Serb states that they wished to

8 establish.

9 Mr. Borovcanin's participation in the cleansing of Potocari, the

10 forcible removal of that population, is part and parcel, as Mr. Nicholls

11 argued, of what happened in Zepa. And, again, that contributes to the

12 reasonable fear on the part of the men who had to make that choice to

13 cross the Drina River.

14 And I don't think I have anything else to add, given the

15 narrowness of my friend's submission. I can try to answer questions for

16 the Court, but I think the conspiracy case law is pretty clear and I think

17 we have adduced sufficient evidence under at least the standard for 98 bis

18 to support Mr. Borovcanin's participation in that conspiracy.

19 JUDGE AGIUS: Yes, Mr. Lazarevic.

20 MR. LAZAREVIC: Yes.

21 I'm very grateful to my colleague for putting this clear now, but

22 there is one thing that I believe needs to be clarified, and this is not

23 my reply. I would just like to say that it seems that there is a

24 misinterpretation of evidence from the transcript of the testimony of

25 Mr. Petrovic. It does not appear that he was the one who edited the tape,

Page 21457

1 but quite the opposite. Once the tape was brought to Belgrade, there were

2 other men who were in possession of it, of the tape, and who edited it and

3 then broadcasted it. Just that.

4 JUDGE AGIUS: Okay. Thank you.

5 [Trial Chamber confers]

6 JUDGE AGIUS: Mr. Bourgon and, for that matter, all other Defence

7 teams, we have discussed briefly during the break whether we are to grant

8 even the shortest of replies, and our position remains as it was in the

9 beginning. We don't wish to grant right of reply to any one of you. We

10 think we can fully distinguish the wheat from the chaff and move ahead,

11 and restrict ourselves to what is strictly necessary for the purpose of

12 Rule 98 bis.

13 Okay.

14 MR. BOURGON: Thank you, Mr. President.

15 JUDGE AGIUS: Thank you.

16 The position is that we will now rise and withdraw, and we'll

17 start our deliberations. Since we finished these submissions earlier than

18 expected, it's very likely that the decision that we will be handing down

19 will come earlier. As of now, I don't think we are in a definitive

20 position to say exactly on which date it will be, but we'll work as much

21 as we can, go through all the submissions that we consider relevant, and

22 I'm sure that halfway through our deliberations, we should be in a

23 position to inform you of the exact date when we will hand down the

24 decision, which will be oral; but, of course, we will have to have bullet

25 points and other things available before we can proceed with the oral

Page 21458

1 decision.

2 Okay. I thank you very much also for your practical approach to

3 the matter, which shows that you have a pretty full understanding of what

4 really Rule 98 bis is all about; and at the same level, we hope to be able

5 to come back to you with a reasoned decision shortly.

6 Thank you.

7 --- Whereupon the hearing adjourned at 1.10 p.m.,

8 sine die