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.
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
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
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.
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
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
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
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
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
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
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
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
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
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:
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
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
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.
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
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
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,
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
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
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.