Tribunal Criminal Tribunal for the Former Yugoslavia

Page 21459

 1                          Monday, 3 March 2008

 2                          [Open session]

 3                          [The accused entered court]

 4                          --- Upon commencing at 2.23 p.m.

 5            JUDGE AGIUS:  Good afternoon.

 6            Madam Registrar, could you call the case, please.

 7            THE REGISTRAR:  Good afternoon, Your Honours.  This is the case

 8    number IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

 9            JUDGE AGIUS:  I notice that all the accused, barring Accused

10    Beara, are present.  Is there an explanation for Beara's absence, Mr.

11    Meek?

12            MR. MEEK:  Good afternoon, Mr. President, Your Honours.

13            Mr. Beara asked me to convey the fact that he had a family visit

14    that was scheduled four to six weeks ago.  His wife and son are here.  I

15    had, for the record, Your Honour, called to Yaiza on Friday, talked to

16    Mr. Coban on Friday, spoke to my client about Your Honour's wishes that he

17    be present today, and he thank you very much, but he felt that he needed

18    to be there.  He is not of a tender age, so to speak, and every moment he

19    can spend with his wife and loved ones and family are very precious to

20    him.

21            Your Honours, I might want to add also that at this time, and in

22    speaking about the preciousness of life, you may all know, but I wanted to

23    say that last Thursday evening, Mr. Nemic Mrkic, who is a legal assistant

24    on our team, a 45-year-old lawyer from Belgrade and a good man, passed

25    away in a car accident Thursday night, and I would just like to maybe have

Page 21460

 1    a moment of silence for Mr. Mrkic.

 2            JUDGE AGIUS:  Yes.  And on behalf of the Trial Chamber, we wish

 3    you, Mr. Meek, to pass on our condolences to his family.

 4            MR. MEEK:  I will, Your Honours.  Thank you.

 5            JUDGE AGIUS:  We have also got the waiver from Mr. Beara here.

 6            So for the record, from the Defence teams I notice the absence of

 7    Mr. Sarapa, Mr. Bourgon, and Mr. Ostojic, and Mr. Stojanovic.  Is he here

 8    or not, because I -- and Mr. Petrusic.  And the Prosecution is represented

 9    by Mr. Thayer, Mr. Vanderpuye, Mr. Nicholls.  Is there anyone else?

10                          [Trial Chamber confers]

11            JUDGE AGIUS:  We were informed before the sitting that

12    Mr. McCloskey needed to travel with some urgency and he couldn't be

13    present today.

14            Yes, Mr. Lazarevic.

15            MR. LAZAREVIC:  Yes.  Just -- I would just like to present

16    Mr. Marko Milovanovic, who is here for the first time in this courtroom,

17    and this is our legal assistant and investigator.

18            JUDGE AGIUS:  Thank you.  And welcome, Mr. Milovanovic.

19            So we can start.

20            The Prosecution closed its case in chief on the 7th of February,

21    2008.  The Trial Chamber had, by its scheduling order of 29th November

22    2007, invited the Defence to make submissions pursuant to Rule 98 bis.

23            On the 14th and 15th February 2008, each of the accused, except

24    Vujadin Popovic, made oral submissions to the Chamber requesting an

25    acquittal upon some or all counts in the indictment applicable to them.

Page 21461

 1    On the 15th and 18th February 2008, the Prosecution responded to the

 2    Defence submissions.  Today, the Trial Chamber renders its oral decision.

 3    We shall start with a statement of the legal standard that we have

 4    applied.

 5            Pursuant to Rule 98 bis:

 6            "At the close of the Prosecutor's case, the Trial Chamber shall,

 7    by oral decision, and after hearing the oral submissions of the parties,

 8    enter a judgement of acquittal on any count if there is no evidence

 9    capable of supporting a conviction."

10            The test to be applied, as set out by the Appeals Chamber in the

11    Jelisic case is whether there is evidence upon which, if accepted, a

12    reasonable trier of fact could be satisfied beyond reasonable doubt of the

13    guilt of the particular accused on the count in question.  The test is not

14    whether a Trial Chamber would, in fact, convict beyond reasonable doubt

15    but, rather, whether it could do so.  Therefore, where there is no

16    evidence to sustain a count or where the only relevant evidence is so

17    incapable of belief that it could not properly sustain a conviction, even

18    when the evidence is taken at its highest for the Prosecution, a judgement

19    of acquittal will be entered with respect to that count.

20            At this stage of the case, the Trial Chamber is not to evaluate

21    the credibility of witnesses or the strengths and weaknesses of

22    contradictory or different evidence.  A ruling now that there is

23    sufficient evidence to sustain a conviction on a particular count does not

24    mean that the Trial Chamber will, at the end of the case, return a

25    conviction.

Page 21462

 1            It should also be emphasised here that where we mention evidence

 2    in support of our findings for the purpose of this particular decision, we

 3    mention them as examples.  The fact that some evidence has been considered

 4    for the purpose of this decision is no indication that the Trial Chamber

 5    will ultimately accept that evidence or any part of it.  Similarly, the

 6    fact that we do not mention certain evidence in this decision does not

 7    mean that we may not accept it and rely upon it in our final judgement.

 8            The Trial Chamber will first address some arguments which have

 9    been raised by more than one accused and can be addressed globally.  We'll

10    start first with legal arguments on count 8, deportation.

11            Several of the accused, and I'm referring to Accused Nikolic,

12    Miletic, Gvero and Pandurevic, have advanced a legal argument with respect

13    to count 8 of the indictment; that is, deportation.  In the case of

14    General Gvero, this is the primary issue raised in his Rule 98 bis

15    submissions.

16            Relying on the Trial Chamber judgement in Mrksic et al, these

17    accused argue that jurisdictionally for Article 5 of the Statute to apply,

18    the victims of deportation as a crime against humanity must be civilians.

19    On a related point, it is also argued that the term "civilian" in this

20    context must be interpreted in accordance with Article 50 of Additional

21    Protocol I and therefore it does not include combatants or fighters or the

22    combat.  On this basis, they argue that count 8 of the indictment cannot

23    stand on the evidence adduced in this trial.

24            The Trial Chamber has decided not to rule on this legal argument

25    at this stage of the proceedings for two reasons:  First, the very legal

Page 21463

 1    point relied upon by the various Defence teams mentioned is an issue which

 2    is currently pending before the Appeals Chamber; that is, whether Article

 3    5 requires that victims are civilians, and if so, how that term should be

 4    defined.  It would not be appropriate, therefore, for the Trial Chamber to

 5    decide on a count in the indictment at the Rule 98 bis phase on the basis

 6    of a legal point which is not yet settled and is soon to be adjudicated

 7    upon by the Appeals Chamber.

 8            Secondly, it is unnecessary for the Trial Chamber to decide the

 9    point for its Rule 98 bis determination, since there is evidence before

10    the Trial Chamber of a civilian component amongst the victims of

11    deportation, which evidence meets the test under Rule 98 bis.  Examples of

12    the evidence which the Trial Chamber has considered are the testimony of:

13    PW-155, Hamdija Torlak and General Rupert Smith.

14            We'll deal now with conspiracy to commit genocide.

15            Accused Nikolic, Borovcanin and Pandurevic all allege that the

16    Prosecution has failed to produce evidence in support of count 2, which

17    charges each of them with conspiracy to commit genocide.  Each alleges

18    that the Prosecution presented no evidence that he entered into an

19    agreement with any other person to commit the crime of genocide.

20    Borovcanin also argues that circumstantial evidence can only support an

21    inference of the existence of an agreement to commit genocide where that

22    is the only reasonable inference that can be drawn from the evidence.

23            Additionally, Accused Pandurevic argues that the conspiracy

24    alleged in count 2 really amounts to two separate conspiracies; that is,

25    the initial agreement to murder the Bosnian Muslim men in the crowd of

Page 21464

 1    refugees at Potocari and a second amended agreement encompassing the

 2    summary execution of over 6.000 other men.  Pandurevic argues that there

 3    is no evidence that he entered into either agreement, much less both, and

 4    that even if there were evidence of his being a party to the first

 5    agreement, this is not a basis for responsibility for the second

 6    agreement.

 7            As the Nahimana et al Appeals Chamber has held, the existence of a

 8    formal or express agreement is not needed to prove the charge of

 9    conspiracy.  The agreement to commit genocide can be inferred from

10    evidence of concerted or coordinated actions.

11            Additionally, the Trial Chamber is mindful that the standard

12    applicable to Rule 98 bis is quite different than that applicable to

13    conviction at the judgement stage.  The standard which Accused Borovcanin

14    requests the Trial Chamber to apply therefore is not applicable.

15            At the Rule 98 bis stage, the inference of an agreement to commit

16    genocide need not be the only reasonable inference that could be drawn

17    from the evidence.

18            For the purpose of Rule 98 bis, the Trial Chamber finds that there

19    is evidence of the involvement of various VRS, MUP units and others acting

20    in a coordinated fashion to carry out separations, transportations,

21    ambushes, detentions, executions, burials and reburials of the able-bodied

22    Bosnian Muslim men who had been in the crowd of refugees gathered on the

23    12th and 13th of July, 1995, at Potocari, or who had surrendered or were

24    captured while fleeing through the woods in the follows days.  Thus, the

25    Trial Chamber is satisfied to the relevant standard that there is evidence

Page 21465

 1    of a conspiracy to commit genocide, and as will be stated, that Nikolic,

 2    Borovcanin and Pandurevic were involved in that conspiracy.

 3            Concerning Nikolic, examples of such evidence are:  Witness

 4    PW-143, PW-168, Milorad Bircakovic, Ostoja Stanisic, PW-165 and Srecko

 5    Acimovic, as well as Exhibit P5, Republika Srpska Supreme Command

 6    Directive number 7, dated 8 March, which I will be referring to as

 7    Directive number 7, P107, the Drina Corps order 04/156-2, Operations order

 8    number 1, Krivaja-95, dated 2nd July 1995, which I will be referring to

 9    as "the Krivaja-95 order," Exhibit 5DP106, the Drina Corps order

10    01/04-156-1, preparatory order operations number 1, dated 2nd July 1995,

11    which I will be referring to hereinafter as "the preparatory order

12    operations number 1", and P-318, an order from the Zvornik Brigade to the

13    chief of security, signed by Vinko Pandurevic, dated 2nd July 1995.

14            With regard to accused Borovcanin, examples of this evidence are:

15    The testimony of PW-160, Zoran Petrovic, PW-100, Mendeljev Djuric, Milenko

16    Pepic, Leendert Van Duijn and Borovcanin's own statement to the

17    Prosecution.

18            Regarding Accused Pandurevic, examples of evidence considered by

19    the Trial Chamber are:  Witness PW-168, Mirko Trivic, Richard Butler, and

20    exhibits Directive 7, the Krivaja-95 order, and P329, the Zvornik Brigade

21    interim combat report dated 15th July 1995.  As noted, Pandurevic has

22    raised an argument as to the possible coexistence of two conspiracies.

23    Having found that there is evidence of a conspiracy to commit genocide,

24    the Trial Chamber considers that it is not necessary to address this

25    argument at the Rule 98 bis stage.  This, of course, without prejudice to

Page 21466

 1    any argument which may be raised at the final stage.

 2            After having addressed some general submissions, we now turn to

 3    deal with the specific arguments raised by each of the accused.  We will

 4    first address one argument raised by Accused Nikolic, but partly endorsed

 5    by other accused.

 6            In relation to count 7, Nikolic submits that a distinction must be

 7    made between the joint criminal enterprise to kill the able-bodied men

 8    from Srebrenica and the joint criminal enterprise to forcibly transfer or

 9    deport the Bosnian Muslim population of Srebrenica and Zepa. He also

10    submits inter alia that the Bosnian Muslim population in Srebrenica

11    consisted of three groups:  The first group, the women, children and

12    elderly who went from Srebrenica to Potocari before being transported to

13    Kladanj; the second group, the able-bodied men who were separated from the

14    group in Potocari before being transported and detained in Bratunac; third

15    and last group, the members of the 28th BiH -- Division of the BiH Army,

16    the able-bodied men and persons accompanying them who decided to leave

17    Srebrenica in order to reach the Bosnian Muslim-held territory.  Based on

18    these groupings, Nikolic submits that count 7 applies only to the first of

19    these groups.  In his view, the men in the second and third groups, that

20    is, the able-bodied men who were separated in Potocari and detained in

21    Bratunac and the able-bodied men who headed towards the Bosnian

22    Muslim-held territory, were those targeted by the joint criminal

23    enterprise to kill the able-bodied men from Srebrenica and are not

24    included in the Bosnian Muslim population allegedly forcibly transferred

25    from Srebrenica.  It is submitted that:

Page 21467

 1            "This did not amount to forcible transfer, but that it was rather

 2    a detention issue, albeit possibly related to the joint criminal

 3    enterprise to kill the able-bodied men from Srebrenica."

 4            As for the third group, Nikolic submitted that the departure of

 5    those men from Srebrenica was not forcible transfer, as these persons did

 6    have a genuine choice to remain, most of them were armed and could have

 7    remained in Srebrenica in order to fight.  It is also argued that while

 8    this group was on its way to Tuzla, it represented a threat to the VRS and

 9    the Serb population in the area.  Therefore, Nikolic submits that:

10            "The capture and/or surrender of the members of the column did not

11    amount to forcible transfer.  This was, rather, a legitimate military

12    action possibly related, albeit, to the joint criminal enterprise to kill

13    the able-bodied men from Srebrenica."

14            On this basis, Accused Nikolic submits that as there is no

15    evidence of his involvement in the forcible transfer of the first group of

16    the Bosnian Muslim population of Srebrenica, count 7 cannot stand with

17    regard to him.  Alternatively, he also argues that there is no evidence of

18    his participation in the forcible transfer of the other two groups should

19    the Trial Chamber find that count 7 does apply to these two groups.  He

20    further submits that there is no evidence that he had the required mens

21    rea for the alleged forcible transfer of Bosnian Muslims from both the

22    Srebrenica and the Zepa enclaves.

23            Regarding the division of the Bosnian Muslim population of

24    Srebrenica into the three groups above mentioned, as suggested by Nikolic,

25    and the legal implications deriving therefrom, the Gvero Defence, although

Page 21468

 1    endorsing the Nikolic position, submitted that the matter should not be

 2    decided at this juncture of the proceedings, but be left unprejudiced

 3    until the end of the Defence case.  The Trial Chamber agrees with this

 4    submission and therefore makes it clear at the outset that today's

 5    decision as to the existence of evidence on forcible transfer and the

 6    related joint criminal enterprise to forcibly remove the Bosnian Muslim

 7    population from the two enclaves is without prejudice to the arguments

 8    that may be raised at the final stages of the trial.  In particular, as to

 9    what constitutes forcible transfer both legally and factually in this case

10    and particularly which persons are included in it, the Trial Chamber

11    believes that these are matters which are best left to be determined at

12    the final stage of the trial.

13            The Trial Chamber notes that what is before it in the indictment

14    in count 7 is a joint criminal enterprise, the common purpose of which was

15    to force the Bosnian Muslim population, as a whole, out of the Srebrenica

16    and the Zepa enclaves from about 8 March to the end of August 1995, as is

17    alleged in para 49 of the indictment.  The Trial Chamber is satisfied that

18    there is evidence for the purpose of Rule 98 bis upon which a reasonable

19    trier of fact could conclude that all three groups were the subject of

20    forcible transfer and that the joint criminal enterprise to forcibly

21    remove the Bosnian Muslim population out of the two enclaves existed as

22    alleged in the indictment. Examples of such evidence are:  The testimony

23    of Robert Franken, Pieter Boering, Ahmo Hasic, PW-126, Mevludin Oric,

24    Esma Palic, PW-155, Hamdija Torlak, General Smith and Richard Butler.

25    Amongst the exhibits presented by the Prosecution and considered by the

Page 21469

 1    Chamber are:  Directive 7, the Krivaja-95 order, preparatory order

 2    operations number 1, dated 2nd July 1995, mentioned earlier, and Exhibit

 3    P2047 and the Srebrenica trial video.

 4            Moving on to the accuseds' role in this joint criminal enterprise,

 5    the Trial Chamber is satisfied that there is evidence of Nikolic's

 6    involvement in it with the requisite knowledge and intent.  Examples of

 7    evidence are:  Witness PW-143, PW-168, Milorad Bircakovic, Ostoja

 8    Stanisic, as well as exhibits such as directive 7, Krivaja-95 order, P318,

 9    the Zvornik Brigade order to the chief of security dated 2nd July 1995,

10    and 7DP330, interim combat report dated 16th July 1995.

11            With regard to Nikolic's submission that there is no evidence of

12    his intent to permanently displace the Bosnian Muslim population of the

13    two enclaves, the Trial Chamber notes that the element of permanency and

14    related intent is not required under the jurisprudence of this Tribunal.

15            In relation to count 8, deportation, the Trial Chamber further

16    notes that Nikolic, as well as Beara and Borovcanin, in their submissions,

17    argue that there is no evidence that they participated or had any

18    involvement in the alleged deportation of Bosnian Muslims from Zepa.  The

19    Trial Chamber recalls that to be a member of a joint criminal enterprise,

20    the participation of the accused in the common purpose suffices and that

21    his or her actions do not need to involve the commission of a specific

22    crime, but may take the form of contribution to the execution of the

23    common purpose.  It is therefore sufficient for a participant in a joint

24    criminal enterprise to perform acts that in some way are directed to the

25    furtherance of the common design.

Page 21470

 1            As mentioned earlier, the alleged common purpose was to force the

 2    Bosnian Muslim population out of the Srebrenica and Zepa enclaves.

 3    Actions performed in the Srebrenica enclave could also have furthered the

 4    alleged common purpose, and it is therefore not necessary to establish

 5    that the accused performed any specific action in relation to the Zepa

 6    enclave.  In this context, there is evidence for the purpose of Rule 98

 7    bis, as mentioned earlier, that Nikolic, through his actions, furthered

 8    the common purpose of forcible removal of the population from Srebrenica

 9    and the Zepa enclaves.

10            Accused Beara submits that he should be acquitted on count 7,

11    forcible transfer, and count 8, deportation, on the ground that the

12    Prosecution has not proven his participation in the joint criminal

13    enterprise to forcibly remove the Bosnian Muslim population out of the two

14    enclaves.  The Trial Chamber is satisfied, for the purpose of Rule 98 bis,

15    that there is evidence of Beara's membership and involvement in the

16    alleged joint criminal enterprise to forcibly remove the Bosnian Muslim

17    population from Srebrenica and Zepa.  Examples of such evidence include

18    the testimony of:  Marko Milosevic, Ostoja Stanisic, Witness PW-109,

19    PW-168, Vincent Egbers, and Zlaten Cilanovic.  In addition to Exhibit

20    P377, the duty officer's logbook and intercepts such as Exhibits P1130,

21    P1164, P1179, and P1187, P1378, P1380, P1381 and P1395.

22            Turning now to Accused Borovcanin:  In addition to the argument

23    related to count 2, which has already been dealt with, the Borovcanin

24    Defence submits, in relation to count 8, that he was not involved in the

25    planning or execution of the Zepa operation.  As mentioned earlier, the

Page 21471

 1    alleged common purpose of the joint criminal enterprise was to force the

 2    Bosnian Muslim population out of the Srebrenica and Zepa enclaves, and as

 3    there is evidence of Borovcanin's involvement in the forcible transfer

 4    from Srebrenica, the Trial Chamber is satisfied that for the purpose of

 5    Rule 98 bis, there is evidence that Borovcanin was involved in this joint

 6    criminal enterprise.  Examples of this evidence are:  The testimony of

 7    Robert Franken, Leendert Van Duijn, PW-160, and Mendeljev Djuric.

 8            Turning now to Accused Pandurevic, there remains only his

 9    submissions concerning counts 7 and 8 to be dealt with.  Turning to count

10    7, Pandurevic contends that there is no evidence that he had seen

11    directive 7 or any other document written in similar terms, and no

12    evidence that he was aware that the purpose of the military operation was

13    to force the Bosnian Muslim population to leave Srebrenica and Zepa.  For

14    the purpose of Rule 98 bis, the Trial Chamber is satisfied that there is

15    evidence that, if accepted, could support a finding of such knowledge.

16    Example of this evidence include:  the Krivaja-95 order, the preparatory

17    order operations number 1, dated 2nd July 1995, which we mentioned

18    earlier, and Exhibits 7DP330, the Zvornik Brigade interim combat report

19    dated 16 July 1995.

20            Finally on count number 8, Pandurevic argues that the evidence

21    merely shows that he put his troops in position in anticipation of an

22    assault on Zepa but withdrew and returned to Zvornik on the 15th of July,

23    1995, and that, in his submission, is insufficient.  The Trial Chamber

24    disagrees and finds that this evidence meets the Rule 98 bis standard as

25    to Pandurevic's participation in the Zepa operation.  In any event, as

Page 21472

 1    mentioned earlier, the alleged common purpose was to force the Bosnian

 2    Muslim population out of the Srebrenica and Zepa enclaves, and as there is

 3    evidence on Pandurevic's involvement in the forcible transfer from

 4    Srebrenica, the Trial Chamber is satisfied that for the purpose of Rule 98

 5    bis, there is evidence of his involvement in the joint criminal enterprise

 6    to forcibly remove the population from the two enclaves.  Examples of such

 7    evidence include:  The testimony of Miodrag Dragutinovic, Mirko Trivic,

 8    Eileen Gilleece, and Exhibit P318, the Zvornik Brigade order to the chief

 9    of security, dated 2nd of July, 1995, which we have already mentioned.

10            We now turn to the submissions raised by Miletic.

11            During the oral submissions pursuant to Rule 98 bis, the Miletic

12    Defence argued that he should be acquitted on all the charges against him,

13    namely, counts 4, 5, 6, 7 and 8.

14            First, the Trial Chamber notes that the submissions advanced by

15    Accused Miletic presented a detailed analysis of the evidence in terms of

16    arguments on how the evidence should be interpreted or weighed.  This goes

17    beyond the purpose of Rule 98 bis, and as pointed out by the Prosecution,

18    is more akin to closing arguments.  The Trial Chamber is satisfied, for

19    the purpose of Rule 98 bis, that there is evidence with respect to

20    Miletic's involvement in the joint criminal enterprise to forcibly

21    transfer and deport the Bosnian Muslim population of Srebrenica and Zepa.

22    Example of the evidence included:  testimony of Manojlo Milovanovic,

23    Bogdan Sladojevic and Nedjeljko Trklja as well as exhibits such as

24    directive 7, P44, combat report type-signed by Miletic and dated 12th July

25    1995, P47, combat report type-signed by Miletic and dated 13 July 1995,

Page 21473

 1    P191, 1st Podrinje Light Infantry Brigade report type-signed by Tolimir

 2    and dated 25th July 1995, and intercept P1111A.

 3            With respect to the crimes of murder by opportunistic killings and

 4    persecution, for the purpose of Rule 98 bis the Trial Chamber is satisfied

 5    that there is evidence that they occurred and that it was at least

 6    foreseeable to Miletic that opportunistic killings and persecutory acts

 7    might be carried out during the course of the forcible transfer and

 8    deportation of Bosnian Muslims and that he willingly took that risk.

 9    Examples of this evidence are:  The testimony of PW-170, PW-113, PW-156

10    and PW-126, in addition to Exhibits P2047, that's the Srebrenica trial

11    video, directive 7, and Exhibit P192, order type-signed by Milomir Savcic.

12            That concludes the part on the specific submissions.

13            In addition to these points which were the subject of specific

14    submissions, as I said, the Trial Chamber has considered all of the counts

15    with reference to each of the accused charged under them.  Applying the

16    legal test from the Jelisic case, as described earlier, the Trial Chamber

17    has not identified, with reference to any of the accused, a count where

18    there is no evidence capable of supporting a conviction.

19            That concludes the Trial Chamber's decision on the Rule 98 bis

20    submissions.

21            In addition and finally, the Trial Chamber would like to address

22    the Prosecution submission of 18 February 2008 and notes that the

23    Prosecution submits that no evidence has been adduced in support of the

24    allegations at paragraphs 31(1)(b) and 31(1)(c) of the indictment.  The

25    Defence will therefore not need to address these two allegations during

Page 21474

 1    the Defence case.

 2            So we stand adjourned now, if I remember well, until the 22nd of

 3    May for the Pre-Defence Conference.

 4                          --- Whereupon the hearing adjourned at 3.04 p.m.,

 5                          to be reconvened on Thursday, the 22nd day of

 6                          May, 2008.

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