090902ED

Page 34048

1 all the critical other details that I've talked about, including the

2 critical details, the same with Vinko Pandurevic. The only time we see a

3 commander at a mass execution is when one of his men gets killed or it

4 burns his hand. Otherwise, they're in the IKM, they're in their vehicle,

5 they've got their Motorola. That's where these crimes are the most

6 heinous, in my view. When Vinko Pandurevic and General Radislav Krstic

7 are sitting together at the IKM in Zepa, clearly discussing what's going

8 on in Zvornik so Pandurevic can be prepared, this is where Pandurevic

9 needed to step up and say, No, I'm going to order my men to put those

10 people on buses and send them to Batkovic. He could have done that.

11 That didn't happen. They got their act together to get the job done that

12 they needed to get done, in their view. So, please, when you see these

13 crimes, look at them in the completeness that they are, not the act of

14 the executions only or the horrendous thing of putting people on buses.

15 In any event, you have heard from me for so long, and I certainly

16 know that you appreciate the understanding and the knowledge of my

17 colleagues and their professionalism, and I think it's time for me to

18 turn over the podium to Nelson Thayer to talk about Generals Miletic and

19 Gvero.

20 Thank you very much.

21 JUDGE AGIUS: I saw you looking at the clock. We'll have a break

22 at 10.30. Thank you.

23 MR. THAYER: Thank you, Mr. President, and good morning to you

24 and Your Honours. Good morning, everyone.

25 I will address the evidence concerning Generals Miletic and

Page 34049

1 Gvero, as Mr. McCloskey mentioned, and I will try to heed the Trial

2 Chamber's advice to stick to matters that were left out of our trial

3 brief for some reason or that were raised in someone else's trial brief

4 that we feel we need to respond to in some manner, as opposed to

5 rehashing all of our themes over again.

6 In responding, at the outset, to some of the arguments which

7 overlap, understandably, between the Gvero and Miletic trial briefs, I'll

8 necessarily address some of their conduct and contributions together,

9 although I will be presenting -- making submissions separately

10 afterwards. Because of the way we are responding, more than rehashing,

11 there'll be some jumping back and forth. There might be a little

12 hodge-podge nature here or there, because we're pulling different pieces

13 of information that we want to bring to the Court's attention or deal

14 with. So please bear with me and, I dare say so, my colleagues, as we

15 proceed.

16 I want to address, Your Honours, first a couple of propositions

17 made in the Miletic brief; namely, at page 153, paragraph 356:

18 "The objective was not to expel the Muslim populations from the

19 Drina Valley, but rather to create the conditions necessary to make it

20 possible for the Muslim population to stay."

21 I'd like to address that, as well as a related proposition in the

22 Miletic brief at page 154, paragraph 358:

23 "It is not certain that the Army of the Republic of Srpska ever

24 implemented the strategic objectives in its orders."

25 Your Honours, to the contrary, the evidence has been overwhelming

Page 34050

1 that the Krivaja 95 and Stupcanica 95 operations were the culmination of

2 the Bosnian Serb efforts to implement the strategic objectives and to

3 expel the Muslim populations from Srebrenica and Zepa pursuant to those

4 objectives. I'm not going to repeat our sections in the brief on these

5 issues at paragraphs 18 to 97 and 212 to 281, for example, but I would

6 like to recall certain VRS orders that explicitly did implement the

7 strategic objectives to remove the Muslim population from Srebrenica and

8 Zepa. And I want to first take you for a moment back to 1992, September

9 2nd, a major meeting in Bijeljina among political and military leaders,

10 where the gospel of ethnic separation is being spread. General Gvero

11 represents the VRS. Karadzic and Krajisnik are there. The gathered are

12 addressed. And as well there is the East Bosnia Corps commander, then

13 Colonel Ivica Simic, who listens to Krajisnik's recitation of the

14 strategic objectives, the first of which Colonel Simic faithfully records

15 as separation from the Muslims.

16 19 November 1992 --

17 JUDGE AGIUS: Are you referring to any specific document that is

18 on record?

19 MR. THAYER: In that case, Your Honour, I'm referring to the war

20 diary of General Simic. I'm afraid I don't have that cite handy for you.

21 I can certainly get that for you.

22 JUDGE AGIUS: All right. Please do, because it is something that

23 might be important for the interested party to reply to.

24 MR. THAYER: We have the Main Staff's directive, 19 November

25 1992, Directive 4, Exhibit P29, containing the criminal order to force

Page 34051

1 out the Muslim civilian population from Srebrenica, Zepa and Gorazde.

2 Some four days later, 23 November 1992, there is a political/military

3 seminar in Zvornik. General Gvero, of course, is there, and Directive 4,

4 the evidence has established, must have been discussed there. Among

5 those present include, in addition to General Gvero, General Krstic,

6 Rajko Kusic, Vinko Pandurevic. That line-up may sound familiar. All of

7 those officers we see July 26th, 1995, in the Boksanica video, as the

8 Muslim population of Zepa is being forcibly removed from that enclave.

9 That gives you an idea of how truly small this family of brothers-in-arms

10 was, Your Honours, and keep in mind that, in particular, the Main Staff

11 was not some sprawling bureaucracy. It was a small, self-selected group

12 of officers, professionally trained officers, who served together through

13 the war, shoulder to shoulder in some cases; in the case of

14 General Miletic and his colleagues, at the command post in Crna Rijeka,

15 with Generals Mladic, Tolimir, and Gvero in the field, as we've seen time

16 and again.

17 JUDGE AGIUS: Your reference for this meeting of the 23rd of

18 November, please.

19 MR. THAYER: Again, that is the testimony of Novica -- pardon me,

20 Your Honour. That's discussed in two places in the brief, Your Honour.

21 Again, I can get you those cites. It's discussed in the -- in the

22 beginning portion as well as in the Pandurevic section, and I can get you

23 those paragraphs.

24 When speaking about the Main Staff, Your Honours, again keep in

25 mind General Gvero was one of only four generals among the founding

Page 34052

1 officers of the VRS Main Staff, along with Generals Mladic, Milovanovic

2 and Djukic. Then Colonel Miletic joined the Main Staff just a short time

3 later in July of 1992.

4 Now, back to the VRS orders. Following Directive 4, following

5 the military/political seminar in Zvornik. On 24 November, 1992,

6 General Zivanovic, the commander of the newly formed Drina Corps, issues

7 order number 2-126, that's Exhibit P03029. Again, an acknowledged

8 criminal order following that seminar, explicitly referencing

9 Directive 4, ordering the forcible removal of the Muslim population from

10 Cerska, Zepa, Srebrenica and Gorazde. And what followed was the

11 Drina Corps's brutal ethnic cleansing campaign targeting the Muslim

12 populations and culminating in the creation of the Srebrenica safe area.

13 And I won't repeat what's in our brief at paragraphs 72 to 83 and again

14 in the Pandurevic section of the brief at paragraphs 1281 to 1324.

15 It's important to note, Your Honours, that the Main Staff

16 understood that campaign as a significant step towards realising

17 Strategic Objective Number 3, the elimination of the Drina River as a

18 border between Serb states.

19 I want to turn your attention to Exhibit P00414, which is the

20 1992 combat readiness analysis report, which as you may recall is

21 actually promulgated in 1993 because it's a retroactive sort of report

22 card done by the VRS itself. At page 160, I quote:

23 "The analysis finds by taking Kamenica, Cerska, Glogova, the

24 region of Osmace village and Jadar, the Drina Corps has considerably

25 expanded the free territory and will shortly have achieved the strategic

Page 34053

1 task assigned to it by the Supreme Command, while at the same time

2 providing protection for the Serbian people."

3 Now, these are not, as I said, the words of some politician

4 somewhere. This assessment of the success towards the realisation of

5 Strategic Objective 3, these are the words of General Miletic's immediate

6 supervisor/commanding officer at the time, the chief of operations and

7 training, Dragutin Ilic, who signs the analysis report at page 164. And

8 it's important to note here, if you take a look at the passage I just

9 read, there's a distinction made by the Main Staff analysis between the

10 forcible removal, on the one hand, and, on the other hand, the protection

11 of the Serbian people which, when you read the analysis, refers to

12 protection from genocide and terrorism against the Serbs by Muslims and

13 Croats, which is what General Gvero is reinforcing to the rank and file.

14 These are two vital but distinct ideas, interrelated but distinct; the

15 removal as a strategic objective, protection of the Serbian people as a

16 more public and publicly-acknowledged objective.

17 Now, General Miletic, himself, helped implement Directive 4 and

18 Strategic Objective 3 during his Operation Spring 93, which is described

19 in more detail at paragraph 1664 of our brief. In short, Spring 93 was a

20 combat operation designed to liberate the Zepa and Gorazde enclaves. The

21 language General Miletic used in that combat order is telling, and I

22 quote:

23 "To crush and destroy Muslim armed formations in the broader area

24 of Zepa and Gorazde, and to enable the Muslim civilian population to move

25 out."

Page 34054

1 In parentheses he's written: "(Transfer to other territories.)"

2 Again in parentheses: "(Central part of the former BiH.)"

3 "... or to recognise the rule of Republika Srpska and in that

4 manner create conditions for the return of the Serbian population to the

5 left and right bank of the Drina River."

6 That's Exhibit P02742, page 6. Again, explicit references to the

7 strategic objectives.

8 Miletic was on the ground, coordinating the fighting during this

9 operation, which stopped only because Zepa was declared a safe area. So

10 it's no wonder that former Main Staff operations officer

11 Colonel Miljenko Lasic spoke so candidly to Your Honours and appeared to

12 take it so much for granted when he spoke about the role of the VRS in

13 separating the Bosnian people ethnically. And that's at transcript 21833

14 to 21835.

15 And, Your Honours, the focus on these unrealised strategic

16 objectives of removing the Muslim population and eliminating the Drina as

17 a border, and I say "unrealised" because the Srebrenica safe area put the

18 brake on that, that remained unrealised but pursued. In July of 1994,

19 President Karadzic addressed the Bosnian Serb Assembly and stated loud

20 and clear, and I quote:

21 "Our primary strategic aim, which is to get rid of the enemies in

22 our house, the Croats and the Muslims, and not to be in the same state

23 with them anymore."

24 And again, finally, following the elimination of the Srebrenica

25 and Zepa enclaves, in August of 1995 President Karadzic is still

Page 34055

1 referring to the strategic objectives, the Drina corridor, and how

2 strategically important it was for Srebrenica, which he admitted was a

3 Muslim territory, to become Serb. And that's at P03307, pages 68 to 69.

4 With respect to those initial propositions that I quoted from the

5 Miletic brief, Your Honours, the evidence has proven beyond a reasonable

6 doubt that the VRS rigorously enforced and implemented Directive 4 and

7 the strategic objectives on the ground in the Podrinje Valley. The

8 system worked in 1995, as it did in 1992, with the supreme commander,

9 Radovan Karadzic, working in close cooperation with the VRS Main Staff,

10 setting forth his priorities and goals, and the Main Staff executing

11 those and implementing them on the ground.

12 Now, what I'd like to do is turn to some additional arguments

13 made in the Miletic brief concerning Directive 7. Specifically, Your

14 Honours, at page 65, paragraph 164, and page 67, paragraph 169, I quote

15 from the brief:

16 "Nobody can exclude the possibility that General Miletic did not

17 agree with the final text of Directive 7, and that he effectively

18 expressed his disagreement in such a way that he would have removed him

19 from the finalisation of Directive 7 --" pardon me, "that would have

20 removed him from the finalisation of Directive 7."

21 Your Honours, there is no evidence on this record that that

22 happened; none. And, again, page 67, paragraph 168, the proposition is

23 put that the possibility remains that President Karadzic added the

24 illegal language to Directive 7 before signing it, and after

25 General Miletic gave it to him. Again, there is no evidence on this

Page 34056

1 record that anything like that happened. To the contrary, Your Honours,

2 the evidence has proven beyond a reasonable doubt that General Miletic

3 and General Gvero each participated in the drafting of and implementing

4 of Directive 7.

5 With respect to General Miletic's role in drafting Directive 7,

6 and we've addressed that in our brief at paragraph 1669 to 1678, we know

7 he saw the final draft before it went to President Karadzic.

8 General Miletic's name is on it. General Miletic finalised it.

9 General Simic testified to that. General Miletic specifically referred

10 to Directive 7 a few weeks later, when he drafted Directive 7(1).

11 General Miletic had a copy of the final version in his strong box. And,

12 lastly, General Miletic implemented it.

13 Now, when General Miletic's name appears at the end of a document

14 like Directive 7, that means something. When you see it just above

15 President Karadzic's signature, it means, as we've set forth in the

16 brief, that he's read it and that he approves it, he takes responsibility

17 for it. He puts his professional approval to it and, particularly with

18 respect to Directive 7, I dare say, his professional pride in it.

19 I do want to note that there is an error in paragraph 1675 of our

20 brief. The reference to paragraph 1636 in that paragraph 1675 should

21 actually be a reference to paragraphs 113 and 114. So we gave you a bum

22 cite there.

23 In any event, Your Honours, the Miletic brief concedes, as it

24 must, that General Miletic was familiar with the final version of

25 Directive 7. Of course he was familiar with it. He had to know it

Page 34057

1 inside-out. He was responsible for putting it together. That document

2 had to faithfully reflect and implement the overall strategic war aims

3 and make military sense.

4 President Karadzic might have had his big ideas, he might have

5 thought he was a military man, but he wasn't. So it was up to the

6 Main Staff to implement those ideas on the ground.

7 And General Miletic doesn't just cut-and-paste and stitch

8 together these various pieces of information that are coming in to him

9 during the process of drafting this critical document. He can't do that.

10 Professionally, he wouldn't do that, because he has to integrate all of

11 these various pieces of information and direction into a whole that makes

12 military sense, that's militarily feasible, that is accurate and

13 accurately reflects the situation in the war theatre at the time.

14 Karadzic and his people can't do that. The person who is most singularly

15 prepared and capable of doing that was General Miletic, and for that

16 reason he was invested with such trust by Generals Mladic and

17 Milovanovic.

18 Now, the evidence is -- has been established beyond a reasonable

19 doubt that the full method or the complete method was used for the

20 drafting of this directive, and I'm going to recite again this critical

21 language from section 6.1, that:

22 "The relevant state and military organs responsible for the work

23 with UNPROFOR and humanitarian organisations shall, through the planned

24 and unobtrusively restrictive issuing of permits, reduce and limit the

25 logistic support of UNPROFOR to the enclaves and the supply of material

Page 34058

1 resources to the Bosnian Muslim population, making them dependent on our

2 goodwill, while at the same time avoiding condemnation by the

3 international community and international public opinion."

4 This passage recognises that this has to be done, in its own

5 words, unobtrusively. The VRS understood that it could not impose an

6 absolute blockade on the enclaves without drawing fire from the

7 international community for it, and the evidence shows that this language

8 was provided by General Gvero's organ. First, it appears under the

9 section headed "Moral and Psychological Support." And it includes

10 morale-related directions for information and propaganda activities to be

11 coordinated with the state, and raising awareness of the soldiers and

12 populous of the arms struggle. And, second, as we've argued in our

13 brief, of all the Main Staff assistant commanders, it was General Gvero

14 who constantly had his eye on the international and diplomatic scene and

15 upon international public opinion.

16 Now, the section containing the direction to the Drina Corps:

17 "To create an unbearable situation of total insecurity, with no hope for

18 further survival or life for the inhabitants of Srebrenica and Zepa," and

19 the section I just read to you about the convoys, were illegal.

20 General Miletic had a duty to say, Wait a minute, no, I will not. And

21 General Miletic recognises this duty in his brief at pages 67 to 68,

22 paragraph 170. He concedes his duty, and I quote from the brief:

23 "The only solution available to General Miletic, if he disagreed

24 with Directive 7, was to inform his superiors and General Milovanovic in

25 the first instance."

Page 34059

1 Of course, that wasn't the only solution, Your Honours, but it

2 was his duty in the first instance. And instead, General Miletic

3 proceeded to rigorously implement those illegal portions of Directive 7

4 to strangle the eastern enclaves, with the ultimate objective of removing

5 the Muslim population from them.

6 Your Honours, the Momir Nikolics of this world don't just

7 suddenly get the bright idea to clamp down on the humanitarian aid and

8 UNPROFOR convoys coming into their area of responsibility, to search

9 pursuant to very particularised directions ever convoy. They get orders

10 to do that. They get orders to do that from the General Miletics of this

11 world.

12 And we saw in the Bratunac Brigade mid-year combat readiness

13 analysis report in July 1995 that it had set up the check-point and was

14 operating it pursuant to Main Staff orders, and that's Exhibit 4D00316.

15 Yes, restrictions were in place from practically the beginning of the

16 war.

17 JUDGE AGIUS: 4D316?

18 MR. THAYER: 4D00316, Mr. President.

19 JUDGE AGIUS: Okay.

20 MR. THAYER: But the convoy restrictions were tightened and

21 tightened and tightened further pursuant to Directive 7 in order to bring

22 the situation in the Srebrenica and Zepa enclaves to a boiling point.

23 I won't recite all of the DutchBat testimony you heard, all the

24 other testimony that's in our brief. Again, yes, there were

25 restrictions, there had always been restrictions, but the evidence was

Page 34060

1 loud and clear that the VRS tightened those restrictions considerably

2 beginning in March and April of 1995, and those restrictions had a

3 devastating effect on DutchBat's operability and the humanitarian

4 situation in the Srebrenica and Zepa enclaves.

5 And, Your Honours, the criminal nature of those passages is only

6 underscored by General Milovanovic's less-than-candid testimony about

7 them. I think we dinged General Milovanovic a little bit in our brief

8 about not being completely candid with respect to Directive 4, and we

9 would urge the same caution with respect to his testimony regarding not

10 being familiar with Directive 7 or 7(1). His lack of memory speaks

11 volumes about his recognition of the obvious; that those words mean what

12 they say on the paper, and they were brutal in practice.

13 I want to address an additional comment -- comment to both

14 briefs, and that is that some of the Muslim population already wished to

15 leave Srebrenica and Zepa by July 1995. Both teams rely, for example, on

16 5D00259. That is a written plea from May 1995, from Hodja Mehmed Hajric,

17 who you may or may not recall was the hodja in Zepa. He was head of the

18 War Presidency as well. You saw a still image of him with a notepad in

19 his hand, trying to regulate somehow the forcible removal of his fellow

20 Zepans on 25 July 1995. His remains were found in a mass grave, along

21 with Amir Imamovic, one of the negotiators who met with the VRS during

22 the course of the VRS attack on the enclave.

23 In any event, in May of 1995 Mr. Hajric wrote to the armija, to

24 the ABiH, to arrange with the VRS, he hoped, a welfare evacuation because

25 of the poor living conditions in Zepa at the time. He points out in this

Page 34061

1 document that the Muslim women, children, and elderly who had been

2 ethnically cleansed into Zepa, of which there are many, were seeking to

3 relocate elsewhere because they didn't have enough food and the living

4 conditions were so poor.

5 A similar document cited by the Defence, 6D00047, refers to

6 people leaving Srebrenica, heading for Zepa to look for food. Now, I

7 just want to say that in accusing the Muslim authorities, as both briefs

8 go on to do, for wanting to keep their Muslim citizens within these

9 enclaves and not permit the mass exodus of suffering people, to somehow

10 accuse and place the blame on those Muslim authorities, the Defence

11 utterly ignores the simple fact that the VRS created those very

12 conditions through Directive 7, and that's been the evidence in this case

13 from Day 1, Your Honours.

14 I want to jump ahead chronologically, Your Honours, and this is

15 one of those places where it's just a little helter-skelter because I

16 need to address an issue that's common to both accused.

17 At page 150, paragraph 346 of the Miletic brief, there is the

18 proposition that Miletic had nothing to do with the transportation of

19 Muslims from Potocari during the period of 17 to 19 July. Richard Butler

20 testified about these events and the related documents on 17 January

21 2008, and that's at transcript 19909 to 910 and 19921 to 36. And we

22 didn't go into great detail at all in our brief about this series of

23 events, but I do want to talk a little bit more about it, given the

24 Miletic brief's discussion of it.

25 You may recall basically what we have during this period of time,

Page 34062

1 the transportations from Potocari are over, you've got a Main Staff

2 intelligence officer, Radoslav Jankovic, who has been based at the

3 Bratunac Brigade Command, and he's also on the ground in Potocari in the

4 period following the fall of the enclave. You've heard testimony about

5 Colonel Jankovic from, among others, Colonel Franken, the DutchBat deputy

6 commanding officer, and you've seen documents going out under

7 Colonel Jankovic's name, most recently during the testimony of

8 Momir Nikolic, whose testimony was, I believe, uncontested with respect

9 to those reports from Colonel Jankovic.

10 So we have the issue remaining during these days of some wounded

11 who are waiting to be taken out of the enclave, and that's what

12 General Gvero was dealing with with the ICRC and UNHCR, and we discuss

13 that in our brief at paragraphs 1808 through 1816. And one thing that I

14 want to add that we neglected to cite in our brief in that section is

15 P02567. Again, that's P02567. That is a convoy notification which

16 states that VRS representatives, on 16 July, met with ICRC and UNHCR

17 representatives, and that, Your Honours, confirms the evidence that we

18 have summarised in our brief; that General Gvero did, in fact, meet with

19 representatives of both agencies on that day, and there are numerous

20 documents which support that on either end.

21 Now, paragraph 385 of the Gvero brief suggests that --

22 JUDGE AGIUS: One moment.

23 You're using a -- or you started this part of your intervention

24 by referring to a specific part of the Miletic brief, namely, page 150,

25 para 346, but used it then to point your finger towards General Gvero.

Page 34063

1 Now, you've said nothing as regards General Miletic.

2 MR. THAYER: I'm getting there, Mr. President.

3 JUDGE AGIUS: Okay.

4 MR. THAYER: This is -- as I said, this is one of those incidents

5 where they are intertwined --

6 JUDGE AGIUS: Right.

7 MR. THAYER: -- so I'll be discussing them both at the same time.

8 JUDGE AGIUS: Okay.

9 MR. THAYER: Now, with respect to General Gvero's involvement

10 with transporting these wounded out of Bratunac, the Gvero brief suggests

11 that Koljevic's state committee controlled these events, and they offer

12 an exhibit which was recently admitted, 6D00348, which notes a 15 July

13 meeting between a UN civil affairs officer and Professor Koljevic, in

14 which Professor Koljevic signs an order for the evacuation of those

15 wounded from Bratunac. Naturally, the Gvero brief places the

16 responsibility then for that transportation upon Professor Koljevic and

17 not General Gvero and the Main Staff.

18 However, when we take a look at the convoy approval that is

19 issued by General Miletic, as with all the other convoy approvals that

20 we've seen, it's the VRS, the Main Staff, which holds the ultimate power

21 to decide whether or not a convoy is going to pass, with how many

22 vehicles, with what goods, on what date, all the particulars are all

23 reposed in the VRS. Koljevic and his state committee might make some

24 kind of an initial approval, but it always goes to the Main Staff, and

25 they have the power to say yes or no. And that convoy notification

Page 34064

1 states, naturally:

2 "We have approved the transportation."

3 And again it refers to this meeting on 16 July between the VRS

4 and ICRC and UNHCR. And those wounded Muslims didn't get evacuated when

5 Nikola Koljevic -- Professor Koljevic signed that order. The ball got

6 rolling when General Gvero sat down and met with those agencies.

7 Now, back to Colonel Jankovic in Potocari. He's in a quandary.

8 They've evacuated some of these wounded, but they still have Muslim staff

9 members of, for example, MSF, and he doesn't know what's supposed to be

10 done with them. Do the men get separated, do they all go out with MSF,

11 is there an escort? He doesn't know. Do they get detained? The Miletic

12 brief notes that on 17 July, and this is at page 150, paragraph 347, and

13 I quote:

14 "Colonel Jankovic is requested to send his requests to

15 General Tolimir, who would determine the matter with the commander."

16 And what the brief leaves out is that it is General Miletic who

17 is the one telling Jankovic to put his submission in writing to

18 General Tolimir, encoded. And we have an intercept that reflects just

19 that, P01237A. And sure enough, the next day, 18 July, Jankovic sends

20 his inquiry to Tolimir. That's P00260. And then at the other end we

21 have General Miletic again issuing another approval for the

22 transportation the following day, 19 July, with a notation to

23 Momir Nikolic, Basically don't let those NGO people out of your sight.

24 That's P02570.

25 Basically, what the Miletic brief ignores is that

Page 34065

1 General Miletic, as I said, is at both ends of this very specific removal

2 of these Muslims from the enclave, as part of the forcible transfer

3 operation, and the associated need to keep the NGOs' movement restricted

4 because, as he well knows, as everyone knows by this time, north of

5 Bratunac is a crime scene. It is also reflective of Miletic

6 fundamentally receiving a request from Jankovic and, in his singular role

7 at the Main Staff, being able to properly direct Jankovic to where

8 Jankovic needs to go. Miletic knows very well what he's capable of

9 taking care of and what he's not. And you'll see in that intercept that

10 he tells the caller, Tell Jankovic he's got to put everything in writing,

11 get it to Tolimir, get it there encoded. And that gets the ball rolling.

12 On a related issue, the Gvero brief claims that the

13 transportation of the wounded Muslims from Bratunac was not forced -

14 that's at page 248 - paragraph 370, and states in support of that

15 proposition that:

16 "On 12 July, patients were brought from the Srebrenica Hospital

17 to the DutchBat compound during the attack because treatment at the

18 former was not as good or as advanced as it was in the DutchBat compound.

19 Also, there was an MSF hospital in the DutchBat compound."

20 And they cite Colonel Kingori's testimony for that proposition.

21 I submit that's not an entirely accurate citation.

22 MSF was located at the DutchBat compound on 12 July because it

23 had been shelled out of the Srebrenica Hospital the day before. DutchBat

24 officer Egbers testified without contradiction that he helped evacuate

25 the hospital patients on 11 July. That's at transcript 2717 to 2719.

Page 34066

1 Colonel Boering also testified about his soldiers accompanying the flow

2 of refugees and that they also evacuated the hospital, when MSF told

3 him -- told DutchBat that it was too dangerous for them to stay. That's

4 at transcript 1931 and 1937. And then PW-105 told you the circumstances

5 under which he left the hospital, and I won't go any further.

6 I'd like to turn now to another proposition in the Miletic brief

7 at page 72, paragraph 182, that there never existed any plan to

8 deliberately restrict humanitarian aid to the enclaves in Eastern Bosnia.

9 And, again, I'm not going to repeat the extensive evidence of just such a

10 plan, and I'll just direct Your Honours' attention to paragraphs 215 to

11 245 of our brief and, in particular, to paragraph 238, which describes

12 the reality experienced by UNHCR on the ground in Srebrenica the first

13 week of July 1995. And the fact is that the amounts that were being

14 delivered were for minimum survival subsistence levels, so you can

15 imagine -- well, you don't have to imagine, you can recall the testimony,

16 the evidence, of all the witness as to what even a 10 per cent decrease

17 would be. And, again, the VRS didn't have to impose a complete blockade

18 on the food and humanitarian aid. They just had to turn the heat up a

19 little bit and a little bit and a little bit to really make a difference,

20 because the situation was so poor.

21 Now, I do want to address some of the citations. First, there's

22 a claim that convoys to Serb communities received the same treatment as

23 the convoys that were going, for example, to Srebrenica and Zepa, and one

24 example that's used is 5D00856, which shows convoys going to Vlasenica,

25 Sokolac, Visegrad, Bratunac. And I just note that when you look at

Page 34067

1 what's going, first of all, nothing's getting denied. It's all going;

2 flour, 25.000 litres of diesel, barrels of fuel. So I don't think that

3 example really holds up to scrutiny.

4 And at page 105, paragraph 246 of the brief, it refers to an NGO

5 report which is under seal, so I'm going to be very careful and try to

6 stay in public session. I'm not going to quote from it, but the exhibit

7 number is 5D01446. The Miletic brief cites this report for the

8 proposition that there were adequate medical supplies in Potocari in July

9 of 1995. Suffice it to say that it's the Prosecution's submission that

10 when you look at this report, it is, quite to the contrary, evidence that

11 only by the late afternoon of July 13th there was no need for any

12 medicine anymore, as recognised in this report, because there was, in the

13 words of the report, zero people expected to be left.

14 The Miletic brief also states at paragraph 123 -- I'm sorry,

15 page 123, paragraph 282:

16 "Restrictions imposed upon UNPROFOR convoys had no bearing upon

17 humanitarian aid transported to the enclaves, as this aid was ferried by

18 humanitarian organisation convoys."

19 Now, that may be true in a most hyper-technical sense, but the

20 evidence was clear that Srebrenica depended upon DutchBat's medical

21 assistance, medical support. And please look at page 76, paragraph 245

22 of our brief, and I would simply quote briefly from P00510, an UNMO

23 report from 11 July at 1730 hours, as the refugees are streaming in, and

24 this is after MSF has been shelled up to the compound:

25 "DutchBat can't give much help because their supplies have not

Page 34068

1 been coming in since the end of April. The only medical help that is

2 available is coming from MSF. However, that is also not enough for all

3 the wounded people."

4 The Miletic brief also concedes that, and I quote:

5 "The refusal to authorise the return of DutchBat members

6 certainly had an influence on its ability to correctly fulfill its

7 mission, yet it did not affect the humanitarian situation with the

8 enclave."

9 The evidence is so overwhelming, Your Honours, that if DutchBat

10 had had more men, more fuel, of course it could have affected the

11 humanitarian situation in the enclave. They would have done more

12 patrols. With 600 men instead of 300, they, of course, would have had

13 more of a presence in 1995. They could have mounted a stronger defence

14 had they had fresh ammunition, sufficient weapons, weapons systems,

15 equipment that worked, and, of course, with more control over the

16 compound, just one of many things that would have been different were the

17 opportunistic killings, would certainly have been fewer.

18 Now, I want to turn to some other portion of the Miletic brief,

19 just hit on a few things.

20 At page 156, paragraph 363, the brief makes the point that:

21 "It was not unusual for the population to withdraw from a given

22 territory along with the armed forces, and, therefore, disagreeable as it

23 may be, this cannot be disregarded."

24 And then the brief goes on to quote Richard Butler. And just to

25 save a little bit of time, it's the Miletic brief at page 156. I'm not

Page 34069

1 going to read the whole section that they quote. Suffice it to say that

2 in the middle of their quote, there is a bracket and some ellipses, and

3 what's left out of Butler's answer is, and I quote:

4 "Not to mention the fact that given the context of the conflict

5 to date, they probably wouldn't have a whole lot of confidence that they

6 would be permitted to remain there anyway."

7 It's the Prosecution's submission that that missing piece of

8 testimony completely changes the nature of Butler's answer on that point

9 and makes it useless for the Miletic brief to cite. He's standing for an

10 entirely opposite proposition.

11 You also heard testimony about, you may recall, General Simic,

12 for example, talking about how the VRS was so sincere about the

13 de-militarisation and cessation of hostility agreements in 1993 and again

14 in 1995, and you were shown VRS documents ordering compliance, and then

15 you were also shown documents showing the Muslim Army immediately

16 ordering noncompliance. And I came across a document, and I just want to

17 hit on it very briefly just to place things in a slightly more accurate

18 context. I just point your attention to 5D01325, page 6 of the document,

19 the English translation. This document is a transmission of an order

20 from General Mladic to comply with the recent cessation of hostilities

21 agreement in January of 1995. And General Simic notes in his order,

22 following on that order:

23 "Discuss with brigade commanders what should be done on the

24 ground prior to the regional commission's arrival."

25 And then in parentheses:

Page 34070

1 "(Deployment and consolidation of combat security in some of the

2 gaps, continuing fortification along the front and in the rear," and this

3 is underlined, "and removal of weapons before inventory and removal by

4 UNPROFOR)."

5 And I don't want to hit that too hard, but I just want to kind of

6 straighten out the historical record a little bit, because we did hear a

7 lot of testimony about how sincere one side was, and I just didn't want

8 to leave the mis-impression that based on the documents that are in

9 evidence, and just bring that to your attention.

10 I think it has been to be proven beyond any doubt that 155 was a

11 telephone number. At page 231, paragraph 536, the Miletic brief

12 disagrees, but you will recall the testimony over and over again about

13 how that number connected to the numerous offices around the ops centre,

14 General Milovanovic had it ring in his restroom -- or resting room, I

15 should say, it was in one of the main ops rooms and so on and so forth.

16 Take a look at P03176. It's the VRS Main Staff phone book. You'll see

17 "155." Velo Pajic talked about that number at transcript page 28774.

18 And the brief again quotes Richard Butler, but I'm afraid leaves

19 out a very critical part of his testimony. And I'll just give you the

20 page cites. You can go look -- look up and compare what's in the brief,

21 what's not in the brief, what's clearly in the transcript, where Butler

22 basically says, Yes, you're confronting me with what I testified to in

23 Krstic. I thought 155 was a three-digit code, but I've learned a lot

24 more since then. That's the great thing about this job. You learn

25 something new every day. Clearly, my knowledge has expanded since I

Page 34071

1 testified in Krstic. That's all left out. That's at transcript

2 page 20607 to 20608.

3 The brief -- the Miletic brief also concedes that the Main Staff

4 was actively involved in the Drina Corps's activities concerning the

5 Srebrenica and Zepa enclaves in May of 1995. You may recall orders by

6 General Krstic in mid-May of 1995 for the stabilisation of certain lines,

7 directing certain assets to be moved here and there. Richard Butler

8 testified about that. And what the Miletic brief does is, frankly,

9 concedes that the Main Staff was on top of this activity, and it had to

10 be. If you look at the orders, they deal with the 65th Protection

11 Regiment, the 67th Communications. We have orders coming out of

12 General Miletic's ops organ concerning these movements of troops, and

13 again you'll recall the testimony that this was all part and parcel of

14 what was going to happen in July.

15 Your Honours, if I may, I think we're coming up shortly -- this

16 is a good time for me to move on to a new topic.

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

18 --- Recess taken at 10.25 a.m.

19 --- On resuming at 10.55 a.m.

20 JUDGE AGIUS: Yes, Mr. Thayer.

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

22 I want to look at paragraph 496 of the Miletic brief, page 215,

23 where it states that:

24 "When General Miletic went to Belgrade on 7 July 1995, the most

25 he could have known was that the Drina Corps was to separate the

Page 34072

1 Srebrenica and Zepa enclaves, that separation which didn't involve taking

2 the enclaves, didn't involve deporting the population, General Miletic

3 could, therefore, not have known the Muslim population would take refuge

4 en masse in Potocari. Since he could not have known that the Muslim

5 population was going to take refuge in Potocari, he could not have known

6 that various criminal acts would take place."

7 Obviously, from our position during trial and in our brief, we're

8 not contesting in any real way General Miletic's quasi-alibi of being in

9 Belgrade from the 7th through the 11th. Let's assume that it's been

10 proven, just for the sake of argument. When General Miletic left for

11 Belgrade, this is what he knew: He knew that the VRS had Zeleni Jadar by

12 blasting the Dutch out of it on June 3rd, taking over that OP Echo. He

13 knew that Krivaja 95 was underway. He knew that the Krivaja 95 attack

14 plan called for splitting and shrinking the enclaves, which would

15 recreate the humanitarian disaster which he all too well knew, and that

16 that in turn, would create the conditions for the elimination of the

17 enclaves, which is explicitly called for in that Krivaja 95 plan. He

18 knew, when he left for Belgrade, that Krivaja 95, by its own words, was

19 planned to implement Directives 7 and 7(1), both of which he drafted. He

20 knew DutchBat was weakened. He knew the population was starving and

21 miserable. That's what he knew before he even left.

22 And let's assume, again for the sake of argument, Your Honours,

23 that General Miletic had no contact whatsoever with the command post

24 while he's on leave from 7 to 11 July. And I think everything that we

25 have come to know about General Miletic, his work ethic, dedication to

Page 34073

1 his job, to his function, to the war effort, and with the communications

2 that were available by the Defence case's own testimony between the

3 command post and Belgrade, tells us that, of course, General Miletic

4 remained in contact with the command post when he was on leave. But in

5 any event, for the sake of argument, what's the first thing that's going

6 to happen when he gets back to the command post on 11 July? He's going

7 to report to the most senior general there, and that's General Gvero,

8 just like General Milovanovic did when he returned on the 19th, and he is

9 duty-bound to receive a full report. If he hasn't heard already from

10 watching the news, he's going to hear about Mladic being in Srebrenica,

11 the Serbian flag on the church, and he's going to know that they've got

12 this massive operation underway, monumental mobilisation of resources;

13 buses, trucks, and fuel, one of the most strategic of all assets. Of

14 course, he's going to know about these kinds of demands.

15 The Miletic brief, at page 211, paragraph 489, asserts that:

16 "While General Mladic deployed officers in Potocari, including

17 some who belonged to the Main Staff, General Miletic was in Crna Rijeka

18 and was carrying out his usual work without being involved in the events

19 in Srebrenica and/or in Potocari."

20 The Prosecution's position, the evidence has shown, that

21 General Miletic could not properly be doing his job and not be involved

22 and knowledgeable of those unfolding situations and the incredible

23 demands that were being placed on the resources of the VRS during that

24 period of time. Of course he's receiving information, and of course he's

25 forwarding that to President Karadzic. And remember what Colonel Turkalj

Page 34074

1 said. He, at least, always expected that President Karadzic would read

2 those reports. These were important documents containing important

3 information.

4 And on the subject of fuel, I want to note at page 137,

5 paragraph 315, the brief for Miletic makes the assertion that UNPROFOR,

6 in fact, had 30.000 litres of fuel on its own premises during this

7 operation, and cites the testimony of Colonel Trisic of the Bratunac

8 Brigade. That ignores completely Colonel Franken's testimony at

9 transcript 2492 to 2493 and at 2568 to 2570, on cross-examination, I add,

10 that the VRS advanced the fuel for the transportations to the UN, because

11 as the evidence has overwhelmingly established, the Dutch didn't have

12 30.000 litres of fuel at their disposal. You have to ignore a mountain

13 of compelling testimony to come to the conclusion that DutchBat was

14 sitting on that much fuel at that time.

15 Lastly, I want to address the Miletic brief's discussion of the

16 "full steam ahead" intercept, and this is at page 245, paragraph 569.

17 The brief basically makes the argument that the Zepa plan had been made

18 in Bratunac on the 12th, so it doesn't make sense that General Miletic

19 has any knowledge that's going to help anybody at the time this

20 conversation is held. I just want to point out, the simple fact is the

21 situation on the ground was materially different on the 17th of July than

22 it was on the 12th. I can't make it any more simple than that. It

23 wasn't the 12th of July anymore. They had encountered fierce fighting.

24 The reality on the ground, as General Miletic knew, had changed

25 significantly in those five days.

Page 34075

1 Your Honours, the Prosecution is not asking you to convict

2 General Miletic for being the chief of Operations and Training

3 Administration or standing in for the chief of staff or being the deputy

4 chief of staff. We are asking you to convict General Miletic because he

5 knowingly participated in that common plan to forcibly remove the Muslim

6 populations from Srebrenica and Zepa. Whether you refer to him as the

7 soul of the army, the nerve centre, the hub, the evidence has proven

8 beyond a reasonable doubt that General Radivoje Miletic remained and

9 chose to remain at the heart of that JCE, that joint criminal enterprise,

10 to relentlessly seek to remove the Muslim population from the eastern

11 enclaves, and the evidence has shown that he made significant

12 contributions to do so.

13 We ask you to return a guilty verdict for all the crimes with

14 which General Miletic has been charged.

15 Now, I want to turn to General Gvero. And again along the lines

16 of this sort of responding rather than reiterating, I want to clarify a

17 couple of mis-statements which I think require addressing.

18 The brief contends that there is no evidence that General Gvero

19 met Mladic in 1991 -- pardon me. The brief contends that the first time

20 General Mladic and General Gvero met was in 1991. There's no evidence of

21 that. That's unadorned by any fact or evidence. Page 109, paragraph 38,

22 there's no evidence of the alleged discussions contained in there, as far

23 as I can see. In addition, there are various citations to

24 General Gvero's own statement, which is fine, except they don't support

25 the assertions set forth in the brief. So, again, there's facts which

Page 34076

1 are being alleged which have no evidential foundation in this record.

2 I want to turn to two meetings which the brief discusses and just

3 try to correct a little erroneous citation; paragraph 110 -- page 110,

4 paragraph 39. These are two reports having to do with meetings between

5 General Smith and various VRS officers on 22 and 25 August 1995;

6 Exhibit numbers P02949 and P02950 respectively.

7 With respect to the 22 August meeting, the Gvero brief suggests

8 that General Gvero was not invited. However, there is no evidence that

9 he was not invited. There is just no record that he was there. In fact,

10 the report of the meeting makes it clear that only local VRS officers

11 attended that meeting with Mladic and that there was no other VRS general

12 there.

13 With respect to the 25 August meeting, the report of the meeting

14 makes it clear that General Mladic was not accompanied by all his

15 commanders, as the brief states. Rather, it's just Generals Gvero and

16 Tolimir getting down to business with General Smith and General Mladic,

17 as the report records.

18 On page 226, paragraph 329, there's a citation to a newspaper

19 article. As far as I know, that's never been shown, it's never been on

20 any exhibit list. It appears for the first time in a Defence brief. I

21 stand to be corrected, but I just urge the Court to give it the

22 evidential value that that deserves.

23 The brief also, I believe, selectively quotes from

24 General Milovanovic's testimony, and this is in the brief at

25 paragraphs 1 -- paragraph 135, footnote 291. It suggests that

Page 34077

1 General Gvero was not a member of the inner collegium, but ignores

2 General Milovanovic's [Realtime transcript read in error "General Gvero"]

3 testimony that Mladic would attend with "all his assistants."

4 I want to turn for a few moments to the briefs --

5 JUDGE AGIUS: The transcript, line 15 and 14, I think that needs

6 to be corrected. "But ignores" not General Gvero's testimony, but

7 Milovanovic's testimony. And then if I heard you correctly, you added

8 that General Mladic would return with all his assistants.

9 MR. THAYER: If I misspoke, Mr. President --

10 JUDGE AGIUS: No, you did not misspeak. It's the transcript

11 which is not correct. I mean, it's -- that's what you said. You

12 referred to Milovanovic's testimony --

13 MR. THAYER: Yes.

14 JUDGE AGIUS: -- to the effect that according to him,

15 General Mladic always would return with all his assistants.

16 MR. THAYER: That the meetings would be attended by all his

17 assistants, yes, Mr. President.

18 JUDGE AGIUS: All right.

19 MR. THAYER: Now, I want to turn to the brief's treatment of

20 Colonel Kingori.

21 You saw Colonel Kingori first on the trial video. You saw him

22 out and about on the 12th, on the 13th, in Potocari, making himself

23 useful, pushing, asking the questions, raising the issues that somebody

24 needed to raise. What's going on over there at that house? That's no

25 good. The person you see doing that is Colonel Kingori. Even in the new

Page 34078

1 Potocari video that we just came into possession of, if you watch closely

2 and you see that bread being distributed on the 12th, in addition to

3 Colonel Popovic for a while, you see Joseph Kingori. You've heard those

4 UNMO reports, Your Honours, written in the midst of that horror, which he

5 experienced from Srebrenica, along that flow of terrified refugees up to

6 Srebrenica, and then during that period of two days. His courage was

7 challenged with anonymous snippets from the Niod report, yet I had to

8 show him the material which spoke to his courage and the accuracy of his

9 recollection. Is anybody really suggesting that Joseph Kingori was

10 counting those shells, that Colonel Franken didn't tell his soldiers to

11 stop counting because it had gotten over 150, or 200, or whatever it was?

12 Is anybody really suggesting that Joseph Kingori did not see and did not

13 hear and did not accurately report what's in those contemporaneous,

14 desperate, horrified, and ultimately tragic reports, talking about tears

15 being in their eyes?

16 The shelling argument in the Gvero brief, at page 152,

17 paragraph 173, and then at page 153, footnote 65, sets out a portion of

18 the testimony you would have to ignore of the shelling. And it's set

19 forth in our brief, paragraph 283, footnote 666 to 668. Joseph Kingori

20 left this courtroom telling you -- giving you just a sense of what

21 happened there.

22 Now, on the same topic of shelling, I just want to point out that

23 the Gvero brief at pages 163 to 164, paragraph 197, simply ignores

24 Lieutenant Egbers' testimony that he was, in fact, trapped by the

25 shelling, that when he moved from one point to the other he was followed.

Page 34079

1 Now, let me turn to General Gvero's threats and his pressure on

2 Generals Nicolai and Gobillard. Let there be no mistake about it.

3 General Nicolai remained firm that it was his conversation on 11 July,

4 1610 hours, with General Gvero, combined with the other threats that

5 DutchBat was receiving, which led the United Nations to discontinue its

6 air support that day. Of course General Gvero knew about those other

7 threats. He had to know. Of course he knew that DutchBat was being

8 targeted; and I won't repeat the arguments in our brief. 6D00207,

9 Gvero's warning to the Drina Corps to treat UNPROFOR decently, touted by

10 the Defence, speaks to the opposite. It speaks to his recognition that

11 what he was telling the public and telling UNPROFOR were lies. And I'll

12 spare you the quote from that exhibit, but it's not intended to be a

13 humanitarian gesture towards UNPROFOR, as the document itself states.

14 There are multifarious purposes for treating them that way.

15 Now, Colonel Fortin might have testified that the decision had

16 been made to end the air-strikes by the time General Gvero and

17 General Gobillard spoke, but General Gvero didn't know that, and that's

18 why he starts off that conversation acknowledging in the conversation

19 that General Gobillard still has close air support available to him at

20 any time. And General Gvero repeats that the decision to use close air

21 support was irrational, and he tones down his threat just a little bit,

22 but his intention is clear. He wants to keep those aeroplanes out of the

23 air. He doesn't know if the UN is going to put them back up there. So

24 when he speaks to Gobillard again, he stresses again and again that the

25 air support not be continued, and he says, If UN soldiers do not take any

Page 34080

1 actions today, they will be safe. And he characterises the prior day's

2 air support as a fatal mistake.

3 And it's important to note that Fortin did not have the

4 impression, during this conversation, that General Gvero was side-lined

5 or marginalised in any respect, and I think the evidence has been proven

6 conclusively that this idea that General Gvero was somehow put out to

7 pasture or stuck in a corner somewhere in 1995 simply holds no water.

8 Your Honours, there can be no reasonable doubt that Gvero's

9 threat prompted Generals Gvero and Gobillard to decide to suspend the use

10 of NATO air power to stop the Serb advance on Potocari. When you have

11 the most senior VRS officer, General Gvero, making a statement like that

12 to General Nicolai on 11 July during that 1610 conversation, it must be

13 taken seriously, and he knows it's going to be taken seriously, and it

14 was. There is no question that that conversation and General Gvero's

15 threats contributed significantly to General Nicolai and

16 General Gobillard's decision to suspend the air support.

17 And what we have in the brief to impeach General Nicolai, I'm

18 afraid, is an absolutely baseless personal attack on him. At page 120,

19 paragraph 8, I quote:

20 "Like many in UNPROFOR, perhaps for sound reasons, but that is

21 not the issue in this trial, he," meaning General Nicolai, "was not keen

22 on the Bosnian Serbs in general, and in its senior military leadership in

23 particular."

24 There is no evidence in this record of any partiality or

25 prejudice on the behalf of General Nicolai, none, other than the words of

Page 34081

1 counsel suggesting it, yet the brief persists in peddling that at

2 page 180, paragraph 232. That Nicolai claimed that he was not personally

3 under pressure during this period, I think we can attribute to a

4 general's pride and nothing more, but the evidence has proven beyond a

5 reasonable doubt that the pressure exerted on him and General Gobillard

6 during those conversations with General Gvero was obvious and enormous,

7 and was a significant contribution to the JCE to remove the Muslim

8 population.

9 The Gvero brief also challenges the intercept of General Gvero

10 and President Karadzic. There are two intercepts which follow

11 General Gvero's conversation with General Nicolai, which you may recall,

12 and in their brief the Gvero Defence spends some time challenging PW-145,

13 trying to impeach his factual knowledge of certain things, calling him

14 conceded. PW-145 clearly testified that his understanding was that

15 General Gvero, on the 11th of July, was the only senior officer at the

16 Main Staff. The intercept contains the phrase "at the Supreme Command."

17 PW-145 testified he wasn't sure what the difference was. Whether he knew

18 the difference between the Supreme Command or the Main Staff, Pale

19 or Crna Rijeka, he knew that it was the VRS headquarters, and that's what

20 was important, and he was right.

21 The Defence brief accuses him of being conceded for testifying

22 that they didn't write anything down that they weren't sure of, and I

23 won't belabour the intercept heaven we were in for who knows how many

24 months where operator after operator told you, It did us no good to write

25 down something that we couldn't verify six ways to Sunday. If we didn't

Page 34082

1 know something, we wouldn't put it down, or we'd indicate that we didn't

2 know with a question mark. What he testified clearly was the way he

3 identified President Karadzic as being the other participant; must have

4 been, as you've heard time and time again, there was a subordinate

5 connecting the call, holding. Often times, they would hear that

6 connection being made, and somebody would say, Hold for the president,

7 Hold for President Karadzic, Hold for General Mladic, whomever. The

8 evidence has been proven beyond a reasonable doubt, through our intercept

9 testimony, that that method worked and it worked well.

10 The references in the Gvero brief at pages 197 and 201 are not

11 helpful. They try to impeach PW-145's conclusion that he was listening

12 to a conversation between General Gvero and President Karadzic by

13 comparing the transcript of that conversation to a transcript of the

14 tape. We have an audiotape of this conversation. And the big point the

15 brief makes is, See, on the tape transcript there's no identification of

16 Karadzic as being the caller or the participant, and there's only X and Y

17 listed. There's none of this other extraneous information that PW-145

18 mistakenly put in there. The problem is that transcript is created by

19 the OTP, by one of our language assistants, listening to the tape, so

20 it's not evidence of anything. It's not a MUP or an ABiH document; it's

21 just our document.

22 And I invite Your Honours to look at the comparative intercepts

23 that the Defence has proffered to you in their attempt to suggest that

24 Gvero, in this conversation, was actually speaking to somebody else to

25 whom he was referring as "President." They use as an example a

Page 34083

1 conversation he has with Professor Koljevic, whom he refers to as, I

2 believe, "Vice-President," "Professor" and "President." But please look

3 carefully at these conversations. What you'll note, I think, is that

4 these are friendly, conversational, small-talk in some places,

5 conversations. The Defence would have you believe that the conversation

6 at issue is too cordial to represent the actual fractured relationship

7 between General Gvero and President Karadzic, but when you look at this

8 intercept at issue, it is short, curt, polite as it should be, and no

9 more, quite to the contrary of what the Defence would have you believe.

10 It further establishes that this call is with President Karadzic and not

11 somebody with whom he has a more friendly relationship, like

12 Professor Koljevic, where you'll see again a much more conversational,

13 talkative, and lengthy intercept.

14 We've heard a lot of testimony about General Gvero's 13 July

15 order to block the passage of the Muslim column. You heard a lot of

16 witnesses try to minimise General Gvero's operational experience, his

17 combat experience, and there's no evidence that when General Gvero issued

18 that order that anyone anywhere said, Hang on, this is coming out from

19 General Gvero, this is outside his corps competency. Why? He's only

20 ever commanded a platoon. We can't follow this order. He's the morale

21 guy. When that order went out, it was taken as seriously as its subject

22 matter deserved.

23 The Gvero brief would literally have you believe that

24 General Gvero was treated something as a joke. General Nicolai wasn't

25 laughing, General Gobillard wasn't laughing, and General Zivanovic was

Page 34084

1 not laughing.

2 [Trial Chamber confers]

3 JUDGE AGIUS: Go ahead, Mr. Thayer. And sorry for the

4 interruption, but we have a small technical problem here.

5 MR. THAYER: Not at all, Mr. President.

6 When General Zivanovic received that order, he did not hesitate

7 to implement it, to pass it on virtually verbatim. And there is nothing

8 unusual about this order going out under General Gvero's name.

9 General Mladic had to rely on his closest assistants to be able

10 to execute these types of tasks for him. General Milovanovic couldn't do

11 it all by himself, particularly when he wasn't at the command post. And

12 time and time again, we see the assistant commanders, take Tolimir, for

13 example, acting putatively outside their corps competencies, providing

14 combat proposals. Take a look at P00187, 13 July, Tolimir doing just

15 that, offering combat proposals; P02794, 21 July, the infamous chemical

16 weapons document. It would be more propitious if we bombed the columns

17 of refugees. But in addition to that, you'll see he provides other

18 combat advice. And even the Miletic Defence concedes, at page 247,

19 paragraph 574, that assistant commanders could be tasked outside their

20 corps competencies. P000 -- one too many zeros, P00186, 29 July,

21 Richard Butler testified another combat order by Tolimir.

22 Again, it should come as no surprise that PW-168 testified that

23 when he was given an order by General Miletic, he understood that

24 General Miletic was giving him that order in the name of General Mladic.

25 This is how this Main Staff operated. It was their job to give

Page 34085

1 proposals, and sometimes it was their job to be tasked to do something

2 that a general officer should be able to do by virtue of the fact that he

3 is a general officer.

4 I want to address very briefly the Boksanica video. I'm not

5 going to belabour the back-and-forthing on that. It's all in the brief.

6 We're taken to task in the Gvero brief for our cross-examination, or lack

7 thereof, of certain of those witnesses. With a lot of the testimony,

8 it's not inconsistent with what our theory is, that he was there both

9 days, number one. Number two, the proposition that's being proffered,

10 that General Gvero was there only because he couldn't personally

11 communicate with General Mladic to tell him about the extreme situation

12 in the Krajina is preposterous. We know that General Gvero was with

13 General Mladic on the 25th at a meeting with General Smith. You've seen

14 the video yourselves, Your Honours. General Gvero is peeling a label off

15 a beer bottle, chatting up Simun Dudnjik, the Ukrainian commander,

16 talking to Hamdija Torlak, having a jolly time with Vinko Pandurevic,

17 General Krstic, and General Mladic is there the entire time.

18 And you heard some testimony during the trial about what's been

19 described as a fractious relationship between Generals Gvero and Mladic.

20 You heard that they fight. You heard that General Gvero disagreed with

21 General Mladic. You even heard from one witness that General Mladic

22 basically ignored anything that General Gvero said. I think the evidence

23 in this case is overwhelmingly to the contrary. And I'll just throw out

24 some exhibit numbers, Your Honours, to take a look at. P04036, just a

25 routine convoy request from UNPROFOR, helicopter flights, that

Page 34086

1 General Mladic writes in three places on three pages, Toso, Gvero, your

2 proposals, your attitude, actively obviously seeking their input as his

3 trusted assistants. P02757, General Gvero's letter to General Karadzic,

4 stating in no uncertain terms who he understands his superior to be and

5 whose orders he singularly followed during the war; Ratko Mladic.

6 P03938, General Mladic's appraisal of General Gvero, dated October 1995.

7 Admittedly, he's reviewing a period of General Gvero's work that lasts

8 through 1994, based on his reference to the Lukavac 93 operation which

9 the evidence shows involved the liberation of Trnovo in 1994. He can't

10 explain why that document is dated 1995, but it's got a different

11 performance appraisal date. He simply can't explain it, don't know why.

12 General Gvero clearly had the ability to disagree with

13 General Mladic, but he could do that and keep his job, I think the

14 evidence in this case has shown, is based on the anecdotal evidence of

15 General Mladic and his personality. That wouldn't happen if he didn't

16 trust and value that person. We see Gvero and Mladic side by side again

17 and again; meetings with Smith in April, going to see President Karadzic

18 with Mladic June 1, July and August meeting with Mladic and Smith. Is

19 there any doubt in anyone's mind that if General Mladic for a minute

20 thought that General Gvero wasn't significantly contributing to that war

21 effort, he would have been gone?

22 This evidence that you've heard from time to time about

23 disagreements, even fighting, that's evidence of their closeness, Your

24 Honours. It's the people with whom we are most intimate and trusted with

25 whom we can be the most frank.

Page 34087

1 General Milovanovic specifically rejected Defence counsel's

2 proposition that General Gvero had no influence on command, and that's at

3 transcript page 12249. And we see that when Mladic needs to do business,

4 when he's meeting with the Smiths, the Akashis, the Karadzics, he brings

5 Gvero, he brings Tolimir, his close assistants.

6 The Gvero brief makes a number of assertions about General Gvero

7 that I want to respond to. It refers to the entire philosophy of the VRS

8 Morale Sector which strove for specialist qualifications, good

9 discipline, strict adherence to the rules of engagement, and respect for

10 human rights, was ridiculed, and this diminished the authority of the

11 sector, in general, and of Milan Gvero in particular. It refers to

12 General Gvero's deeply-felt commitment to justice, discipline, and good

13 order. It claims that Milan Gvero was renowned to have been the only

14 good man on the Main Staff. And you even read in the brief that

15 General Gvero never heard about the crimes, even after they were

16 committed. That's at page 118, paragraph 3.

17 I want to recall for you, Your Honours, P01334A. It's a 25 July

18 1995 intercept at 0950. General Gvero is speaking with a friend by the

19 name of Subara, and Subara tells Gvero:

20 "I'm calling to tell you to watch out what you're doing over

21 there in Zepa, not to let it be like in Srebrenica, because there is talk

22 that they slaughtered and rampaged there."

23 And what is General Gvero's response:

24 "They're lying, man, they're lying."

25 Ever the propagandist, he lies even to this friend, who again

Page 34088

1 says later in the conversation, and I quote:

2 "Yes, that's smart, because they criticised us badly for

3 Srebrenica."

4 General Gvero, obviously up to date on what's happening in Zepa,

5 tells him how exactly they're going to undertake the transportations of

6 the civilians out of the enclave, and his friend to that says:

7 "Yes, that's smart, because they criticised us badly for

8 Srebrenica."

9 And Gvero's response, and I quote:

10 "They're just making things up. What else can they do? There's

11 nothing else they can do but lie."

12 Your Honours, General Gvero stood up before you, and he had his

13 chance to express some genuine remorse for these horrendous crimes. Did

14 he even acknowledge that a crime had been committed against the Muslim

15 populations of Srebrenica or Zepa? He said something to the effect, Any

16 loss of life is tragic. And then he couldn't help himself and

17 immediately said, But to talk about one side and not the other, that

18 doesn't help matters. When he spoke to you, Your Honours, he couldn't

19 even say the words "Srebrenica" or "Zepa."

20 His contributions to the joint criminal enterprise to forcibly

21 remove the Muslim populations from Srebrenica and Zepa were numerous and

22 they were significant, and we ask that you find him guilty of the crimes

23 with which he has been charged.

24 JUDGE AGIUS: For the record, Mr. Vanderpuye is now in the

25 courtroom. I take it that you are going next. Yes.

Page 34089

1 MR. VANDERPUYE: Good morning, Your Honours. Thank you.

2 Good morning, Your Honours. Good morning, Counsel.

3 It is my privilege to appear before you today, Your Honours, to

4 deliver the closing arguments on behalf of the Prosecution concerning the

5 accused Ljubisa Beara and Vujadin Popovic. I will endeavour to limit my

6 submissions to the evidence that directly links these accused to the

7 crimes with which they have been charged under the indictment. And

8 except to briefly underscore and highlight some of the overwhelming

9 evidence against Mr. Beara and Mr. Popovic, as I will address each in

10 turn, I will try, to the greatest extent possible, to avoid restating the

11 arguments that are already set out in the Prosecution's extensive trial

12 brief.

13 Between Mr. Beara and Mr. Popovic, they have challenged almost

14 every aspect of the indictment, including aspects of the crime base

15 itself, ranging from the number of dead to their identity as Muslims. In

16 the case of Mr. Beara, besides basically acknowledging his position as

17 chief of security of the Main Staff of the VRS, the Defence essentially

18 denies the entire case against the accused, and Mr. Popovic is only

19 slightly less contentious. They have every right to do so, and it is our

20 burden, clearly, to prove the charges in the indictment beyond a

21 reasonable doubt, and we accept that burden, Your Honours, and we're

22 confident that the evidence in this case absolutely proves the guilt of

23 Mr. Beara and Mr. Popovic of the charged offences beyond any reasonable

24 doubt.

25 The Beara Defence brief, at paragraph 42, basically states that

Page 34090

1 the Prosecution has, among other things, manipulated facts out of context

2 in the presentation of this case. And while levelling these types of

3 allegations in its final submissions is, in my view, of questionable

4 value, I just want to reiterate a couple of things: First, that we fully

5 rely and we stand on the record of these proceedings. We're entirely

6 confident that the Trial Chamber -- in the Trial Chamber's ability to

7 independently review, scrutinise, and to fairly deliberate and consider

8 the established facts just as they are in the record, and we have full

9 confidence in the strength of the case that has been presented against

10 these accused. The facts establishing Mr. Beara and, for that matter,

11 Mr. Popovic's culpability and that warrant their conviction of the

12 charged offences in this case speak loudly and they speak clearly. Most

13 importantly, Your Honours, they speak for themselves.

14 The Defence brief, that is, Mr. Beara's brief, is replete with

15 arguments to the effect that Beara did not know and was not aware of the

16 crimes that were being perpetrated. I'm quoting from paragraph 494. And

17 this is predicated predominantly on two defences, and they are related.

18 One is an alibi defence. As you are aware, Mr. Beara asserts that he was

19 in Belgrade between 13-16 July 1995. And the second is what I would call

20 an ID defence, and that is that he asserts that the identification

21 evidence in this case against him is unproven because it is unreliable or

22 even contrived. It seems to suggest that he may have been framed.

23 The alibi defence that's put forward in Mr. Beara's direct case

24 fails, and it fails for two fundamental reasons, Your Honours. First, it

25 is intrinsically unreliable and it is incredible. The second is that

Page 34091

1 even if it were not so, the evidence in this case, the intercept

2 evidence, the documentary evidence, the eye-witness evidence, all

3 considered together categorically disproves the alibi and establishes

4 Mr. Beara's guilt beyond a reasonable doubt.

5 As you know, the Beara Defence called three alibi witnesses for

6 this period. They called Mira Cekic, who was a friend of the Beara

7 family, Svetlana Gavrilovic, also a friend of the family, and Milan

8 Kerkes, a friend of Mr. Beara's son, Branko Beara, and they had been

9 friends since the seventh grade before he testified. The Trial Chamber

10 obviously had an opportunity to see and to hear each of these witnesses

11 attest to their respective recollections and their knowledge of the

12 events to which they testified.

13 I won't go through the alibi extensively because it is, albeit,

14 limitedly covered in the Prosecution's brief, but there are some points

15 in that alibi testimony that I would like to highlight for the Trial

16 Chamber because I think it is underscores just how utterly unbelievable

17 and untenable that alibi defence really was.

18 Svetlana Gavrilovic testified that she met Mr. Beara and his wife

19 at the home of Mayor Cekic on the 14th of July. She claimed, among other

20 things, that she could remember details, if you recall, from a 1993

21 birthday party for Mr. Beara, some 15 years before she actually testified

22 in this case. And she testified without any priming, without anything to

23 jog her memory, without any prompting, or, frankly, without any real good

24 reason for her to be able to recall the details that she related to this

25 Trial Chamber, but she testified in a feat that can only be considered

Page 34092

1 unbelievable and really astonishing. She was able to recall from this

2 1993 birthday party how Mr. Beara was dressed. She testified that he had

3 a T-shirt on, that it was a white T-shirt, that it had a logo on it, that

4 it was a crew-neck and not a V-neck T-shirt. She testified that he had

5 on casual pants, that they were either jeans or some other kind of pants.

6 She even testified to what he was wearing on his feet. She testified

7 that he had slippers on. And, oh, yes, she was able to tell us what

8 colour they were. She said that they were dark blue. She remembered

9 that from 1993.

10 Then she testified about a 1995 birthday party, and she talked --

11 she gave the same level of detail with respect to the 1995 birthday party

12 as well. She was able to tell us on that occasion what kind of shoes he

13 was wearing or what colour shoes he was wearing, and told us that they

14 were black shoes on that occasion, in addition to the other details

15 concerning the alibi. She told you about the time that Mr. Beara came

16 over to her place to fix her iron, and she remembered what he had on then

17 also. On that occasion, he came, and she said that he was wearing a navy

18 coat. He took off the coat and, oh, yes, she could remember what he was

19 wearing under the coat, and on that occasion he had on a shirt with a

20 sweater, and she could remember that.

21 When it came to the more recent events, such as when it was that

22 she actually met with the Defence investigator, Mr. Stanic, concerning

23 her testimony, she gave the following answers to the following questions,

24 if I could just read that in, and that's at transcript 24781, it's lines

25 9 through 20. The question is put to her by Mr. McCloskey:

Page 34093

1 "Q. So a couple of months ago, maybe March or April, Mr. Stanic

2 comes up to you and asks you about this important topic. You know that

3 Mr. Beara is in The Hague. You know about genocide and mass murder, but

4 you cannot tell me the date of this, the date he contacted you,

5 Mr. Stanic, you can't even tell me the month?"

6 "A. No, I can't, I really can't."

7 When she's pressed, she says:

8 "A. No, I can't, I can't give you the date. I can't remember. I

9 don't know the date.

10 "Q. Do you know the month?

11 "A. Well, it may have been April, in the month of April, March or

12 April when I met Mr. Stanic, thereabouts.

13 "Q. What day?

14 "A. I don't know, I really don't know. I did not consider this

15 date worth retaining, remembering at all."

16 That's about the only believable thing that she said during the

17 course of her testimony. Why would anybody remember the level of details

18 that she testified concerning what Mr. Beara wore in 1993 or what he wore

19 in 1995 or what he wore when he came to fix her iron? Why would anybody

20 consider that worth retaining? The fact is really nobody would. She

21 made it up because she knew that it couldn't be checked. She made it up

22 because she knew that it couldn't be verified. And the one thing that

23 she wasn't sure that could be verified, she had no recollection of, and

24 it was the most recent event, relative to Mr. Beara, prior to her

25 testimony. The Trial Chamber should reject this testimony. It is not

Page 34094

1 worthy of your consideration in respect of evaluating the charges against

2 Mr. Beara.

3 Milan Kerkes testified, and there was a young man who was a good

4 friend of Mr. Beara's son, he was working, he was charming, and he

5 actually seemed that he was being genuine with the Trial Chamber when he

6 testified. And he testified about his trip to Montenegro with his

7 friends, and he showed photographs, and he talked about how his friends

8 had a good time and they were chasing girls, I think. He's testified

9 that he went to the Beara home on 14 July. He saw Mr. Beara there.

10 Branko told him that it was Mr. Beara's birthday, and according to

11 Mr. Kerkes, they ended up leaving the next day. He said they took a bus

12 and went down to Petrovac. Of course, there are infirmities in his story

13 as well.

14 You may recall that Mr. Kerkes testified that he came back from

15 Petrovac after exactly two weeks. He said it was a Saturday, exactly two

16 weeks. That's in the transcript at 24941, 23 through 24. And he said he

17 wanted to come back to have a rest and start his practice the next day,

18 Monday. He later said, and I just want to read from the

19 transcript - this is at transcript page 24955 through 24956:

20 "Q. All right. When you got back from your vacation, you went to

21 your training, you said, right; that is, handball training?

22 "A. We arrived at the weekend. I took a day rest, and then my

23 coach, Pera Lazarevic, an Olympian, had the same system. He started

24 preparations on the 1st of September. Since the 1st of September was a

25 weekend, we started on Monday. There was a competition to be held soon,

Page 34095

1 and we started our preparations on the first Monday after the 1st of

2 September.

3 "Q. Okay. Did you tell Mr. Ostojic and Mr. Stanic that your

4 coaches name was Pera Lazarevic; did you tell them that?

5 "A. I did.

6 "Q. And you told them that you started on the 1st of September

7 your training? You told them that too?

8 "A. The 1st of August.

9 "Q. The 1st of August?

10 "A. Yes, I did."

11 It sounded reasonable, it sounded confident. In fact, it was

12 incorrect and it was a deceit. The 1st of August, as he corrected it,

13 did not fall on a weekend, as he said. It did not fall on a Saturday, it

14 did not fall on a Sunday, and, for that matter, it didn't fall on a

15 Monday, either. The 1st of August fell exactly three weeks after the

16 fall of Srebrenica, the 11th of July. That was a Tuesday. Why is this

17 significant? It's significant because Mr. Kerkes' story about when it is

18 that he got back and what it is he did in order to anchor the time that

19 he was gone was related to the time that his practice started.

20 He told us that his practice started on a Monday because the 1st

21 of the month - he said September, but I think he meant August - fell on a

22 weekend. It didn't. And if he started his practice the first Monday

23 after the 1st of August, that was the 7th of August. And if that's when

24 he started his practice, then he couldn't have left when he said he left.

25 And if he did leave when he said he left, then he's got his times

Page 34096

1 completely screwed up and he's an unreliable witness in terms of

2 establishing the alibi that's been proffered by the Defence in this case.

3 It's not just that he's wrong about the date, Your Honours. It's that

4 he's wrong about the entire story that relates to the date. He gave an

5 actual explanation as to why it is he knew that it was that Monday. He

6 knew that it was Monday because the 1st was on the weekend, and in fact

7 it wasn't. So the whole recollection and the basis of his recollection

8 is contrived.

9 Ironically, Mr. Kerkes said that he believed that he was

10 interviewed by the Defence investigator in this case because, among his

11 friends, he best recalled the events concerning the vacation, if you can

12 recall that. In fact, he couldn't remember the name of the -- the

13 address of the place that they stayed. By the time he testified in this

14 case, he had already been there three times. He'd been there twice --

15 he'd been there once before in 1995, then again in 1995, according to his

16 testimony, and then again in 1996. And when he testified here, he

17 couldn't remember the address of the place. He couldn't remember the

18 name of the street that it was on. He couldn't remember the name of the

19 proprietor or the person through whom he made the booking in this case.

20 He couldn't remember the date or the day of the week that Mr. Stanic

21 called him to meet prior to his testimony. But he claimed that he could

22 remember the circumstances surrounding their vacation better than

23 Branko Beara, and you'll remember the reason why Branko Beara, according

24 to Mr. Kerkes, was able to go on this vacation, to begin with, was

25 because his father came home for his birthday and his father gave him

Page 34097

1 some money, and that's how it was able to occur. Branko Beara's ability

2 to go on this vacation with his friend, according to Kerkes, was entirely

3 linked and connected to his father's birthday.

4 I just want to read to you from the transcript a little bit, and

5 this is on transcript 24946, pages [sic] 8 through 20. I'm sorry, lines

6 8 through 20.

7 "Q. Well, you talked to him about this vacation; right?

8 "A. With Branko?

9 "Q. Yes.

10 "A. As I said, from time to time, we go back to that vacation,

11 but after I spoke with the attorney we didn't discuss that particularly.

12 For some reason -- for some reason of his, he noticed that I can recall

13 many details. He probably gave my phone number to the attorney and, in

14 turn, he called me.

15 "Q. Having discussed this with him, what kinds of details do you

16 remember that he doesn't?

17 "A. For example, the date when we left. He couldn't recall that.

18 "Q. He doesn't remember the date that you left?

19 "A. He doesn't."

20 I'm sure you remember, as I've described, this whole story about

21 how it is that Branko was able to go, and they discussed this trip not

22 long before Mr. Kerkes testified. Kerkes immediately realised how

23 implausible this had to be, because if the only reason that Branko Beara

24 was able to go on this vacation was because his father was home to give

25 him money, and they discussed this only a couple of months before he

Page 34098

1 testified, it is inconceivable that he wouldn't remember how it is that

2 he ended up going on that vacation, and that answer would make no sense

3 whatsoever. It would undermine completely his testimony and undermine

4 completely the accuracy with which he -- with which he purported to give

5 it. So what did he do? He changed his answer right on the spot, and I

6 know that that wasn't lost on the Trial Chamber.

7 The Beara Defence has also advanced the proposition that the

8 alibi is corroborated by entries in Bob Djordjevic's diary concerning

9 Milos Tomovic, a posit that it is logical to conclude that Tomovic would

10 have driven Beara to Belgrade on that morning when he was stopped

11 together with Djordjevic on 13 July by military police. Now, I don't

12 know about the logic of making that conclusion, but I don't see that

13 there's evidence in the record that Tomovic drove Mr. Beara to Belgrade.

14 There's just no hard evidence of that in the record.

15 I would submit to the Trial Chamber, as I said, that the alibi

16 evidence presented as to Mr. Beara fails because it is not reliable, it

17 fails because it's not credible, and, most importantly, it fails because

18 it simply does not reflect the truth about where Mr. Beara was and what

19 he was doing between 13 and 16 July 1995.

20 The Beara Defence also posits a notion of an unreliable

21 identification in the alternative. In their brief, the Defence argue

22 that the identification evidence against Mr. Beara is the product of

23 either erroneous processes or factors which have tainted its accuracy and

24 reliability. They also argue that certain identifying witnesses

25 deliberately mis-identified or implicated Mr. Beara in order to serve

Page 34099

1 their own ulterior motives and to diminish their own criminal

2 responsibility in this case. According to paragraphs 43 and 133 through

3 137 of the Defence brief, these witnesses "mis-characterised, distorted

4 and manipulated the evidence to avoid indictment." In short, the

5 suggestion is that Mr. Beara was scapegoated or even framed in respect of

6 the charges levelled against him in this case.

7 Some 14 witnesses identified Mr. Beara in and around the Zvornik

8 and Bratunac areas and Nova Kasaba during the period that was claimed by

9 his -- in his alibi. Over the period of 13 and 14 July, about ten

10 witnesses identify him. This evidence cannot be compartmentalised or

11 viewed in insular or disjointed fragments. It really has to be viewed in

12 the context of the whole. It has to be viewed in light of the other

13 evidence in this case. And viewed in this light, the truth about

14 Mr. Beara's whereabouts during the critical periods set out in the

15 indictment is plain, and it's evident in the trial record. That evidence

16 is found in the documentary evidence in this case, the intercept evidence

17 in this case, and, of course, the testimonial record. And you've heard

18 and you've seen these identifying witnesses, and you've had the

19 opportunity to consider their evidence in light of all the other

20 compelling evidence in this case.

21 The Defence expert, Mr. Wagenaar, did not consider that other

22 evidence, and the conclusions contained in his report, as well as in his

23 testimony, painfully reflect that. You may recall that when he was

24 confronted, he conceded that he did not review the statements of

25 witnesses other than the 12 that were selected by the Defence. He did

Page 34100

1 not realise that Mr. Beara had appeared on wanted posters in determining

2 whether or not it was appropriate to place certain witnesses in a

3 line-up. He obviously didn't consider that in suggesting the propriety

4 of conducting these identification tests, either photo arrays or

5 line-ups. You recall that he testified how he was unable to discover any

6 photos where Mr. Beara was not wearing glasses, because it was relevant

7 to a particular identification, and again affecting his judgement as to

8 the propriety of implementing identification procedures. He was

9 confronted with P03695, which was an internet print-out showing Mr. Beara

10 without glasses in an image from 2004.

11 The one thing he said that was significant and I submit that the

12 Trial Chamber should countenance is that names are basically easier to

13 remember than faces; you can refresh your recollection of a name by

14 repeating a story much easier than you can a face. He noted that while

15 it may be difficult at times to recall a face with respect to a name,

16 there's no reason why the memory should fail. He indicated also that the

17 same goes for someone who's familiar to the identifying party. And I

18 just want to briefly remind the Court of who some of these identifying

19 witnesses are and the context in which they identified and implicated

20 Mr. Beara and these events.

21 Zlatan Celanovic, is a Bratunac legal officer who, on 10 or 11

22 July, puts Beara in front of the Bratunac headquarters together with

23 Mr. Popovic.

24 THE INTERPRETER: Kindly slow down for the sake of the

25 interpreters, who don't have the text you're reading out. Thank you.

Page 34101

1 MR. VANDERPUYE: On the evening of 13 July, after 2100 hours

2 sometime, Celanovic met Beara and discussed with him the large number of

3 prisoners then in Bratunac. He was with Mr. Beara as he toured Bratunac,

4 surveying the security situation concerning the Muslim men and boys who

5 were held on buses throughout the town. Remarkably, while the Defence

6 assert that this never happened, they also argue that it shows that Beara

7 lacked genocidal intent because he talked about transferring prisoners to

8 Kladanj. I don't think those two things can coexist. By the time

9 Mr. Beara discussed transportation with Celanovic, he had already met

10 Momir Nikolic at the centre of town and he had already ordered him to go

11 and see Drago Nikolic of the Zvornik Brigade in order to provide him with

12 details concerning the thousands of prisoners to be sent to Zvornik and

13 to be killed there.

14 Telling Celanovic the prisoners were going to Kladanj, rather

15 than showing a lack of intent, shows cunning and shows manipulation.

16 It's the same thing you see on a 13 July intercept, where it is claimed

17 that Beara is sending transportation to take the prisoners to Batkovica.

18 Beara never arranged or carried out any such transportation. It never

19 happened. And what you have here is not evidence of -- that's

20 exculpatory. You have evidence of a pretext, and what you have evidence

21 of is intent.

22 As the chief of security of the VRS Main Staff, it makes perfect

23 sense that Mr. Beara met with Celanovic concerning the prisoners.

24 Celanovic was directly involved in those matters, and indeed you may

25 recall that he was involved with one particular prisoner,

Page 34102

1 Resic Junanovic [phoen], who was the former head of the police station in

2 Bratunac. And you know that Resic Junanovic, who was in the custody of

3 the VRS, was never seen again. Celanovic knew Beara, he described him,

4 and there is really no reasonable doubt as to the veracity of his

5 testimony.

6 PW-161 also was called over to the SDS offices in Bratunac on the

7 evening of 13 July, and there Mr. Beara asked him about the availability

8 of certain machinery and manpower. He told PW-161 that it was needed

9 because there were a lot of dead that needed to be buried. When PW-161

10 later returned to the SDS offices that night, Mr. Beara directed him to

11 go to a location where a grave was to be dug. And the next day, after

12 some trouble getting the grave dug, he assured PW-161 that a

13 backhoe excavator would be provided in order to assist in carrying out

14 the job of burying the victims of the Kravica warehouse massacre.

15 PW-162 met Mr. Beara on the morning of 14 July at the SDS offices

16 at around 9.30 in the morning. Importantly, Mr. Beara introduced himself

17 by name. Even according to the Defence witness, Mr. Wagenaar, there's no

18 reason why his recollection of the name should fail. On that occasion,

19 there were two other VRS officers with Mr. Beara who engaged PW-162 to

20 obtain certain construction equipment from the brickworks factory, which

21 included a loader. There is evidence in this case that even co-accused

22 Ljubomir Borovcanin identified Mr. Beara. On 12 July or thereabouts, he

23 indicated that he saw Mr. Beara with Miroslav Deronjic in the centre

24 Bratunac discussing the Muslim column moving towards Zvornik. That's

25 Exhibit P02852, pages 76 through 77. 13 July, he saw Mr. Beara at the

Page 34103

1 Bratunac headquarters, arguing with Miroslav Deronjic sometime after

2 8.00 p.m. on 13 July. And according to Mr. Borovcanin, Beara was

3 insistent that all the captured be brought to Bratunac, and Deronjic was

4 adamantly against it.

5 You have in the record the testimony of Mr. Deronjic, who says

6 that on 13 July Mr. Beara tells him he's there to kill the prisoners, and

7 on 14 July he goes to the Ciljani [phoen] brickworks factory, where he

8 confronts Beara and tells him not to kill anybody. And this follows

9 Mr. Beara's meeting with PW-162, where he is galvanising this engineering

10 equipment and is told -- rather, the other officers are told that there

11 may be equipment available for them at the brickworks factory.

12 You have the testimony of Momir Nikolic --

13 JUDGE AGIUS: Any time it's convenient for you, it's break time.

14 MR. VANDERPUYE: I'm just about to segue.

15 You have that testimony, that is, the testimony of Momir Nikolic.

16 That you received recently, and I'm sure you recall it very well. And

17 we're not asking you to make anything more out of this testimony than you

18 can find is reasonably corroborated by the evidence in this case. I

19 would submit, however, that there is plenty of corroboration.

20 I think now we can break.

21 JUDGE AGIUS: Twenty-five minutes. Thank you.

22 --- Recess taken at 12.30 p.m.

23 --- On resuming at 12.59 p.m.

24 JUDGE AGIUS: Yes, Mr. Vanderpuye.

25 MR. VANDERPUYE: Thank you, Mr. President.

Page 34104

1 There are just a few other witnesses I would like to cover. I'm

2 not covering all of the ones that are in the brief, but I think they're

3 important to highlight for the Trial Chamber.

4 There was a witness at Nova Kasaba. It was a DutchBat, Vincent

5 Egbers. He places Mr. Beara at Nova Kasaba on 14 July, and you can

6 recall that he wrote down Beara's name as the person that he met in an

7 entry that he placed in a contemporaneous report. That's 2D0024, it's on

8 page 6, item 10, and it reads:

9 "I gave an account of what happened to us, which was written

10 down. Colonel Beara has the original, and there is a copy in the

11 possession of Section 23."

12 In Zvornik, there are also witnesses. There was Milorad

13 Bircakovic, who placed Mr. Beara at the Zvornik Brigade on the morning of

14 14 July 1995; which is when he met with Drago Nikolic and Vujadin Popovic

15 concerning the transfer of the prisoners that would be arriving shortly

16 thereafter from Bratunac.

17 The Beara Defence brief, at paragraph 175, states that:

18 "Bircakovic never saw Ljubisa Beara," and I don't believe that's the

19 case. The record states at transcript 11097, 4 through 8, Bircakovic

20 said that when Popovic and Beara arrived, everyone saw it. And then at

21 transcript 11102, 5 through 7, he states:

22 "When I arrived, Popovic and Beara arrived as well, so they went

23 into the barracks and I saw them go in."

24 So I don't think there's any ambiguity on that point, but I

25 thought I would bring that to the attention of the Trial Chamber. You'll

Page 34105

1 recall, of course, that not long after that meeting, the prisoners are

2 brought up from Bratunac by bus.

3 On the 14 July, we also have an identification of Mr. Beara

4 within a few metres of the Petkovci school, and that was by Marko

5 Milosevic. On that occasion, he placed Mr. Beara at the school on the

6 late afternoon of 14 July 1995, and you will recall that on that occasion

7 it was Drago Nikolic who pointed out Mr. Beara to Mr. Milosevic; clearly,

8 somebody who knows who Beara was on 14 July 1995.

9 It was PW-104 who met with Mr. Beara on 14 July at the Zvornik

10 Brigade and asked for assistance -- where he asked for assistance with

11 burials. He said:

12 "We have a lot of prisoners, and it's very hard for us to control

13 them. They are at various locations in the Zvornik municipality. We

14 have to get rid of them. I expect assistance from the municipality."

15 PW-104, of course, understood that to mean burying the executed

16 prisoners.

17 PW-165 testified that he heard that Beara was at the Command of

18 the Zvornik Brigade on 15 July 1995, when he saw Vujadin Popovic as well.

19 He was told that the two were there to meet with the commander.

20 On 16 July, we have an identification of Mr. Beara at the Kula

21 school by Slavko Peric, and this is a little bit more interesting than

22 the others. In this particular instance, Mr. Peric puts both Mr. Beara

23 and Mr. Popovic at the Kula school at the time that the prisoners there

24 are being loaded onto buses and driven a few kilometres away to the

25 Branjevo Farm, where they were shot and executed.

Page 34106

1 If I just could read a little bit from the transcript, this is at

2 transcript page 11414, and I asked Mr. Peric:

3 "Q. Did you ever reach a conclusion as to who those officers

4 were, who they were that you saw on the 16th of July?

5 "A. Well, approximately, they bore some similarity to those men

6 that I described.

7 "Q. And who were the people that you saw in the press? What were

8 their names?

9 "A. No, really, I wouldn't like to name anyone.

10 "Q. Do you recall if you previously named anyone?

11 "A. Yes, possibly.

12 "Q. Who did you name?

13 "A. I named Beara and Popovic."

14 Now, it's clear from his answer that he was equivocating about

15 the identification that he had previously given, but I would submit to

16 Your Honours that the reason why he was equivocating about the prior

17 identification is because the prior identification was a correct one.

18 The prior identification was made at a time where he was not confronted

19 with the accused sitting in a courtroom. He described both Mr. Beara and

20 he described Mr. Popovic in the transcript. The only reason why he would

21 not want to answer the question, if the prior identification he gave was

22 merely an approximation, would be because it's accurate. It's the only

23 reason why he wouldn't want to answer. And I would submit that that

24 identification, particularly of Mr. Popovic, and I'll address that later,

25 is corroborated by other evidence, such as intercept evidence, connecting

Page 34107

1 him to the events in Pilica. As to Mr. Beara, it is simply just as

2 strong evidence.

3 The identification evidence that I've gone over, I hope, has

4 highlighted the infirmity of the defence that has been put forward by the

5 Beara Defence in terms of identification, the strength of identification,

6 and, of course, alibi, and I would submit to the Trial Chamber that what

7 we have here is a complete failure of the alibi and identification

8 defences as advanced by the Beara team. Realistically, Your Honours, for

9 those defences to work, given the diversity of the identifying witnesses,

10 the corroborating documentary evidence, the corroborating intercept

11 evidence, it would require the most elaborate, calculated, and

12 coordinated plan among all of these witnesses, many of whom are unknown

13 to each other, many of whom, in the case of intercept operators, are on

14 the opposing side. It doesn't make sense. The alternative is that

15 somebody's walking around confidently with a Beara suit on, impersonating

16 the chief of security of the VRS, in the Main Staff of the VRS, to VRS

17 officers in an area controlled by VRS, expecting not to get caught,

18 expecting not to get in trouble, and expecting to get away with it.

19 That's not a realistic or viable alternative to the strength of the

20 identification evidence that's been adduced before this Trial Chamber.

21 There is evidence of direct involvement -- of Mr. Beara's direct

22 involvement in the crimes with which he's been charged, and that evidence

23 you can find in the intercepts in this case. Now, the Defence refer to

24 an intercept at 11.25 on 13 July. It's P1341. I had mentioned it

25 earlier, but I think I'll mention it again. This is an intercept that

Page 34108

1 states:

2 "Colonel Ljubo is sending four buses, two trucks, one trailer to

3 Kasaba to transport Muslim prisoners, and they will be dispatched to the

4 camp in Batkovici village where they will be sorted into war criminals

5 and normal soldiers."

6 Now, the Beara Defence has put forward that this shows a lack of

7 criminal intent, it's an entirely legitimate thing to do. I would submit

8 to the Trial Chamber that it shows quite the opposite. But before I get

9 there, I want to point out a couple things.

10 One, it's not clear from the intercept who's actually speaking.

11 It's not clear from the intercept what the source of the information is.

12 It says Beara is going to do something, but it doesn't say who's

13 reporting it, or where it's being reported from, or where the information

14 is coming from. It doesn't show you anything about his intent, because

15 you don't know who's conveying the information or where, in fact, it came

16 from. The other thing is if it does come from Mr. Beara, then it calls

17 into question his alibi defence, it calls into question his

18 identification defence, and it calls into question the veracity of the

19 Defence case, because it shows, Your Honours, that he's aware of the

20 situation, he's aware of the prisoners in Kasaba, he's aware of how many,

21 they are given the number of trucks and buses and such that would be sent

22 there to pick them up, and he's involved with the disposition of those

23 prisoners when he should be on his way home to celebrate his birthday. I

24 would submit to you that what it shows is evidence of intent, because

25 when you look at a different intercept, that's intercept P01130, this is

Page 34109

1 the 10.09 intercept on 13 July, and this one was an intercept that was

2 rather hotly contested by the Beara Defence, but this is an intercept

3 which begins Beara speaking, and he speaks to "Senor Lucic." What he

4 says to "Senor Lucic" is:

5 "Did you hear me? Do you know the 400 balijas that have shown up

6 in Konjevic Polje?"

7 And Lucic says:

8 "I know."

9 And he says: "Where are they now," and the conversation

10 continues.

11 "Have they been disarmed, have they been rounded up?"

12 And Beara says: "Excellent."

13 Lucic says -- I'm sorry, Beara says -- Lucic says:

14 "There's a huge group there."

15 And Beara says:

16 "Okay, well, you can also -- those 20," as written, it says on

17 the intercept, "so the forces are not dispersed, shove them all in the

18 playground. Who gives a fuck about them."

19 Lucic says: "Okay."

20 And Beara says:

21 "They're locked up, right?"

22 And he confirms that. Then he tells them to line them up in rows

23 of four and five. I'm sure you remember this intercept. This was

24 corroborated by an to aerial image showing the prisoners lined up in

25 Kasaba.

Page 34110

1 THE INTERPRETER: The counsel is kindly asked to slow down for

2 the benefit of the interpreters and the record.

3 JUDGE AGIUS: Did you hear that?

4 MR. VANDERPUYE: I heard.

5 JUDGE AGIUS: Thank you. If you could comply, please.

6 MR. VANDERPUYE: I will, Mr. President.

7 Later on in this intercept, Mr. Beara gets connected to Zoka,

8 Zoran Malinic. Malinic tells him during the course of this intercept

9 that:

10 "They're killing themselves. There are also plenty of wounded."

11 And Mr. Beara says:

12 "You mean they're doing it amongst themselves?"

13 And Malinic repeats: "They're killing."

14 And Beara says: "Well, excellent, just let them continue."

15 In the light of this intercept, the following intercept, talking

16 about sending buses - buses, by the way, that never arrived, never got to

17 Batkovica - suggests that the 11.25 intercept, if it is Mr. Beara, is a

18 pretext, and that makes it even worse because it shows conning and

19 planning in order to manipulate unsuspecting people. Alternatively, it

20 shows that somebody else made the call and the information may not be

21 reliable, in which case it doesn't show any evidence of intent. It's

22 certainly not exculpatory, as posited by the Defence in this case.

23 Sorry, just bear with me for one moment.

24 I wanted to show you another intercept which I think also speaks

25 volumes about Mr. Beara's intent and his involvement in the charged JCEs

Page 34111

1 in this case. This is an intercept that's P1179, and this is an

2 intercept where Mr. Beara is speaking to General Krstic. And you may

3 recall this is the intercept which begins that Furtula didn't carry out

4 the boss's order. And in this intercept, Mr. Beara's seeking to obtain

5 30 men that were ordered on 15 July; it's at 10.00 a.m. He's going

6 through the command structure in order to get the personnel or galvanise

7 the personnel needed to carry out the orders with which he's been tasked,

8 and we submit those orders are to carry out executions. He's not just

9 walking in and taking people and ordering them around and usurping the

10 command chain. What this intercept shows is that he's operating entirely

11 within the command chain, and it's a fine example of exactly how the

12 security organ functioned in relation to the command organ and to the

13 command structure of the VRS. This intercept is significant because at

14 the very end of it, you hear Mr. Beara say, after he tries to get these

15 men -- General Krstic refers him to Indzic, and General Krstic refers him

16 to Blagojevic, try to get the men from the MUP, and Mr. Beara says:

17 "I don't know what to do. I mean, like, Krle, still -- there are

18 still 3500 parcels that I have to distribute, and I have no solution."

19 And General Krstic says: "I'll see what I can do."

20 These 3500 parcels, the Defence has suggested, can't be properly

21 defined or are insufficiently defined for the Trial Chamber to rely on,

22 and I would submit that that term is very clear. Not only is it clear in

23 this intercept, but it's clear in other intercepts as well.

24 In their brief, the Defence cite -- I seem to have lost my place,

25 but I believe they cite to Rakic, who defines this term as units, and in

Page 34112

1 fact there is evidence in this case which more clearly defines it. The

2 evidence in this case that defines it, and defines it in terms of

3 Mr. Beara's own words and own terms, I think, best, is P1380, and this is

4 an intercept that is dated 1 August 1995. And this is a conversation

5 between Mr. Beara and a certain Stevo, and in this conversation, they're

6 talking about getting back people that have fled Zepa in order to

7 exchange them. And during the course of the conversation, it reads as

8 follows. This is Stevo speaking:

9 "Hello, Ljubo."

10 And the answer:

11 "Hello, good evening."

12 "Where are you calling from, boss?"

13 "From -- what's this called?

14 "Are you across --"

15 Answer -- or, I'm sorry, reply:

16 "From Cara [phoen]. We there -- now we've just returned.

17 Zoka Cavcic is also with us."

18 This is Beara speaking:

19 "So far, there are about 300 parcels. They, whoever captures a

20 parcel, hands it over to the cops, and now they're keeping that. I've

21 talked to the chief of the SUP from Uzice. He says, 'I can't do anything

22 for you now, but we'll be in touch.' But the chiefs have to make a

23 decision as to what they want to do, so we should tell our chief and the

24 supreme chief, they - this is the information confirmed by my

25 people - they are up to 1.000 parcels in the place like ours, it's all

Page 34113

1 crammed in over there. They said there's some big trouble over there,

2 some commotion and so on, but he says, 'You can't do anything because

3 those are valleys, caves, and nothing can be done there. Small parcels

4 go first and big ones are left for the end, and they'll probably be

5 able -- and they'll probably all go in the same direction.'"

6 That passage speaks volumes as to what that term means, and

7 particularly what that term means when it's used by Ljubo Beara.

8 If we go on to the next page in this intercept, we see what

9 Mr. Beara's involvement is and what his knowledge is concerning the

10 crimes with which he's been charged. What he says is, in respect of the

11 registration of these individuals:

12 "They're taking their names, but that doesn't matter. We can --

13 you know, we can request the ICRC escort them to us, and they can be

14 exchanged here, as written in the contract. We had no plans to kill

15 them, the mother-fuckers, but to exchange them."

16 This is an important intercept, because what it shows is that he

17 has knowledge that there were plans with respect to the prisoners that

18 preceded the people that he's trying to catch now. When he says, We had

19 no plans to kill them, in the context of an exchange, it means that

20 somebody has reason to think that they do, and he's aware of that. And

21 the reason why he's aware of it, Your Honours, is because he was

22 intimately involved in it.

23 What the Defence has to do or is trying to do in respect of these

24 intercepts in respect of the evidence that comes from the accused's own

25 mouth, is to employ a linguist. That was Mr. Remetic, who came in here

Page 34114

1 to tell you that while the name "Ljubo" is a common name, so you can't

2 rely on the fact that you see that in an intercept in order to identify

3 the accused. All right. He tells you that he's had an opportunity to

4 review these intercepts and is able to discern only from a handful of

5 them that it, in fact, is the accused based upon his dialect, based upon

6 the way he speaks. He testified that he interviewed Mr. Beara for a

7 period of time less than he would have liked to, and it was a relatively

8 short period of time. He testified that he never considered the fact

9 that Mr. Beara was charged with serious offences and serious crimes in

10 order to evaluate whether or not he was being candid and forthright with

11 him, in terms of evaluating his own way of speaking, his manner of

12 speech. He testified that he obtained no speech exemplars or anything

13 that would indicate what Mr. Beara actually sounded like in 1995 to

14 compare against the intercepts that he was evaluating from that period of

15 time.

16 The testimony that he provided to this Trial Chamber is virtually

17 valueless. It is evidence -- or it is information, rather, that the

18 Trial Chamber is perfectly capable of gleaning from the evidence without

19 the expertise, if you want to call it that, that he offers. He can

20 provide no information about the statistical or reliability of his work,

21 no information concerning whether or not it had been peer-reviewed or

22 whether or not it had been evaluated by colleagues, and I would submit

23 that the information that he provided you with is completely valueless.

24 One thing he did say is that the word "senor" is of Roman origin and it

25 is something that is typical -- typically used in Dalmatian speech, and

Page 34115

1 that is the intercept I just read you. That's the one that involves

2 Senor Lucic and shows Beara's involvement in the prisoners in

3 Nova Kasaba. You'll recall that Stefanie Frease also testified to that,

4 testified to the fact that that was a Dalmatian or a typically Dalmatian

5 word.

6 The Beara Defence also seeks to establish this same defence with

7 respect to the word "triage" as is used in this case, and they argue that

8 the word "triage" is used in an intercept, which is 110 -- 1164, and they

9 say that that word means something other than the executions. We know

10 that that particular intercept uses that word almost within a few hours

11 of the commencement of the executions in Pilica.

12 I would submit, and the evidence in this case certainly

13 establishes it -- the evidence of Richard Butler establishes that the

14 term "triage" as is used in this intercept clearly denotes the

15 commencement of the executions that began in Pilica on 16 July. It's

16 important to realise why we say that. One thing we say is because it's

17 very close in time to the commencement of the executions in Pilica.

18 You'll recall that Slavko Peric puts the beginning of those executions at

19 around noon. Drazen Erdemovic also puts them around 10.00 or 11.00. The

20 proximity of the intercept at the time that those executions began

21 certainly suggests the meaning that Mr. Butler has attributed to it in

22 this record.

23 There are also entries in the duty officer log-book -- notebook

24 which I won't go through, but that's another area where the Beara Defence

25 obviously attacks the evidence in this case. That evidence is good, and

Page 34116

1 you've heard testimony about it. You've heard testimony about the chain

2 of custody. You've heard testimony about the nature of the entries that

3 were placed in it. You've heard testimony about the sequential or

4 asynchronous or synchronous writings that are contained in it. And I

5 would submit, Your Honour -- Your Honours, that in evaluating that

6 evidence you will come to the conclusion that it is reliable evidence,

7 and certainly reliable enough to establish the whereabouts and the

8 conduct of the accused in this case.

9 The Defence assert that there is no proof -- there is no proof in

10 this record that Mr. Beara was in Zepa. They said there's not a single

11 witness that claimed to have seen Ljubisa Beara in Zepa, and I assume

12 that that is intended to establish the fact that there's no relation

13 between the crimes that he committed and the forcible transfer of the

14 Zepa population.

15 There's two things that I will note. The first is that the

16 forcible transfer, as is charged in the indictment, includes the men that

17 are transferred to Zvornik; that is, the men that are separated and put

18 on buses in Bratunac and then bussed up to Zvornik to be killed. It is

19 pled as follows under paragraph 78 that states, paragraph A2:

20 "He supervised, facilitated, oversaw the transportation of Muslim

21 men from Potocari to Bratunac and from there to detention centres in the

22 Zvornik area, specifically the schools at Orahovac, Petkovci, Rocevic,

23 Kula, Pilica Cultural Centre, from 13 to 16 July 1995," as part of the

24 forcible transfer in this case. I think the evidence supports

25 Mr. Beara's significant contribution in that sense.