1 Thursday, 3 September 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.05 a.m.
5 JUDGE AGIUS: Good morning.
6 Mr. Registrar, could you call the case, please.
7 THE REGISTRAR: Good morning, Your Honours. Good morning to
8 everyone in and around the courtroom.
9 This is case number IT-05-88-T, the Prosecutor versus Popovic et
10 al. Thank you.
11 JUDGE AGIUS: Okay, thank you.
12 All the accused are present. Representation, the only change
13 I can notice today is the presence of Mr. Mitchell. And it's
14 Mr. Vanderpuye and Mr. McCloskey. Mr. Thayer is not present today.
15 Incidentally, Mr. McCloskey, when you've come -- the Prosecution
16 has come to the end of its oral -- of its closing arguments, we may have
17 some questions. And for that purpose, I think the presence of the entire
18 composition might be required because there may be questions which
19 Mr. Vanderpuye will probably need to answer, questions which Mr. Thayer,
20 and so on and so forth. So please keep that in mind and make the
21 necessary arrangements.
22 The other thing I wanted to say before we give you the floor,
23 Mr. Vanderpuye, is that -- and from this part onwards, Mr. Registrar, it
24 will need to be copied and incorporated in a letter which goes to the
25 President and to the Registrar, one of the problems we had relating to
1 the final briefs, and reading them, and being prepared for this now final
2 stage of closing arguments was the fact that one of the final briefs, and
3 a very detailed one, for that matter, was in French and needed to be
4 translated into English for most of us to understand.
5 Now, some time back I had, together with my colleagues, met with
6 our senior legal officer and also the senior member of the CLSS, and we
7 had organised the translation to be possibly finished in time to make it
8 possible for the schedule to be kept. There were difficulties, of
9 course, because it's a department which sometimes we are ungrateful to,
10 sometimes it's harshly criticised, but which in my experience has also
11 always done their level best to meet our requirements. They did the same
12 thing this time, and I think I need to acknowledge it publicly in the
13 courtroom. They kept the target date, and they came with the translation
14 when expected, on the 24th of August, which made it possible for us and,
15 I assume, for you to read it entirely. Also, I must say the translation
16 was of a very high standard, barring some very minor, minor mistakes.
17 The rest is perfect. And I think I owe you -- I owe CLSS a big thanks on
18 behalf of the Trial Chamber, and I would like you, Mr. Registrar, to
19 communicate this part of the proceedings to -- as I said, to the
20 President and to the Registrar for their information.
21 Yes. Mr. Vanderpuye.
22 MR. VANDERPUYE: Thank you, Mr. President.
23 Good morning to you and Your Honours. Good morning to counsel.
24 Good morning to everybody.
25 Yesterday, when I left off, I was talking about evidence -- I'm
1 sorry, Mr. President.
2 JUDGE AGIUS: Go ahead.
3 MR. VANDERPUYE: I was talking about evidence as concerns
4 Mr. Beara's -- Mr. Beara's presence in Zepa. I won't repeat that, but I
5 will put on the record, for the benefit of my colleagues and for the
6 Trial Chamber, a transcript reference, which is the transcript
7 page 14603, 22, through 14604, line 7.
8 With respect to the Defence's assertion concerning forcible
9 transfer, Mr. Beara's participation in that joint criminal enterprise,
10 they assert that there is no proof of contemporaneous or even subsequent
11 knowledge of the civilians, and that's at paragraphs 376 through 379 of
12 the brief. The claim is that:
13 "Mr. Beara was not in Potocari and not aware of the crimes
14 committed in Potocari, including the transfer of the civilian
16 That's at paragraph 401.
17 First, it is clear in the evidence of this case that his
18 subordinates were on the ground in Potocari. Mr. Popovic concedes that
19 he was present there. He doesn't contest it. Momir Nikolic was also
20 there, and they were in the thick of things. The Main Staff and
21 Drina Corps command structures were also clearly involved.
22 Now, to suggest that Beara had no awareness of the predicament of
23 the population is, to say the least, untenable. To the contrary, the
24 knowledge and awareness of events, including the crimes perpetrated
25 there, can be reasonably inferred from the conduct of his professional
1 subordinates. His knowledge of those events is also implicitly shown in
2 his interactions with Mr. Celanovic, PW-161, Miroslav Deronjic, as well
3 as Momir Nikolic. He knows about prisoners. He's got to know how they
4 came to be in Bratunac. He's got to know that many of them were
5 separated and the circumstances under which they were separated, and it's
6 abundantly clear that he knows what will happen to them. He exercises
7 specialist control over the security organs and subordinate commands, and
8 he has to know what they're doing and why.
9 The Rules of Service indicate, and this is at -- sorry, the
10 exhibit number is P00407. It's paragraph 12:
11 "Security organs report on their work to their immediate superior
12 and the security organs of superior commands, units, institutions, or
13 staffs in accordance with the provisions of these rules."
14 There's no question that Mr. Beara knows about the predicament of
15 the civilian population in respect of their transfer.
16 I want also to refer the Trial Chamber to P00480, and this is an
17 interview that he gave on 29 October 2002
18 on page 7 - he was asked whether or not he participated in the operation
19 of the Serbian forces entering Srebrenica. And he responds that he was
20 away, that he was on the Bihac front, but he returned when it was -- when
21 it was over. And he says:
22 "One day, when I was taking mail to General Mladic, I saw a large
23 number of buses on the road leading from Bratunac to Zepa and Srebrenica.
24 The vehicles were sent from all over Bosnia to transfer the Muslims to
1 To suggest that Mr. Beara doesn't have any information
2 contemporaneous or subsequent with respect to the civilian population and
3 their forcible removal is, as I say, untenable.
4 The Defence brief also asserts that there was no ethnic animus
5 that was part of the character of Mr. Beara, and if he committed any of
6 these crimes, it wasn't motivated, essentially, by that animus. I think
7 you've seen the evidence of that animus at this trial. You've seen it
8 evidenced in the intercepts by his persistent and continuous use of
9 pejorative and derogatory remarks to describe the Muslims. You've seen
10 it used in official documents that he's distributed to his subordinates
11 and to his contemporaries. I won't go into all of those, because I think
12 the record is replete with the evidence of that animus, and I would
13 submit that it affected Mr. Beara's behaviour and it affected the motives
14 with which he participated in the commission of the offences that are
15 charged under the indictment.
16 In the Prosecution's opening address, Mr. McCloskey referred to
17 Mr. Beara as an empty vessel. At paragraph 493 of the Beara brief, the
18 Beara Defence suggests that this means that he had no power or authority
19 to influence the course of events. Even though Mr. Beara was not a
20 commander, of course he had the power to influence the course of events,
21 of course he did. Invested with the powers, the authority and under the
22 orders of his commander, he clearly did. He influenced the course of
23 events, and he significantly contributed to the -- significantly
24 contributed to the JCEs that are charged in the indictment. Those
25 events, as you know, and as is proved in this case, culminated in the
1 murders of thousands of people and the genocide.
2 There has been no evidence of remorse in this case from
3 Mr. Beara. I think the evidence actually points to the contrary, and
4 it's something that we would ask that you consider in determining the
5 appropriate sentence, should you find him guilty of the charges that are
6 contained in the indictment.
7 Again, I will refer you to the interview that he gave on 29
8 October 2002. At page 7 of that interview, despite Mr. Beara's clear
9 involvement in the crimes that are charged in this indictment, he states:
10 "Everyone knew that the Muslims killed their own people in order
11 to accuse the Serbs so that the NATO could launch air-strikes against us
12 because of crimes against civilians. I am convinced that Markale is a
13 mini Srebrenica and a mini Zepa."
14 He then has the temerity to tell this reporter how the crimes and
15 the murders of thousands could be committed if someone had such an idea
16 to do it; that is to say, if it had actually even happened. With respect
17 to that, he says -- the question to him is:
18 "Are you trying to say that the VRS did not commit mass crimes in
20 And his answer is:
21 "They didn't. The Hague
22 locations. They say there are 800 bodies in one mass grave, 2.000 in
23 another, and 3.000 in yet another one. They claim they are primary and
24 secondary graves, alleging we moved bodies. What nonsense. It is not
25 possible to carry out killings on such a mass scale in the presence of UN
1 representatives, even if someone had such an insane idea."
2 Your Honours, the evidence in this case establishes Mr. Beara's
3 involvement and clear responsibility for the crimes that are charged
4 under the indictment, and we ask that you hold him responsible and you
5 find him guilty.
6 This concludes my submissions with respect to Mr. Beara. And if
7 I may, I'd like to turn to Mr. Popovic.
8 The evidence of Mr. Popovic's guilt and involvement in these
9 horrendous crimes is clear and it is compelling. As I mentioned before,
10 Your Honours, the Popovic brief challenges the very foundations of the
11 indictment, and because it, like the Beara brief, is diametrically
12 opposed to so many of the fundamental tenets of the Prosecution's case,
13 many of the arguments raised in the Popovic closing brief are dealt with
14 in the Prosecution's final brief. In particular, the Popovic brief
15 challenges the credibility of several inculpatory witnesses, as it
16 should. It challenges among them PW-128, PW-101, who they assert
17 knowingly gave false testimony. The brief similarly attacks the
18 testimony of Momir Nikolic and Miroslav Deronjic, as well as certain
19 other significant inculpatory witnesses. The credibility of these
20 witnesses are discussed in the Prosecution's final brief and I won't be
21 addressing these. I will again try to confine my arguments to some of
22 the more fundamental issues that respond to the Defence brief and also
23 highlight Mr. Popovic's involvement in and contributions to the JCEs, as
24 are pled in the indictment.
25 Now, because the Defence has devoted a substantial amount of time
1 to the viability of the intercept evidence in this case, I think a few
2 points should be made in that regard, also because the Beara Defence
3 similarly challenges that evidence.
4 Now, you heard the evidence of 28 intercept operators in this
5 case from the ABiH 2nd Corps, Anti-Electronic Warfare Department, the
6 21st Division, and also the ABiH MUP. You heard this over several
7 months, including the testimony of platoon commanders, squad commanders,
8 and supervisors. You received testimony on the process of interception,
9 the mechanics of it, the notebooks, the print-outs, the physical
10 equipment, the training of the operators and their technical backgrounds.
11 You've also heard about the protocols and the standards that were in
12 place and that they employed during the process of interception. You
13 heard from the Prosecution witness or Prosecution analyst concerning the
14 intercept project that was compiled in order to validate and authenticate
15 the intercept evidence. You heard about the chain of custody, and you
16 had an opportunity to consider all of these issues in determining the
17 admissibility of this evidence in advance of the Defence case.
18 I submit that all of these witnesses establish beyond question
19 the accuracy, authenticity, and reliability of this evidence, and the
20 witnesses that have been adduced by the Defence do not change this.
21 You heard from Nedjo Blagojevic, the communications officer in
22 the Drina
23 impossible. He also confirmed to you, though, that a failure to follow
24 the rules would result in the type of intercept evidence that we have in
25 this very case. That's at transcript 22333, 18 through 22.
1 A report that was issued by Mr. Popovic also confirms the
2 occurrence of sloppy practices in the use of communication equipment
3 within the VRS ranks. That's Exhibit 3D00319. He states in that
5 "We have obtained information that our units are extremely --
6 extremely careless when using communications equipment."
7 You've heard from Defence witness Velo Pajic, and he was -- he
8 worked with the 67th Communication Regiment. He acknowledged that it was
9 possible to intercept along radio relay routes. He's the one who, in
10 giving an example about being able to change frequencies by moving up or
11 down of a megahertz or two, came up with a number, 783, as an example,
12 which happened to correspond within a frequency -- within a megahertz or
13 two to some 95 of 148 possible RRU-800 intercepts that are in the
14 evidence of this case.
15 And, of course, you heard from Djuro Rodic, who was the principle
16 Defence expert, who testified about the technical capabilities of the
17 ABiH to intercept the VRS. I want to remind the Trial Chamber that
18 Mr. Rodic conceded that the interception by the ABiH on both RRU-1 and
19 RRU-800 radio relay devices was, in principle, possible. He stated at
20 transcript 12513, lines 5 through 9.
21 "Q. I think you indicated at the beginning of your testimony that
22 generally it was possible for the ABiH to intercept communications?
23 "A. Yes, this is what I stated with regard to the equipment that
24 covered the frequency range of the RRU-1 and RRU-800. Under certain
25 circumstances, it could intercept conversations."
1 He then went on to talk about the circumstances or the reasons
2 why they could not successfully intercept these communications. He
3 reached his conclusions based upon calculations on the technical
4 specifications of certain equipment that he reviewed, and he even
5 suggested that one of the reasons they couldn't intercept VRS
6 communications is because of an improper antenna orientation. In other
7 words, he suggested they were pointing their antennas in the wrong
8 direction. In light of the evidence in this case, it's clear that this
9 suggestion is absurd.
10 First, the radio relay networks in the former Yugoslavia were not
11 a secret to any party to the conflict. It pre-existed that conflict, and
12 they were known to everyone. Remember, there was a working map that was
13 introduced into evidence in this case, P01468. It was an ABiH working
14 map concerning radio relay communications. Mr. Rodic was confronted with
15 this map and conceded that the map correctly depicted the radio relay
16 devices on the route from Vlasenica through Zvornik, which has been
17 contested by the Defence in this case. The map clearly indicates that
18 they had the ability and certainly had the knowledge as to where to
19 intercept and where to direct their antennas.
20 In addition, there is evidence that the ABiH knew the frequencies
21 that the Defence claimed never changed from 1993. That's evidenced in a
22 document that's P02822, which reflects a working frequency which
23 corresponded to the frequency plan that was issued in 1993 that was
24 testified to by Mr. Blagojevic and testified to by Mr. Rodic. That
25 frequency is 680 megahertz, and it corresponds to the route from Veliki
1 Zep to Vlasenica on that claim.
2 The conclusion for the Defence arguments can only be that
3 although the ABiH could clearly identify frequencies on a working plan
4 from 1993, that for some reason in 1995 they weren't able to identify
5 that same frequency and they no longer knew where to point their
7 In 1993, Drago Nikolic issued a report, and in his report,
8 P03425, and it's dated 22 April 1993
9 "We have confirmation that the enemy is intensively intercepting
10 our radio and radio relay communications, and particularly active are
11 their interception centres in Tuzla
12 You can see how obviously absurd the Defence position is with
13 respect to the capacity of the ABiH to intercept, and I'll leave it
14 there, Your Honours. I'm confident that upon a review of all the
15 credible evidence in this case, you will find that this evidence is
16 accurate, you will find that it's highly reliable, and you will find it
17 is extremely probative evidence of the circumstances in this case and,
18 more importantly, of the acts and conduct of the accused.
19 Now, in the case of Mr. Beara, the intercept evidence, in
20 conjunction with other compelling documentary and testimonial evidence in
21 this case, establishes -- just as it established in the case of
22 Ljubisa Beara, it establishes the same hands-on involvement in the crimes
23 that are charged in the indictment for Mr. Popovic, and it establishes
24 his guilt beyond a reasonable doubt. This evidence can't be reviewed or
25 viewed in fragments.
1 JUDGE AGIUS: Mr. Vanderpuye.
2 MR. VANDERPUYE: Yes, Mr. President.
3 JUDGE AGIUS: I recall, from reading, if I'm not mistaken,
4 because I don't have it here with me, Popovic's final brief, if I
5 remember well - that could be Beara, but I think it's Popovic - there is
6 a submission that there is evidence that up to, if I remember well, 8th
7 of August of 1995, the antenna of the ABiH for the purposes of
8 intercepting the antenna were directed towards another region where there
9 was conflict, too, in such a way that it, therefore, excluded the
10 possibility of intercepting communication inside the Drina Corps area of
12 MR. VANDERPUYE: That's correct.
13 JUDGE AGIUS: I don't know if it's Popovic or not. But what do
14 you have to say about this?
15 MR. VANDERPUYE: With respect to the orientation of the antenna?
16 JUDGE AGIUS: And the conclusion, then, that that would have
17 eliminated the possibility of intercepting communications by -- and to
18 the Drina Corps inside the other area to which the antenna were not
20 MR. VANDERPUYE: I can answer the question, but I think I may
21 have to go into private session to do it.
22 JUDGE AGIUS: All right, or if you prefer to leave it until
23 later, when we come to the question stage, you can do that as well.
24 MR. VANDERPUYE: However you prefer, Mr. President.
25 JUDGE AGIUS: It's up to you. I mean --
1 MR. VANDERPUYE: Okay. We can do it now.
2 JUDGE AGIUS: Okay. Then let's go into private session.
3 [Private session]
21 [Open session]
22 MR. VANDERPUYE: Thank you, Mr. President.
23 Initially, I wanted to respond to the assertion made by the
24 Popovic Defence in its brief that there was no legal act putting the
25 captured persons in the competence of the security organs, and that's at
1 paragraph 675. I guess the suggestion here is that Mr. Popovic had no
2 responsibility for involvement with the POWs in this case. Now, although
3 this has been dealt with in the brief, I think it's important to point
4 out -- point out that it is addressed in the testimony of Mr. Butler and
5 it's addressed in his evidence, and in particular the command
6 responsibility report.
7 It also bears pointing out at the outset that the involvement of
8 the Security Administration -- security organs in matters relating to
9 prisoners is contemplated in relation to their control of the military
10 police. That's clearly set out in the Rules, and Mr. Butler talked about
11 that at transcript 19638, 1 through 19 -- and, I should say, 19940, 14
12 through 10. This has been illustrated in terms of the documents that
13 have been produced in this case; that is, the relationship between the
14 security organ and the military police and prisoners, in various
15 documents. One of these documents is P00196, as an example of the
16 interaction between the security organs and the subordinate security
17 organs as well as concerns prisoners of war. And that document is signed
18 by Mr. Popovic, and it passes on a Main Staff direction concerning the
19 treatment of prisoners. It reads that:
20 "All prisoners --"
21 In part, I should say:
22 "All prisoners, members of the enemy army, are to be handcuffed
23 or their hands tied with anything available immediately after their
24 capture. They are to be searched, and all items are to be seised, apart
25 from their clothing and footwear."
1 It goes on to say that:
2 "An official record is to be compiled."
3 It goes on and says that:
4 "The location where POWs are collected must be such that the
5 prisoners are fully secured, as well as the people from the security
6 organ, from the intelligence organ, and from the military police organ
7 that engages in the interrogation and guards POWs."
8 The Defence acknowledges they must -- at paragraph 676 of their
9 brief, that the commander of the unit is authorised to give any legal
10 order to his subordinates in the security organs. They assert, however,
11 that there is no evidence that either General Krstic, or
12 General Zivanovic, or the superior commander issued any orders to
13 Mr. Popovic regarding prisoners. Your Honours, the proof of those
14 orders -- the evidence of those orders is implicit in the conduct of
15 Mr. Popovic and his direct involvement with those prisoners and in the
16 murders and detentions and forcible transfers that were committed in this
18 Before I address some of the substantively charged crimes
19 concerning Mr. Popovic, I would like to address some of the claims made
20 in the Defence brief about Mr. Popovic's involvement in the uncharged
21 crime committed in Bisina. The Popovic brief challenges the evidence of
22 his involvement in the execution of those 39 Muslim men there. He
23 asserts what might be described as a partial alibi defence.
24 Now, paragraph 654 of the brief, the Defence argues that Popovic
25 was not there during the executions, themselves, but only arrived there
1 later during the burials of the 39 men that had been shot and executed
2 there. They argue that he was elsewhere in Zvornik at the time the
3 executions were committed and arrived at the time that the burials were
4 underway. They introduced three statements pursuant to Rule 92 bis --
5 THE INTERPRETER: Please slow down for the sake of the
6 interpreters, thank you.
7 MR. VANDERPUYE: First, they introduce the statement of
8 Miljenko Koljic, that's Mr. Popovic's brother-in-law I believe, they
9 introduced the statement of Dragisa Cojic, which is his co-worker, and
10 then the statement of Slavisa Vlacic. This is an individual who the
11 Defence asserts Mr. Popovic was with that morning, 23rd July 1995. I
12 would submit that you should reject the alibi for the fundamental reason
13 that neither Mr. Popovic's brother-in-law, Miljenko Koljic, nor any other
14 witness can actually exclude that Mr. Popovic was indeed at the execution
15 site at the time that the killings were carried out, because no one has
16 attested to the date of their purported encounter with him. Neither is
17 there any precise date ascertainable from the proffered statements.
18 Now, although the Prosecution dispute the veracity or sufficiency
19 of this partial alibi defence, even if you accept it, the fact of
20 Mr. Popovic's presence at all, that is to say, in any respect, at the
21 scene of this uncontested mass execution is powerful evidence of pattern
22 of conduct in this case. It shows that Mr. Popovic knew about the
23 executions. It shows that he was fully aware of the commission of these
24 crimes, which he was obligated to put a stop to as a member of the
25 Officer Corps of the VRS, and particularly as one vested with the power
1 to arrest.
2 Exhibit P00028 are the Military Prosecutor's Office guide-lines
3 for determining criteria for criminal prosecution. At paragraphs 2 and 3
4 on page 8 of that document, it reads -- I should rather read both:
5 "If officers merely find out that units of the armed forces of
6 the Army of Republika Srpska or their members have committed or are
7 committing such acts and take no measures to prevent the consequences of
8 the acts, themselves, and expose perpetrators to criminal prosecution,
9 this, in itself, makes them answerable for those criminal offences. It
10 follows from the above that officers in all units must accept the
11 obligation to draft reports on all incidents which might be regarded as
12 criminal offences, regardless of whether they have been committed by
13 members of the Army of Republika Srpska or by members of the enemy side,
14 and to report to the Command any information learned about previous
16 I think I'll stop there, and you have it in evidence and can
17 review it. What's important about this, though, is that these
18 guide-lines were issued, I believe, in 1992. 1992. This is something
19 that Mr. Popovic would necessarily have been aware of, and the fact that
20 he didn't take the measures that are prescribed, indeed, required,
21 according to this document, is consistent with his participation in the
22 criminal activities that he was observing. It tells you about his intent
23 with respect not only to his involvement at this particular execution,
24 but it also tells you about his intent as established by his presence at
25 larger executions that took place earlier in Zvornik.
1 The evidence concerning Bisina shows the elements of the
2 Drina Corps military police, over which Mr. Popovic has control
3 ex officio, as well as the 10th Sabotage Detachment, were principally
4 involved in carrying out the executions in Bisina. I will note that
5 these same elements were involved in the crimes that were perpetrated at
6 the Branjevo Military Farm on the 16th of July. You have the testimony
7 of a member of that 10th Sabotage Detachment who testified also to the
8 presence of Drina Corps military police that escorted his unit to the
9 Branjevo Farm the morning that those executions took place.
10 Further, there is evidence that Mr. Popovic had a relatively
11 close relationship with the 10th Sabotage Detachment itself. There is
12 testimony in the record which indicates that he used to come to the unit
13 and would talk to the commander. That's at transcript 14013, lines 15
14 and 16. There is also other evidence concerning this relationship which
15 is set out in the brief and I won't go into here.
16 You had the opportunity to see and evaluate the testimony of
17 PW-172 and PW-175, and both establish the direct involvement of
18 Mr. Popovic at Bisina. PW-172 places Mr. Popovic at Bisina throughout
19 the executions and the burial operation. You heard how he described his
20 interaction with Mr. Popovic and what he said to him after the executions
21 were completed. He says, at transcript 32573, lines 18, through 32574,
22 line 9:
23 "I mustered the strength as much as I could and I approached
24 Vujadin Popovic and what I felt was either fear or pity. I don't know
25 how to explain. I rolled the film in my head, the journey that I had
1 taken and what had happened. I had never spoken to Vujadin Popovic
2 before or ever since then. I never approached him in any way. There was
3 no need for me to do that. However, as I had been listening to the
4 stories of other soldiers who were talking about officers, they all had
5 nicknames. I didn't know how they actually addressed them when they
6 spoke to them directly, probably calling them by their rank, and I
7 suppose that I would have done that as well. In essence,
8 General Zivanovic was referred to as Zile in soldiers' conversations,
9 Krstic was referred to as Krle. Mr. Vujadin Popovic had the nickname
10 Pop. At that moment, I mustered the strength to approach him. Something
11 snapped in my head, and I didn't approach him as an officer at that
12 moment. I approached him and I told him, 'Pop, what has just happened?'
13 And he never replied to me."
14 This testimony leaves no doubt as to either Mr. Popovic's
15 presence at or his hands-on involvement in coordinating, organising and
16 directing the execution of the 39 men that were killed in that remote
18 It is unclear why the Defence brief, at paragraph 658, states
19 that PW-172:
20 "... saw Popovic after the events and could only infer that he
21 was there previously."
22 On cross-examination and in response to counsel's questions --
23 Defence counsel's questions, this is at transcript 32958, 11 through 17,
24 he was put the following questions:
25 "Q. Could you please answer whether you were certain about what
1 you were telling us?
2 "A. I believe he was there.
3 "Q. If you say 'I believe' or 'I think,' does this mean that you
4 are not absolutely certain? Just let me be more precise. While the
5 executions were taking place, while the executions were taking place.
6 "A. He was there."
7 There's nothing equivocal about that, there's nothing ambiguous
8 about that.
9 As you know, PW-172's presence at the site is confirmed by
10 vehicle logs which demonstrate his trip there. That's Exhibit P04425.
11 In addition, PW-175 transported the elements of the 10th Sabotage
12 Detachment that formed the execution squad from Dragasevac that morning.
13 His evidence is also supported by vehicle logs and reflects the fact that
14 Mr. Popovic was involved. You can find this at transcript reference
15 32782, lines 10 through 12.
16 Popovic's involvement in these crimes is further consistent with
17 an intercept connecting him to one of the victims that was later
18 identified in this case by DNA
19 Your Honours, the only thing that Mr. Popovic was doing in Bisina
20 on 23 July 1995
21 coordinating, organising, and carrying out orders that he would have
22 received from his commands to execute these men. There is really no
23 other explanation for his presence there, no other explanation.
24 The evidence in this case shows that his knowledge, intent, and
25 conduct were the same concerning the prisoners that were held in the
1 schools in the Zvornik area; the Orahovac school, where he was present on
2 14 July, the Rocevic school, where he was present on 15 July, the Kula
3 school, where he was present on 16 July. The nature and extent of
4 Mr. Popovic's involvement in the Bisina executions virtually parallels
5 the circumstances of his presence and participation in the crimes that
6 were committed in Zvornik.
7 And before I address some of the more compelling evidence of
8 Mr. Popovic's involvement in those executions and his significant
9 contributions to the murder JCE, I will address his involvement in the
10 forcible transfer JCE.
11 Mr. Popovic's involvement in the JCE to forcibly remove the
12 populations of Srebrenica and Zepa is clear in the record of this case.
13 Mr. Popovic was involved in a discussion with General Krstic just after
14 the Hotel Fontana meeting in which the buses that were used to transfer
15 the women and children from Potocari was discussed. General Krstic, as
16 you know, was heavily involved in the mobilisation of the transportation
17 and buses from the early morning of 12 July, well in advance of the
18 Hotel Fontana meeting. The evidence shows that Mr. Popovic was engaged
19 in a discussion with General Krstic which involved security issues for
20 the buses, including the structure of their -- of the column. That you
21 can find in transcript reference 14590, lines 2 through 5.
22 Mr. Popovic's assignment of Momir Nikolic to assist in and
23 coordinate and organise the separation of Muslim men in Potocari and the
24 transfer of women and children also demonstrates his immediate
25 involvement in that process.
1 At paragraph 386 of the Defence brief, they assert:
2 "There were no reasons why Popovic should have thought the
3 evacuation was being carried out illegally."
4 First, Your Honours, you have clear evidence in this case as to
5 the nature of the forcible separations that were carried out, the
6 brutality of those acts, and the acts that were perpetrated against the
7 separated men. I won't repeat that evidence because that, as you can
8 imagine and as you know, has been extensively addressed in the
9 Prosecution's final brief. We know that Mr. Popovic was physically
10 present in Potocari on the 12th and the 13th of July, and he had an
11 opportunity to observe and to become aware of the rampant and serious
12 abuses and crimes that were being and had been committed by VRS forces
13 that were there. On 13 July, in particular, he was seen near the
14 White House where we know that men were separated -- separated men were
15 detained, they were physically abused, and even some were killed.
16 You'll recall the testimony of DutchBat officer Major Rutten who
17 saw Mr. Popovic there. He saw him speaking to Serb officers, and he saw
18 them giving them directions, instructions. Now, Mr. Rutten was an
19 experienced officer himself and observed that Mr. Popovic appeared to be
20 in command and authority. In other words, he was a clear presence there.
21 There is ample evidence of criminality and illegality in plain
22 view in Potocari. Mr. Popovic had to have been informed of that, if not
23 had seen it personally.
24 JUDGE KWON: Mr. Vanderpuye, I don't have the final brief in
25 front of me, but I take it when Mr. Popovic referred to, in his final
1 brief, this forcible transfer of women and children, but you're now
2 addressing the separated men?
3 MR. VANDERPUYE: I am. The reason why is because the forcible
4 transfer of the women and children was facilitated by the separation of
5 the men, and also Mr. Popovic was involved in the security aspect of the
6 transportation of the women and children, as I've indicated, as
7 referenced in the transcript.
8 JUDGE KWON: Could you expand the meaning of "facilitated"? So
9 with the men, then you are suggesting that would be more difficult,
10 impossible, to transfer the women and children?
11 MR. VANDERPUYE: No, sir. No, Your Honour. I'm not suggesting
12 it would be impossible. What I'm suggesting is that it creates a
13 situation of insecurity among the people that are being transferred.
14 When you're separated from your loved one and you don't know what's going
15 to happen to them, it makes it easier or it makes a person more complicit
16 or docile in terms of moving them. It is easier to hold a person, for
17 example, in detention when they don't know what's going to happen to
18 their loved one, and it is easier also to keep a loved one away from a
19 person when they don't know what's going to happen to them when they're
20 held in detention. The consequences of your actions, when you don't know
21 what the results are going to be, is what influenced and substantially
22 contributed to the climate of fear that facilitated the forcible transfer
23 of the women and the children in Potocari, and the separation of the men
24 was an integral part of that fear, it's an integral part of that -- of
25 the impetus.
1 JUDGE KWON: Thank you. Proceed, please.
2 MR. VANDERPUYE: Thank you, Judge Kwon.
3 In terms of the illegality of the forcible transfer, this is also
4 underscored in an intercept, P01113. It's a 12 July intercept at 1250
5 hours, and it involves General Mladic, and it underscores what
6 Mr. Popovic must have known. I will point out, frankly, it's not
7 addressed to Mr. Popovic, but it is an intercept in which General Mladic
8 says, when he's told that the buses are rolling in order to pick up
9 people and transport them out, he says:
10 "They've all capitulated, they've surrendered, and we'll evacuate
11 them all, those who want to and those who don't want to."
12 He then goes on to talk about the security issues concerning the
13 movement and transportation of those -- of those buses. These are the
14 very same security issues that a witness in this case overheard being
15 discussed by General Krstic with Mr. Popovic.
16 To the same extent that Mr. Popovic knew of the security issues
17 relative to the transfer of the population on those buses, the structure,
18 the clearing of the roads, the mines, et cetera, he must have known of
19 the illegal plan, he must have known of the plan to send those who wanted
20 to and those who didn't want to out.
21 At 9.30 in the morning on 13 July, Mr. Popovic met with
22 General Mladic and General Krstic, as well as Dragomir Vasic at the
23 command of the Bratunac headquarters. The topic of discussion there was,
24 indeed, the continued evacuation of the remaining civilian population
25 from Srebrenica to Kladanj. That meeting is memorialised in the dispatch
1 that was prepared by Dragomir Vasic, and it's P00886. Mr. Popovic's
2 presence at that meeting is memorialised -- I should say -- documented, I
3 should say, in Momir Nikolic's statement of facts at paragraph 8.
4 I don't believe that the Popovic brief addresses the forcible
5 transfer of the thousands of separated men from the column who were taken
6 to Zvornik, where they were executed, but his involvement in the transfer
7 of these men is amply established in the record of this case.
8 On 13 July, Mr. Popovic calls Drago Nikolic to tell him that the
9 prisoners detained in Bratunac were to be transferred to Zvornik, where
10 they were to be killed. The following day, Mr. Popovic, Mr. Beara, and
11 Mr. Nikolic meet at the Zvornik Brigade headquarters where, based on the
12 events, they both proceeded and followed that meeting, indicates that
13 they clearly coordinated and organised the transfer and detention of
14 those prisoners. Following the meeting, Mr. Popovic led a column of
15 thousands of prisoners from Bratunac to Zvornik, where they were received
16 by Mr. Nikolic, and they were distributed in the schools in the Zvornik
17 area which had been and were being prepared to carry out their execution.
18 You've heard the testimony of PW-138. The Defence argue at their brief
19 at paragraph 489 that that witness just wanted to protect himself from
20 the responsibility of leading the convoy by stating that he was
21 travelling behind Popovic, who was in his Golf and leading the convoy.
22 Now, it's unclear exactly how that strategy or that admission
23 would accomplish this end, since in neither event PW-138 would have been
24 admitting that he was participating. Now, he could simply denied his
25 involvement altogether, but in fact it's his admission of his involvement
1 that lends to the credibility of his evidence, and it's the detail of his
2 evidence that bears the hallmarks of the truth. His testimony shows
3 Mr. Popovic's hands-on style of involvement in the transfer of these
4 witnesses, and it is compelling.
5 If you recall, PW-138 testified how Mr. Popovic told him to meet
6 him near a bus station in Bratunac on the morning of 14 July. He told
7 PW-138 where to park an APC
8 his blue Golf and directed PW-138 to move up. He came back and told him
9 to move some more. He then told him to refuel the APC, if he needed to
10 refuel it. He then came back, and after a column of buses that had
11 assembled behind the APC
12 it was about one and a half kilometres long, PW-138 testified that he
13 followed Mr. Popovic up to Orahovac and Mr. Popovic set the pace as he
15 The evidence -- I should say this evidence, rather, also ties
16 Mr. Popovic obviously directly to the murder operation itself, and it
17 underscores his essential and significant contribution to its
18 implementation. It shows his coordination and organisation in the
19 implementation of the orders of the VRS command structures, and together
20 with Drago Nikolic and Ljubisa Beara and the Zvornik Brigade Command, its
21 personnel and resources, it shows how this operation was coordinated.
22 The clearest indication of Mr. Popovic's knowledge and his
23 involvement in the murder operation is demonstrated, as I say, by his
24 blunt statement to Momir Nikolic on 12th July that, All the balija have
25 to be killed. Momir Nikolic's -- Momir Nikolic suggested potential
1 detention sites and execution sites with Mr. Popovic, which he says were
3 You then have the call to Drago Nikolic on the evening of the
4 13th. Paragraph 244 of Mr. Popovic's brief disputes the evidence that he
5 called Drago Nikolic to inform him of the plan to transport the Muslim
6 men held in Bratunac and the Zvornik area -- held in Bratunac to the
7 Zvornik area in order to be killed, and the reason they give:
8 "He would never have conveyed it through a telephone conversation
9 because he had warned of discipline during radio communications in his
10 capacity as a security officer."
11 Now, Your Honours, judging from the sheer volume of the
12 intercepted material in this case, including several significant ones
13 concerning Mr. Popovic directly, this argument is completely vacuous. As
14 imprudent as it may be, the evidence in this case shows Mr. Popovic on
15 several intercepts. It even shows him on intercepts with Drago Nikolic.
16 And while this call, in particular, would have been obviously a very
17 sensitive one, it clearly does not preclude the fact -- it clearly does
18 not preclude the fact that it occurred, that it would have been made.
19 The Defence dispute the existence of any plan to kill the
20 detained Muslims and boys before 14 July --
21 JUDGE AGIUS: Yes, one moment.
23 THE ACCUSED BEARA: [Interpretation] I really apologise, but I do
24 have to go out for a moment.
25 JUDGE AGIUS: Security, please escort him.
1 Shall we proceed, Colonel Beara, or -- I don't think --
2 Mr. Ostojic, he's not dealing with him at the moment.
3 MR. OSTOJIC: I think we can proceed, Mr. President.
4 JUDGE AGIUS: Okay, thank you.
5 Yes, go ahead.
6 MR. VANDERPUYE: Thank you, Mr. President.
7 In their brief, paragraph 457, the Popovic Defence argues that if
8 such a plan had existed, it would have been implemented immediately on
9 12-13 July. Now, clearly there is several reasons why this would not be
10 the case as well. First, it took time to separate the large number of
11 men in Potocari. It took time to round up the thousands of prisoners
12 that continued to be captured through the 13th of July. There is little
13 doubt that the VRS was not prepared for the large number of prisoners
14 that they managed to capture over that period of time. And also the
15 large number of prisoners that they had custody of by 13 July made it
16 impossible to carry out their murders quietly and efficiently in
17 Bratunac. International agencies were still operating in the area.
18 Now, in the interview that I referred to before involving
19 Mr. Beara, he states:
20 "It was not possible to carry out the killings on such a mass
21 scale in the presence of UN representatives."
22 And that makes sense. There's truth to that, given his
23 involvement in these crimes.
24 The evidence shows that Mr. Popovic was present at Orahovac, he
25 was in Rocevic, and he was at Kula. The Popovic brief, at paragraph 682,
1 denies that -- states that:
2 "They deny the prisoners in Orahovac were under the control of
3 Mr. Popovic."
4 And it's not clear whether this is in reference to a command
5 function, control in a command sense, or it is in its colloquial meaning.
6 In either event, the evidence establishes clearly that he was there.
7 Aside from PW-138, whose testimony the Popovic Defence impugns directly,
8 there is evidence from Tanacko Tanic which puts him there. In addition,
9 there's evidence from Milorad Bircakovic that puts him there, and in
10 addition to that there's the evidence of PW-101 who described an officer
11 that was at the execution site, that matched Mr. Popovic's description.
12 In respect of the evidence presented -- in respect of this
13 evidence, that is, the evidence of PW-101, who said he saw someone
14 matching Mr. Popovic's description, essentially, that evening, at their
15 brief, at paragraph -- in their brief, I'm sorry, at paragraph 513, the
16 Popovic Defence asserts that he was not in Zvornik on the evening of 14
17 July. And in respect of that, the Popovic Defence called
18 Gordan Bjelanovic, and I'm sure that the Trial Chamber recalls his
19 testimony because it was completely unreliable and it was completely
20 contrived. Mr. Bjelanovic testified first of all as an alibi witness and
21 stated that:
22 "When it comes to dates --"
23 I'm sorry:
24 "When it comes to exact dates and times, it's difficult."
25 You may recall that he testified that he did not leave Vlasenica
1 until after the fall of Srebrenica. This was completely contradicted by
2 a prior statement that he had given 9 March 2001 to Mr. Petrusic in
3 connection with his defence of General Krstic. In that statement, he
4 claimed that he was present in Srebrenica from 5 through 12 July. And
5 when he was confronted with this contradiction, his explanation was
6 barely intelligible.
7 At paragraph 618 of the Popovic brief, the Defence assert that
8 the testimony of the Zvornik Brigade 2nd Battalion Commander
9 Srecko Acimovic is not credible. As the Prosecution has indicated, there
10 were several witnesses in this case who, because of the nature and extent
11 of their involvement in these events, tended to minimise their personal
12 exposure. Srecko Acimovic was one of those witnesses. That, of course,
13 does not mean that everything that he says was not true.
14 Mr. Popovic's presence at the school cannot be explained away by
15 some motive that could be attributed to Mr. Acimovic to set him up, to
16 frame him. There's no evidence of that. Further, the fact of
17 Mr. Popovic's presence at the Rocevic school is characteristic of his
18 presence in Orahovac, it is also characteristic of his presence at the
19 Kula school, and it is also characteristic of his presence at Bisina, all
20 of which support Mr. Acimovic's testimony concerning his presence in
21 Rocevic. He testified that he spoke to Mr. Popovic between 8.30 and 9.30
22 on 14 July, the day before Mr. Popovic came to the school. He spoke to
23 him at the Brigade Command headquarters. Now, given the contrived alibi
24 defence of Goran -- I think it's Gordan Bjelanovic, it is entirely
25 plausible that Mr. Popovic would have been at the school. There were
1 executions that were being carried out in Petkovci on the 14th of July.
2 There were executions being carried out in Orahovac on that day.
3 Mr. Nikolic was in that area, Mr. Beara was in that area. It makes sense
4 that Mr. Popovic was in that area, and it makes sense that he would have
5 been at Rocevic on the 14th -- on the 15th, having been in Orahovac on
6 the 14th and having been at Kula on the 16th. He was an integral part of
7 this murder operation, and together with Mr. Nikolic and Mr. Beara,
8 that's exactly what he was doing, he was implementing the murder
10 Now, with respect to his presence at Pilica, that's paragraph 683
11 of the Defence brief, the Defence denies that Popovic was at the Kula
12 school at around noon
13 and I quote this, that:
14 "It is possible that there was a person fitting his description
15 there because there were many men fitting the description of Popovic, and
16 also many men with mustaches have been seen on many videos and photos
17 during this trial."
18 Now, I've already gone over some of the reasons why
19 Slavko Peric's identification of Mr. Beara and Mr. Popovic is reliable,
20 but you will recall also that with respect to Mr. Popovic, Mr. Peric
21 testified that he observed someone refer to him as "Pop." And we know
22 from the intercept evidence in this case and the testimonial evidence in
23 this case that this was Mr. Popovic's nickname. PW-172 testified to that
24 also. Now, all the Defence have argued that a subordinate would not
25 refer to Mr. Popovic as "Pop." PW-172's testimony actually speaks to the
1 contrary. In addition to that, there is several instances in which you
2 can see that officers that are junior to Mr. Popovic refer to him as
3 "Pop" in the intercept evidence, among them Drago Nikolic.
4 The Defence's concession that it is possible that somebody
5 fitting this description -- fitting the description of Mr. Popovic was in
6 and around Pilica on 16 July at noon
7 have been there, of course, neglects the aspect of Mr. Peric's
8 identification of Mr. Popovic as "Pop," that somebody referred to him as
9 "Pop," so the question then is: While there may have been other men
10 fitting Mr. Popovic's description running around with moustaches in the
11 VRS, how many of them also went by the nickname "Pop," how many of them
12 were actually called "Popovic"? How many of those would have been
13 hanging around with somebody who just happened to look just like
14 Ljubisa Beara? How many of those would have happened to have
15 referenced -- been referenced in intercepts corresponding to the events
16 in Pilica on the same day when they happened to have been seen there?
17 And how many of those would have had their names appear on fuel receipts
18 that were directed to Pilica?
19 The evidence that Vujadin Popovic was present at the Kula school
20 and involved in the executions there is supported by independent
21 documentary evidence, and it is established in the case beyond a
22 reasonable doubt. The corroboration of that involvement is found in the
23 intercept evidence as I've mentioned, which I'll briefly outline.
24 You recall the intercept from 16 July at 1358 hours. This is an
25 intercept which is a four-part intercept which involves a duty officer of
1 the Zvornik Brigade, Milorad Trbic, who was attempting to get fuel that
2 has been requested by Mr. Popovic, and that's the intercept that talks
3 about the 500 litres of D2 fuel. And he tells the duty officer that
4 Mr. Popovic needs it. He then gets on the phone and talks to
5 Mr. Basevic, the Technical Services officer of the Drina Corps Rear
6 Services, and he tells him that he has to -- he conveys the message, 500
7 litres of D2 are urgently being asked for by Mr. Popovic or else the work
8 he's doing will stop. He speaks to Pavle Golic, and he says:
9 "Pop just called me, told me to contact you. 500 litres of D2
10 have to be sent to him immediately. Otherwise, his work will stop."
11 And he says:
12 "Yes, 500 litres or else his work will stop."
13 He speaks to another unidentified participants and says:
14 "A bus loaded with oil is to go to Pilica village."
15 There's clear evidence in this case, Your Honours, that connect
16 Mr. Popovic to those executions.
17 You'll recall that there are additional intercepts where
18 Mr. Popovic is referred to as being in the Zvornik area. There is the
19 duty officer's notebook which indicates, also at 1400 hours, that a
20 request for a bus with a full tank and 500 litres of D2, and that the
21 duty officer and Golic have been informed of that. It's a prime example
22 of how the security organ and the Security Administration is functioning
23 within the normal command structures of both the brigade and the corps.
24 You've seen the fuel dispatch order that's dated 16 July, which
25 reads: "For Lieutenant-Colonel Popovic." And you've heard testimony
1 that there was, in fact, fuel that was delivered near Pilica.
2 You've seen the intercept at 2116 hours on 16 July, P01201, where
3 Mr. Popovic reports to the Drina Corps Command, he speaks to Ljubo Rakic,
5 "Tell the general I've finished the job, I've finished the job,
6 I've finished everything."
7 And then on 17 July, at 1622, there's another intercept where
8 Mr. Popovic speaks to his commander, General Krstic, and he says:
9 "Hello, it's Popovic. Boss, everything is okay. That job is
11 Further on in the intercept, he says:
12 "That all gets an A, A, the grade is A. Everything is okay.
13 That's it. Bye, and take care."
14 Now, at paragraph 590, the Defence brief cites Krstic -- cites,
15 I'm sorry, the Krstic Appeals judgement for the proposition that no
16 reasonable trier of fact could have concluded that this was the only
17 reasonable inference that could be drawn from the evidence; that is, that
18 the job that he was doing concerned the burials and executions on the
19 16th and 17th of July. They cite the Krstic appeals judgement, and
20 that's at paragraph 115 of that judgement. I would submit that the
21 record before this Trial Chamber is a different one. It's different than
22 the record that went before the Krstic Trial Chamber. You have here in
23 this record eye-witness testimony placing Mr. Popovic and Mr. Beara at
24 the Kula school, and that frames the context of this intercept.
25 On the record before you, the only reasonable inference that you
1 can draw from this intercept, in view of Mr. Popovic's presence at the
2 school, is that this is exactly what he's doing, is he's reporting on the
3 only job that he's doing in the area, and he's reporting on the
4 successful completion of that operation.
5 Your Honours, there is only one reason that explains
6 Mr. Popovic's presence at any one of the execution sites in this case,
7 let alone the several. He was there to see that the murder of the Muslim
8 men and boys of Srebrenica was carried out efficiently, and he was there
9 to see that it was carried out quietly. He was there to see it to its
10 completion and to see to its concealment, and he was there pursuant to
11 the orders of his commanders, to galvanise the resources needed to carry
12 out this operation through the command structures of the VRS and
13 especially of the Zvornik Brigade.
14 His guilt as a member of the forcible transfer JCE, as charged
15 under the indictment, is proven to no lesser extent, and based on the
16 record of these proceedings, Your Honours, Mr. Popovic should be found
17 guilty of each count under the indictment.
18 There is no persuasive evidence in this record of any remorse
19 from Mr. Popovic nor of any legitimate mitigation for his conduct, and I
20 would ask you -- we ask that you take this into serious consideration in
21 your judgement on the issue.
22 I thank you for your indulgence, and, more importantly, I thank
23 you for your patience and attention. And this concludes my submissions.
24 JUDGE AGIUS: Thank you, Mr. Vanderpuye.
25 I take it you are next, Mr. Mitchell. We are only five minutes
1 away from the break. I suggest that we take the break and you start
2 immediately after if that is convenient and agreeable to you. Okay,
3 thank you.
4 So we'll have a 25-minute break now.
5 --- Recess taken at 10.25 a.m.
6 --- Upon commencing at 10.54 a.m.
7 JUDGE AGIUS: Yes, Mr. Mitchell.
8 MR. MITCHELL: Thank you, Your Honours, and good morning,
10 I'm going to respond briefly to some of the arguments raised by
11 the Defence for Drago Nikolic in their final brief. First, I'd like to
12 address some of their arguments about Drago Nikolic's contributions to
13 the two joint criminal enterprises he's being charged with. Second, I'll
14 address two discreet legal issues in relation to state policy to commit
15 genocide and conspiracy to commit genocide. Finally, I'll address the
16 Defence's submissions on mitigation.
17 Before I start, I'd just like to say a few words about the
18 Defence's final brief. This document contains a number of errors of law,
19 of fact, and of analysis. It won't be possible to identify all of these
20 errors today, but I would briefly like to highlight a couple up front,
21 and I will address others in more detail as I go along.
22 At paragraph 667 of their brief, the Defence state that:
23 "Another important issue is the fact that Galic," referring to
24 Mihajlo Galic, "was responsible for mobilisation matters, that there were
25 many mobilisation issues which happened during the period of 13 to 15
1 July 1995, and that Galic denied being involved in any of them."
2 This isn't a fair representation of Galic's testimony. At
3 transcript page 10514, Galic confirmed that he actually met the new
4 recruits on the morning of 15 July.
5 Another example appears at paragraph 675 of the Defence brief,
6 where they claim that three military experts, including Richard Butler,
7 agreed with the suggestion that Dragan Obrenovic would have personally
8 selected the officer who would have replaced Drago Nikolic at IKM on the
9 night of 13th July. At transcript page 20448 to 20449, Mr. Butler said
10 the exact opposite of what the Defence have quoted. Mr. Butler said:
11 "I would have expected that Major Obrenovic would have verified
12 that the position was filled. I don't believe that within the context of
13 the operation staff that it would have been necessary for Major Obrenovic
14 to hand pick the next duty officer."
15 Another misstatement appears at paragraph 574, where the Defence
16 state that Damjan Lazarevic testified that Drago Nikolic was not involved
17 in the reburials. Again, this isn't a fair reflection of Lazarevic's
18 testimony. At transcript pages 14507 to 14508, Lazarevic simply said
19 that he didn't see Drago Nikolic during this period.
20 I don't want to belabour this point with any more examples. We
21 have no doubt that Your Honours will scrutinise the submissions of all
22 parties in this case very carefully.
23 I'd like to turn now to the Defence's arguments about the joint
24 criminal enterprise to murder the men from Srebrenica, and the first
25 argument I'd like to address is the argument that Drago Nikolic was not
1 relieved from the IKM on the night of 13 July. It's uncontested that
2 Drago Nikolic was the duty officer at the IKM during the day and the
3 early evening of 13 July. The evidence has shown that at around 7.00 or
4 8.00 p.m.
5 Nikolic to prepare for a large number of prisoners who were being brought
6 to the Zvornik area to be shot.
7 Later that night, Momir Nikolic personally told Drago Nikolic
8 that those prisoners were going to be executed. Drago Nikolic called his
9 commander and was authorised to leave the IKM and take some Zvornik
10 Brigade military police, and the military police commander, Lieutenant
11 Jasikovac, to organise the detention and the execution of those men.
12 Mihajlo Galic testified that he replaced Drago Nikolic as the IKM duty
13 officer that night, and the IKM log-book, which is Exhibit P347, confirms
14 beyond any doubt that Drago Nikolic was replaced by Mihajlo Galic.
15 We know that the first prisoners arrived at the Orahovac school
16 that night, including PW-169, and we know that Zvornik Brigade military
17 police were deployed to the school, including Stenoje Bircakovic,
18 Dragoje Ivanovic, and PW-143. At transcript page 6532 to 6533, and 6611
19 to 6612, PW-143 testified that he actually saw Drago Nikolic at the
20 Orahovac school that night.
21 Drago Nikolic was the assistant commander for security. The
22 arrival of these prisoners and the deployment of the MPs to guard them
23 required his personal presence at the school that night. He had to be
24 relieved, and he was relieved.
25 Now, the Defence have argued that Drago Nikolic did not leave the
1 IKM that night. They argue that the witnesses Mihajlo Galic, PW-168,
2 PW-143, and Momir Nikolic were not credible. I don't intend to respond
3 to this in any detail. These witnesses were reliable, they were
4 consistent, and they were strongly corroborated. And I'd just like to
5 direct Your Honours to paragraphs 2615 to 2646 for our detailed
6 submissions about these witnesses.
7 And the second point that I want to address is raised at
8 paragraph 680 to 698 of the Defence's final brief, where they claim that
9 there's evidence that the IKM log-book has been tampered with. Your
10 Honours, I have the original book here, if you'd like to take another
11 look at it. But very simply, this book is reliable, it's
12 contemporaneous, there's absolutely no evidence that it's been tampered
13 with, and there's no evidence whatsoever that Mihajlo Galic fabricated
14 the key entry.
15 The Defence's arguments about this book are also contradictory.
16 At paragraph 688 and 690, they suggest that pages may have been removed
17 from the book. On the other hand, at paragraph 694, they argue that it's
18 suspicious that there are no pages missing from the book. You can't have
19 it both ways. There is no credible basis for their arguments about the
20 integrity of this book.
21 Thirdly, Drago Nikolic relies on the evidence of Dragan Stojkic
22 to support his claim that he remained at the IKM that night, but
23 Stojkic's own testimony showed that he can't have been at the IKM on the
24 night of 13 July, as he claimed. Stojkic was a member of Tactical Group
25 1 which went to Srebrenica and Zepa. At transcript pages 21971 to 21973,
1 Stojkic testified that he stated sending Rijeka on the night of 11 July
2 while he was en route to Zepa. According to him, he participated in
3 fighting the next day near Zepa, which would have been 12 July, and the
4 next day he returned to Zepa and went to the IKM. That was 13 July,
5 according to him.
6 It's clear that Stojkic's testimony and his timeline are two days
7 out. Tactical Group 1 stayed at Rijeka on the night of 13 July and
8 participated in one day of fighting in Zepa on 14 July. An example of
9 that evidence came from Dragutinovic at transcript page 12591 to 12592.
10 If Drago Nikolic stayed at Tactical Group 1, it had to have been on 13
11 July and he couldn't have been at the IKM as he claimed.
12 At paragraph 654 of his brief, the Defence also suggests that
13 Stojkic's testimony is corroborated by the fact that a tank company from
14 Tactical Group 1 returned on the 13th of July. This is completely
15 irrelevant. Stojkic was not a member of a tank company. Moreover, if
16 Stojkic had returned on the 13th of July, he could not have participated
17 in that one day of fighting in Zepa on the 14th.
18 Your Honours, Stojkic was clearly mistaken about the dates when
19 he was at the IKM, and his testimony cannot support the Defence's claim
20 that Drago Nikolic remained at the IKM on 13 July. The totality of
21 evidence on this point proves beyond any reasonable doubt that
22 Drago Nikolic was relieved of duty at the IKM on the night of 13 July.
23 Now, the Defence has also argued that Drago Nikolic thought that
24 the men who were brought to Zvornik were going to be exchanged. This
25 argument is completely implausible. First, the evidence has shown that
1 Popovic and Momir Nikolic explicitly told Drago Nikolic on the night of
2 13 July that these men were going to be executed. Secondly, this looks
3 nothing like an exchange. As outlined at paragraphs 2647 to 2666 of our
4 final brief, there is no legitimate explanation for placing these
5 prisoners in schools in the Zvornik area rather than the Batkovic camp.
6 These prisoners were kept in appalling conditions. They had no food, no
7 medical attention. They had insufficient water. Their personal
8 belongings and their identification were stripped from them. And, most
9 importantly, there were no lists made of the prisoners, and there was no
10 one to exchange them for.
11 Drago Nikolic was the assistant commander for security, and the
12 evidence has shown that he had been involved in exchanges since at least
13 1993. The reference for that is Exhibit 3D -- 7D00454. Had
14 Drago Nikolic genuinely thought that those prisoners at the Orahovac
15 school were going to be exchanged, the first thing he would have asked
16 when he went to the school was, Where are the list of the prisoners and
17 who are we exchanging them for? This was no exchange, and Drago Nikolic
18 knew full well that this was no exchange.
19 The Defence have conceded that Drago Nikolic was at the Orahovac
20 school twice on 14 July, and they also concede that he would probably
21 incur some liability on that basis. However, at paragraph 71 of their
22 brief, the Defence argue that Nikolic did not have any role in directing,
23 supervising, or assisting the preparation or the organisation of the
24 execution of the prisoners there. And Mr. Nikolic's role in coordinating
25 the events at Orahovac is discussed a great length in our brief, but I
1 would like to respond to this briefly and highlight the key parts of the
2 evidence of his coordinating the events at the school and at the
3 execution site.
4 Dragoje Ivanovic testified that around 8.00 a.m. on the 14th of
5 July, Drago Nikolic arrived at the school. I'd just like to read you a
6 short section of Ivanovic's testimony on this point from transcript
7 page 14544:
8 "In the morning, around 8.00, the brigade chief Nikolic came, and
9 shortly afterwards some 20 to 30 soldiers arrived as well. He told
10 Jasikovac that we were free to go but that we should be ready and close
11 by with the mini-bus. He told that the soldiers that arrived with him
12 were there to take over the civilians."
13 Ivanovic's testimony establishes clearly that Drago Nikolic was
14 coordinating the change-over of security from the MPs who had arrived
15 there the previous night to the soldiers who arrived there that morning.
16 This necessarily means that he was coordinating and overseeing the
17 detention of those prisoners.
18 Now, just to be clear, it's Lieutenant Jasik ovac who gave the
19 order to those MPs to stay around, but it's equally clear that
20 Lieutenant Jasikovac was passing on Drago Nikolic's instructions to the
21 MPs. This is a perfect example of how the relationship between
22 Mr. Nikolic, Lieutenant Jasikovac, and the military police worked both by
23 regulation and in practice.
24 Later that morning, Drago Nikolic went to the Hotel Vidikovac
25 with Milorad Bircakovic, and he met buses full of prisoners who had come
1 from Bratunac. At transcript page 11054 to 11055, Milorad Bircakovic
2 testified that Drago Nikolic told him to get on a bus and go to Orahovac.
3 He's put the additional security in place that morning, and now he's
4 coordinating the arrival of the additional prisoners. At around 11.00,
5 Nikolic returned to the Orahovac school, and over the next few hours he
6 was seen by numerous witnesses, including Milorad Bircakovic, at
7 transcript 11022; PW-142 at transcript 6451 to 6452; PW-143, transcript
8 6536 to 6538; Stenoje Bircakovic, transcript 10748; Dragoje Ivanovic,
9 transcript 14544 to 14548; Tanacko Tanic, transcript 10337; and PW-101 at
10 transcript 7573 to 7534.
11 PW-142 saw Drago Nikolic speaking with senior high-ranking
12 officers at the school. Dragoje Ivanovic saw Drago Nikolic and
13 Lieutenant Jasikovac speaking with a senior VRS officer. PW-143 also saw
14 Nikolic speaking with a senior VRS officer who he testified was not from
15 the Zvornik Brigade. Mr. Nikolic's meeting with Lieutenant Jasikovac and
16 senior VRS officers at the school further established that he was there
17 in a supervisory role.
18 The evidence has also shown that Drago Nikolic and his deputy,
19 Milorad Trbic, were at the Orahovac school after the transport and the
20 execution of the prisoners had started. That evidence is outlined at
21 paragraphs 2703 to 2716 of our brief.
22 PW-101, in particular, saw Mr. Nikolic coordinating the transport
23 of the prisoners from the school when he went there sometime after 8.30
24 p.m. that night. This was around the same time that Milorad Bircakovic
25 testified that Drago Nikolic had returned to the Orahovac school just
1 before dark. That's at transcript 11023.
2 I'd also like to briefly touch on the role of the military police
3 at Orahovac, which is summarised at paragraphs 2696 to 2702 of our final
4 brief. Their involvement in the execution process is extremely
5 significant because, through Lieutenant Jasikovac, their activities at
6 the school were directed by Drago Nikolic. The military police guarded
7 the prisoners, they helped blindfold the prisoners, they placed the
8 prisoners on trucks that took them to the execution site. PW-142
9 testified that on at least one occasion, MPs actually escorted the
10 prisoners to the execution site, and we also heard evidence from MP
11 Milorad Bircakovic, who was Drago Nikolic's driver, that he escorted a
12 number of these trucks to the water point which we know was the second
13 execution site. And despite their claims to the contrary, these military
14 police must have known that those prisoners were being executed.
15 They even tried to cover up their involvement at Orahovac by
16 doctoring the MP roster and removing the references to Orahovac on 14
17 July and the references to Rocevic on 15 July.
18 The Trial Chamber has also heard credible evidence that
19 Drago Nikolic was at the Orahovac execution site that day. PW-143 saw
20 Drago Nikolic leave the Orahovac school and drive in the direction of the
21 execution site. That's at transcript 6614.
22 PW-101 saw Drago Nikolic at the execution site, overseeing the
23 execution process with another senior VRS officer who matched the
24 contemporaneous description of Mr. Popovic. I'd like to quickly read
25 what PW-101 said about Drago Nikolic's role at the execution site:
1 "He was there because the men who were escorting prisoners from
2 the trucks, he was to direct them, because the other men who were there
3 were executing people, firing at them, and that was their job, whereas
4 Drago was with these others. He wasn't yelling at them or anything of
5 that kind. He was simply directing them what to do."
6 At one point during the day on 14 July, Drago Nikolic returned to
7 the Zvornik Brigade headquarters, where he met with PW-102 and PW-108.
8 As Your Honours have heard, Drago Nikolic told PW-102 that he had been
9 executing prisoners at Orahovac.
10 The executions -- or the evidence has shown that the executions
11 continued long after dark. This evidence is outlined at paragraphs 743
12 to 750 of our brief. Milorad Bircakovic testified that he and
13 Drago Nikolic drove past the execution site twice just after dark. The
14 executions must have been ongoing at that time.
15 Your Honours, there's a single compelling story that emerges from
16 the testimony of these witnesses. Drago Nikolic coordinated the
17 detention, the transport, and the execution of the prisoners at Orahovac,
18 both at the school and at the execution site, and he made sure that those
19 orders to kill the prisoners were carried out.
20 I'd now like to address the Defence's submissions about the
21 inferences that can be drawn from Drago Nikolic's meeting with
22 Mr. Popovic and Mr. Beara on the morning of 14 July and his meeting with
23 Mr. Beara outside the Petkovci school on the afternoon of 14 July.
24 At paragraph 1173 of their final brief, the Defence have argued
25 that Drago Nikolic merely learned of an imminent exchange of detainees at
1 the meeting with Mr. Popovic and Mr. Beara on the morning of 14 July.
2 And to put this meeting in context, as outlined in our brief and as
3 summarised by Mr. Vanderpuye this morning, Mr. Beara and Mr. Popovic
4 clearly knew about the murder operation at the time of this meeting, and
5 they were both engaged in it. Drago Nikolic was their trusted colleague,
6 and they needed his help. Even if we completely ignore the evidence that
7 Drago Nikolic found out on the night of 13 July that the prisoners were
8 going to be executed, there is no conceivable way that Mr. Popovic and
9 Mr. Beara would have concealed this information from Drago Nikolic.
10 JUDGE AGIUS: I hate to interrupt you, but on the LiveNote the
11 transcript has stopped; not on the main monitor, but since, I suppose --
12 shall we move without -- no, okay.
13 Is there any objection from the Defence teams to proceed?
14 No objection. We proceed. Thank you.
15 MR. MITCHELL: Thank you, Your Honour.
16 The events that happened after this meeting also show that the
17 murder operation must have been discussed. The prisoners arrived from
18 Bratunac that morning. The preparations for the executions at Orahovac
19 were completed, the blindfolds were prepared, the trucks were obtained to
20 transport the prisoners, and we know that the excavator was sent to
21 Orahovac before noon
22 asked the Zvornik civilian authorities to assist in the burial of the
23 prisoners who were going to be murdered.
24 The 1st Battalion and the 6th Battalion also received information
25 from the Zvornik Brigade Command that prisoners were going to arrive at
1 the Kula school and the Petkovci school respectively. These prisoners
2 were killed quickly and efficiently in less than three days.
3 In all the surrounding circumstances, the purpose of that meeting
4 on the morning of 14 July could only have been to coordinate the murder
6 The same conclusion applies to Drago Nikolic's meeting with
7 Mr. Beara outside the Petkovci school that afternoon. This meeting
8 happened, according to Marko Milosevic, between 4.00 and 5.00 p.m. This
9 is after the executions at Orahovac had started and just hours before the
10 prisoners at Petkovci were killed. It's completely unreasonable to think
11 that Mr. Beara was hiding information about the murder operation from
12 Drago Nikolic at this time. There can be no doubt that Drago Nikolic
13 knew about the murder operation and was at the very heart of it.
14 Your Honours, the Defence has made detailed submissions about
15 Drago Nikolic's role in the detention and execution of prisoners who were
16 held at the Kula school and the Rocevic school. I'm not going to respond
17 to those arguments in detail. They're dealt with at length in our brief.
18 But I would like to just direct Your Honours and the parties to the
19 specific submissions in our brief.
20 Paragraphs 2676 to 2684 outline Nikolic's involvement with the
21 prisoners at Kula and the instructions he gave to Slavko Peric. The
22 evidence has shown at the time he spoke with Slavko Peric, he knew that
23 those prisoners were going to be killed. Paragraphs 2738 to 2762
24 outlines the evidence that the Zvornik Brigade could send and receive
25 coded telegrams, that two coded telegrams were sent to the 2nd Battalion
1 Command in the early morning of 15 July, ordering the formation of an
2 execution squad, and that Drago Nikolic called the 2nd Battalion Command
3 on the morning of 15 July to follow up on those telegrams and insist that
4 executioners needed to be found.
5 Finally, paragraphs 2770 to 2775 outline the evidence from PW-165
6 that Drago Nikolic went to the Rocevic school on 15 July with
7 Milorad Trbic and issued instructions to the MPs who were there. Again,
8 at the time Drago Nikolic was at the Rocevic school, he knew that the
9 prisoners who were held there were going to be killed.
10 The last point I'd like to address in relation to the joint
11 criminal enterprise to murder the men from Srebrenica is the Defence's
12 submissions at paragraphs 1295 to 1301 of their brief, that Drago Nikolic
13 had nothing to do with the interrogation and execution of the four
14 Branjevo Farm survivors. Now, as outlined at paragraphs 1057 to 1058 of
15 our final trial brief, the evidence has clearly shown that these three
16 Muslim men and one boy survived the mass executions at Branjevo Farm.
17 These four survivors were captured, they were transported to the Zvornik
18 Brigade headquarters, and they were interrogated by military police
19 members, Nebojsa Jeremic and Cedo Jerovic [phoen]. And Nebojsa Jeremic
20 testified that Drago Nikolic oversaw the work of the Crime Prevention
21 Unit. That means that the interviews with those four survivors had to
22 have taken place with Drago Nikolic's knowledge and his authorisation.
23 Drago Nikolic also personally participated in this investigation
24 by attending a line-up at which the -- at which the four survivors
25 identified the two Zvornik Brigade soldiers who had assisted them.
1 Nikolic also attended the interview of one of those Zvornik Brigade
2 soldiers, and he signed the ruling against them for collaborating with
3 the enemy.
4 The evidence has shown that after Nikolic found out that these
5 four prisoners had survived the Branjevo Farm executions, Nikolic spoke
6 with his commander, Vinko Pandurevic, and the four prisoners disappeared
7 shortly thereafter. Drago Nikolic oversaw every aspect of this
8 investigation. There is no question that he was involved in the
9 disappearance and the murder of those four victims.
10 I'd like to turn now to the Defence's submissions about
11 Mr. Nikolic's involvement in the forcible transfer of the Muslim
12 populations of Srebrenica and Zepa.
13 Mr. Nikolic has argued that he had no knowledge and no
14 involvement in the forcible transfer of the Muslim population from
15 Srebrenica. Your Honours, this argument is both factually and legally
16 incorrect. The indictment makes it clear that the common purpose of that
17 joint criminal enterprise was to force the Muslim populations out of the
18 Srebrenica and Zepa enclaves. The reference to the Muslim population
19 clearly includes the men.
20 Now, as we argued in our Rule 98 bis submissions, the language to
21 "outside the control of the RS" which appears in paragraph 49 of the
22 indictment, does not define the purpose and the goal of that joint
23 criminal enterprise. Now, the evidence shows that most of the Bosnian
24 Muslim population of Srebrenica and Zepa actually were removed to areas
25 outside the RS, but the final destination of those people is not a
1 material element of that crime. It's the act of forcing them out of the
2 enclaves from an area where they were lawfully present, without grounds
3 permissible under international law, that constitutes the criminal
4 element of this offence.
5 The indictment makes it clear that the men -- the Muslim men from
6 Srebrenica are alleged to be the victims of forcible transfer.
7 Paragraph 62 of the indictment alleges that the men who were separated
8 from their families in Potocari were the victims of forcible transfer.
9 Paragraph 63 of the indictment alleges that the men who surrendered along
10 the road were the victims of forcible transfer. And paragraph 48(E)
11 specifically states that the forcible transfer of the Muslim population
12 included the forcible bussing of the men up to the Zvornik area where
13 they were ultimately executed.
14 The people who receive and detain these victims of forcible
15 transfer at any point are as much a part of the plan to forcibly transfer
16 these individuals as the people who attacked the Srebrenica enclave
17 physically, the people who carried out the separations in Potocari, and
18 the people who captured those Muslim men along the road. Mr. Nikolic
19 participated in the coordination of the transport and the detention of
20 those prisoners at a meeting with Mr. Beara and Mr. Popovic on the
21 morning of 14 July. After that meeting, he went and met some of the
22 buses which were transporting those prisoners, and he directed them to
23 Orahovac. He also oversaw the detention of these prisoners once they had
24 actually reached the schools in the Zvornik area.
25 Drago Nikolic was a vital link in the chain which had forced
1 those Muslim men out of the Srebrenica enclave or out of the enclaves and
2 up to the Zvornik area. He clearly knew about and was involved in the
3 forcible transfer joint criminal enterprise.
4 I'd like to turn now briefly to two legal points which are raised
5 in the Defence's brief.
6 Firstly, the Defence have argued that the existence of a state
7 policy to commit genocide is a necessary element of the crime. Quite
8 simply, it's not. It's not contained in the Genocide Convention, it's
9 not contained in the Statute of our Tribunal, and the Appeals Chamber in
10 the Jelisic appeals judgement specifically states at paragraph 48 that
11 the existence of a plan or policy is not a legal ingredient of the crime.
12 In relation to conspiracy to commit genocide, the Defence has
13 argued at paragraphs 141 to 187 of their final brief, and paragraphs 1596
14 to 1659, that even if there was a conspiracy to commit genocide, it was
15 concluded sometime on the night of 11 July and Drago Nikolic could not
16 subsequently join it. The conspiracy is clearly outlined at paragraph 34
17 of the indictment. It has the same duration and the same underlying
18 facts as the joint criminal enterprise to murder the men from Srebrenica.
19 Now, the law is clear that a person is liable for conspiracy to
20 commit genocide at the moment they enter into an agreement with others to
21 commit genocide, but that doesn't mean that the actual conspiracy stops
22 at that point. As different people agreed to join that conspiracy on 12
23 July, on 13 July, on 14 July, on 15 July, that is the moment at which
24 they are guilty of the crime to commit genocide. It's that act of
25 agreement which their criminal liability attaches to.
1 Your Honours, the moment when Drago Nikolic agreed to join the
2 conspiracy is clear. On the night of 13 July, he received a call and was
3 asked to join in the murder operation. Shortly afterwards, he called his
4 commander and asked to be relieved from the IKM, and he was relieved from
5 the IKM. The call to his commander and his relief from the IKM are
6 conclusive proof that Drago Nikolic had agreed with others to commit
7 genocide. The last point I'd like to address briefly are the Defence's
8 submissions on mitigation.
9 At paragraphs 1334 and 1336, for example, of the Defence's brief,
10 they argue that Drago Nikolic's junior rank, the fact that he was
11 following orders, and the fact that he was engulfed by these events
12 diminishes his responsibility and his importance for sentencing purposes.
13 These arguments should be given no weight whatsoever. Drago Nikolic was
14 not obliged to commit these crimes. Drago Nikolic wasn't forced to
15 follow any orders. He was not engulfed by events beyond his control. He
16 had a choice. There's no doubt that it would have taken a lot of moral
17 courage, but he could have chosen to say, No, and it was his legal and
18 his moral obligation to say, No. Instead, he requested and he received
19 authorisation to leave his post at the IKM and join in that genocidal
20 plan, and every criminal act he participated in during the following days
21 and weeks was by his choice.
22 These are not the actions of a junior officer who was out of his
23 depth or who was pressured into following orders. These are the actions
24 of a man who knowingly and who intentionally committed the crimes with
25 which he is charged in the indictment. And on that basis, we ask Your
1 Honours to find him guilty of all the counts with which he is charged.
2 Thank you.
3 JUDGE AGIUS: Thank you, Mr. Mitchell.
4 Who is next; Mr. Elderkin?
5 MR. ELDERKIN: Good morning, Your Honour. Yes, I am going to
6 just move up to the podium and go next.
7 Your Honours, Counsel, good morning.
8 Firstly, I'm going to address certain issues in relation to the
9 opportunistic killings and persecutions charged in the indictment as
10 foreseeable consequences of the two joint criminal enterprises. The
11 indictment sets out the relevant crime incidents at paragraphs 31 and 48,
12 or paragraphs 37 and 83 charge that such crimes were foreseeable to the
13 members of the murder JCE and the forcible removal JCE. I'm not going to
14 rehearse the factual details which are covered in the final brief,
15 starting at page 119 for Potocari, Bratunac, and the Kravica supermarket,
16 and starting at page 224 for the Petkovci school. However, I will deal
17 with specific factual allegations where those have been raised in the
18 Defence briefs.
19 As a preliminary matter, the Prosecution yesterday filed a
20 corrigendum to the final brief which stated that certain opportunistic
21 killings were no longer charged. As stated in this corrigendum, as well
22 as in the Prosecution's submission of the 15th of February, 2008, the
23 opportunistic killing incidents listed at paragraphs 31.1(b) and (c) of
24 the indictment are not proven. Therefore, the only opportunistic
25 killings charged at Potocari are the nine bodies found near the UN
1 compound on the Budak side of the main road, which is paragraph 31.1(a),
2 and the summary execution of one man near the White House, which is
3 paragraph 31.1(d). Although the indictment refers to the nine men being
4 killed on the 12th of July, the evidence in the case has shown that nine
5 men were killed on the 13th of July at that location.
6 Also, the opportunistic killing incident near the Kravica
7 supermarket listed at paragraph 31.3 of the indictment include the
8 allegation that, I quote:
9 "A VRS or MUP soldier placed his rifle barrel into the mouth of a
10 Bosnian Muslim prisoner and summarily executed the man."
11 As stated in the corrigendum, there is insufficient evidence to
12 prove that this man was killed. However, as detailed in the
13 Prosecution's final brief, the other violence and killings near the
14 Kravica supermarket have been proven.
15 A number of Defence briefs assert that individual accused did not
16 know about the opportunistic killing incidents that actually occurred and
17 did not contribute to those incidents. I'm referring, for example, to
18 the Beara final brief at paragraphs 487 to 490, the Miletic final brief
19 at paragraphs 497 and 498, the Nikolic final brief at paragraphs 1309 to
20 1312, and the Pandurevic final brief at page 228. However, these
21 elements are not relevant to a JCE 3 analysis. What the Prosecution has
22 to prove is that the crimes occurred, that such crimes were the natural
23 and foreseeable consequences of carrying out the JCEs, and that the
24 accused JCE members willingly took that risk. Based on this framework,
25 many of the points raised in the Defence briefs, supposedly concerning
1 liability for opportunistic killings, in fact concern matters entirely
2 outside the scope of the relevant analysis.
3 I want to make two brief points as to the applicable law. The
4 first is the degree of foreseeability.
5 JUDGE AGIUS: Mr. Elderkin, before you do so, when referring to
6 opportunistic killings, you dealt with the ones in Potocari or related to
7 Potocari and the ones related to Kravica supermarket or Kravica. You
8 haven't said anything about the ones alleged to have taken place in
9 Bratunac and Petkovci. Do you have a position on those?
10 MR. ELDERKIN: They -- it's the Prosecution's position that they
11 are proven and the charges are left untouched.
12 JUDGE AGIUS: All right, okay.
13 MR. ELDERKIN: I simply didn't mention them, Your Honour, because
14 we weren't making any alterations.
15 JUDGE AGIUS: Okay, thank you.
16 MR. ELDERKIN: As to the applicable law, Your Honours, then the
17 first point is the degree of foreseeability, the Appeals Chamber has
18 affirmed in a 25th of June, 2009 decision in the Karadzic case that, I
20 "Plotted on a spectrum of likelihood, the JCE 3 mens rea standard
21 does not require an understanding that a deviatory crime would probably
22 be committed. It does, however, require that the possibility a crime
23 could be committed is sufficiently substantial has to be foreseeable to
24 an accused. Second is the fact that the Appeals Chamber has held that an
25 accused JCE member can be guilty of specific intent crimes which are
1 foreseeable consequences of the JCE, and that's an Appeals Chamber
2 decision from Brdjanin on interlocutory appeal dated the 19th of March,
3 2004, and this jurisprudence is on point and it applies to the crimes
4 charged in this case.
5 As regards foreseeability, the Gvero final brief argues at
6 paragraph 48 that, I quote:
7 "It is the Defence position that as these crimes were, in fact,
8 carried out for reasons of personal revenge, it would have been
9 completely impossible for Milan Gvero to foresee their commission, as
10 they bore no relationship whatsoever to the forcible transfer operation."
11 Your Honours, the evidence supports entirely the opposite
12 conclusion. The circumstances in which the forcible removal JCE and the
13 murder JCE took place was such that spontaneous killings or revenge
14 killings were objectively foreseeable as possible consequences of those
15 operations. I won't go into great detail in describing this, but as
16 explained throughout the case, retaliatory violence had occurred in and
17 around the Srebrenica enclave from 1992 onwards. Furthermore, violence
18 towards the Srebrenica Muslims was clearly foreseeable as part of the
19 policy to ethnically cleanse areas claimed as Bosnian Serb land,
20 including the Drina River Valley
21 light of the brutal history of the war. As well as having to be
22 objectively foreseeable, there is also a subjective requirement, that the
23 crimes were foreseeable to each accused. However, as all of the accused
24 were officers of the armed forces of Republika Srpska throughout the war,
25 there can be no suggestion that any one of them lacked the necessary
1 knowledge of the historical build-up, hatred, and policy of ethnic
2 cleansing that existed prior to July 1995 such that they could not
3 foresee that serious violence, including murder, might result from the
4 criminal plan to rid the enclaves of their Muslim population.
5 As regards what distinguishes opportunistic killings from the
6 organised mass killings of July 1995, the indictment makes this clear at
7 paragraph 83, a part of which reads as follows:
8 "The term 'opportunistic' is used in this indictment to describe
9 killings and other criminal acts carried out by individual soldiers,
10 acting on their own, likely without orders from superior officers."
11 So these killings were not part of the planned sequence of events
12 of the murder JCE. They took place at locations other than the chosen
13 execution sites and for reasons other than military orders. They
14 represent the level of attendant violence that was accepted by the JCE
15 members as the possible consequence of the plan to rid Srebrenica of its
16 Muslim population.
17 Each of the charged incidents fits this characterisation. The
18 killings in Potocari, Bratunac, near the Kravica supermarket, and at the
19 Petkovci school occurred at locations where they risked discovery by
20 DutchBat or by uninvolved members of the local population. Furthermore,
21 they did not involve the killing of all the Muslim men who were at those
22 locations, indicating that they were carried out either as spontaneous
23 acts of violence or as acts of targeted revenge. Even after the murder
24 operation started, these killings occurred in a way that was clearly
25 opportunistic and foreseeable in a way that the vast and organised mass
1 killings were not foreseeable as a consequence of the forcible removal
2 JCE. That is the distinction. That is why the forcible removal JCE
3 members are liable for these killings, but not the mass executions.
4 Next, I'd like to address certain factual allegations
5 specifically concerning the nine men killed near Potocari.
6 The Gvero final brief makes a number of arguments about these
7 victims, with the following proposed as reasonable possibilities: First,
8 and this is at paragraphs 75 and 76 of the Gvero brief, it is argued that
9 the nine bodies were found in the Jaglici and Susnjari area, where the
10 Muslim men formed the column and set off towards Tuzla on the evening of
11 the 11th of July, suggesting that the victims could have been competent
12 members of the column and, I quote:
13 "... and that they may have perished as a result of earlier
14 mutual conflicts or acts of personal revenge committed by individuals
15 within the column."
16 Second, it is argued that the nine men may have been killed by
17 retreating Bosnian Muslim fighters who were seen on the 11th of July, but
18 who had left for the woods by 12th of July, and that's at paragraph 77 of
19 the Gvero brief.
20 Third, it's argued that the nine men may have been killed by an
21 individual seen by Major Rutten fleeing the scene, and that's at
22 paragraph 74 of the Gvero brief.
23 And, fourth, the fact that identification documents were found
24 near the bodies is argued to be inconsistent with the VRS force's
25 practice of confiscating prisoners' IDs immediately, suggesting that the
1 nine men may not have been killed by VRS forces. And that's paragraph 78
2 of the Gvero brief.
3 These supposed reasonable doubts are, first of all, based on
4 inaccurate foundations. It may just be a simple error, but the bodies
5 were found only a few hundred metres from the main road in Potocari, not
6 in the Jaglici and Susnjari area, and those villages are more than five
7 kilometres away from Potocari, over the hills. I don't need to show you
8 this in court, but it can be seen, for example, on the Krivaja 95 map,
9 which is P01463. So it's not correct to say that they were found in the
10 area where the Muslim men gathered before leaving in the column.
11 Second, it's clear that the nine men were killed only shortly
12 before Major Rutten and Lieutenant Koster saw them on the 13th of July,
13 and Rutten's Krstic testimony, and this is at page 2140, he said the
14 following when he saw the bodies -- he said the following of when he saw
15 the bodies, and I quote:
16 "The blood was still running. There were no flies on them. It
17 was very warm that day, so you could easily say that it hadn't been long
18 ago that they were shot."
19 When you compare this with other evidence about how quickly
20 bodies deteriorated in the heat, it's clear that those nine men were
21 killed on the morning of the 13th of July. For comparison, Muslim column
22 member PW-116, in his witness statement, which is Exhibit P02206,
23 described how he came across bodies in the hills above Kravica and
24 Sandici on the 13th of July, which cannot have been there for more than a
25 day, since the column only set off on the night of the 11th of July from
1 Jaglici and Susnjari and would have passed through that area on the 12th
2 of July. He said, and I quote:
3 "It was very hot, and flies came to the bodies. The smell was
4 terrible. I could not look at the bodies anymore."
5 In that kind of heat, Rutten could not have seen the bodies very
6 long after they were killed.
7 In response to the other suggested scenarios put forward in the
8 Gvero brief, the first point is that it is not a reasonable possibility
9 that Muslim men in civilian clothes, who were alive within a few hundred
10 metres of the main Potocari road on the morning of the 13th of July, were
11 members of the Muslim column or had been killed by the men in the column
12 or by retreating Muslim fighters fleeing to join the column. That group
13 had gathered far away and was long gone by that time.
14 The next supposedly reasonable scenario, for the Muslim man in
15 civilian clothes seen fleeing from the general area might have killed the
16 nine men, is again simply not credible. It is not reasonable that a
17 killer would stay around at the murder scene long enough to be seen
18 fleeing from the general area when the DutchBat officers, responding to
19 rumours, arrived to investigate. Anyway, the only Muslim men in Potocari
20 on the 13th of July were those in the crowd of refugees, and they had no
21 motivation and were not in a position to carry out mass murders of other
22 Muslim men.
23 Lastly, it is not reasonable to draw any conclusion, based on the
24 presence of the victims' identification documents near the bodies, that
25 the murderers may have been -- may not have been members of the Bosnian
1 Serb forces. Clearly, not all Muslim men had their IDs taken away when
2 they were captured or separated by VRS or MUP soldiers, and there are
3 plenty of cases of IDs being found in the mass graves.
4 Gvero's arguments that the nine men may have been killed by
5 fellow Muslims are predicated on they're having been killed when there
6 were still Muslim fighters in the Potocari area. The only evidence that
7 could possibly suggest this is that of Witness PW-114, who saw nine or
8 ten bodies on what he said was the 12th of July, but he also insisted
9 that it was the second day of the transport of the Muslim population out
10 of Potocari, which of course was the 13th of July. Furthermore, PW-114
11 testified that he didn't know when the men had been killed, but on
12 cross-examination answered the question, and I quote:
13 "Q. Can you tell us if you know when these people were killed?
14 "A. No, I don't know the time. I was there at noon, so it must
15 be maybe on the 11th or on the 12th in the morning."
16 And that's at transcript reference 3164.
17 Either PW-114 saw different bodies from those seen by Rutten and
18 Koster, or he saw the bodies on the 13th of July. The obvious conclusion
19 is that all three witnesses saw the same bodies on the same day. This is
20 clear both from their similar testimonies and from the fact that only
21 nine bodies have been exhumed from the field just by the stream where the
22 bodies were seen. And if you look at Exhibit P03897, this shows clearly
23 how all three eye-witnesses recall seeing bodies within a few metres of
24 where nine bodies were subsequently exhumed.
25 In these circumstances, PW-114's failure to resolve the
1 inconsistency of seeing the bodies on the 12th of July, but at the same
2 time on the second day of the transportations, doesn't matter. It is
3 clear that the bodies of nine men were found on the 13th, and those men
4 were killed on the 13th. However, even if they had been killed on the
5 12th of July, there is no way that these men could have been killed by
6 mysterious Muslims carrying out internal revenge killings within only a
7 few hundred metres of a huge VRS and MUP presence in Potocari on the 12th
8 and 13th of July, as seen, for example, on the trial video which is
9 Exhibit P02047.
10 Next, I want to address an argument raised in the Pandurevic
11 final brief, which at page 210 argues that, I quote:
12 "The indictment alleges also that the crime of persecution was a
13 necessary and foreseeable consequence of the plan to transfer the
15 The Defence frankly wonder whether this was a mistake in the
16 indictment's drafting. The particulars of paragraph 48 of the indictment
17 cannot properly be characterised as individual criminal acts when it
18 actually describes the whole alleged murder and forcible transfer
20 Paragraph 83 of the indictment states that it was foreseeable to
21 the accused, I quote:
22 "... that individual criminal acts, such as individual
23 opportunistic killings and persecutory acts, as described in
24 paragraphs 31 and 48 of this indictment, would be carried out by Serb
25 forces during the joint criminal enterprise to forcibly transfer and
1 deport the populations of the Srebrenica and Zepa enclaves."
2 Clearly, in addition to the opportunistic killings, points 48(b),
3 (c) and (d) are the relevant persecutory acts for consideration as
4 foreseeable crimes pursuant to JCE 3, 48(b) being the cruel and inhumane
5 treatment of Bosnian Muslim civilians, including murder and severe
6 beatings at Potocari and in detention facilities in Bratunac and Zvornik,
7 48(c) being the terrorising of Bosnian Muslim civilians in Srebrenica and
8 at Potocari, and 48(d) being the destruction of personal property and
9 effects belonging to the Bosnian Muslims. These crimes of persecution
10 were the natural and foreseeable consequences of the forcible removal
11 JCE, irrespective of their nature as crimes against humanity.
12 The "Chapeau" requirements for such crimes are fulfilled by the
13 nature of the attack on Srebrenica as a widespread and systematic attack
14 against the civilian population and because the persecutory acts,
15 themselves, had a sufficient nexus with that attack since they were
16 carried out by members of the same attacking forces and were directed
17 against members of the same population. Once those elements are proven,
18 the remaining question is whether the actual persecutory acts were
19 foreseeable, for the reasons that I've already explained; namely, the
20 violence and hatred against the Muslims and specifically against the
21 Srebrenica Muslims, they were indeed foreseeable.
22 Finally, I want to reiterate what Mr. Mitchell has already said,
23 that the Muslim men who were taken to the Zvornik area did not lose their
24 status as victims of the forcible transfer operation just because at some
25 point they also became the intended victims of the murder operation. The
1 men who were separated in Potocari or captured from the fleeing column
2 were transported away from the Srebrenica enclave. The possibility of
3 opportunistic crimes being committed against these men, when they were
4 moved through Bratunac and through locations in the Zvornik area, was
5 foreseeable to the members of the forcible removal JCE, just as were the
6 crimes committed against Muslims in the crowd at Potocari, such as the
7 man shot near the White House or the nine men killed near the stream
8 towards Budak.
9 Your Honours, I have a very brief further submission concerning
10 reburials, and this is simply to address questions raised in the Nikolic
11 final brief concerning the inclusion of the reburials in the indictment.
12 Again, I'm not going to deal with the factual details or the nature of
13 the accuseds' participation in the operation. Those are covered in the
14 Prosecution's final brief starting at page 311 as well as in the sections
15 concerning the individual accused. I will just deal with the arguments
16 raised in the section of the Nikolic brief entitled "The Alleged Reburial
17 Operation has no Purpose," which is at paragraphs 260 to 274. The
18 conclusion of this section at paragraph 274 states:
19 "For all intents and purposes, the inclusion of the alleged
20 reburial operation into the indictment serves no apparent goal. The
21 Defence submits that the Trial Chamber must disregard it as either: (a),
22 a component of the alleged general side; (b), reasonably foreseeable
23 consequence of the alleged murder operation; (c), a crime in and of
24 itself; and (d), ex post facto aiding and abetting the alleged murder
1 The conclusion that a reburial operation is irrelevant is wrong,
2 and I want to highlight the reasons why the reburial operation is
3 included in the indictment, since it was a major planned military
4 undertaking, and it should inform the Trial Chamber's deliberations
5 concerning the murder JCE.
6 The indictment at paragraph 32 indeed states that, and I quote:
7 "The reburial operation was a natural and foreseeable consequence
8 of the execution and original burial plan conceived by the joint criminal
10 This characterisation reflects the Prosecution's evidence that
11 the reburials were foreseeable to the members of the murder JCE in July
12 1995. It was foreseeable from the outset of the murder JCE that the
13 initial steps taken to conceal the crimes in July 1995 might not be
14 sufficient because the killings and burials were so extensive and so
15 hastily organised. That such crimes could not be concealed so easily was
16 borne out by what actually occurred. The disappearance of thousands of
17 Muslim men from Srebrenica quickly became well known, and the burials of
18 many of the victims were carried out hurriedly and involved civilian as
19 well as military personnel. The Trial Chamber should, for example,
20 consider the testimony of Witnesses PW-161, PW-170, and PW-104.
21 Because the killings and burials were not well concealed, it was
22 foreseeable that further steps might be needed to hide the crimes. In
23 any event, this foreseeability is not a necessary element to establish
24 the guilt of the accused under any of the modes of liability charged,
25 since all five accused charged with genocide both joined and contributed
1 to the JCE in July 1995, before the reburial operation started. Those
2 who were involved in the reburial operation, in other words, all five,
3 other than Borovcanin, further contributed to the crimes by their
4 involvement in the reburials at a later stage.
5 As well as taking into account the reburial operation when
6 considering the liability of the individual accused, the operation is
7 also hugely significant as an act of concealment, which confirms the
8 knowledge and intent of the JCE members as participants of a massive
9 criminal enterprise to murder the Muslim men of Srebrenica.
10 Finally, as the Trial Chamber will hear from Ms. Soljan, the
11 destruction of the Muslim women and children was a component of the
12 genocide, and the reburials clearly were an element which contributed to
13 the inability of the surviving Muslim population to recover from the loss
14 of their men, since afterwards it would be even more difficult to locate,
15 identify, mourn, and come to terms with the fate of their murdered
16 fathers, brothers, husbands, and sons.
17 Those are my submissions, Your Honours.
18 JUDGE AGIUS: Thank you.
19 Okay, Ms. Soljan.
20 MS. SOLJAN: Your Honours, Counsel, good afternoon.
21 The Prosecution has proven beyond a reasonable doubt that the
22 five accused, Vinko Pandurevic, Ljubomir Borovcanin, Ljubisa Beara,
23 Vujadin Popovic, and Drago Nikolic, are responsible for genocide
24 committed against the Bosnian Muslim population of Eastern Bosnia, as
25 charged in paragraphs 26 to 33 of the indictment. It has proven that
1 with a goal of destroying the Bosnian Muslim population of Eastern
3 acts enumerated in Article 4(2), (A) through (D) of the Statute: (a),
4 they killed over 7.000 Bosnian Muslim men from Srebrenica; (b), they
5 caused serious bodily or mental harm to both the male and female members
6 of the Bosnian Muslim population of Srebrenica and Zepa; (c), they
7 created conditions contributing to the physical destruction of the
8 Bosnian Muslim population of Srebrenica and Zepa; and, (d), they
9 contributed to the failure of the Muslim population of Srebrenica and
10 Zepa to live and reproduce normally.
11 I shall briefly address two issues related to the genocide
12 account. First, I will address some of the factual issues raised by the
13 Defence concerning the number of Srebrenica victims, more specifically
14 the number of persons killed, as charged in paragraphs 26(a) and
15 paragraphs 27 to 32 of the indictment. After that, I shall briefly speak
16 about the destruction of the Muslim population of Eastern Bosnia,
17 focusing in particular on the destruction of women and children caused by
18 the separations of the men at Potocari, their subsequent murder, as well
19 as by the forcible transfers from the Srebrenica and Zepa enclaves, as
20 charged in paragraph 26(b) and paragraph 33 of the indictment.
21 With respect to the first issue, Your Honours, the number of
22 Srebrenica victims, the Defence argues that anywhere from 1.500 to 3.000
23 Srebrenica persons died in legitimate combat, as well as a result of
24 land-mines, suicides, or friendly-fires. You can find references to this
25 in Popovic final brief paragraph 708 and 886; the Beara final brief,
1 paragraphs 584 and 586; and the Nikolic final brief at paragraph 1493.
2 The Defence also argues that the figure 3.000 is indicative of
3 the total number of missing persons from Srebrenica, and that, and I
5 "... not in excess of 2.000 to 3.000 victims were killed in
7 This is from the Nikolic final brief at paragraph 1494.
8 Evidence, however, shows that the Defence figures wildly underestimate
9 the number of Srebrenica victims.
10 First of all, evidence shows that almost 8.000 persons from
11 Srebrenica are missing. Based on a rigorous demographic analysis, the
12 minimal number of Srebrenica missing persons was determined to be 7.661.
13 As you will recall from Mr. Brunborg's 2000 report on the number of
14 missing and dead from Srebrenica, and this is Exhibit P571, this is a
15 conservative number. In some cases, entire families went missing,
16 leaving no surviving family member to register the information with the
17 ICRC. This minimum demographic figure was revised to 7.826 Srebrenica
18 missing persons in January 2008, when the list was cross-referenced with
19 the then current ICMP DNA
20 P3002, the October 2007 ICM
21 Exhibit P3159, which was the then report on the ICMP's DNA
23 Based on ICMP's recent 10 April 2009 Srebrenica tracking chart,
24 Exhibit P4500, the number of persons reported to ICMP as missing from
25 Srebrenica, and as represented by donor relative blood samples, is 7.789,
1 a figure very close to demographic accounting, but obtained independently
2 of the ICRC.
3 I note that the Nikolic Defence, at paragraph 1469 of its brief,
4 incorrectly states that, I quote:
5 "The 2009 ICMP update is based on information provided by the
6 family of the missing person to the ICRC."
7 Dr. Parsons, in fact, testified that information regarding
8 individuals reported missing regarding any event in Bosnia came directly
9 to the ICMP from the family members. So to quote:
10 "To associate it with Srebrenica, that would have been
11 information that the family provided to us."
12 Reference page 20873 of the transcript.
13 Dr. Parsons also explained that ICMP's expert interview teams
14 meet with families, obtain genetic blood samples, properly record all
15 relevant information, including the date and place of disappearance of
16 missing persons, which are then nominally set as 11 July 1995 and as
17 either Potocari or forest, which are then placed on the match report and
18 update for purposes of keeping track of the ICMP Srebrenica cases in an
19 internally-consistent manner. The reference to this is at 20875 to
20 20876. In short, the ICMP information is based on information and blood
21 samples provided by family members to the ICMP, not the ICRC.
22 Now, of the almost 8.000 Srebrenica persons reported missing, we
23 have evidence that approximately 2.000 of those persons were separated at
24 Potocari. We also have evidence that at least 5.000 of them were
25 captured or surrendered from the column along the Bratunac-Konjevic Polje
1 road, and, finally, that at least 648 of these individuals identified
2 from surface remains were killed along the column route. They were not
3 only in combat.
4 Let's take a closer look at these figures.
5 With respect to the evidence that shows approximately 2.000 men
6 separated at Potocari, first of all, we have the demographic evidence
7 which shows that 2.070 individuals were reported missing from Potocari in
8 the month of July 1995. We see this at Exhibit P2413, which is the
9 report from 2003.
10 In our final brief at paragraph 496, the dates of disappearance
11 from men reported missing from Potocari were narrowed to just 10 to 13
12 July, and the number was still 2.003.
13 Currently, 1443 individuals reported by the ICRC as missing from
14 Potocari had been identified through DNA
15 comparing the most recent ICMP update, Exhibit P4494 with the previously
16 listed exhibit, P3159A, which is the 2007 progress report on ICMP's
17 identifications, which also contains the date on ICRC dates and place of
19 JUDGE AGIUS: For the purposes of the record, since the number of
20 individuals did not show up in the transcript in line 24 --
21 MS. SOLJAN: My apologies, Your Honour.
22 JUDGE AGIUS: No, it's not your fault.
23 MS. SOLJAN: The number --
24 JUDGE AGIUS: What was the number of individuals --
25 MS. SOLJAN: Currently identified is 1.443.
1 JUDGE AGIUS: Okay, thank you.
2 MS. SOLJAN: The vast majority of these individuals, Your
3 Honours, can be found in the primary --
4 JUDGE AGIUS: One moment. For the record, the transcript says
5 now 1.943. I heard you say 1.443.
6 MS. SOLJAN: 1.443, yes.
7 JUDGE AGIUS: Okay, thank you.
8 MS. SOLJAN: That would be 1.443.
9 The vast majority of these individuals can be found in the
10 primary and secondary graves related to all the major executions and
11 execution sites, including Kravica, Orahovac, Petkovci Dam, Kozluk, and
12 Branjevo Farm, as well as Pilica. It can also be found in the primary
13 undisturbed graves, such as Bisina, Nova Kasaba, Konjevic Polje, and
14 others. In addition, some of these individuals reported as having gone
15 missing from Potocari have been identified from surface remains. As an
16 example, 12 of the 14 individuals identified via DNA from the Kozluk
17 surface remains, which we can find in Confidential Annex D to the
18 Dusan Janc report, this is Exhibit number P4491, they were found -- and
19 the most reasonable inference is that they were separated at Potocari.
20 This specifically contradicts the Defence arguments by the Beara Defence
21 at paragraph 635, as well as the Popovic Defence argument as
22 paragraph 755, that the Kozluk surface remains are legitimate combat
23 casualties of a battle taking place in the area.
24 Second, of almost 8.000 persons reported missing, at least 5.000
25 were captured along the Bratunac-Konjevic Polje road. While the evidence
1 concerning the movement of the column, the surrenders, the captures, is
2 dealt with in greater detail in the Prosecution final brief at
3 paragraphs 518 through 544, I'd like to make just a few basic points in
4 order to respond to Defence arguments. Evidence has shown that
5 approximately 15.000 Muslim civilians and ABiH 28th Division soldiers
6 gathered near the village of Jaglici
7 and set out westwards in a column towards the Muslim-held territory.
8 Now, I'm emphasising the word "westward" in order to address an entirely
9 unsupported argument at paragraph 613 of the Beara Defence final brief,
10 namely, that the column -- and I quote:
11 "... would have very likely taken soldiers through the area of
12 Ravnice, where the column may have been attacked or ambushed."
13 Now, this argument is a part of Beara's broader argument, that
14 bodies found in the Glogova, Ravnice, and Zeleni Jadar graves got there
15 as a result of legitimate combat. There is no evidence whatsoever in the
16 record that the column ever went in such a convoluted north-eastern
17 direction in order to reach the Konjevic Polje intersection which is
18 squarely to the west on their way north-east to Tuzla. We only need to
19 take a look at the map showing the movement of the column, which is
20 Exhibit P2110, in order to see that the column went from Susnjari and
21 Jaglici through the so-called Pobudje area, south of Bratunac, well south
22 of Glogova and Ravnice graves, and moving westward in the hills south of
23 the Bratunac and Konjevic Polje road towards the Konjevic Polje
24 intersection. For further reference, you can also see Exhibit P04524,
25 which was the map of connections from primary to secondary graves based
1 on DNA
2 Evidence shows that as many as 6.000 men and boys from the column
3 were captured or surrendered along the road. An intercepted conversation
4 at 530 hours -- 1730 hours on July 13th, which is Exhibit P1143A, shows
5 that the Bosnian Serbs had captured approximately 6.000 Muslim men along
6 the Bratunac-Konjevic Polje road that day. It tells us that
7 approximately 1.500 to 2.000 men were detained at three major sites;
8 Nova Kasaba, Konjevic Polje, Sandici Meadow. And we know that survivors,
9 such as PW-116, PW-113, PW-111, who were captured and placed at Nova
10 Kasaba or Sandici Meadow corroborate those numbers. Demographic evidence
11 shows that at least 4.600 individuals were reported as missing from the
12 area along the route of the column between Jaglici and Susnjari and
13 Konjevic Polje. Roughly, this number includes 1.085 men reported as
14 missing from the forest, 2.338 men reported as missing from
15 Konjevic Polje, Kravica, or Kamenica, and approximately 1.200 persons
16 reported as missing from smaller locations in the Pobudje area along the
17 route of the column prior to the Konjevic Polje crossing. We can see
18 this at exhibits P2413, the demographic report specifically at ERN
19 0501-6201, as well as Exhibit P3159A, the 2007 progress report.
20 Now, what do we know about the Muslim men who were captured or
21 surrendered from the forest and various locations? We will see that the
22 vast majority of these individuals have been identified in the primary
23 and secondary mass graves related to all the major executions and
24 execution sites, including Kravica, Orahovac, Petkovci Dam, Kozluk,
25 Branjevo Farm, and Pilica, as well as in primary undisturbed graves such
1 as Trnovo, Bisina, Nova Kasaba, Konjevic Polje.
2 Now, we know that in addition to the approximately 2.000 men who
3 were separated in Potocari, as well as at least 5.000 men who surrendered
4 or were captured along the Bratunac-Konjevic Polje road, there are 648
5 individuals whose remains have been identified at the surface, primarily
6 along the route of the column. Before discussing these individuals,
7 let's just briefly look at the DNA
8 individuals in mass graves.
9 If I may, Your Honours, could I take the break now and we'll
10 continue immediately thereafter?
11 JUDGE AGIUS: Thank you, I think that's perfect.
12 We'll resume in 25 minutes' time. Thank you.
13 --- Recess taken at 12.29 p.m.
14 --- On resuming at 12.58 p.m.
15 JUDGE AGIUS: Yes, Ms. Soljan.
16 MS. SOLJAN: Thank you, Your Honours.
17 As of 31 January, 6.006 individuals from Srebrenica have been
18 identified via DNA
19 Of these people, 5.358 have been identified from mass graves and 648 from
20 surface remains. We know that the total figure is a conservative one,
21 since not all human remains have been exhumed, examined, matched, or even
22 located. The vast majority of the 5.358 identified from graves have been
23 identified via DNA
24 the major execution sites of Kozluk, Branjevo Farm, Pilica Dom, Petkovci
25 Dam, Orahovac, as well as Kravica and surroundings.
1 With respect to the Kozluk sites, primary and secondary graves,
2 currently a total of 1.040 victims have been identified via DNA analysis
3 from the graves related to the Kozluk sites. This is without counting
4 the 14 victims identified from the Kozluk surface remains of whom 12 were
5 reported as missing from Potocari. Additionally, an anthropological
6 minimal number of individuals, MNI, estimate of 400 persons, has come out
7 as a result of last year's exhumation of the Cancari 4 and the Cancari 6
8 secondary graves, which should be confirmed by future DNA
9 identifications. And, finally, we should keep in mind that we do not yet
10 have the DNA
11 the Kozluk exhumations, to the Kozluk execution site, which is Cancari 1
12 is scheduled for exhumation in the course of this year.
13 With respect to the Branjevo Farm, Pilica Dom-related primary and
14 secondary graves, currently there is a total of 960 victims who have been
15 identified via DNA
16 anthropological MNI
17 for Cancari 8 secondary grave, which was exhumed last and which Mr. Janc
18 has testified is related to Branjevo Farm execution.
19 From Petkovci Dam, currently 805 victims have been identified via
21 Orahovac, currently 807 persons have been identified from the graves
22 related to this execution site. Finally, from Kravica, currently 1.319
23 [realtime transcript read in error "1.309"] victims have been identified
24 via DNA
25 Kravica site.
1 As discussed in the Prosecution final brief at paragraph 1087, as
2 well as in the Janc corrigendum, Exhibit P4492, and in his testimony at
3 references 33518 to 33520, 33527, and from 33638, approximately over 100
4 individuals buried in the Kravica-related graves are not from Kravica.
5 While it may never be possible to identify the precise number of those
6 individuals who are not from Kravica, Janc's explanation in testimony,
7 cited above, as well as the testimony of the two Kravica survivors, that
8 the respective rooms they were placed in in the Kravica warehouse were
9 filled to the brim - this would be Witness PW-156 at transcripts T-094 to
10 T-0 -- 7095, and PW-111 at transcript reference 6690 - taken together
11 with Exhibit P4529, which is the declaration of Investigator Blasczyk
12 regarding the Kravica warehouse measurements, show that approximately 500
13 men could fill up each of these two rooms in the warehouse. Therefore,
14 it is the Prosecution's position, also cited at paragraph 1987 of its
15 final brief, that a minimum of 1.000 individuals were brought to the
16 Kravica warehouse prior to the executions and that they were executed
18 In addition to the current number of 1319 individuals who have
19 been identified, there will likely be more identifications related to the
20 Kravica execution site coming from last year's exhumations of the
21 Zeleni Jadar 1A and Zeleni Jadar 1B graves. Further references --
22 specific references to the related graves can be found in Dusan Janc's
23 report, Annex A.
24 JUDGE PROST: Sorry to interrupt you, Ms. Soljan, but at one
25 point at page 75, line 1, it's 1.309, and you just mentioned 1319.
1 MS. SOLJAN: Thank you, Your Honour. Indeed, it should be
2 1.319 individuals.
3 JUDGE PROST: Thank you.
4 MS. SOLJAN: Thank you, Your Honour.
5 Now, in addition to these almost 5.000 individuals, and the exact
6 number is 4.931 individuals coming from these graves, and I just want to
7 point out to you the exact location in Annex A where the listing of all
8 these graves is located, this would be at ERN XO19-4271 to XO19-4272 of
9 Annex A of Mr. Janc's report, which is P4490.
10 Now, in addition to this total of 4.931 individuals found in
11 these graves, from these mass executions, we also have an additional
12 4.013 individuals found in graves which were either primary undisturbed
13 graves, mass graves which were previously known to the ICTY, such as
14 Cerska -- sorry, this would be 413 individuals who are found, then, in
15 undisturbed mass graves previously known to the ICTY, such as Cerska,
16 Nova Kasaba 96 and 99, Sandici, Konjevic Polje, and Trnovo, as well as
17 smaller individual and other graves, which include Bisina, Motovska Kosa,
18 Brezjak, Potocari, and others. All of which are listed in Dusan Janc's
20 Your Honours, taking into account the fact that there are
21 currently 5.358 men who have been identified from graves, mass graves,
22 that there is an estimated minimum number of individuals of approximately
23 500 persons which were recovered last year from the Cancari -- from the
24 three Cancari graves, Cancari 4, 6, and 8, taking into account that there
25 is, as of yet, an unknown number of other individuals who are recovered
1 last year from the Zeleni Jadar 1A and 1B graves, as well as with the
2 knowledge that there are new exhumations taking place this year,
3 including that of the Cancari 1 secondary mass grave, as well as that
4 there are continuing identifications still arriving from previously
5 exhumed graves, there is no question that at least 6.000 but most likely
6 more Srebrenica individuals who are either separated at Potocari or who
7 surrendered and were captured from the forest, were buried inside mass
8 graves as well as smaller or individual graves.
9 With respect to the surface remains, Your Honours, we know that
10 since 1996 957 cases of surface remains were collected, of which 648 have
11 been identified via DNA
12 Mr. Janc's report that the vast majority of these surface remains
13 identified individuals, and the precise number is 538, were located in
14 the Pobudje area, the area just before the Konjevic Polje crossing.
15 While with respect to many of the surface remains identifications, we may
16 never know what happened, at least with respect to two locations, Nezuk
17 and Snagovo, we have evidence that executions took place along the column
18 route. This means that not all surface remains represent battle
19 casualties, but, on the contrary, that they represent victims of
21 In addition to the testimony we have from the Snagovo survivor,
22 Witness PW-106, about the execution which took place at Snagovo, we also
23 have ICMP's identification of one of the individuals mentioned by PW-106,
24 and we can find his name at Exhibit P4491, the confidential annex to the
25 Janc report, under case ID SNA
1 to the Nezuk execution, in addition to the testimony of the two
2 survivors, the surface remains of one of the five individuals mentioned
3 by the survivors has been located as a surface remain at Tisova Kosa. We
4 can find information on him under case ID TIS-1 at Exhibit P4491, ERN
6 We also have a few combat reports which show that there were
7 other instances of executions similar to those taking place at Nezuk and
8 Snagovo using words such as "liquidation," "neutralising," to describe
9 the killing of captured Bosnian Muslim men from the Srebrenica enclave by
10 VRS and MUP personnel through July and August. We have seen, for
11 example, the 14 July 1995
12 Battalion deputy commander, Mila Simanic - this Exhibit P2672, in which
13 he states that:
14 "About 1.000 to 1.500 enemy civilians and soldiers were arrested
15 and killed."
16 When asked about why he had exclaimed, "God forbid," upon being
17 presented with this combat report during his previous interview with the
18 OTP, Simanic testified that in his view, "this --" I quote "...
19 constitutes a crime." This is at transcript reference T-14641.
20 We also have seen the 19 July 1995 Zvornik Public Security Centre
21 report to the MUP office of the minister, which states, and I quote:
22 "Eight Muslim soldiers were neutralised. We learned from them
23 that some 200 Muslims, armed with automatic and hunting rifles, are
24 located in a sector below the old road near Snagovo."
25 This is Exhibit P4486. It is obvious from the wording of this
1 report that the men must first have been captured, then interrogated, and
2 finally euphemistically neutralised.
3 Finally, let us recall the Rogatica Brigade's regular combat
4 report of 8 August 1995
5 Rajko Kusic, reports that five balijas from Zepa were liquidated. This
6 is at Exhibit P209. This report also stated, and I quote:
7 "The same day, in the vicinity of Luka, an unarmed Ustasha, born
8 in Srebrenica, 24 years old, was liquidated. Before he died, he said
9 that he fell behind the others and he was looking for food."
10 This man was alive when he was captured, and he was murdered with
11 the full knowledge and authorisation of Rajko Kusic, the Rogatica Brigade
13 In addition to the evidence of these types of illegal killings,
14 which are actually reflected in writing, we may never know how many
15 individuals walking in the column may also have been killed by
16 Ljubomir Borovcanin's anti-aircraft guns as they were being called down
17 to surrender.
18 Now, there is no evidence, as the Defence argues, that between
19 1.500 to 3.000 individuals died as a result of legitimate combat. This
20 is argued in Popovic brief at paragraph 708, in the Beara final brief at
21 583 to 586. There is also no evidence that that proximity of
22 Srebrenica-related graves to the column route means legitimate combat
23 casualties were buried there. This is from Beara's final brief at paras
24 634 to 635. There is no evidence of combat taking place in the rear of
25 the Zvornik Brigade zone of responsibility at the time of the Branjevo
1 Farm, the Kozluk, the Petkovci Dam and the Orahovac executions. There is
2 also no evidence of combat taking place either in the area of Glogova or
3 Ravnice, let alone Zeleni Jadar, Budak, Bljeceva, there is, however,
4 plenty of evidence described in detail in section 3(e) of the Prosecution
5 final brief concerning the separation of numerous men at Potocari, about
6 their surrender or capture from the column on the 13th of July, about
7 their placement on buses or trucks, about their transportation to various
8 holding areas in Bratunac, in Kravica, in the Zvornik area of
9 responsibility, Zvornik Brigade area of responsibility, and, finally,
10 plenty of evidence about their ultimate executions.
11 Forensic evidence, survivor testimony, as well as intercept and
12 other evidence show that individuals found in graves in the Zvornik
13 Brigade area of responsibility, as well as in other areas such as Trnovo
14 and Bisina, were killed at those sites, not elsewhere. Evidence also
15 shows that machinery for the excavation of the Orahovac, Petkovci dam,
16 Kozluk and Branjevo farm mass graves, was mobilised to be there
17 contemporaneously with the mass execution or immediately thereafter.
18 Again, this evidence can be found at section 3(e) of the Prosecution
19 final brief, as well as at paragraphs 1080 to 1104 of the forensic
20 connection between graves section, and paragraphs 1155 to 1174 on
21 forensic DNA
22 Finally, to suggest that the Bosnian Serb Army would exhume
23 legitimate battle casualties two months after combat in the dead of night
24 and relocate these bodies to isolated, well-hidden areas is implausible,
25 to say the least.
1 Just to address a couple of specific points made in the Defence
2 final briefs, there is no support for the conclusion in the Beara Defence
3 brief at paragraphs 614 to 616, as well as 636, that individuals found in
4 the Glogova and Zeleni Jadar graves must have died in combat, given
5 findings of shrapnel and grenades. Ample forensic evidence has been
6 presenting [sic], Your Honours, including the Hadley report,
7 Exhibit P4525, the US NCIS Kravica report, Exhibit P678, the Baraybar
8 report on Zeleni Jadar, P2576, the testimonies of Jean-Rene Ruez
9 reference page 1468 and 1469 to 1471, as well as Manning at 18978 to
10 18983. We also have the testimony of survivors and those present in the
11 area during the Kravica warehouse killings that grenades were being
12 lobbed into the Kravica warehouse during the execution. We have seen
13 photos and a video of grenade handles and fly-off levers found outside
14 the Kravica warehouse. The reference to that video is Exhibit P1575.
15 Therefore, the individuals located in Kravica-related graves, as a matter
16 of fact, would show signs of shrapnel injury.
17 There is no evidence concerning the fact that bodies of victims
18 from 1992 and 1993 are buried in Srebrenica-related graves, as the
19 Popovic Defence claims at paragraph 716. The Popovic Defence cites the
20 testimony of Witness PW-161 to argue that bodies of Muslim men who died
21 in 1992 are also buried in the Glogova grave. However, this is a
22 misstatement of Witness PW-161's evidence. While PW-161 acknowledged
23 that he was involved in the burial of 100 to 150 Muslim men in 1992, he
24 clearly stated that these bodies were buried some 10 to 12 kilometres
25 from Glogova. The reference to for this is 9398 at line 14. He further
1 stated, and I quote:
2 "I went to the Glogova locality with Mr. Ruez, but I never told
3 him that in 1992 Muslim bodies had been buried in Glogova, because after
4 Glogova I took Mr. Ruez to the locality where the 100 to 150 Muslim
5 bodies had been buried in 1992."
6 This is at 9399, lines 6 to 10.
7 There is also no evidence that bodies from 1992 and 1993 were
8 counted as part of the ICMP's DNA
9 Defence claims at paragraph 713.
10 The Popovic Defence refers specifically to the Bljeceva 1 grave,
11 stating that, I quote:
12 "Forty-six persons were identified, of which six remains were not
14 Noting that these remains, these six remains, were from 1992.
15 Similarly, the Nikolic brief, at paragraph 1451, criticises the
16 figure -- the overall figure of the 5.358 individuals identified in
17 graves because, among other reasons, and I quote:
18 "The Bljeceva grave also contains remains of approximately 50
19 individuals who died in 1992-related events ."
20 This makes it sound as though Mr. Janc counted these six or 50
21 bodies of individuals who died in 1992, when he was counting
22 Srebrenica-related ICMP DNA
23 however, Your Honours, that Mr. Janc, in his count, did not count victims
24 unrelated to the fall of Srebrenica. We see this at transcript 33509,
25 33513, as well as in his exhibit, the report -- his report, the
1 Exhibit P4490. In fact, Mr. Janc was at pains to explain why he did not
2 count the nine unique unnamed DNA
3 unique unnamed DNA
4 possibility -- or, rather, the impossibility of connecting them to
5 Srebrenica-related information for the time being. This can be found at
6 transcript reference 33508 to 33509.
7 The 46 individuals currently identified as Srebrenica missing
8 from the Bljeceva 1 grave are individuals who report to the ICMP as
9 missing following the fall of Srebrenica in July 1995. These are the
10 only individuals counted by Mr. Janc for the Bljeceva grave.
11 Finally, at paragraph 1451 of their brief, the Nikolic Defence
12 also argues that this current number of 5.358 individuals identified from
13 Srebrenica-related graves is incorrect because: (a), an exact number of
14 individuals connected to the Kravica execution site cannot be provided
15 and, (b), and I'm paraphrasing, because there is evidence that 12
16 individuals found in the Cerska grave were alive after July 13, 1995, the
17 date of the execution as alleged in the indictment, and were reported as
18 being seen as late as 17 July 1995
19 reasons affects the actual figure or the number of individuals
20 affected -- identified from each of the exhumed graves.
21 With respect to Kravica, it is clear that 1.319 individuals have
22 been identified, regardless of whether they were executed at Kravica, the
23 Vuk Karadzic school, in Grave L or elsewhere. Similarly, the fact that
24 individuals found in the Cerska grave may have been reported as being
25 captured or at least as reported as last being seen on 16 or 17 July
1 changes nothing about the number of bodies identified from this grave.
2 In fact, the ICMP data actually under-reports the number of individuals
3 for this grave, rendering the figure 5358 a conservative one; namely, in
4 this instance we know from Dr. Haglund's report on the Cerska exhumation,
5 Exhibit P611, that because it is an undisturbed primary grave, that there
6 are 150 complete bodies which were exhumed from this grave. At this
7 time, we have only 142 ICMP DNA
8 In conclusion on this topic, Your Honours, evidence shows that
9 thousands of separated, captured, surrendered Bosnian Muslim men and boys
10 from Srebrenica were systematically executed in July 1995, that they were
11 buried in mass graves, in many cases reburied, but some of them also left
12 out, becoming surface remains. The Prosecution submits that a minimum of
13 5.358 men identified from graves, but actually closer to 6.000 men when
14 counting the already known 500 estimated minimum number of individuals
15 from last year's exhumations, are all victims of executions.
16 The Prosecution also submits that not all of the 648 men
17 identified from the surface were killed in legitimate combat, by suicide,
18 land-mine, or by friendly-fire. This, for the time being, leaves us with
19 approximately a thousand to 1500 individuals we currently have no
20 identification information on. Some of them might not be discovered
21 because they are lying in graves, without survivors, or because their
22 bones are shattered in such small pieces inside secondary graves that no
24 identifications, continue to take place, and as they continue to come to
25 light, the tragic story of murder of more than 7.000 Muslim men and boys
1 will only serve to underline the gravity of the crimes committed against
2 them and against the Bosnian Muslim population of Eastern Bosnia.
3 Turning very briefly to the second issue, Your Honours, that of
4 the destruction of women and children, the Popovic Defence, at
5 paragraph 643 of its final brief, states that, I quote:
6 "The Prosecution did not prove that the movement of the Muslim
7 population from Srebrenica to the BiH-held territory disabled their
8 normal life and reproduction. Namely, there is no normal living at the
9 time of war."
10 Similarly, at paragraph 644, the Popovic Defence, and I quote:
11 "... rejects charges for genocide toward women and children.
12 Events occurred in Potocari after the fall of Srebrenica toward women and
13 children did not have significant impact to their capability to reproduce
14 and did not at all jeopardise the survival of the protected group."
15 Your Honours, the Prosecution has dealt in detail with the issue
16 of the destruction of women and children in its final brief at
17 paragraphs 1105 through 1128 as well as with the legal aspects of the
18 charge of genocide at paragraphs 2806 to 2834 and will therefore not
19 repeat the discussion here. However, I will briefly make the following
20 point: We have read and heard evidence concerning impact of the forcible
21 transfer on the population of Srebrenica and Zepa, as well as the
22 separation and murders of the men, which caused incalculable suffering
23 and permanent damage to the tens of thousands of living survivors who
24 have been consigned to a lifetime of physical/mental suffering. The
25 women and children have been traumatised by the events of July 1995.
1 There has been a breakdown of family life, since thousands of men have
2 disappeared. There exists the possibility that many of the survivors may
3 never know who happened to the loved ones who went missing. Many have
4 spoken of the pre-war life that was reasonably prosperous, relatively
5 care-free, under the guidance, protection, and leadership of their
6 husbands and fathers. Now that life has changed, and they have been
7 living in abject poverty in many cases, forced to take on
8 responsibilities not normally taken on by the female members of the
9 Bosnian Muslim population of Eastern Bosnia. What once were vibrant
10 communities are no more.
11 The accused, originally from the Eastern Bosnia area or employed
12 there, knew well about the importance of men in the traditional
13 patriarchal societal structure of Bosnian Muslims of Eastern Bosnia. We
14 talk about this at paragraph 1126 and 1127 of the final brief. Their
15 crimes were deliberately inflicted, resulting in the death of thousands
16 of Muslim men and boys. We have evidence from countless witnesses who
17 have lost multiple male members -- male members of their families, some
18 of whom have lost not only their loved ones, but also realise that their
19 family name will disappear, since no men remain to carry it forward.
20 Your Honours, the words that truly bring home the enormity of the
21 tragedy, the abnormality of life, the destruction experienced by those
22 who lost their family members and their old way of life, was cited to by
23 Chief Prosecutor Carla Del Ponte at the opening of this case at lines
24 377 -- or pages 377 to 378. They are the words of Witness PW-121, a
25 woman who last saw her husband and older son as they joined other men to
1 head off into the woods as Srebrenica fell and whose youngest son, barely
2 14 years old, had been violently torn from her in Potocari. At the time
3 this witness testified, she did not know about the fate of her husband
4 and sons, and when asked what she thought may have happened to them, she
5 responded in an anguished cry. I will not take up the Court's time today
6 with a video-clip of her testimony, though if you would like to read it,
7 it is at Exhibit number P2266, transcript pages 5761, especially lines 15
8 to 22. This woman was a classic example of somebody suffering from the
9 so-called "Srebrenica syndrome," living a life on hold, waiting,
10 uncertain about the fate of her loved ones, hoping against hope that they
11 may be alive, unable to move on with her life until finding out for sure,
12 a classic example of destruction, of failure to live normally, of serious
13 mental harm caused to a Srebrenica woman.
14 Could we go into private session for a moment, please, Your
16 JUDGE AGIUS: Yes, let's do that. Let's go into private session
17 for a short while, please.
18 [Private session]
13 [Open session]
14 JUDGE KWON: I take it, Ms. Soljan, we didn't hear that witness.
15 MS. SOLJAN: Your Honour, she was a 92 bis witness, and we have
16 her testimony. This is Exhibit P2266.
17 JUDGE KWON: Thank you.
18 MS. SOLJAN: 2226.
19 And to conclude, Your Honours, while it may be true that as the
20 Popovic Defence says, there is no normal living at the time of war, the
21 point here is that since July 1995, there has been no normal living for
22 the tens of thousands of survivors of Srebrenica and Zepa. The story of
23 Witness PW-121 is just one of many thousands of tragic stories we've
24 heard from those who have survived the horror of separations, the
25 forcible transfers, the loss of loved ones, of property, into small but
1 now tragically well-known enclaves of Eastern Bosnia. Thanks to the
2 advent of DNA
3 have finally, over time, begun learning about the fates of their missing
4 men after years of not knowing. However, many tragically still live
5 without knowing, and some perhaps will never know and will never be able
6 to move on and lead a normal life.
7 This concludes my submission, Your Honours.
8 JUDGE AGIUS: Thank you, Ms. Soljan.
9 Now, Mr. McCloskey, I think you're the one left, and we also have
10 10 minutes left. Do you want to start now, or shall we continue
12 MR. McCLOSKEY: Mr. President, I would greatly appreciate if we
13 could start tomorrow, but I can guarantee you I will be finished by the
14 second period. I don't intend to take more than two hours, perhaps less,
15 though it's hard to say. And I'm also ready to answer questions or
16 receive any homework that you might have.
17 JUDGE AGIUS: Okay, all right.
18 So, Mr. Zivanovic, I suppose you will go first after the
20 MR. ZIVANOVIC: Yes, Your Honour, that's correct.
21 JUDGE AGIUS: You are put on notice that you will be expected to
22 start tomorrow.
23 [Trial Chamber confers]
24 JUDGE AGIUS: Anyway, you are put on notice you may have to start
1 MR. ZIVANOVIC: Yes, Your Honour.
2 JUDGE AGIUS: Okay, thank you.
3 We stand adjourned until tomorrow morning at 9.00.
4 --- Whereupon the hearing adjourned at 1.36 p.m.
5 to be reconvened on Friday, the 4th day of
6 September, 2009, at 9.00 a.m.