Tribunal Criminal Tribunal for the Former Yugoslavia

Page 34307

 1                           Monday, 7 September 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.06 a.m.

 5             JUDGE AGIUS:  Okay, Mr. Registrar, good morning to you.  Could

 6     you call the case, please.

 7             THE REGISTRAR:  Yes, Your Honours.

 8             Good morning, Your Honours.  Good morning to everyone in and

 9     around the courtroom.  This case number IT-05-88-T, the Prosecutor versus

10     Popovic et al.  Thank you.

11             JUDGE AGIUS:  Okay, thank you.

12             Good morning, everybody.  For the record, all the accused are

13     present.  The Prosecution composition is as it was last Friday at the

14     end.  The Defence teams, okay, everyone is present, so we can proceed.

15             Mr. McCloskey, we had pointed to some issues last Friday which

16     you had to do some homework upon and come back to us.

17             MR. McCLOSKEY:  Yes.  Good morning, Mr. President, Your Honours,

18     everyone.

19             And I have endeavoured to do that.  I first wanted to ask,

20     Mr. President, Your Honours, I noticed that I had inadvertently left out

21     a discussion of four exhibits that are specific to a response of the

22     Kravica warehouse argument that the Defence had made in Borovcanin.  It

23     would just take me a very few minutes to go over those just to clarify

24     it.  I think it will help you to understand this and make more sense out

25     of the Defence arguments.

Page 34308

 1             I also failed to mention our sentencing request, which I would

 2     just do very briefly and without any fanfare.

 3             JUDGE AGIUS:  Okay.

 4                           [Trial Chamber confers]

 5             MR. McCLOSKEY:  We think we've got 15 minutes.

 6             JUDGE AGIUS:  You still have -- you still have about 20 minutes.

 7     You still have about 20 minutes, anyway.

 8             MR. McCLOSKEY:  This shouldn't take that long.

 9             JUDGE AGIUS:  It's up to you, how long it takes.  It's your

10     problem.

11             MR. McCLOSKEY:  Thank you.

12             All right.  Well, then, we'll just get right to it.  If we could

13     go to Exhibit PIC00065, and this is an exhibit that was marked by the

14     Kravica survivor from the west side, or the right side of the warehouse,

15     as Borovcanin, I believe, refers to it.  PW-156.  I may have said "157"

16     as well before.  It's PW-156.

17             And this exhibit, you may recall, is the exhibit that shows where

18     he came from.  Now, this is, of course -- he was using the winter shot,

19     but that shows that he was walking from the right side of the picture,

20     across the front of the warehouse, and then went in through that door

21     that we see marked, where the red goes into.

22             And now we can go to the next one, which is PIC00066.

23             JUDGE AGIUS:  And don't broadcast these photos because I think

24     that guy had protective measures, and there is his initials on the --

25             MR. McCLOSKEY:  Yes, I think that's -- I don't know if he put

Page 34309

 1     initials or his number.  Hopefully, we had him just put his number,

 2     but --

 3             JUDGE AGIUS:  And if it's not his signature -- the previous one,

 4     the first one.  Yes, but there wasn't "156" next to it.  It's the first

 5     one that we saw.

 6             MR. McCLOSKEY:  Now, this shot is where he's marked "B" and made

 7     little markings, which was him -- his attempt to, on the screen, to mark

 8     where the bus was.  But he described that the bus was in front of the

 9     warehouse and that he walked between the warehouse and the bus, and which

10     is, if you go back to your recollection of the bus, parked right adjacent

11     to the warehouse.  It is our submission that that was the bus, that he

12     would have walked between the warehouse and the bus.  So while these

13     markings are a bit out in front, I think if you look at the testimony,

14     it's clear that he is walking between the bus and the warehouse.  And if

15     you recall, the bus was in front of this -- of this little door that we

16     showed that he walked in to before.

17             All right.  Now, let's go to Exhibit P02103, and as you'll

18     recall, Mr. Ruez provided some very brief testimony that the witness had

19     told him that he'd gone into a little guard room in the warehouse.  And

20     if you recall, his testimony was that he went into the big room and went

21     over to the right side of the warehouse, and I'd ask you to infer from

22     the evidence that after the shooting began he moved over and went into

23     this little room.  It's in Sanction, if you're having a problem with it.

24     In fact, I think there's the -- there is -- now, that room -- or that

25     little door where all the light is streaming through, that is the door

Page 34310

 1     that the witness came in and the door that the witness testified he came

 2     out of.  And this little outline that you can see is what Mr. Ruez was

 3     speaking of when he talked about the little guard room.

 4             And if we could go to the same picture, but I asked Ms. Stewart

 5     to make lines on it that I've asked her to make.  It's not -- no witness

 6     has made this.  This is just something so -- to call your attention to

 7     it.  You can clearly see, in the right side wall in the photograph, and

 8     the top wall, the construction of what would be the wall and ceiling.

 9     What I really want to call your attention to is over on the left side.

10     You'll see that there is similar marks of white that outline what we

11     believe is the wall that will come out perpendicular to that door.  So

12     this little room is -- does not include the doorway.  You don't walk in

13     from that doorway into the little room.  When you walk in that doorway,

14     this little room is to your left, in our view.  And so the witness would

15     have crawled into this room and stayed there, and then left out through

16     that door.

17             Now, that's important because the Defence claims that this room

18     is a -- is incorporated into the front of this door and that it is a

19     separate room that would have held only a certain number of people.

20     Well, I don't think that is a fair interpretation of the evidence.  The

21     fair interpretation of the evidence is this is a separate room that you

22     enter into from its own door, not from this particular door that we see.

23             And I'd like to go to Exhibit P04529.  This is a sketch.  You may

24     remember, it wasn't long ago and when we were into a rebuttal mode of

25     trying to show roughly how many people could fit in each sides of the

Page 34311

 1     warehouse, and this was a very rough-draft document that Tomasz Blaszczyk

 2     used to help determine the number of square metres in those rooms.  And

 3     Dusan Janc -- we put it on through Dusan Janc to help him in his

 4     conclusions about how many square metres were in these rooms.  There is

 5     no evidence in the record that this diagram has anything to do with that

 6     little -- the little guard room.  It does not.  There's no evidence about

 7     that, it's not meant to deal with the guard room at all.  It's a very

 8     rough, not-to-scale diagram, so it should not be viewed as anything to do

 9     with that guard room.  It has to do with the two big rooms and the basic

10     square-metre measures.

11             All right.  And in addition to that, Mr. President, I would

12     merely state -- reiterate what we said in our trial brief, that there can

13     be no other sentence for all of these accused than life imprisonment.

14             JUDGE KWON:  If you could show me the picture again, the previous

15     one.

16             MR. McCLOSKEY:  Yes, sir.

17             JUDGE KWON:  The previous one.

18             MR. McCLOSKEY:  The one with Ms. Stewart's markings on it?

19             JUDGE KWON:  Yes.  I cannot clearly see the trace on the left

20     side.  Its own room -- own door, in your opinion, is inside the room

21     itself?

22             MR. McCLOSKEY:  That's -- that is the Prosecution's position, and

23     that's correct.

24             And if we could go to the other photograph and just -- the yellow

25     markings sometimes blot out what I'm referring to.  Now you can -- now

Page 34312

 1     you can clearly see the line of white there next to the bright door, both

 2     the vertical and horizontal.  Those are the outlines of both the ceiling

 3     and the wall as it came out perpendicular from the doorway.  Yeah,

 4     those -- that is the indication of where the wall used to be as it came

 5     out perpendicular and parallel to the back wall.

 6             JUDGE KWON:  Thank you.  This is page 101 of that exhibit.  Thank

 7     you.

 8             MR. McCLOSKEY:  We'll get to the questions, which I will try to

 9     answer briefly, and of course I'm here for any further questions.

10             The first one on my note was responding to the Gvero argument

11     that Article 49 of the Geneva Conventions is the ruling article on this

12     point and that it applies only to civilians.

13             Well, we agree that Article 49 of the 1949 Geneva Conventions

14     applies to civilians only, but that is, of course, not where the

15     discussion and the analysis stops.  We can also see that Common Article 3

16     of those conventions refers to "hors de combat" and does not limit it to

17     civilians.  But most importantly, we look, as has the Appellate Chamber

18     looked, to customary international law, and as we look at Mrksic and

19     Martic, that the Appellate Chamber has a long discussion on customary

20     international law, citing the various authorities over the years that

21     have stood for and expanded the original view beyond just civilians.  I

22     would draw your attention in Martic, particularly, to paragraphs 305,

23     306, 309, and 311, where they lay out some of that customary

24     international law.

25             And just for an example, that we have not been held solely in

Page 34313

 1     this Tribunal to Article 49, Article 49 has required that for

 2     deportations, they be deported from occupied territory.  Well, that has

 3     never been a requirement in this Tribunal.  Not that it has to do with

 4     this case, but that's just an example of how this Tribunal, through its

 5     Article 5, has expanded the scope from the Geneva Conventions from 1949.

 6             Okay.  The next question I see is that in the Miletic brief there

 7     was an allegation that we did not specifically refer in the indictment to

 8     Miletic's role in restricting the UNPROFOR resupply convoys, and where we

 9     did specifically refer to his role in restricting the humanitarian

10     convoys.  Well, I don't believe that is correct because if you go to the

11     indictment, under paragraph 75, where we specifically describe some of

12     General Miletic's actions, we note that Miletic, acting individually or

13     in concert with other members of the joint criminal enterprise to

14     forcibly transfer and deport the populations of Srebrenica and Zepa, and

15     knowing that forcing the Muslims out of the enclaves was unlawful,

16     committed acts in furtherance of the joint criminal enterprise as

17     ascribed in paragraphs 50 to 54 of this indictment and below."

18             And then under the heading "Making Life Unbearable for the

19     Inhabitants of the Enclave."  We go on to say under I:

20             "He drafted Directive 7 which was signed by President Karadzic on

21     8th March and called on the VRS to inter alia ..."

22             And then we lay out the two foundational points of this case, the

23     forcible transfer and how it began:  One, the policy to create an

24     unbearable situation so life was impossible for the Muslims and, two, the

25     issuing of permits to reduce and limit the logistical support for

Page 34314

 1     UNPROFOR and the supply and material resources to the Muslims.  So there

 2     it is.

 3             Now, yes, it is first noted that he drafted that, but we're not

 4     just putting that down as merely the drafter.  Of course, we are holding

 5     him and the others in the joint criminal enterprise for carrying that

 6     out, and there it is spelled in black and white, reducing UNPROFOR.

 7             Now, the next "(ii)" we particularly point out and emphasise the

 8     part about the Muslim restriction, but that should not be viewed to

 9     suggest he's not responsible for all of Directive 7 and particularly the

10     part where it says "reducing the help to UNPROFOR."  And, in fact, as I'm

11     sure you're aware, the whole thrust of our case is -- regarding UNPROFOR

12     is not so much that UNPROFOR is a victim in this case, but it's their

13     reducing the fuel and other supplies and the reinforcements to UNPROFOR

14     that directly affects UNPROFOR's ability to look after and protect and do

15     their duty regarding the Muslim population.  So as we focus on the Muslim

16     population, that's, of course, the focus, but we also clearly point out

17     UNPROFOR and the reason that UNPROFOR is so important is not for UNPROFOR

18     on its own, but UNPROFOR as it relates to the Muslims.

19             Now, it's not just the indictment that lays this out.  We may not

20     remember much of my opening statement back in the 21st of August, 2006,

21     but what I attempted to do in a very short opening statement, as you may

22     recall, is point out the specific and important links of the accused to

23     this case, and I went accused by accused by accused.  And I want to read

24     to you -- when I got to the Miletic section, and I read out one of the

25     convoy documents where General Miletic had made some specific

Page 34315

 1     restrictions on the inspection of cargo and fuel tanks, and then I said

 2     this:

 3             "Now --" and for the record, this is on page 443 back on the 21st

 4     of August, 2006:

 5             "Now, this shows that General Miletic is playing a very important

 6     role in this.  Now, on its face, there is nothing criminal about this,

 7     but it does indicate to us the role he's playing, and he can say to the

 8     Zvornik Brigade, 'I demand a detailed ...'  Now, is that an order from a

 9     commander?  No.  Is it a directive you have to follow?  Yes.  This is

10     consistent with Mladic's overall order Directive 7 and the other

11     materials that we've seen establishing the policy.  And you'll see,

12     speaking of fuel, how fuel was restricted and strangled.  So by the time

13     DutchBat was there in July, when these events happened, they didn't have

14     enough fuel to run their air-conditioning or their electrical, and they

15     couldn't go out in the vehicles, and this is all the Main Staff's doing

16     through their corps, through their brigades, as it was done with

17     General Miletic."

18             Now, that's pretty clear.  General Miletic is involved in the

19     restriction against UNPROFOR, both in the indictment, right up front in

20     the opening statement.

21             An indictment can't possibly list all the ways in which people

22     commit crimes.  We did our best, you required us to do even better, and

23     this indictment does a good job of it.

24             And also in Miletic's brief, they make the conclusion that --

25     regarding the location of Miletic and Milovanovic in 1995.  Now, the

Page 34316

 1     exhibit that I would draw your attention to, and as cited by the Defence,

 2     but not very accurately, is P03163, and this is a little information

 3     report done right before Milovanovic -- I believe right before he

 4     testified, where we went over with him this complete collection that we

 5     had of reports from the Main Staff to the president, and those reports

 6     were -- came out in the name of Miletic or Milovanovic and sometimes

 7     others signing "Za" for them, and he went through all of those and

 8     noticed his name and Miletic's name and other's name, and he went

 9     through -- and from that document you can see the conclusions of that,

10     and he testified that basically this represents the time that he would

11     have been there or Miletic would have been standing in for him.  It's not

12     perfect.  You may recall there was -- Ms. Fauveau showed Mr. Butler,

13     I think it was on the same day, one document that went out in

14     Milovanovic's name, one that went out in Miletic's name.  As Milovanovic

15     goes to a front and comes back, that this is clearly not going to be

16     absolutely 100 per cent representative, but it does give you a good idea

17     of the long periods of time that Miletic was standing in, and some of the

18     periods of time that Milovanovic came back.

19             So just very roughly we can see from this document that for most

20     of January, it was signed off by Miletic.  I counted, this morning, nine

21     days in February that was Miletic.  The rest of it was Milovanovic.  Six

22     days in March that was Miletic.  Mostly the rest of March, it was

23     Milovanovic.  Seven days in April was Miletic.  May, it was a rough

24     split.  And then from 31 May all the way to 4 September, it's all

25     Miletic.

Page 34317

 1             And also recall, when Miletic comes back, he's not always in the

 2     HQ.  Sometimes he's within Zvornik, looking after -- excuse me, when

 3     Milovanovic comes back, he's not always in the headquarters.  Sometimes

 4     he was in Zvornik, looking after an operation in that area.  And when he

 5     does come back, he's going to be briefed and they're going to have to

 6     communicate very closely with each other.  So -- and this is engaging

 7     General Miletic in the briefing as well.  So when Milovanovic doesn't

 8     come -- when he comes back, that doesn't disengage Miletic.  In fact, if

 9     General Miletic was the chief of the air force defence, perhaps he would

10     have been slightly more disengaged, but he, as chief of operations, he is

11     not going anywhere.  He's fully engaged in all this material.  So there's

12     no real lack of knowledge or action on Miletic's part when Milovanovic

13     comes back.  Yes, he would not be standing in for -- in this informal way

14     that we have described and you're the experts on now, when Milovanovic is

15     back, but that doesn't fundamentally change the equation here.  In fact,

16     it shows they're both working together.

17             All right.  There was another question regarding the

18     adjudicated -- your adjudicated facts decision and whether that shifted

19     the burden of proof, and I gave you my recollections on that, that -- at

20     the time that I didn't -- none of us felt that there was any obstacle put

21     forward by the Trial Chamber for either side on these adjudicated facts;

22     that they were an attempt, of course, to stream-line the case.  And we

23     found the language which reflects just that, and it's from 27 September

24     2006, page 2253.  And, Mr. President, you said, starting at line 3:

25             "Basically, the decision means, first, that in as far as those

Page 34318

 1     250-odd adjudicated facts that we have agreed with you upon, the Trial

 2     Chamber is simply taking judicial notice of the fact that that fact was

 3     adjudicated by a previous Trial Chamber.  We are not going any further

 4     than that.  The fact that a previous Trial Chamber has adjudicated that

 5     on the 11th of July, 1995, the VRS entered into Srebrenica does not mean

 6     that the chapter begins there and finishes there, and that you are --

 7     neither of you, nor the Defence, are entitled to expand on that.  There

 8     are some adjudicated facts that obviously go in favour of your case, and

 9     there are several adjudicated facts that go in favour of the Defence.

10     What we have stated there is what I have told you, and if you need to

11     expand on that to make things clear, because ultimately it's we who will

12     have to adjudicate not only on that fact, but all the facts that are

13     pertinent, of course you will be able."

14             I think that it more than clearly establishes you're not putting

15     the adjudicated facts in the way of anybody.  They are free to put on

16     their case, and that, of course, is consistent with the entire way you've

17     run this case.  We don't see authoritarian moves to block anyone in three

18     years, which I'm sure is very much appreciated.

19             And the last note that I have had to do with Mr. Borovcanin's

20     claim that we have not charged him with aiding and abetting;

21     specifically, had not charged him for aiding and abetting in the failure

22     to protect the section.  This can be answered very simply by going to the

23     section on individual criminal responsibility.  It's paragraph 88 of the

24     indictment, where we say:

25             "Pursuant to Article 7(1) of the Statute of the Tribunal ...,"

Page 34319

 1     and we list everyone, including Borovcanin, "... are individually

 2     responsible for the crimes charged against them in this indictment, and

 3     each of them committed, planned, instigated, ordered, and otherwise aided

 4     and abetted in the planning, preparation, and execution of these charged

 5     crimes as set out in detail in this indictment."

 6             But then we go on and repeat ourselves in more particularity, and

 7     we speak especially regarding Mr. Borovcanin in paragraph 92, and we say:

 8             "As a separate and independent basis of liability under 7(1),

 9     Ljubomir Borovcanin's presence at or near the Kravica warehouse execution

10     site, described in paragraphs 30.4 and 43(A)(iii) of this indictment,

11     together with his failure to intercede in order to protect prisoners

12     there, instigated, assisted, and aided and abetted the physical

13     perpetrators of the killings in that his presence served as encouragement

14     and incitement to the physical perpetrators of the Kravica executions who

15     continued to kill prisoners during and after Ljubomir Borovcanin's

16     presence."

17             We go on to the second part of that:

18             "... and, (b), constituted a willful failure to discharge his

19     legal duty, resulting in liability under 7(1) as an omission, in that

20     Ljubomir Borovcanin had custody and control over 1.000 Muslim prisoners

21     held in the Kravica warehouse on the afternoon and evening of 13 July.

22     He had a legal duty to protect those prisoners from harm from his own

23     troops and others, including at least one member of the Bratunac Brigade

24     Red Berets.  Despite his ability to do so, Ljubomir Borovcanin failed to

25     protect all the prisoners within his control who were held at the Kravica

Page 34320

 1     warehouse."

 2             Now, the beginning of that paragraph mentions aiding and abetting

 3     regarding both those two, his presence as an encouragement and incitement

 4     and his failure in his duty to protect.

 5             And I would just add one brief comment about this idea of aiding

 6     and abetting.  "Aiding and abetting" has been defined as knowing of the

 7     criminal event and substantially assisting in it, intending to provide

 8     substantial assistance in it.

 9             Now, when determining the intent of an individual that hasn't

10     confessed or made admissions, this is precisely how a prosecutor or

11     anyone, a trier of fact, determines intent; that the accused knows about

12     a crime and that he was part of it.  Where Trial Chambers draw the line

13     between aiding and abetting and actual intent, it's very difficult to

14     determine.  It's up to the individual Trial Chamber.  There's no clear

15     jurisprudence on that.  The sentencing between the two, aiding and the

16     abetting and actual intention, has not been very different, if you look

17     and see what Krstic was sentenced to as an intentional participant and

18     what Krstic was sentenced to as an aider and abetter.  I think one was

19     45, 46 years and the other was 35.  So they're not viewed as particularly

20     different, because, well, obviously they're not.  When you intentionally

21     take part and provide a substantial assistance to a crime, you're a key

22     member of it.  And none of these are individual crimes.  They're all

23     working together.  This idea that there's one central figure and all the

24     rest are elves, and you have to determine who's most responsible, well,

25     that's a matter, in our view, of sentencing.

Page 34321

 1             And so when you look at the evidence of knowledge of the crime

 2     and substantial assistance to it, you should infer, in my view, that one

 3     intends the known consequences of one's acts.  You can, in fact, find

 4     that one intends the natural and probable consequences of one's acts.

 5             When human beings act and they know that the likely consequences

 6     of their acts are a crime, a horrible crime such as murder, you may infer

 7     that they intend to do that.  That's the way we humans are.  I don't

 8     think we need to get, in this case, into the likely consequences, because

 9     when Mr. Borovcanin does not act, he knows that's going to result in

10     deaths, whether by bleeding to death at the warehouse or further

11     executions or both.

12             So please consider those words as you consider this very

13     difficult but yet crucial area for international law.  We are this far in

14     the Tribunal, and we still have not clearly defined what it is that

15     there's a difference, though the case law clearly says the desire is not

16     a requirement.  We don't have to prove that they want this to happen.

17     Many times, people commit crimes and they don't want or desire to have

18     done that, but they do it because they have to do it.  It happens.

19             So that was the last.  I think it was clear that there was no --

20     in the indictment, there was nothing in the indictment suggesting that

21     Mr. Beara participated in the reburials, so he cannot be held responsible

22     under the indictment for that.  There may have been a witness that

23     mentioned his name regarding the reburials, and I think that evidence is

24     in the case, but there's nothing wrong with that.  But we absolutely

25     stand by what we had said and what Your Honour had said before.

Page 34322

 1             So I think I've gotten most of them or -- if not all of them, and

 2     stand prepared to answer anymore questions, or sit down.

 3             JUDGE AGIUS:  I think you can sit down.

 4             MR. McCLOSKEY:  Thank you very much, Mr. President.

 5             JUDGE AGIUS:  Yes.  Thank you very much, Mr. McCloskey.

 6             We can now start with the closing arguments of the Popovic

 7     Defence team.

 8             MR. ZIVANOVIC:  Good morning, Your Honours.

 9             JUDGE AGIUS:  Good morning.  You've got two hours and a half, as

10     you know.

11             MR. ZIVANOVIC:  The Popovic Defence filed its final brief and

12     elaborated, within the limits set out by the Trial Chamber, its position

13     on the indictment, crime-based testimony, so the witnesses' expert

14     findings and exhibits.  I skip to this paragraph.

15             The time allocated for the closing statement does not give me the

16     opportunity to elaborate on all the arguments set out by the Prosecution

17     in its final brief.  As a result, I'm going to restrict my closing

18     statement to the part of the Prosecution final brief addressing the

19     responsibility of Vujadin Popovic.

20             The Prosecution's assertion in paragraph 2320 of the final brief,

21     that Popovic was reassigned to the Drina Corps as the chief of the

22     Intelligence and Security Department in November 1992, is incorrect.  It

23     relies on the testimony of the witness Mikajlo Mitrovic.  This testimony

24     was clearly misconstrued by the Prosecution, as it did not mean that

25     Popovic became the head of the Intelligence and Security Department of

Page 34323

 1     the Drina Corps Command once he was reassigned there.  Popovic initially

 2     became an ordinary officer in this department and then was reassigned to

 3     the 2nd Romanija Brigade, where he spent approximately one year and a

 4     half.  Thereafter, he was sent on a course for security officers in

 5     Pancevo, and only after that was he assigned to the position of the chief

 6     of the Security Department of the Drina Corps Command in early 1995.

 7             The witness Vojnovic supports this when he testified that he

 8     worked with Popovic for a year or a year and a half when he was the

 9     security officer of the 2nd Romanija Brigade.  It is transcript

10     page 23712, 21st July 2008.

11             The document by the Drina Corps Command of 11 May 1994 - it is

12     7D485 - was signed by Lieutenant-Colonel Ranko Kuljanin in the capacity

13     of the Drina Corps chief of the Intelligence and Security Department,

14     further supports it.  The enumerated evidence clearly indicates that

15     Popovic was not chief of the Intelligence and Security Department before

16     1995.

17             Also, the reorganisation or, precisely, separation of the

18     intelligence from the security organ took place in 1995, not 1993, as the

19     Prosecution final brief states.  This is evident in the fact that the

20     previously-mentioned Drina Corps document reads that in 1994, the

21     Intelligence and Security Departments were in the same organ.

22             In the next paragraphs, the Prosecution analyses various rules

23     and documents to prove the responsibility of Popovic, but for prisoners

24     of war and refugees, as well as his duty to coordinate with MUP.  The

25     Prosecution's arguments and analyses of these subjects are incorrect.

Page 34324

 1             The submission on Popovic responsibility for prisoners of war is

 2     based on two grounds.  First of these grounds are the legal norms

 3     assigning to the military police the physical security of prisoners of

 4     war.  The Prosecution submits that Popovic participated in the

 5     organisation and implementation of the measures for the security support.

 6     The security support includes, among other things, the military police

 7     measures.  One of the military police measures was the direct security of

 8     prisoners of war and the guidance and control of the movement of

 9     refugees.  It's paragraph 2328 of the Prosecution's final brief.  Since

10     Popovic allegedly had a duty to control the military police units, but

11     from the corps command and the subordinate brigades, he was responsible

12     for both prisoners of war and refugees.

13             Secondly, the Prosecution asserts that the corps security chief

14     was responsible for prisoners of war because he proposed to his commander

15     ways in which the military police would be used, was authorised to direct

16     the commander of the military police units in accomplishing the tasks

17     ordered by the unit command, and had control of the military police units

18     at the corps and brigade levels.  The Prosecution's assertions were

19     founded on distorted facts and misinterpretation of relevant rules and

20     documents.  The first rule misconstrued by the Prosecution is the rule of

21     corps.  It's 7DP412.

22             According to paragraph 468 of the rule of corps, security support

23     includes five kinds of measures, one of which were counter-intelligence

24     measures and activities.  These measures are within the exclusive

25     competence of the security organs and at the level of the Drina Corps

Page 34325

 1     Command, of which Popovic was solely responsible for.  These are the

 2     measures provided by paragraph 6 of the Rules of Service of the security

 3     organs.  It's P407, assigning the counter-intelligence works to the

 4     security organs as protagonists.  All other security measures, including

 5     military police measures, were in the exclusive competence of the unit

 6     commander.  These are command and staff tasks stipulated by paragraph 7

 7     of the Rules of Service of the security organs.  In these tasks, the

 8     security organ participate -- that is, the need for his participation or

 9     extent of such participation is determined exclusively by the commander

10     on a case-by-case basis.  In this sense, the participation of Popovic in

11     security support, as the security organ, is different from

12     counter-intelligence measures; as such, cannot be taken for granted or

13     assumed, but must be proven on a case-by-case basis.

14             This means that the Prosecution must prove not only that Popovic

15     was authorised to participate in military police measures relating to

16     security support, but that he really participated in the military police

17     measures relating to security support -- sorry, but that he really

18     participated in the organisation and implementation of such measures

19     because such participation was not obligatory, according to the rules.

20     It means that the Prosecution must prove that Popovic participated in

21     military police measures relating exactly to the prisoners of war and/or

22     refugees in the relevant period.

23             For example, Popovic could have participated in the organisation

24     and implementation of just one of the military police measures, say, in

25     direct security of the Main Staff commander, General Mladic, in the

Page 34326

 1     Operation Action Uda [phoen].  It is P0033.  However, this doesn't mean

 2     that he participated in all other military police measures and, in

 3     particular, those related to prisoners of war and refugees.  The

 4     Prosecution did not prove that Popovic was ordered by his commander to

 5     participate in military police measures related to prisoners of war or

 6     refugees in the period relevant for the indictment.

 7             The Prosecution also used an incomplete quotation and misleading

 8     interpretation of Article 29 of the Regulation regarding responsibility

 9     of corps command.  It is 7DP410.  The Prosecution quoted in

10     paragraph 2324 of its final brief only the part of sentence that the

11     security organ of the corps is responsible, I quote:

12             "... for organising and implementing security measures and

13     undertaking other specialised work in the field of security ..."

14             However, the sentence continues as follows:

15             "... that is placed under its responsibility by special

16     regulation, et cetera."

17             The omitted part of the sentence limits the responsibility of

18     Popovic to security measures placed under his responsibility by special

19     regulations.  The special regulations were incorporated in the rule of

20     service of the security organs.  These special regulations made him

21     responsible for counter-intelligence work, not for organising and

22     implementing the measures of the whole security support, including

23     military police measures and, in particular, those regarding prisoners of

24     war and refugees.  Accordingly, he was only responsible for professional

25     management and control of the military police, not for the control of all

Page 34327

 1     its activities and duties.

 2             Professional management of the military police --

 3             JUDGE AGIUS:  I suggest you keep some water handy, nearby.

 4             MR. ZIVANOVIC:  Yes, thank you.

 5             Professional management of the military police was precisely

 6     defined by paragraph 14 of the Rules of Service of the military police

 7     and include the organisation for education and training, inspection of

 8     such training, taking part in drafting and establishment of military

 9     police units, preparation of the relevant rules and regulation, and

10     taking part in the control and assessment of the combat readiness of the

11     military police units.  The responsibility for the other four kinds of

12     security support is provided by Article 9 of the same regulation.

13     According to section 6 of this provision, the corps commander is in

14     charge of managing security service, responsible for the security support

15     of the command and subordinate units, and institution and taking measures

16     on the basis of the regulation and his responsibilities.  The Prosecution

17     submission that corps security organ had the duty to control the whole

18     work of the military police units of the corps command and subordinate

19     units is contrary to the principles of the military organisation for VRS

20     established in this case.

21             The main principle in the organisation of command is the

22     principle of the singleness of command.  I refer to Vuga, transcript 4

23     July 2008, pages 316 to 334.  It was the supreme principle, meaning that

24     the commander of a military unit has an indivisible and exclusive right

25     to command all subordinate units and bears responsibility for the

Page 34328

 1     condition, combat readiness, and use of the units, as well as for the

 2     proper execution of all tasks assigned to the unit.  I refer to Kosovac.

 3     It is 16 January 2009, page 224.

 4             In fact, the command function places three main duties and

 5     obligations on the commander: to take a decision; to issue an order; and

 6     to control or monitor or follow up on what he has ordered.  I refer to

 7     Forca.  It's 20 June 2008, page 586, lines 3 to 10.

 8             The Prosecution's interpretation of Article 29 and submission

 9     that Popovic was responsible for the security support and the control of

10     the military police would mean that the brigade commanders issued orders

11     to their military police units, but could not control whether they

12     carried out such orders properly or not, because the corps security chief

13     was authorised to control military police.  In all aspects of their work,

14     including the execution of orders issued by the brigade commanders, such

15     an approach would be in contravention with the principle of the

16     singleness of the command by practically excluding the military police

17     units from the effective command of the brigade commander.

18             Anyway, item 9 restricts the professional management of the

19     security organ as regard the control of the work of the military police

20     just within the limits placed under the responsibility of the security

21     organs by special regulation as provided by the first paragraph of

22     Article 29.

23             The absence of the duty of the Drina Corps security chief to

24     control the whole work of the military police units of the corps command

25     and subordinate units is endorsed by the fact that there was no regular

Page 34329

 1     daily reporting of these units to the security organ of the Drina Corps.

 2     For general and daily control of the activities of the military police,

 3     it was necessary for the subordinate units to submit regular reports.

 4     However, there is no evidence to support that the military police units

 5     from the brigades were under a duty to send such report -- regular

 6     reports to the security organ of the Drina Corps; neither is there

 7     evidence to support that they did so at all.  They submitted daily

 8     reports to the commanders of their brigades, as did all other units.  The

 9     brigade commanders did not also have any obligation to inform either

10     their own security officer or the security organ from the corps command

11     about orders given to the military police unit of his brigade or about

12     the daily activities of these units.

13             Without such reports, the security organ of the Drina Corps was

14     not able to know anything about the activities of the military police on

15     a daily basis.  This proves that the security organ of the Drina Corps

16     had no duty to control all the work of military police units, but at

17     corps or brigade levels.  Otherwise, the line of regular reporting would

18     have been established between the military police units of the brigades

19     and corps and the chief of the security organ of the Drina Corps Command.

20             The special regulations contained in Rule of Service of the

21     security organs provides two kinds of their duties.  The first group is

22     counter-intelligence work, and the second administrative and staff work.

23     The counter-intelligence work had to be performed by the security organ

24     without any order from his commander.  The practical impact of such a

25     provision on this case is that the Prosecution had no need to prove that

Page 34330

 1     such work in the Drina Corps Command was performed by Popovic, since he

 2     was the only individual carrying out the work, was not authorised to

 3     transfer such duties to anyone else, and the commander of the Drina Corps

 4     was not authorised to give this kind of work to any other officer.

 5             THE INTERPRETER:  The counsel is kindly asked to slow down for

 6     the purposes of the interpretation.  Thank you.

 7             JUDGE AGIUS:  Mr. Zivanovic --

 8             MR. ZIVANOVIC:  Sorry.

 9             JUDGE AGIUS:  You are aware now of the --

10             MR. ZIVANOVIC:  Okay.

11             JUDGE AGIUS:  So please slow down.

12             MR. ZIVANOVIC:  Sorry.

13             JUDGE AGIUS:  Okay.

14             MR. ZIVANOVIC:  I apologise to interpreters.

15             The second group of duties which includes military police tasks

16     was to be carried out only upon the order or request of the unit

17     commander.  I refer to Vuga.  It's transcript page -- 30 June, 2008;

18     transcript page 057 to 058.  For this group of tasks, the commander of

19     the unit was exclusively authorised to decide whether the security organ

20     would be included in the decision-making process relating to ways of

21     using the military police units.  I refer to paragraph 2324 of the

22     Prosecution final brief.  This further means that the commander of the

23     unit was not duty-bound to seek a proposal from his security organ on

24     ways of using military police units, but only when he deemed it

25     necessary.  He was not bound to inform the security organ of what tasks

Page 34331

 1     and orders he issued to the commander of the military police units.

 2     Again, Vuga; it is pages 058 to 062.  In this sense, it was not

 3     obligatory that the commander of the unit assigns the task to its

 4     military police unit through the security organ, as stated in Prosecution

 5     paragraph 2325.  It is also incorrect to assert that the security organ

 6     always directed the commander of the military police unit in

 7     accomplishing the tasks issued by the commander of the unit.  He did so

 8     only if the unit commander found it necessary.  Otherwise, the unit

 9     commander assigned the task to the military police commander, without any

10     participation on the part of the security organ.

11             In addition, the chief of security of the corps is responsible to

12     the corps commander for the activity of the military police unit in the

13     corps command pursuant to paragraph 23 of rules only when such activity

14     stands from the tasks issued upon his proposal.  Otherwise, he cannot

15     assume responsibility for the tasks issued by the corps commander to the

16     military police commander without his knowledge.  This is quite logical,

17     as the security organ could propose the use of the military police only

18     within the scope of his activities which relates to counter-intelligence

19     work.  All other use of military police via the physical security of

20     persons and features could be proposed by the commander of the military

21     police who is the best trained and qualified for such tasks.  I refer to

22     expert report of Vuga, paragraph 2.90.

23             Of course, the commander of the unit is authorised to assign any

24     task and issue order to the military police unit without asking or even

25     contrary to the proposals made either by the security organ or military

Page 34332

 1     police commander.  In short, it cannot be taken as the rule that the

 2     security organ effectively participated in the organisation and

 3     implementation of measures, other than that of counter-intelligence.

 4             According to the Rule of Service of security organs,

 5     paragraph 7(e), the security organs participate also in, I quote:

 6             "... in operations that precede the initiation of criminal

 7     proceedings, and criminal proceedings themselves," et cetera.

 8             It is, again, the expert report of Vuga.  It is 1175 -- 1D1175,

 9     paragraph 244.  These duties are among the command and staff duties for

10     which command organs are responsible and in which the security organ

11     participate.  It means that commander determines the scope of such

12     activity, who will do that, military police or security organ, or both of

13     them, when and whether the report will be sent directly to the

14     Prosecution or to the high-ranking officer, and whether such information

15     will be sent at all.

16             In this light, the military prosecution guide-lines the

17     Prosecution indicates in its final brief does not replace the legal

18     obligations and relationship in the command of the VRS provided by Rule

19     of Service of the security organs and the Law on Military Courts.

20     Namely, the Prosecution quote the obligation of Popovic to receive

21     reports about crimes and report of any information up the chain of

22     command.  There is no evidence that Popovic received any report or that

23     he failed to report the information about crimes up the chain of the

24     command.  Because of that, Popovic could not be responsible as the

25     Prosecution states in paragraph 2409.

Page 34333

 1             In addition, the Prosecution refers to some documents indicating

 2     that the chief of security of the corps had a duty for the control of the

 3     military police units, but in the corps and subordinate brigades.  The

 4     work plan of the Drina Corps for the 10th of December, 1994 - it is

 5     5D989 - tasked the chief of security with the control of the work of the

 6     military police units from the corps command and the subordinate units.

 7     However, the authors of the plan knew what kind of control over military

 8     police the security organs were authorised to perform.  This document was

 9     intended for officers who knew very well the scope of their competence.

10     As such, it was not necessary to write down in this particular document

11     the various rules and regulations determining the nature, scope, and

12     limits of the security organ's control over the military police.  This

13     plan did not exclude either corps commander or brigade commander from the

14     control of their military police units, meaning that the control of

15     security organ was restricted to the professional management.

16             The Prosecution also misinterpreted three documents sent by

17     security organ of the Drina Corps Command as evidence of Popovic

18     competence concerning prisoners of war and his authority over the

19     military police.  The first was the instruction regarding the handling of

20     prisoners of war, dated 15 April, 1995.  It is P196.  In fact, this was

21     the instruction of the Security Administration of the Main Staff

22     concerning the security aspects of the handling of prisoners of war.  It

23     was observed that after exchange, prisoners of war became significant

24     sources of highly-sensitive military information about VRS for the

25     enemy's intelligence.  This was because before direct exchange, they were

Page 34334

 1     kept near the front-line or military objects with full insight into the

 2     deployment of VRS forces and units, their arms and other data.  The

 3     instructions alerted the commands from the battalion level upwards to

 4     determine places behind the front-line where kept members of the enemy's

 5     army were to be kept and warned that such, I quote:

 6             "A place must not be in the area of a command post, nor in the

 7     area of communication centres, artillery weapons, or significant elements

 8     of logistic support."

 9             Accordingly, this instruction does not demonstrate the

10     responsibility of security organ for prisoners of war, but the

11     counter-intelligence measures which had to be applied by the commands to

12     the third intelligence activities of enemy forces and

13     counter-intelligence protection of material, technical equipment, zones,

14     areas, and features of particular importance.  These were the duties for

15     which the security organs were protagonist as provided in paragraph 6(a)

16     and (c) of the Rules of Service of security organs.  It's P407.

17             The parts quoted by the Prosecution are, in fact, measures

18     preventing prisoners of war from observing VRS units deployed in the

19     vicinity, their arms, and other features relevant for the defence of

20     Republika Srpska.

21             In addition, the text of this instruction clearly indicates that

22     Popovic literally conveyed the instruction of the Main Staff

23     Security Administration and, therefore, could not indicate his

24     responsibility for prisoners of war, basically.  This was a clear example

25     of the professional management defined by paragraph 14 of the Rules of

Page 34335

 1     Service of the military police.  This paragraph includes, among other

 2     things, the education, training, and preparation of the military police

 3     members, preparation of the rules and regulations related to the military

 4     police.  This instruction is an elaborated regulation on how to handle

 5     prisoners of war and keep them as far as possible from sensitive military

 6     information.

 7             Popovic was bound to forward any instruction received from the

 8     superior security organ to the subordinate units, and this document just

 9     demonstrates that he did so.  In addition, this document clearly

10     demonstrates the competence of the unit commands for prisoners of war.

11     This is indicated in paragraph 2, which reads, I quote:

12             "All commands from battalion level upwards are to determine

13     places behind the front-line at which captured members of the enemy army

14     are to be kept."

15             They further advise what kind of risk should be avoided from a

16     counter-intelligence point of view.

17             The second document the Prosecution refers to is dated 7 February

18     1995.  It's P3032.  This document was sent by the security organ of the

19     Drina Corps Command to brigade commands.  This was again based on a

20     request made by the Main Staff Security Administration, seeking

21     information about the management of the military police in subordinate

22     units, their level of training, mobilisation, logistics -- logistic

23     support, security, and tasks.  The document properly reflects the limits

24     of the competence of the security organs over the military police.  It

25     also reflects the fact that the chief of security of the Drina Corps

Page 34336

 1     Command sought information necessary for professional management of

 2     brigades' military police units from the brigade commands, not directly

 3     from the military police units of the brigades.  If Popovic had overall

 4     control over the work of the military police units of the corps command

 5     or subordinate units, he would have asked for such information directly

 6     and not through the brigade commands.

 7             The Prosecution also misrepresented document 3D436, which was the

 8     instruction sent to the chiefs of security and intelligence of the 5th

 9     Military Police Battalion of the Command of the Drina Corps subordinate

10     brigades regarding the work of the military police check-points.  The

11     Prosecution found, notably, that Popovic assigned to the chiefs of

12     security and military police commands in subordinate units responsibility

13     for the implementation of the instructions.  This is contained in

14     reference 5074 of the last evidence.  However, the document literally

15     conveys the instruction of the commander of the Main Staff of the VRS,

16     General Mladic, who pointed out - it is paragraph E, on the last page

17     just above the signature of General Mladic - that, I quote:

18             "Assistants for security intelligence duties of the VRS

19     Main Staff, corps commanders, and their subordinate organs and units of

20     military police are responsibile to me," meaning General Mladic, "for due

21     implementation and acting upon this instruction."

22             The sentence added by Popovic was that chiefs of security in the

23     units and commanders of the military police units are responsible to this

24     department for the implementation of this instruction.  This could only

25     mean that the assignment of responsibility which the Prosecution wrote

Page 34337

 1     about derives from the specific order of the corps commander to make

 2     responsible for the implementation of this instruction the security

 3     organs and military police commanders of the subordinate unit --

 4             THE INTERPRETER:  Could Mr. Zivanovic kindly slow down when

 5     reading.  We'd be very grateful.  Thank you.

 6             JUDGE AGIUS:  Mr. Zivanovic, again you're being reminded by the

 7     interpreters that you're going too fast.  If you could kindly slow down.

 8     I have the same feeling as well, so, in fact, I was thinking precisely of

 9     that before I -- before I heard the intervention.

10             MR. ZIVANOVIC:  Okay.  I repeat my last sentence.

11             This could only mean that assignment of responsibility which the

12     Prosecution wrote about derives from the specific order of the corps

13     commander to make responsible for the implementation of this instruction

14     the security organs and military police commanders of the subordinate

15     units through security organ of the Drina Corps.

16             In general, the military police commanders were responsible for

17     their work either directly to its commander or through the security

18     organs.  In this particular case, the corps commander was made personally

19     responsible to General Mladic for implementation of this particular

20     instruction, decided to make them -- to make the subordinate units and

21     security organs responsibile for the implementation of this instruction

22     through the security organ of the corps.  However, it doesn't mean that

23     the corps commander made either the security organs or military police

24     commanders from the subordinate units responsible for all their work

25     through security organ of the corps.  It actually indicates that this was

Page 34338

 1     the case only whenever he decided so, and this was stressed in document

 2     sent to subordinate units.

 3             The Prosecution also misinterpreted the order dated 30 August

 4     1995 concerning the disarming of UNPROFOR.  It is 7DP978.  This order was

 5     issued upon the order of the Main Staff of the Security Administration

 6     and was not sent to the military police unit or security organs of the

 7     subordinate brigades, but to the commands of the brigades.  This meant

 8     that Popovic intended to stress to the brigade commands the importance of

 9     the task because he was not able to issue any order to the brigade

10     commanders.  In fact, it was the request to the commanders that they

11     issue requested order to their subordinates.

12             The Prosecution further misrepresented the role of Popovic in the

13     assignment of the tasks to the military police.  He did not assign all

14     tasks to the military police unit approved by his commander, but only

15     those assigned upon his proposal within his purview or if he was asked by

16     his commander to give some professional advice based on the

17     counter-intelligence information and -- available only to him.  Even

18     then, his commander could issue the order to the commander of the

19     military police unit directly without his involvement.  For all other

20     tasks, the commander of the unit issued the order directly to military

21     police commanders and not to Popovic.

22             I would -- I'll go to another topic, so --

23             JUDGE AGIUS:  You'd like the break now?

24             MR. ZIVANOVIC:  Yes, please.

25             JUDGE KWON:  For the record, can I draw your attention to page 17

Page 34339

 1     of the transcript, lines 21 to 22.  In the transcript, at page 17, lines

 2     21 to 22, it reads:

 3             "... but for prisoners of war and refugees."

 4             I take it this should read both the prisoners of war and

 5     refugees.  Do you find it?

 6             MR. ZIVANOVIC:  Just --

 7             JUDGE KWON:  From line 20, it reads like, in the next paragraph,

 8     the Prosecution analyses --

 9             MR. ZIVANOVIC:  "Both," "both for prisoners of war and refugees."

10     Sorry.  Thank you, Your Honours.

11             JUDGE AGIUS:  Thank you.

12             We'll have a 25-minute break.  Thank you.

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

14                           --- Upon commencing at 10.55 a.m.

15             JUDGE AGIUS:  Yes, Mr. Zivanovic.

16             MR. ZIVANOVIC:  Thank you.

17             I move on, the role of security in Krivaja 1995 and this

18     operation.

19             The Prosecution submission of the decision by the command to

20     murder all Muslim men and boys contravenes the evidence in this case.

21     The task of the Krivaja 95 operation was to separate the Srebrenica and

22     Zepa enclaves.  It is P107.  In military terms, it was one-axis operation

23     in a very narrow area, without any ambition to encircle the enemy's

24     troops and take prisoners.  Such action usually result in taking of

25     sporadic individual prisoners.  The numeric strength of VRS forces

Page 34340

 1     assigned for the operation was not adequate for the encirclement and

 2     capture of enemy forces; namely, the VRS deployed about 2.000 soldiers

 3     for the action, while 28 Division had more than 10.000 soldiers.  I refer

 4     to Lasic.  It's 4th June 2008, pages 734 to 736.  The encircling and

 5     capturing of the enemy forces required at least three times as many.

 6     This means that strength of troops assigned to the operation and the

 7     nature of the very operation was not intended at killings, but on the

 8     separation of enclaves.

 9             The evidence also demonstrates that after the task was extended

10     to include the take-over of Srebrenica, additional troops were not sent

11     which would have allowed for the encirclement, capture, and killing of

12     members of the 28th Division.  This means that such a decision was not

13     made either before or after the fall of Srebrenica.

14             The VRS entered Srebrenica after it had been completely deserted

15     by its population and despite having knowledge of the fact that the 28th

16     Division had mobilised all its forces and was trying to break through to

17     B and H territory, made no considerable effort to engage all its troops

18     for the purpose of blocking, encircling, and capturing of ABiH forces.

19     On the contrary, the VRS immediately sent a major of its troops who had

20     been participating in the Srebrenica operation to Zepa, which was on the

21     opposite direction of the movement by the 28th Division, leaving Zvornik

22     almost undefended.  The aforementioned facts clearly show that there was

23     no evidence that VRS command made any decision to murder all Bosnian men

24     and boys from Srebrenica, as stated in paragraph 261 -- 67, sorry, of the

25     Prosecution final brief and paragraph 24 of the indictment.

Page 34341

 1             The test given to security organs in this operation was adapted

 2     to the goal of the separation of the enclave.  The Krivaja 95 operation

 3     task was completed on 9 July 1995, when the enclaves were separated.

 4     There is no evidence that any prisoners of war were taken during the

 5     action.  Even after the goal of the operation was extended to the taking

 6     of Srebrenica, it did not result in the capture of prisoners.  Therefore,

 7     the VRS had no enemy prisoners of war until 12th July 1995.

 8             Because of that, the submission of the Prosecution that on 11

 9     July 1995 between two NATO bombings, Popovic spoke with General Krstic

10     about prisoners of war is baseless.  The more logical conclusion is that

11     the only topic of their conversation, if any, could be how to survive

12     NATO attacks.  The task assigned in the Krivaja 95 order ceased once

13     Srebrenica was taken and troops got new tasks relating to Zepa operation.

14     The new tasks were also issued as to prisoners of war, because on 11 of

15     July 1995, the president of Republika Srpska appointed Miroslav Deronjic

16     as the civilian commissioner for Srebrenica.  It's P10.  His tasks were,

17     among other things, to, I quote:

18             "... ensure that all civilian and military organs treat all

19     citizens who participated in combat against the Army of Republika Srpska

20     as prisoners of war and ensure that the civilian population can freely

21     choose where they will live or move to."

22             It's paragraph 4.  He was also authorised to appoint his

23     assistants.  It's paragraph 6.  This was the decision of the president of

24     Republika Srpska, who was also the supreme commander of the Armed Forces

25     of Republika Srpska.  This decision regarding the prisoners derogated and

Page 34342

 1     substituted the Krivaja 95 order as to responsibility of the security

 2     organs for prisoners of war and entrusted Deronjic with the authority to

 3     implement this decision.  The decision came into force on 11 July 1995,

 4     on the same day when VRS entered Srebrenica.  I refer to Vuga, 2nd July,

 5     page 216 to 219.

 6             The assertion of the OTP that Popovic stayed at Hotel Fontana on

 7     13 and 14 July is not correct.  The document obtained by the Defence, and

 8     later by the Prosecution, too, proves that Popovic was at the

 9     Hotel Fontana on 11 and July 12, 1995, when the Bratunac Brigade approved

10     his stay there.  It was shown during the examination of Bjelanovic.  It

11     is 11 June 2008, page 111 to 112, and on 14 November 2008 the Defence

12     provided the Trial Chamber and the parties with the copies of all the

13     Hotel Fontana documents, as requested by the Trial Chamber.  The invoice

14     referred to by the Prosecution did not indicate the dates he stayed at

15     the Hotel Fontana, but instead the date when Hotel Fontana prepared the

16     invoice and sent it to the Bratunac Brigade for payment.

17             With reference to paragraph 2362, Popovic was in the proximity of

18     General Mladic because he had a duty to protect him as requested pursuant

19     to the Operation Action Uda.  The action required, among other things,

20     counter-intelligence protection of General Mladic and three other VRS

21     generals which was in the exclusive competence of security organs.  In

22     the scope of these tasks, Popovic was in the proximity of General Mladic

23     in Srebrenica on 11 July, at the third Hotel Fontana meeting and in

24     Potocari on 12 July, and in Vlasenica on 13 July, when General Mladic got

25     there on the ceremony of the hand-over of duties between

Page 34343

 1     General Zivanovic and General Krstic.  However, at the third

 2     Hotel Fontana meeting, Popovic did not represent anyone, as stated in

 3     paragraph 2365.  He attended because, as the chief of security of the

 4     Drina Corps, he got the task to provide counter-intelligence protection

 5     of the Main Staff commander in Operation Action Juda.

 6             With reference to paragraph 2363, the information that on the

 7     afternoon and the evening of 11 July, an estimated 1200 to 1500

 8     able-bodied Muslim men arrived in Potocari was not clear.  The

 9     Prosecution even asserts that there was one -- between 1.000 and 2.000

10     Muslim men in Potocari on 11 July and that VRS was aware of it.

11     According to the Prosecution, they posed potential threat to the Bosnian

12     Serb forces that were planning to enter Potocari on 12 July.  It is

13     paragraph 492 of Prosecution brief.

14             The presence of 1.000 to 2.000 Muslim men in Potocari would not

15     present a potential but a real and serious threat for the VRS.  This is

16     because the reconnaissance patrol could not provide information as to

17     whether these people were armed or members of ABiH, but eventually only

18     that they were in civilian clothing.  The total strength of VRS troops

19     engaged in the Srebrenica operation was 2.000 men.  The alleged

20     information would indicate that Muslim forces in Potocari were equal to

21     the VRS troops engaged in the whole of Srebrenica operation.  This

22     information would, therefore, cause a serious source of concern for the

23     VRS, since they were still well aware of the main force of the

24     28th Division.  In such a situation, the VRS would encircle Potocari in

25     the early morning hours on 12 July and call for the surrender of such

Page 34344

 1     forces.  General Mladic and other high officers would not enter Potocari

 2     with camera crews and journalists knowing that 2.000 Muslim soldiers

 3     could attack them at any moment.

 4             Potocari was one of the places where a considerable number of

 5     Muslims dwelled until fall of Srebrenica.  The able-bodied men being

 6     mobilised left the village to the meeting point of 28 Division in Jaglici

 7     and Susnjari before the VRS entered Potocari on 12 July.  This means that

 8     they were still in Potocari on 11 July in afternoon and evening.  In

 9     addition, the headquarter of 280 Brigade was also in Potocari.  I refer

10     to 4D135.  This brigade defended the Srebrenica-Potocari axis and had the

11     task to defend the industrial area in Potocari.  It is P107, paragraph 1,

12     subparagraph (3).

13             On 6 July 1995, this unit, referred as MM Potocari, had 1.007

14     members.  I refer to 1D607.  After the fall of Srebrenica on 11 July in

15     the afternoon, an order of 28th Division Command to withdraw its forces

16     to Jaglici and Susnjari, the troops deployed to defend Potocari left the

17     area on the same afternoon and evening.  This meant that the number of

18     28 Division members passed through Potocari on their way to Jaglici and

19     Susnjari.  I refer to Rutten.  It's paragraph -- it's page 837 to 838,

20     13 November 2006.

21             So the VRS reconnaissance patrols could see these men in Potocari

22     on 11 July in the afternoon and evening, and included them in the

23     assessment.  However, after the ABiH troops left Potocari to Jaglici and

24     Susnjari, only between 400 and 700 men were noted.  I refer to

25     Momir Nikolic transcript, 22nd of April, page 009, lines 7 to 20.

Page 34345

 1             Due to the above, the information of 1200 to 1500 Muslim men in

 2     Potocari on 11 July 1995 was an estimate made before the members of

 3     208 Brigade left Potocari to Jaglici and Susnjari with mobilised,

 4     able-bodied men.

 5             The number of Muslim men transported from Potocari on 12th and

 6     13 July was exaggerated and unreliable, as specified by Witness

 7     Mile Janic.  He testified in Blagojevic that on the first day only 10 to

 8     15 buses was, with approximately 70 men in each, were dispatched from

 9     Potocari.  This would mean that 700 to 1.050 men were transported on 12th

10     July only.  He further testified that on 13 July, two or three times more

11     were dispatched.  It would mean that on that day, between 1.400 and 3.150

12     Muslim men were transported in total.  It would suggest that between

13     2.100 and 4.200 Bosnian Muslim men were sent from Potocari on 12th and

14     13 July.  According to the witness, a bus had 52 to 54 seats, and 15 to

15     20 people were standing in aisles.  It is -- his testimony is on 20

16     November 2007, pages 942 to 944.

17             However, a bus full of prisoners, with just a driver in it, would

18     present an obvious security risk for the driver.  The risk would not be

19     diminished with the presence of one or two soldiers beside the driver.

20     They could not control the prisoners who were sitting and standing due to

21     overcrowding.  The soldier, or two of them, standing beside the driver,

22     could not see anything but up to ten prisoners in front of him.  The

23     prisoners would be so close to him that he would not be able to prevent

24     an attack, despite carrying arms.  This, therefore, means that the VRS

25     would not risk the lives of its personnel by overcrowding of buses with

Page 34346

 1     prisoners.  Besides, Janic had not only task of counting Muslim men, but

 2     of counting all the refugees.  He obviously was not able to carry out

 3     this task, which meant that Colonel Jankovic at one point told him that,

 4     I quote:

 5             "An average per bus was, therefore, worked out and used to

 6     calculate how many refugees were transported from Potocari."

 7             It is in Blagojevic judgement, paragraph 181, and it is in

 8     transcript in Blagojevic, 9773 and 9842.

 9             He testified also that some discrepancies in counting were

10     observed by Colonel Jankovic, which makes both the calculation and

11     estimates unreliable.

12             On the other hand, the witness already told his story in

13     Blagojevic, and the Trial Chamber did not find his estimate credible.  I

14     refer to paragraph 495 for Blagojevic judgement.  His testimony just

15     proved that he did not carry out properly the task of counting the number

16     of persons from Potocari which he was given.

17             The number of separated Muslim men in Potocari is not supported

18     with OTP missing list.  It is P566.  The source of data is ICRC list, as

19     indicated at page 2, last paragraph.  However, it is quite unknown who

20     provided these dates and when, as well as how much time passed before

21     such data were provided.  Namely, the date when a person was last seen is

22     not necessarily provided by the eye-witnesses, but also got from other

23     unknown and unreliable sources.  Because of that, there is no evidence

24     that the entries in this list in respect to date corroborate the

25     arguments of the Prosecution that 2.000 men were separated in Potocari.

Page 34347

 1             The list demonstrates that 516 people were last time seen in

 2     Potocari before 12th of July.  In addition, the list shows 660 Muslim men

 3     last seen in Potocari on 12 July.  However, Potocari were not under VRS

 4     control before the noon on that date.  The list does not demonstrate

 5     whether 660 people were last seen before or after the VRS entered

 6     Potocari.

 7             With respect to the testimony of Momir Nikolic, the Defence

 8     extensively addressed the ostensible conversation between him and Popovic

 9     in paragraphs 289 to 305 of its final brief.  Now, the Defence repeats

10     that the conversation described in parts of Nikolic testimony and the

11     paragraph 4 of his statement of fact related to 12th July 1995 in front

12     of the Hotel Fontana never took place.  Popovic never told him that

13     Muslim men and boys would be detained and then killed or that Muslim

14     women and children would be transported to B and H-held testimony.  This

15     was confirmed by Kosoric, who testified that such a conversation has

16     never taken place.

17             Momir Nikolic did his best to court the Prosecution and said

18     whatever he believed that the Prosecution would like to hear.  He even

19     falsely confirmed his own identity on photographs and falsely confessed

20     that he ordered the execution in Kravica and Sandici.  He agreed to tell

21     obvious lie that the intent of the VRS in the attack on Srebrenica was to

22     remove all Muslim population from the enclave, although upon the request

23     of the Trial Chamber, personally wrote that such decision did not exist

24     at the time, and confirmed it in his testimony.  He even agreed to avoid

25     any mention of the 28th Division just to give the illusion the enclave

Page 34348

 1     was demilitarised and the attack of VRS could not be directed at military

 2     targets.

 3             Corroborating evidence which the Prosecution mentioned was

 4     something that Momir Nikolic used to conceive his story.  He was provided

 5     with all this evidence before he made his statement of fact.  The picture

 6     taken in front of the Hotel Fontana does not depict Momir Nikolic with

 7     Popovic and Kosoric, but with Popovic, Colonel Jankovic and

 8     General Mladic's bodyguard.  Such a picture cannot be taken as

 9     corroboration that Momir Nikolic had an alleged conversation with Popovic

10     and Kosoric and in particular about the topic of such a conversation.

11     The ostensible reconnaissance of Ciglane as execution site cannot

12     corroborate the statement of Nikolic that he suggested to Popovic and

13     Kosoric.

14             There is no evidence for the Prosecution submission that Popovic

15     assigned Momir Nikolic to coordinate the so-called separation of the

16     Muslims in Potocari.  Firstly, the terms "separation of Muslim men and

17     boys from their families," or "the separation from their loved ones,"

18     were widely used in this case; their legal mis-characterisation of the

19     arrests implemented by the VRS according to the generally-accepted norms

20     and customs of war, such mis-characterisation is inciting the ethnical

21     animosity and hatred towards the Serbs who carried out their duties.

22             On the other hand, such mis-characterisation consistently

23     conceals the fact that members of the ABiH were among the populations of

24     Potocari, despite unchallenged evidence demonstrating that in the night

25     between 11 and 12 July there were 300 ABiH members in the UN compound in

Page 34349

 1     Potocari.  It is 1D463.

 2             It seems that Major Franken also permitted a certain number of

 3     men inside the compound who are or could have been active combatants.

 4     It's the testimony of Rutten, 30 November 2006, page 885, lines 15 to 21.

 5             Popovic did not assign Momir Nikolic to coordinate the separation

 6     of able-bodied Muslim men and boys and expulsion of the women and

 7     children in Potocari.  The testimony of Nikolic in this regard is not

 8     only inconsistent, but in clear contravention with other evidence.

 9             According to the Witness Boering, who as professional officer of

10     the Royal Netherlands Army, is perfectly qualified to clarify the

11     military terms, Momir Nikolic was some sort of coordinator, as he himself

12     indicates, for transport and separation, and that he received the

13     authority from Colonel Jankovic.  It's the page 536, transcript 25

14     September 2006.  It is quite logical that someone who coordinates the

15     work of different units should have the authority to do that.  On the

16     other hand, he must inform the subjects participating in the work that he

17     was authorised to coordinate.  Such persons must inform all concerned who

18     provide him with such authorisation so that it could be checked.

19     Momir Nikolic did it and indicated that he was authorised for

20     coordination by Colonel Jankovic, so that anyone interested in it could

21     check with Colonel Jankovic.

22             It means if Momir Nikolic was authorised by Popovic to coordinate

23     in the so-called separation and transportation of Muslims in Potocari, he

24     would indicate Popovic as the individual who authorised him to do that

25     and not Colonel Jankovic.

Page 34350

 1             Boering also testified that Jankovic's role was, first of all, to

 2     provide General Mladic with direct assistance, and that was why at one of

 3     the meetings he was seated directly next to him and occasionally he

 4     consulted with him.  He also learned that Colonel Jankovic was assigned

 5     to wrap matters up on the side and behalf of General Mladic as a type of

 6     liaison from General Mladic to DutchBat, which meant he was to arrange

 7     things with DutchBat to the full execution of General Mladic's plans.  He

 8     clarified that Mladic's plan meant the transport of refugees, but that it

 9     was not his personal observation, but based on insight and hearsay.  It

10     is transcript page 144 to 145, 21st September -- 21 September 2008 --

11     2006, sorry.

12             In Blagojevic, the witness testified that General Mladic

13     introduced Colonel Jankovic as his next in command to take care of

14     matters if General Mladic was absent.  I refer to Blagojevic trial

15     judgement, 154.

16             Momir Nikolic testified that after the third meeting in

17     Hotel Fontana on 12 July, he asked Colonel Jankovic what would be his

18     next task, and he was told that he was to help during the evacuation of

19     the people who were in Potocari.  This entailed evacuation and separation

20     of the able-bodied men who were in Potocari.  It's testimony of

21     Momir Nikolic on transcript 22nd April 2009, pages 014 to 015, and his

22     statement of fact, paragraph 5.

23             Momir Nikolic confirmed his testimony in Trbic case that there

24     was no need for him to inform Colonel Jankovic about what he did in

25     Potocari, given that Colonel Jankovic himself was deployed in Potocari

Page 34351

 1     and Jankovic was in charge, not him.  It is transcript page 268 to 279,

 2     27 of April, 2009.

 3             The presence of Colonel Jankovic in Potocari was confirmed by the

 4     Witness Mile Janic.  He testified that early in the morning on 12 July

 5     1995, upon the request of Momir Nikolic, he arrived at Potocari.  Nikolic

 6     assigned him to Colonel Jankovic, who tasked him, before any of buses had

 7     arrived, to count the refugees who would be transported from Potocari.

 8     He got the same task the next day.  This task indicates that the physical

 9     presence of Colonel Jankovic in Potocari was related to the

10     transportation of refugees.  It is transcript page 926 to 928, 20

11     November 2007.

12             In the VRS, the carrying out of an order was regularly reported

13     to superior command.  The report that the evacuation had been

14     successfully completed was submitted by Colonel Jankovic on 13 July.

15     It's 5DP113.  The report was sent from Bratunac to the Main Staff and the

16     Drina Corps.  If Popovic was tasked with coordination, this report would

17     have been sent by him and not Colonel Jankovic.

18             The presence of Colonel Jankovic in Potocari was also observed by

19     DutchBat members.  Franken complained to him once he got reports of -- on

20     of abusing of the detainees in the White House.  It is transcript 16

21     October 2006, page 499.  He also asks Franken to sign the statement of

22     evacuation.  It is P453.  Franken also testified that Colonel Jankovic

23     made it clear that DutchBat members could not leave the base from 13 July

24     until their withdrawal on 21st July.

25             Franken also let Colonel Jankovic know about compilation of the

Page 34352

 1     list containing 251 Muslim men registered by the DutchBat within their

 2     compound in Potocari on 12th or 13 July, 1995.  It is transcript page 502

 3     to 503, 16 October 2006.  According to van Duijn, it appeared that

 4     Colonel Jankovic was inspecting the area.  It is OTP final brief

 5     paragraph 335.

 6             Finally, Momir Nikolic testified that after ostensible meeting on

 7     12 November 1995, he did not see Popovic again on the day and that in the

 8     following days they did not communicate or do anything together.  It is

 9     page 029, lines 12 to 20, 22nd April 2009.

10             It is quite impossible to delegate a coordination assignment to

11     someone and then have no communication with him while the work he had to

12     coordinate was still ongoing.  If the quoted evidence is true, there is

13     no evidence to support that Popovic either coordinated the activities of

14     various VRS or MUP units in Potocari or that he delegated this kind of

15     work to Momir Nikolic.

16             There is a contradiction in the testimony of Momir Nikolic when

17     he states that he did not communicate with Drina Corps policemen at all

18     and did not see their commander.  It is page 013 to 014, 22 April

19     2009 - and that of the Witness Trisic, who testified that he saw the

20     military policemen from Drina Corps providing security to the Muslims in

21     Potocari together with Bratunac Brigade military policemen, and that

22     Momir Nikolic coordinated their activities.  It is transcript 20th of

23     October, 2008, pages 103 to 104.

24             It is, however -- the presence of the Drina Corps military police

25     in Potocari was restricted to the escort of General Krstic.  At that

Page 34353

 1     time, the military police of the Drina Corps was deployed at Kocari, not

 2     engaged in military police tasks but in the combat operation.  90 per

 3     cent of the members of the 5th Military Police Battalion of the

 4     Drina Corps Command were engaged in the combat operation in June until 7

 5     July 1995 and further.  It is 1D1078, paragraph 5.  Only 13 military

 6     policemen stayed in Vlasenica to perform military police duties and

 7     carried out, in rotation, the physical security of the Drina Corps

 8     Command, escort of the commander and the chief of staff, et cetera.  It

 9     is Vuga transcript, 2nd of July, 2008, page 204 to 206.

10             However, it was quite possible that Trisic saw soldiers who had

11     military police insignias of the Drina Corps on their uniforms.  The

12     evidence indicates that these insignias were sewed onto the uniforms so

13     that members of the unit that were deployed to other units took with

14     their uniforms their insignia.  The Witness Bjelanovic testified that it

15     facilitated their movement because it was much easier for them to find

16     transportation from one place to another with such insignia.  It is 10

17     June 2008, page 274 to 275.

18             The problem grew to the extent that Popovic personally went to

19     the Vezionica factory to discuss the problem with the commercial director

20     of the factory, Slavisa Racic.  They were trying to find a solution for

21     problem with armbands instead of sewing the insignia onto the uniforms.

22     I refer to 1D1438, 1438.  It is witness statement of Slavisa Rasic.

23             So Momir Nikolic knew the military policemen from the Drina Corps

24     who were present in Potocari and did not communicate to them because they

25     were escort of General Krstic and he had nothing to do with them.

Page 34354

 1     However, he communicated with the soldiers who were not members of the

 2     Drina Corps military police at the time but just wore these insignias,

 3     and because of that he testified that he did not communicate with

 4     military policemen of the Drina Corps.  On the other hand, Trisic saw

 5     Momir Nikolic communicate with the soldiers who wore the insignias of the

 6     Drina Corps military police, but did not know that they were not at the

 7     time members of that unit.

 8             As a result of the above, the Defence admit that Momir Nikolic

 9     either communicated with escort of General Krstic or with soldiers who

10     only wore the insignia of the Drina Corps military police but were not

11     members of that unit.  If the military police of the Drina Corps was

12     present, except the escort of General Krstic, under his direct command,

13     they would have their superior who would be in charge of the unit or the

14     part of the unit deployed in Potocari.

15             Finally, there was no way that Nikolic could issue the orders to

16     Drina Corps military police or to the units of the Main Staff.  He could

17     not also get such an authority from Popovic.

18             The Defence, therefore, submits that there is no evidence that

19     Popovic had authority from his commander to coordinate the work of units

20     in Potocari on 12th and 13 July 1995 or that he transferred such an

21     authority to Momir Nikolic and oversaw his work there.

22             Popovic was not involved in coordination and security of the

23     buses.  The Prosecution submits that Popovic, as the sole security

24     officer of the Drina Corps Command at the time, was involved in

25     logistical issues concerning the buses.  There is no evidence, however,

Page 34355

 1     that Popovic was involved in the logistic issues concerning the buses.

 2     The buses were provided by the commander of the Drina Corps and Ministry

 3     of Defence, with the participation of the competent services of the VRS.

 4     There were -- there was no need for Popovic to leave his jobs and become

 5     involved in that of others.

 6             On the other hand, Popovic's first duty was to perform

 7     counter-intelligence work, because only the officer in the Drina Corps

 8     who was authorised to do that.  The essence of Operation Action Uda was

 9     to detect the conspiracy against General Mladic and other leading

10     officers of the VRS.  In short, Popovic was competent for dealing with

11     SIC activities against VRS and inside VRS.  His participation in the

12     security of the buses transporting Muslim population from Potocari to

13     B and H-held territory was not ordered to do -- to do that, and it is not

14     within his counter-intelligence work.  The column of buses needed

15     physical security only, and this was a task which the corps commander and

16     the commanders of the units in the area had to provide.

17             In addition, the Witness Kosoric testified that he was tasked by

18     General Krstic to go before the first convoy of buses to Luka and convey

19     the order of General Krstic to the unit in that area to secure the

20     unhindered passage of refugees to Kladanj.  It is page 794 to 795, 30

21     June 2009.  This had nothing to do with security in competence of the

22     security officer, but with physical security of opening the passage

23     through minefields.

24             May we move to the private session, Your Honour, please.

25             JUDGE AGIUS:  Sure.  Let's go into private session for a short

Page 34356

 1     while, please.

 2                           [Private session]

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 34357

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14                           [Open session]

15             JUDGE AGIUS:  We are back in open session.

16             MR. ZIVANOVIC:  All these matters are in the purview of the corps

17     commander and commanders of units deployed in the area, since such

18     activities required physical security, and there is no evidence that any

19     participation in this task was requested from Popovic by his commander.

20             Finally, the deployment of patrols was within the competence of

21     the corps commander and the commanders of subordinate units from the area

22     along the route.  As such, this submission remains unsubstantiated.

23             Popovic was only in Potocari on 12 July afternoon for a short

24     period, and this was when General Mladic, General Krstic, and other

25     officers was present there.  However, he had no additional task to

Page 34358

 1     oversee either the transport of Muslim population or the so-called

 2     separation of the Muslim men.

 3             The Prosecution submission that General Zivanovic was in Potocari

 4     is in clear contradiction with Srebrenica video, where he was not

 5     captured at all on this date.  The submission of the Prosecution that

 6     Popovic saw the distribution of the bread in Potocari is also unfounded.

 7     The video the Prosecution refers to shows the distribution of bread to

 8     Muslim refugees who are inside the UN compound in Potocari by VRS

 9     soldiers and UN members.  Popovic was standing between the truck, where

10     the bread was, and the refugees, who were behind the fence.  His back was

11     toward refugees, clearly indicating that he was not overseeing the bread

12     distribution.

13             At one point, Popovic asked the soldiers to stop the distribution

14     of the bread, and it seems that they complied and removed the truck to

15     another place and resumed the same job.  The video only indicates that

16     Popovic sought that they stop of bread distribution from that point --

17     from that position and their removal of the truck, and not that he

18     oversaw this distribution of the bread.  If Popovic was in charge of

19     overseeing the distribution of the bread, he would have watched the

20     participants of the process, the soldiers who carried out the task, and

21     refugees who got the bread.  His acts just depict that at one moment the

22     truck presented an obstacle to his task.  As such, he sought its removal.

23             Popovic did not instruct VRS soldiers in Potocari on 13 July.  It

24     is particularly unsubstantiated that Popovic was aware of intimidation,

25     physical violence, and abuse of the Muslim population in Potocari.  None

Page 34359

 1     of the witnesses testified that he saw Popovic at such places or that he

 2     complained to Popovic about it.

 3             It is not true that Popovic was next to the White House.  The

 4     identification by Rutten was wrong, and its unreliability was obvious

 5     from the fact that he was the only one who recognised General Zivanovic

 6     as the officer who, on 12th and 13 July, was in Potocari giving

 7     instruction and in charge.

 8             On 12 July 1995, nobody but Rutten saw General Zivanovic in

 9     Potocari.  We have seen him Vlasenica on the day - it's St. Petar's Day -

10     giving the speech.  He alleged that he also saw him on 13 July 1995 near

11     the White House.  I refer to transcript 824, 13 November 2006.  He

12     managed to recognise him from a photograph where the face of

13     General Zivanovic was not captured at all, but only the back of his head.

14     It is P2324.  Nobody else had seen General Zivanovic in Potocari either

15     on 12th or 13 July.  As such, the recognition of Popovic and Zivanovic

16     given by Rutten is not credible and was carried out contrary to the rules

17     explained in this proceeding by Professor Wagenaar.

18             He explained the difference between identification and

19     recognition, plus the importance of the perception of the witness of a

20     person at the site.  Professor Wagenaar testified that the identification

21     of the person with his back towards camera might be misleading.  I refer

22     to transcript 8th September 2008, pages 367 to 369.

23             Professor Wagenaar finally explained the phenomena of how the

24     memory of a witness gets worse over time, but despite this he produces

25     new facts about an event he could not remember earlier.  The professor

Page 34360

 1     explained that despite the fact that the recollection of the memory goes

 2     down, the confidence of the witness goes up.  It's transcript page 370 to

 3     371.  The Defence submits that this phenomenon actually occurred with

 4     Witness Rutten as regards the identification of Popovic and Zivanovic

 5     from the aforementioned photograph.

 6             It is very interesting that the Witness Rutten did not protest or

 7     complain to Popovic about alleged abuses he noticed in White House,

 8     although he allegedly noticed him during his second visit there and was

 9     aware that he was not an ordinary soldier.  It is transcript 29 November

10     2006, pages 805 to 806.  He also did not complain to the other individual

11     from the same photograph who, according to him, was in charge of the

12     whole process in Potocari and who allegedly, on the 13 July afternoon,

13     was around the White House too.  It is transcript 7 December 2006,

14     page 225 to 227.  In addition, the witness failed to mention this event

15     or the persons he identified in his October 1995 witness statement.  It's

16     transcript 4 December 2006, page 1995.

17             He did not also mention either in Krstic or during the proofing

18     session in this case that the person he recognised gave instructions to

19     the soldiers, despite the fact that this recollection had not improved in

20     the last ten years.  It's transcript page 220 to 221.  As the

21     intelligence officer for the DutchBat, he must have been aware that 28

22     Brigade, consisting of more than 1.000 soldiers, had its command in

23     Potocari.  However, he concealed this fact by saying that, I quote:

24             "There are no real B and H soldiers around that is shelling --

25     well, there are no real B and H soldiers around, and there weren't any at

Page 34361

 1     the time, and there were no B and H positions near the Potocari area."

 2             He corroborated his testimony by stating that there were only

 3     civilians wearing normal civilian clothes, although he must have been

 4     aware that ABiH troops in the enclave also performed their tasks in

 5     civilian clothes and that 1300 -- 300, sorry, ABiH members were inside UN

 6     compound in Potocari.  I refer to page 830 to 831, transcript -- it is

 7     transcript 30 November 2006.

 8             The Defence denies that Popovic was aware of the extent of the

 9     abuse of the Muslim population by Serb soldiers or that he encouraged

10     them in acts of intimidation and physical violence, as the Prosecution

11     states in paragraph 2408.  The Prosecution did not prove that the scale

12     of abuse and killing in Potocari was such that Popovic had to be aware of

13     them.  There were at least 20.000 people in Potocari at the time.  The

14     evidence states that nine bodies were found near Budak in the woods, far

15     from the main road.  It is P2172 -- 79, sorry.  And one Muslim was taken

16     behind White House on 13 July and executed.  This would mean that ten

17     people were killed.  That number, as well as the place where their bodies

18     were allegedly found, do not indicate that the extent of the abuse and

19     killing in Potocari was such that Popovic had to be aware of them.

20             There is no evidence that Popovic was in position to observe

21     serious abuses and crimes committed by VRS members.  There is no evidence

22     that he was present to any physical maltreatment, theft of goods, or

23     similar events.  In addition, there is no evidence that he was reported

24     about such incidents.  He was, therefore, not in position, as the

25     Prosecution state, to take uncompromising action and prevent the crimes.

Page 34362

 1             There is no rule prohibiting an army from detaining suspected

 2     members of the enemy's forces during a war.  The crucial point is that

 3     security organ had nothing to do with the detention of suspected members

 4     of the enemy forces or the establishment of their identity, unless it was

 5     explicitly ordered or sought by his superior.

 6             Popovic, in his capacity of the security organ of the

 7     Drina Corps, had no duties or responsibilities for the detention or

 8     treatment of prisoners of war in Potocari.  The security organs, in

 9     general, were authorised to interview prisoners of war if they could

10     provide relevant information related to the enemy secret activities

11     against VRS or actions from within the army itself.  I refer to expert

12     report of Vuga, paragraph 434, and his testimony 30 June 2008, pages 052

13     to 053.  However, it was left on their assessment and other information

14     if they deemed that a particular prisoner could be in possession of such

15     kind of information.  Again, Vuga, 082 to 084, same transcript.

16             Popovic did not interview any prisoner of war because he deemed

17     that they could not provide such information, information about enemy's

18     intents and plans, their combat activities, or facts pertaining to other

19     crimes was within the competence of the intelligence or commands of the

20     units or military police.  For example, Momir Nikolic brought

21     Resid Sinanovic to the witness Zlatan Celanovic in Bratunac Brigade

22     military police in order to investigate if he participated in war crimes

23     against the Serb population.  I refer to transcript 21st April 2009,

24     page 932 to 933.  He also did not assess that Sinanovic [realtime

25     transcript read in error "Zivanovic"], who had a significant position in

Page 34363

 1     B and H authority, was in possession of information relevant for his

 2     counter-intelligence or intelligence work.

 3             There was no evidence that identification of detainees could be

 4     done through sight of their identity documents.  These documents were

 5     issued by the authorities in the enclave without any centre control or

 6     confirmation of their authenticity.  In addition, many of the Muslims

 7     discarded their identification documents, although they were not required

 8     to do so.  According to the statement of Witness van Duijn, the area

 9     around the bus station was full of passports and other papers.  I

10     referred -- I refer to van Duijn testimony, 28th September 2006, page 352

11     to 354.

12             JUDGE PROST:  Mr. Zivanovic, I don't mean to interrupt you, but

13     at page 56, if you see at line 6, it makes reference:  "He also did not

14     assess that Zivanovic ...," and I know that's not the name that you

15     mentioned, who held a significant position in the B and H authority.  I

16     wonder if you could repeat that name so we have it on the record.

17     I think it was --

18             MR. ZIVANOVIC:  Sinanovic.

19             JUDGE PROST:  Sinanovic.

20             MR. ZIVANOVIC:  The name is wrong.

21             JUDGE PROST:  Thank you.

22             MR. ZIVANOVIC:  Resid Sinanovic, yes.

23             The selection and screening of the arrested people was performed

24     through the checking of their hands, fingers smelling of gunpowder,

25     inspection of their clothes.  I refer to Rutten, 13 November 2006,

Page 34364

 1     page 896, line 21, to 898, line 1.  The screening was carried out over a

 2     period of more than one day at different locations.  Again, Rutten, same

 3     transcript, 853, line 13, to 855, line 16.  Many of them -- sorry, the

 4     last reference is 7 December 2006, page 264, lines 12 to 17.  Many of

 5     them had ammunition and left in front of White House.  The ammunition

 6     exploded when the pile was burnt.  It was testified by Franken on 17

 7     October 2006, page 578.

 8             In addition, many prisoners were interrogated in the White House.

 9     Again, Rutten, 30 November 2006, page 857.  Because of that, the

10     submission of the Prosecution that there was no -- not screening or

11     investigation of arrested people is unsubstantiated.

12             The Prosecution states that Popovic knew of significantly -- knew

13     of, significantly contributed to, and shared the intent with the other

14     JCE members to participate in the JCE to murder Muslim men from

15     Srebrenica.  The Prosecution submits that Popovic was aware that the

16     purpose of the arrest and capture of Bosnian Muslim men in the column was

17     to execute them.  For such submission, the Prosecution relies upon the --

18     upon two communications of General Tolimir - it's paragraph 2416 -

19     alleging that General Tolimir directed Drina Corps security organs to

20     propose to brigade commands that all measures to capture the enemy

21     soldiers from Srebrenica should be taken.  The Prosecution

22     mis-characterises the communications from General Tolimir sent to the

23     subordinated intelligence and security organs as evidence that Popovic, I

24     quote:  "... would have been provided with information concerning

25     prisoners," as well as that he had been directly involved in organising

Page 34365

 1     and implementing any corresponding measures.

 2             Two communications convey information by General Tolimir about

 3     the movement of 28 Division and Muslim armed group after the fall of

 4     Srebrenica and alerted all the subordinate units about the threats

 5     against the civilian population and VRS combat units that could emerge

 6     along their routes.  I refer to P148, penultimate paragraph.  He directed

 7     intelligence organs to propose measures to be taken by commands to

 8     prevent armed Muslims from illegally reaching Tuzla and Kladanj, such as

 9     setting up ambushes along the routes in order to arrest them.

10             The second communication directed the security organ of the

11     brigades to propose to the commanders of the units deployed along the

12     line of withdrawal of 28 Division to undertake all measures to prevent

13     the withdrawal and to capture the enemy soldiers.  It's P149, page 1,

14     last paragraph.  The communication warned that special attention should

15     be paid to monitoring the gaps on the VRS forward defence line and

16     possible escape routes along the corridors, as well as to the possible

17     sudden attacks on residential areas, rear combat disposition elements,

18     and defence elements.  This means that nothing in the two communications

19     spoke about intent to murder prisoners, but only about need to prevent

20     the 28 Division from reaching B and H-held territory and endangering VRS

21     and the civilian population en route.

22             However, these communications, as well as the communications

23     4DP111, are significant for other reasons.  The communications sent by

24     General Tolimir to Popovic were addressed to the IKM of the Drina Corps

25     in Bratunac, meaning that on 12th July Popovic was at the Drina Corps IKM

Page 34366

 1     in Bratunac.  This corroborates the Bratunac Brigade document booking a

 2     room for him for 11 and 12 July.  When the Stupcanica 95 order for the

 3     attack on Zepa was issued, the IKM of the Drina Corps was moved to

 4     Krivace, so the IKM in Bratunac was closed and the further stay of

 5     Popovic became unnecessary.

 6             Secondly, the document 4PD111 demonstrates that the information

 7     and instruction of General Tolimir to MUP was conveyed by General Krstic,

 8     and not Popovic.  This clearly indicates that Popovic was not authorised

 9     to coordinate with MUP, but that all communication with MUP remained in

10     the hand of General Krstic, who commanded the units taking part in the

11     Krivaja 95 operation.

12             Thirdly, the messages of General Tolimir clearly warned of sudden

13     attacks on civilian and military targets that could be carried out by the

14     forces of the 28th Division on their way towards B and H-held territory.

15     It meant an increased danger from sabotage and terrorist enemy groups.

16     The detecting and preventing of such activities was in the exclusive

17     competence of Popovic, making his presence in the critical areas

18     necessary as soon as the route of withdrawal of the enemy forces was

19     established.

20             The Prosecution has not proven that Popovic knew for abuses, ill

21     treatment, the failures to provide adequate food -- adequate food and

22     water for the prisoners in Konjevic Polje, Sandici, and Nova Kasaba.  He

23     was not duty-bound or ordered by his commander to undertake this

24     responsibility.  I refer to paragraphs 2429 to 2431 of Prosecution final

25     brief.

Page 34367

 1             The Prosecution submits that Popovic was present at the meeting

 2     in Bratunac Brigade on 13 July at 9.30 and that he was informed about

 3     prisoners Momir Nikolic and Srdjan Jankovic saw in -- around

 4     Konjevic Polje.  At 9.30 on 13 July, Popovic was not present at any

 5     meeting in the Bratunac Brigade headquarter.  The Prosecution relies on

 6     Momir Nikolic's statement of fact and Vasic dispatch concerning the

 7     meeting held with Mladic on the morning of 13 July, during which the role

 8     of MUP in the ongoing evacuation of the civilian population to Kladanj

 9     was discussed.  Momir Nikolic was not also present at the meeting and had

10     no knowledge that Popovic was there.  The communication by Vasic did not

11     also mention that Popovic was present.  However, it demonstrated that

12     Popovic had no task in coordination of the MUP.  Otherwise, Vasic would

13     have received his task from Popovic, not Mladic, as he stated.

14             The assertion of the Prosecution - it is paragraph 2423 to

15     2428 - that on 13 July 1995, I quote:  "Popovic must have been involved

16     in assigning Srdjan Jankovic to drive UN APC to Konjevic Polje, having

17     been present at the time and as Momir Nikolic's professional superior,"

18     is pure speculation, not confirmed either by Nikolic or anyone else.

19     Also, there is no evidence that Popovic was apprised of Jankovic and

20     Nikolic observations and activities in and around Konjevic Polje.

21             In paragraphs 2423 to 2434, the Prosecution states that Popovic

22     actively implemented the command decision to kill the Bosnian Muslim men

23     and boys of Srebrenica, since the prisoners presented a security threat.

24     However, there is no evidence that counter-intelligence measures were

25     required to deal with such threat.  In fact, for the neutralisation of

Page 34368

 1     such threats, only adequate forces were needed to guard them, meaning

 2     that only physical security was necessary for which the security organs

 3     have no capacity to implement.  Again, I refer to Vuga, 30 June 2008,

 4     page 082 to 084.  There is no evidence that Popovic was assigned to

 5     undertake the above task.

 6             As already told, on 11 July, the president of Republika Srpska,

 7     Dr. Radovan Karadzic, assigned Miroslav Deronjic to ensure, I quote:

 8             "... that all civilian and military organs treat all citizens who

 9     participated in combat against the VRS as prisoners of war and ensure

10     that the civilian population can freely choose where they will live or

11     move to."

12             Deronjic was authorised to appoint his assistant for this

13     purpose.  The decision came into force on the same day.  This means that

14     from 11 July 1995, Deronjic and his assistants were exclusively in charge

15     of the prisoners of war and all the Muslim civilians from Srebrenica.  He

16     was only one authorised by the supreme commander to ensure that all

17     civilian and military organs treat prisoners adequately.  The term

18     "ensure" meant that all the other organs listed in the document should

19     act upon the commissioner's request because the president had entrusted

20     him with the authority to implement his decision about prisoners of war.

21     I refer to Vuga, 2nd July 2008, page 218.

22             As already said, Popovic was not present in Bratunac on the night

23     of 13 and 14 July and he was not registered at Hotel Fontana on these

24     dates.  There is no evidence that Popovic was with Beara on 13 July in

25     Bratunac or communicated with him at the time about prisoners-related

Page 34369

 1     issues.  General Krstic did not leave Popovic in Bratunac because Popovic

 2     was in Vlasenica on 13 July, working on the counter-intelligence security

 3     of General Mladic, who came to Vlasenica that afternoon to be present for

 4     the hand-over of duties between General Zivanovic and General Krstic and

 5     prepare the counter-intelligence security for the newly-established

 6     Drina Corps IKM for the Zepa operation.  I refer to Vuga, 3rd July 2008,

 7     transcript page 234 to 235, and Bjelanovic, transcript 10 June, 267 to

 8     269.

 9             As already said, Popovic was not present in Bratunac -- sorry.

10     Popovic did not contact Drago Nikolic on the 13 July 1995 at about 1900

11     or 2000 hours at the IKM of the Zvornik Brigade, as described in

12     paragraph 2435.  He did not tell Nikolic anything about prisoners, their

13     coming to Zvornik, organisation of their transfer, and that someone would

14     be sent to provide Nikolic with further information.

15             It is unsubstantiated that Popovic, by virtue of his position,

16     knew about the detention, abusing, and murder of the prison ers.  Whoever

17     gave such an order was not bound to inform Popovic of it, being without

18     troops under his command or any other necessary resources for the

19     purpose.  And given his position as the only security officer in the

20     Drina Corps Command competent to carry out counter-intelligence work,

21     such information would be unnecessary and pointless.  Also, whoever

22     executed such order, he had no duty to report to Popovic, but to the

23     superior who issued the order.  He had no responsibility for prisoners in

24     Bratunac because such responsibility, since 11 July 1995, was explicitly

25     assigned to the civilian, Commissioner Deronjic and his authorised

Page 34370

 1     assistants.

 2             There is no sufficient and credible evidence to show that Popovic

 3     was in Zvornik on 14 July 1995, at approximately 800 hours, and had a

 4     meeting with Beara [realtime transcript read in error "Deronjic"] and

 5     Nikolic.  The Prosecution sees the meeting as a follow-up of the

 6     ostensible Popovic conversation with Nikolic which never took place.  The

 7     Defence address the testimony of Bircakovic in paragraph 494 and 495 of

 8     its final brief and sticks to these arguments.  The uncertainty of

 9     Bircakovic testimony is demonstrated in his report of -- the uncertainty

10     of Bircakovic's testimony is in his response, that -- I quote:

11             "People from the Drina Corps attended the meetings with Drago."

12             It is transcript page 044, lines 22 to 23, 7 May 2007, meaning

13     that at least two or more people from the Drina Corps met Nikolic and

14     that there was more than one meeting between him and unknown persons from

15     the Drina Corps.  The witness testified that it was him who waited for

16     the buses on 14 July 1995 at Vidikovac Motel and led them to Orahovac

17     school.  He did not indicate Popovic or a Golf leading such convoy, as

18     stated in paragraph 489 of Defence final brief.  In addition, the witness

19     said to Dean Manning in 2002 that his recollection of Popovic was foggy,

20     meaning that his recollection of Popovic presence was not credible

21     enough.  It's transcript 8 May 2007, pages 094 to 095.

22             JUDGE AGIUS:  Just a moment.

23             While we are still on the page, page 63, line 2, that "Deronjic

24     and Nikolic" is obviously a mistake.  If I remember, I heard you say

25     "Beara and Nikolic."  Is that correct?

Page 34371

 1             MR. ZIVANOVIC:  Beara and Nikolic, not Deronjic.

 2             JUDGE AGIUS:  So that needs to be corrected.  Thank you.

 3             MR. ZIVANOVIC:  Okay.  Finally, he did not say, in his interview

 4     to the OTP, that such meeting ever took place on the 14 July 1995.

 5     Again, same transcript, page 097, lines 12 to 17.

 6             May we move again to the private session, Your Honours.

 7             JUDGE AGIUS:  Sure.  Let's go into private session for a short

 8     while, please.

 9             MR. ZIVANOVIC:  The Defence denied in its final -- oh, sorry,

10     sorry, sorry.

11             JUDGE AGIUS:  Okay, we are in private session.

12                           [Private session]

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 34372

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9                           [Open session]

10             MR. ZIVANOVIC:  The arguments of the Defence have been

11     reinforced, meanwhile, with the Prosecution submission that at the same

12     time when Popovic allegedly led convoy of buses from Bratunac to

13     Orahovac -  it is paragraph 2464 of the Prosecution final brief - Popovic

14     was in Dragasevac, in the base of the 10th Sabotage Detachment.  In fact,

15     the Prosecution asserts that Popovic was in Dragasevac on 14 July 1995,

16     between 1000 and 1200 hours.  It is paragraph 2469.

17             The Prosecution also alleged that the person whose

18     contemporaneous description and rank clearly matched of Popovic was seen

19     by the PW-101 at the execution site at Orahovac.  The person had

20     side-arms, and to strengthen its argument, the Prosecution referred to

21     the Srebrenica trial video depicting that Popovic, on 12 July, had

22     side-arms too.  The Prosecution also found that the presence of Popovic,

23     I quote, at least "at one other execution site at Bisina," the Defence

24     clearly indicated in its final brief that the testimony of the Witness

25     PW-101 was untrue as regard his presence at the execution site in

Page 34373

 1     Orahovac and saving the life of the PW-105, hiding him in his van from

 2     the other soldiers who allegedly would kill him.  It is in paragraph 224

 3     and 496 to 512.  In short, the witness had a good reason to be untruthful

 4     (redacted)

 5     (redacted)

 6             The side-arm was the obligatory element of the equipment for all

 7     officers of VRS.  Many of them could be seen at various videos and photos

 8     bearing side-arms.  Significantly, the Prosecution did not put a question

 9     to the witness in order to get more details concerning the identity of

10     the alleged lieutenant-colonel.  It is the submission of the Defence that

11     it was not done because such efforts would be negative for the

12     Prosecution case.  Because of that, the Prosecution opted to leave it

13     unclear and to stray to the conclusion that this person was Popovic.

14             As to rank, the witness did not say that a man was

15     lieutenant-colonel, but lieutenant-colonel or the colonel at most.  He

16     described that person as the tall man, but Popovic, he's not tall.  He

17     described that person as good-looking man, but Popovic was not good

18     looking.  His testimony --

19             JUDGE AGIUS:  And if Popovic is not tall, how would you classify

20     me --

21             MR. ZIVANOVIC:  I'd be restrained.

22             JUDGE AGIUS:  -- or yourself?

23             MR. ZIVANOVIC:  Or myself?  Also restrained.

24   (redacted)

25   (redacted)

Page 34374

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted).  Only after the members of the Zvornik

 7     Brigade left the van, PW-101 drove the wounded boy to the Zvornik

 8     hospital upon the order of Sreten Milosevic.  It is transcript 15 July

 9     2009, page 984, lines 16 to 24.  According to the hospital record, it was

10     midnight between 14 and 15 July 1995.

11             PW-101 did not go to Orahovac to transport food and drink for the

12     soldiers, but to take assistant commander for logistics for the Zvornik

13     Brigade, Sretan Milosevic, to Orahovac.  Namely, he testified that he

14     called the brigade from a house in Orahovac and sought the duty officer

15     to send a car to fetch him back to Zvornik.  It's again same transcript,

16     page 982 to 983.

17             JUDGE AGIUS:  One moment, Mr. Zivanovic.

18             Mr. McCloskey, I suggest you have a look at from line 22 of

19     page 66 to where we are now and see whether there is any inherent risk of

20     revealing the PW-101's identity.  Just come back to me when you can.

21     Thank you.

22             Let's proceed.

23             MR. ZIVANOVIC:  Thank you.

24             The witness lied at least on six points:  First, that he was sent

25     to Orahovac by Pantic; second, that proposal of his travel was to

Page 34375

 1     transport the food and drink to the Zvornik Brigade soldiers who were

 2     there - I refer to transcript 22nd February 2007, lines [sic] 564, lines

 3     5 to 15; that he was sent by Sreten Milosevic to bring the food to the

 4     soldiers at the execution site - it's transcript page 569 to 571; that he

 5     was at the execution site at the main access road to Krivace and

 6     Kitajnica or Orac and saw the execution there, including the known and

 7     unknown persons he allegedly saw there, including the lieutenant-colonel

 8     or colonel who commanded to the execution squad, and insisted on the

 9     killing of the wounded boy - it is the same transcript, page 580 to 590;

10     that he saved the life of the boy, but from the person and/or other

11     soldiers of the brigade, by transporting him directly to Zvornik

12     hospital - it is also page 584; that there were no other members of the

13     Zvornik Brigade in his van and that it happened in the dusk.

14             The witness testified that at the point that he arrived at the

15     execution site, he was told by a soldier that in another meadow there

16     were executions carried out and that the other meadow was full of

17     corpses, and they could stop firing upon people there, and that they

18     moved to that other meadow "where you were located at the time" - it is

19     page 720, lines 15 to 21 - such statement is in clear contravention with

20     the testimony of survived victims, as analysed in the Defence final brief

21     in paragraphs 403 to 408.  However, the Prosecution -- 503 to 508.

22     Sorry.

23             However, the Prosecution submits that on 14 July, between 8.30

24     and 9.30 p.m., the Witness Srecko Acimovic allegedly spoke with Popovic,

25     who was in the Zvornik Brigade.  The witness was -- allegedly said by the

Page 34376

 1     Zvornik Brigade duty officer that Vujadin Popovic had arrived -- sorry.

 2             May we have a break?

 3             JUDGE AGIUS:  Yes.  I was going to suggest it.

 4             We'll have a 25-minute break.  Thank you.

 5                           --- Recess taken at 12.28 p.m.

 6                           --- On resuming at 12.57 p.m.

 7             JUDGE AGIUS:  Yes, Mr. Zivanovic.

 8             MR. ZIVANOVIC:  Thank you, Your Honours.

 9             The witness was allegedly said by the Zvornik Brigade duty

10     officer, I quote:

11             "... that Vujadin Popovic had arrived just at the very moment."

12             It is page 939, lines 18 to 25, transcript 20th June 2007.

13             However, just at that time, or precisely around 8.30 p.m., PW-101

14     got the task to go to Orahovac.  In that same span of time he departed to

15     Orahovac, stayed in front of the school, spoke with Drago Micic and

16     Sreten Milosevic, waited the soldiers to take food and drink he had

17     allegedly brought, and watched the embarking of the prisoners who would

18     be transported to the execution site.  It means that in that span of time

19     he was watching the execution and saw the officer similar Popovic there.

20             In the paragraph 2452, the Prosecution misquoted the testimony of

21     Tanasko Tanic when he stated that he saw Popovic at the Orahovac school.

22     The witness testified that standing at the road, he saw Popovic in the

23     yard and these people were unknown to him.  He was told by a military

24     policeman that one of them was Popovic.  He could not tell what the man

25     looked like at the time, nor did he know his rank.  It is transcript 23

Page 34377

 1     April 2007, page 337 to 338.

 2             According to Bircakovic, Popovic arrived there half an hour after

 3     the prisoners arrived.  This evidence is in clear contradiction with the

 4     testimony of PW-138, who said that Popovic led the convoy and reached

 5     Orahovac before the prisoners.  It also endorses the Defence submission

 6     that Popovic did not lead the column of buses with prisoners because he

 7     would have arrived at Orahovac before the prisoners and not half an hour

 8     after them.

 9             May we move again into private session, please.

10             JUDGE AGIUS:  Sure.  Let's go into private session, please.

11                           [Private session]

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 34378











11 Pages 34378-34379 redacted. Private session.















Page 34380

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5                           [Open session]

 6             MR. ZIVANOVIC:  The Defence denies that there were over 1.000

 7     prisoners in Rocevici school.  None of the witnesses confirmed that, and

 8     the indictment states that there were approximately 500 prisoners in that

 9     school.  The drastic increase of the number of prisoners in the school

10     the Prosecution bases on the ICMP DNA update report from March 2009.  The

11     evidence of the Witness PW-142 is not reliable, since he just glanced

12     inside the gym, so that he just think that the number was the same to the

13     number of those in Orahovac.  I refer to transcript page 462, 29 January

14     2007.  However, it contains the obviously erroneous conclusion founded on

15     the wrong generalisation that DNA connection established between primary

16     and secondary grave-sites automatically means that all victims from these

17     secondary graves were brought there from the same primary grave-site.  I

18     refer to Dunjic witness statement, 1D1447.

19             So according to Janc's conclusion, on the basis of 54 DNA

20     connections found in secondary graves, he concluded that all 708 bodies

21     were brought there from Kozluk.

22             In respect of paragraph 2478, there is no evidence that the

23     meeting that Witness PW-165 testified about took place on 15 July 1995.

24     On the day the ostensible meeting was held, PW-165 was working at the

25     check-point in Rocevici until 17 hours, but he did not see any transport

Page 34381

 1     of prisoners to Kozluk.  It clearly indicates that this date is wrong.

 2     The Defence expounded the testimony of this witness in paragraphs 520 to

 3     522 of its final brief, and therefore maintains its position that

 4     PW-165's testimony on the identification of Popovic was erroneous.

 5             The Defence also analysed all evidence related to the alleged

 6     Popovic activities related to the detention, transportation, execution,

 7     and burial of victims in the Kula-Konjic-Branjevo area.  It is in

 8     paragraph 229 to 294 of the Defence final brief.  Sorry, 529 to 594.  The

 9     Defence denies the specific allegation by the Prosecution that Popovic

10     was engaged at Kula school in the morning of the execution.  The Defence

11     also analysed the testimony of Slavko Peric in paragraph 540 to 542 of

12     its final brief, who did not confirm that Popovic was present at Kula

13     school, but a person who looked like him.  He also testified that he

14     thinks that one soldier called the shorter of the two officer with

15     nickname "Popovic."  The witness said that he believed that he heard

16     Popovic.  However, this evidence is not reliable for establishment of

17     Popovic presence in front of the Kula school because the witness was not

18     able to confirm that Popovic was present at the school, although he knew

19     him, or that he was addressed with his -- with the nickname "Pop."

20             In addition, the last name Popovic is common in the area, so that

21     one of the members of the 10th Sabotage units, Velimir Popovic - I refer

22     to Adamovic testimony for May 2007, page 946, lines 20 to 15 - had the

23     same last name.  The member of this unit was also Boris Popov, who could

24     have had the same nickname.  I refer to Dorovic testimony, 21st August

25     2007, page 040, lines 8 to 12.

Page 34382

 1             The submission of the Prosecution that Popovic was at the Kula

 2     school is not corroborated by the evidence mentioned in the OTP final

 3     brief.  The Defence analyses all this evidence.  The fuel issue was

 4     addressed in paragraph 543 to 562, the entry in the paragraph 563 to 566,

 5     and intercept evidence in 567 to 594 of its final brief.  Neither of them

 6     confirms Popovic present at the Kula school, as the Prosecution submits,

 7     by coordinating the execution of the Muslim prisoners at Pilica.  The

 8     Defence stays behind its arguments, pointing out that they are reinforced

 9     with the testimonies of Ljubo Rakic and Branko Bogicevic, and absence of

10     any evidence that Popovic was seen at Branjevo Military Farm.  None of

11     the Prosecution witnesses, and I refer to Slavko Babic, Jevto Bogdanovic,

12     Pero Petrovic, Drazen Erdemovic [realtime transcript read in error

13     "Obrenovic"], testified that they saw Popovic at the Kula school or at

14     Branjevo.

15             The Prosecution also brought the witnesses who participated in

16     burial of the victims, and none of them testified they got any order or

17     instruction from Popovic or that he even saw him at that place.  I refer

18     to the Witness Damjan Lazarevic.  In respect, the paragraph 2528 and

19     2529, where the Prosecution stated that Popovic issued the direction to

20     the chiefs of intelligence and security in the Drina Corps formation,

21     banning indefinitely all reporters and cameramen from entering the

22     Republika Srpska, the Defence submits that it is normal that filming and

23     the recording during wartime is restricted, as well as the movement of

24     foreign citizens, including journalists.

25             JUDGE AGIUS:  One moment, Mr. Zivanovic.

Page 34383

 1             MR. ZIVANOVIC:  Sorry.

 2             JUDGE AGIUS:  Line 5 of this page -- in this page, 75, amongst

 3     the witnesses that supposedly you mentioned --

 4             MR. ZIVANOVIC:  No, no, no.

 5             JUDGE AGIUS:  -- is Dragan Obrenovic.

 6             MR. ZIVANOVIC:  Not Dragan Obrenovic.

 7             JUDGE AGIUS:  It was Erdemovic?

 8             MR. ZIVANOVIC:  Erdemovic, Drazen Erdemovic.

 9             JUDGE AGIUS:  Erdemovic.  Okay, thank you.

10             MR. ZIVANOVIC:  The Defence indicates that a similar ban was

11     imposed by the ABiH.  I refer to 1D1091.  So the commander of the ABiH

12     2nd Corps issued the order after noticing an increased activity by

13     UNPROFOR and foreign journalists to collect information on ABiH forces

14     and possible plans for their deployment.  In order to prevent such

15     activities, he issued the order forbidding such persons to pass through

16     from temporarily-occupied territory and to travel from B and H-controlled

17     territory to temporarily-occupied territory.  They were also banned to

18     travel to the zone of responsibility without written approval of the

19     2nd Corps Command.

20             Popovic was not present at the execution in Bisina.  The

21     testimony of PW-172 was not accurate as regard Popovic presence during

22     the execution.  The vehicle log - it is P197 - reflects that Popovic on

23     that day left Vlasenica at 900 hours in the morning to Zvornik.  The

24     purpose of his travel to Zvornik was described in details by the Witness

25     Vlasic.  He recounts that their conversation in Zvornik was suddenly

Page 34384

 1     interrupted, and Popovic left Zvornik only after a telephone call.

 2     Popovic emerged at Bisina two hours after the trucks where the prisoners

 3     had arrived.  This was confirmed by Witness Kojic and Coric.

 4             PW-175 testified that he wrote in his vehicle log the names of

 5     officers who signed it, upon the request of the finance chief who was not

 6     able to recognise signatures.  He did it with block letters after his

 7     chief who assigned him the task identified the signatures.  He also

 8     confirmed all the assignments he got from his chief.  This means that it

 9     was not Popovic who was in charge of operation, as the Prosecution

10     erroneously interprets from his testimony.  He did it when he submitted

11     the vehicle log to the chief of finance who asked the witness to identify

12     the signatures on the vehicle log.

13             It was not questioned who was in charge of the operation, because

14     the witness never stated that he knew of that.  This submission is

15     corroborated by two of Popovic's other signatures for his assignment in

16     July 1995.  It was done for the days when he had not assigned related to

17     any kind of security jobs or transportation of the prisoners or the

18     members of 10th Sabotage units, indicating that the signature was given

19     just because Popovic was the only available officer at that moment in the

20     Drina Corps Command.  The witness clearly testified that he did it only

21     when -- only where the Popovic signatures were, but also for all days he

22     drove the mini-bus in July 1995.  I refer to transcript page 796, 25 of

23     March, 2009.

24             The Prosecution's assertion that evidence related to Bisina

25     confirms Popovic presence at Branjevo Military Farm on 16 July 1995 is

Page 34385

 1     quite unsubstantiated.  In the final brief, paragraphs related to the

 2     Popovic individual criminal responsibility related to the Pilica-Branjevo

 3     execution, the Prosecution never mentioned that Popovic was present at

 4     the Branjevo Military Farm, but only at the Kula school and Pilica.

 5     There is no evidence that Popovic was at Branjevo Farm at all.  There is

 6     not a single witness who testified to this or a single document

 7     confirming such an allegation.

 8             The Defence considers that the evidence related to Bisina on 23rd

 9     July could not be used to confirm the charges against Popovic on all

10     execution sites where the Prosecution was not able to prove his role and

11     presence.

12             JUDGE AGIUS:  How much more do you have?

13             MR. ZIVANOVIC:  I will be finished by the end of the day, if you

14     permit me.

15             JUDGE AGIUS:  How long has he already taken, time-wise, how much

16     time?

17                           [Trial Chamber and registrar confer]

18             JUDGE AGIUS:  You've exceeded the time-limit by already seven

19     minutes.  Let me confer with my colleagues.

20                           [Trial Chamber confers]

21             JUDGE AGIUS:  Now, by way of exception rather than establishing a

22     rule, we are allowing you to go on up to five to seven minutes before the

23     scheduled end of the sitting.

24             MR. ZIVANOVIC:  Thank you very much.

25             JUDGE AGIUS:  In other words, leave us five to seven minutes.

Page 34386

 1     Thank you.

 2             MR. ZIVANOVIC:  Thank you very much.

 3             The Prosecution did not even prove that any member of the

 4     Drina Corps military police was present at the Branjevo Military Farm,

 5     but that some soldiers had such insignias.  In the light of the

 6     testimonies of Bjelanovic and Racic, it is clear that such insignias were

 7     worn by almost all former members of the Drina Corps military police who

 8     were redeployed to the other units, so the soldiers noticed at Branjevo

 9     Military Farm were not actual members of the Drina Corps military police

10     because at the time Drina Corps military police was deployed at Kocari on

11     combat operation and only a small number of them were available for

12     military police tasks in Vlasenica.

13             The Prosecution asserts that Popovic organised the transportation

14     and execution of the Bisina victims, despite evidence indicating to the

15     contrary.  Popovic vehicle log indicates that he departed Vlasenica for

16     Zvornik on 23rd July 1995 at 9.00 in the morning.  It is P197.  On that

17     day, Popovic did not carry out counter-intelligence tasks.  He was in

18     civilian classing and had to meet the commercial manager of the Vezionica

19     factory which produced the uniforms and insignias for the Military Police

20     Battalion.  They had to resolve the problem with insignias sowed on the

21     uniforms because the soldiers, when they deployed, went with these

22     uniforms and insignias to other units, they were seen by others as the

23     members of the Drina Corps military police, despite the fact that they

24     had ceased to be its members.

25             It was as a result of this that the route of travel was written

Page 34387

 1     on Popovic log on this particular day, since the places for the

 2     performance of counter-intelligence tasks were not usually disclosed to

 3     members of the corps command.  This was also done on 3rd July 1995, when

 4     Popovic travelled to Ljuboja.  The intercept referred to by the

 5     Prosecution - it's P1313 - indicates that Popovic had already left

 6     Vlasenica at 9.04 that morning.  However, the Prosecution's

 7     interpretation, that it also reflects that Popovic went to Sekovici, to

 8     the Lieutenant-Colonel Racic, is unsubstantiated and contrary to the

 9     evidence.

10             The Popovic vehicle log demonstrates that Sekovici was not the

11     place he intended to visit on the specific day.  There is no evidence

12     that Popovic contacted Lieutenant-Colonel Racic on that day.  The witness

13     statement of Slavisa Racic, however, confirms that he met with Popovic in

14     Zvornik.  It was before noon but he could not say precisely when, and

15     their meeting lasted about half an hour.  It's 1D48.

16             The preparation for the transportation of prisoners to Bisina

17     started at 8.30 with the fueling of truck PW-172 drove on the day.  The

18     truck later proceeded to Bisina, where the executions and burials of

19     victims took place.  At that time, PW-175 left Vlasenica to Bisina and

20     got back to Vlasenica at 10.15.  It is P4432.  At 10.30, he travelled

21     again on the Vlasenica-Sekovici-Bisina-Sekovici route, and the minivan

22     transported the 10th Sabotage Detachment -- if the minivan transported

23     the 10th Sabotage Detachment members, it means that they left Bisina

24     before noon on 23rd July, 1995.  It further means that the passengers on

25     the minibus completed their task at Bisina before the noon and went back

Page 34388

 1     immediately.  It was confirmed by PW-172.  It's transcript 10 March 2009,

 2     page 573, lines 7 to 10.

 3             The Witness PW-172 testified that the executions took place very

 4     fast and that as soon as that was done, they went back and sat in the

 5     car, and they left the location.  Although it is not clear what kind of

 6     car was at the location which the execution used to leave, it is most

 7     probable that they did so immediately after they completed their task.

 8     According to the witness Vlasic, Popovic suddenly interrupted his visit

 9     after a very short telephone conversation, he was seen in civilian

10     clothes at the building site of the Bisina barracks in early afternoon,

11     inquiring with the two witnesses, Kojic and Coric, as to whether they saw

12     where the military trucks went.  The place was at the junction of the

13     road.  As such, he required information to determine where they went and

14     thereafter followed the direction indicated by the witnesses.

15             Cojic stated that Popovic arrived at the building site in Bisina

16     about 1300 hours.  It is 1D1439.  Kojic also stated that Popovic came to

17     Bisina building site between 13 and 14 hours.  It is 1D1446.  If Popovic

18     was there early in the morning, as the Prosecution asserts, he would not

19     seek information as to where the trucks went.  He would know the place of

20     the execution.  However, the whole event obviously became known to him

21     after his telephone conversation at Vlasic's office from the Vezionica

22     Zvornik, and he managed to arrive at the location only when the

23     executions had been completed but the burial was underway.

24             The Defence submits that PW-172 was not only in a state of shock,

25     but also in a state of fear of his own criminal responsibility due to his

Page 34389

 1     acts and conduct.  At the time of the execution, he was present with the

 2     two young soldiers upon the oral order of his commander.  Apart from

 3     them, there were the unknown soldiers from 10th Sabotage unit who left

 4     the place immediately after the execution and also an unknown driver of

 5     the machine performing the burial.  At the time, he felt that he would

 6     be -- he could be responsible for the events, given that none of the

 7     officers was present.  The coming of Popovic was a kind of relief.  He

 8     could protect himself because of Popovic's position of authority,

 9     although he was not present at the executions.

10             The testimony of this witness obviously confirms that Popovic did

11     not organise the transportation and execution of the 39 Muslim prisoners

12     at Bisina.  The witness agreed with the position of the Defence, that

13     Popovic did not have anything to do with the transportation of the

14     prisoners from Susica and Sekovici to Bisina.  It is transcript page 598,

15     lines 2 to 7.  The witness, in another part of his testimony, clearly

16     indicates that Popovic did not organise the execution of Bisina victims.

17     The witness testified that when he asked Popovic after the execution what

18     happened, that Popovic did not answer.  The witness saw the tears in his

19     eyes.  It is the submission of the Defence that an individual who

20     organised the execution and who worked to complete such a task would not

21     cry once he completes his task.  The tears in Popovic's eyes which the

22     witness spoke of indicate that execution of these Muslims was a shocking

23     surprise for Popovic too.

24             The Defence would also like to explain why the Popovic vehicle

25     log for 23 July 1995 does not indicate his travel to Bisina.  The vehicle

Page 34390

 1     log was filed in advance at the beginning of the trip, when he did not

 2     expect that he would go to Bisina.  This also indicates that he did not

 3     participate in organising the transport and execution of Bisina victims.

 4             In the paragraph 2538, the Prosecution submits that Popovic

 5     implemented the command decision to kill the wounded from the military

 6     hospital.  It refers to two intercept conversations and the testimony of

 7     PW-168.  The content of the quoted intercepts was inaccurately and

 8     incompletely presented.  In the first conversation, Pandurevic sought

 9     instructions as regard both prisoners and the wounded.  The part of the

10     conversation in respect of wounded was transcribed with considerable

11     gaps.  I refer to P1309.

12             The next conversation refers to the previous one, by saying that

13     Popovic would come by 1700 hours and convey what needs to be done

14     regarding the work we talked about.  This conversation did not mention

15     the issue of the wounded prisoners alone, but also many other topics.  At

16     least four additional topics will arise in the conversation.  The first

17     relates to Sekula and Modric, the second related to something that should

18     be returned to Kosoric, it must be ready right away.  The third related

19     to reinforcements.  The fourth related to the time General Krstic had

20     sent for Legenda.  In light of the aforementioned, the part of the

21     conversation that Popovic would convey what needs to be done regarding

22     the work we talked about is not necessarily related to the wounded, as

23     the Prosecution misrepresents it.

24             May we move into private session, Your Honours.

25             JUDGE AGIUS:  Yes.  Let's go into private session for a while,

Page 34391

 1     please.

 2                           [Private session]

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18                           [Open session]

19             JUDGE AGIUS:  We are in open session now.  Thank you.

20             MR. ZIVANOVIC:  Popovic, however, did not convey anything to

21     Pandurevic on that or any other day.  The Drina Corps Command had a

22     better way of communication with its subordinate brigade commander,

23     including protected communications and professional courier, than sending

24     its assistant commander as the courier.  It is, however, interesting to

25     note how the Prosecution would like to present Popovic activities on 23rd

Page 34392

 1     July 1995.  In the morning hours and early afternoon, he ostensibly had a

 2     very delicate task to organise the transportation, murder, and burial of

 3     victims at Bisina.  Immediately after that, he was transformed in the

 4     courier between an unknown command and the commander of a subordinate

 5     unit.  Such distorted presentation was far from the reality and was

 6     created just for proving the unsubstantiated charges from the indictment.

 7             In respect to the paragraph 2550, it is correct that Popovic got

 8     the task from his commander to go to Serbia and retrieve Muslim soldiers

 9     who fled there from Zepa.  However, it only proves that the task related

10     to the prisoners Popovic undertook was upon the order of his commander

11     and only with the limits determined by him.  It proves that the norms

12     from the Rules of Service for the security organ were fully implemented

13     and that Popovic had no tasks relating to prisoners in his purview.

14             Popovic did not participate in the reburial operation.  The

15     testimony of the Prosecution plea agreement witness -- witnesses are not

16     credible, as explained in Defence final brief.

17             Popovic never managed fuel resources.  However, one of the tasks

18     of the security organ was to detect activities within the VRS against the

19     VRS.  This included the theft of fuel, because it presented the most

20     important item for the operation of the army.

21             (redacted) --

22             JUDGE AGIUS:  Yes.

23             MR. ZIVANOVIC:  Sorry.

24             JUDGE AGIUS:  Redact that, and proceed.

25             MR. ZIVANOVIC:  May we move to the private session, please.

Page 34393

 1             JUDGE AGIUS:  Okay.  Let's move to private session, please, and

 2     redact what has been stated in the last few seconds.

 3                           [Private session]

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 34394











11 Page 34394 redacted. Private session.















Page 34395

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4                           [Open session]

 5             MR. ZIVANOVIC:  The Prosecution misrepresented the ostensible

 6     intercept conversation from 22nd September 1995 which shows Popovic

 7     involvement in managing and overseeing the reburial operation in Zvornik.

 8     In that conversation, Popovic asked his collocutor whether the fuel had

 9     arrived.  It's P2391.  He received the information that his collocutor

10     did not know anything about it, but that Trbic was working on it, and on

11     that specific day he could not -- as not much of work could be done.

12     Finally, Popovic asked the other speaker to find out if the fuel was

13     delivered and called the gas station to check.

14             The conversation does not reflect in any way Popovic managing and

15     overseeing of the reburial operation, but instead the detection of abuses

16     and illegal appropriation of fuel.  The Prosecution asserts that the fuel

17     for reburial was delivered on 14 September 1995.  This conversation took

18     place eight days later, after the fuel had been delivered.  This

19     conversation reflects Popovic interest for fuel, which was to be

20     delivered to the gas station of the Zvornik.  The fuel approved on

21     14 September had already been delivered to the Standard Barracks, as

22     ordered in the document.  There is, therefore, no logical conclusion that

23     this conversation related to the same subject matter as the disbursal

24     order for the fuel delivered on 14th September.  The fuel delivered on

25     14th September was assigned personally to Captain Trbic for a specific

Page 34396

 1     task by the Main Staff commander.  Accordingly, this order made Trbic

 2     responsible to commander of the Main Staff directly and personally for

 3     the execution of this task.  The order did not mention that he was

 4     responsible for the performing of such tasks to anyone else but to the

 5     commander who issued the task personally.

 6             As a result, neither Popovic nor anybody else was authorised to

 7     seek any information about the fuel because they did not get such a task

 8     from the commander who issued the delivery order.  This means that

 9     Popovic asked about another fuel sent for the regular needs of the

10     Zvornik Brigade.

11             We can -- just a moment.  Sorry.

12             In respect to the paragraph 2565, the testimony of another

13     Prosecution plea agreement witness, Momir Nikolic, as to Popovic

14     involvement in reburials is also false.  If the fuel for the purpose was

15     delivered to Zvornik, as was shown with the document of 14 September

16     1995, it would be the same also for the Bratunac Brigade.  Accordingly,

17     to the -- according to the Prosecution, in the case of Zvornik, the

18     disbursal order was by the Main Staff commander directly to Captain

19     Trbic, without any involvement from Popovic.  In the case of Bratunac, it

20     might have been done in the same way, meaning that it was delivered to

21     Momir Nikolic, who got the same assignment as Trbic.  The Defence

22     addressed its position about Momir Nikolic's testimony as regard the

23     reburials and sticks to that.

24             I'd just like to add that Momir Nikolic, in his -- wrote in his

25     additional statement - it is C-2 - "I helped in exhumation and reburial

Page 34397

 1     operation to the extent I was ordered to by my commander, Colonel

 2     Blagojevic, to whom I reported regularly at regular briefing meetings."

 3             This can be seen from the minutes of the briefing meeting of

 4     Bratunac Brigade on 16 October 1995:

 5             "In my brigade, the task order was ordered was recorded as

 6     "asanacija."

 7             I refer to page 4, last paragraph, C-2.  It clearly indicates

 8     that Momir Nikolic got all his order in respect to reburials from his

 9     commander, not from Popovic.  Otherwise, he would report to Popovic

10     regularly, not his commander.  He misrepresented the obligations he got,

11     like Trbic, as regard the fuel, just to conceal his direct responsibility

12     for reburials.

13             Your Honours, I have just one more very short topic.  It refers

14     to ethnic animosity toward Muslims.

15             JUDGE AGIUS:  Very short --

16             MR. ZIVANOVIC:  Thank you, very much.

17             JUDGE AGIUS:  Very shortly.  Briefly, please.

18             MR. ZIVANOVIC:  The Prosecution's submission that Popovic

19     harboured a particular deep-seated ethnic animosity toward Bosnian

20     Muslims because he used derogatory terms like "balija" in referring

21     Muslims is unsubstantiated.  The Prosecution has never clarified what the

22     term "balija" means.  In fact, the exact term "balija" was not known to

23     many of the witnesses the Prosecution examined.  The witness Grujic, a

24     journalist by profession working during the Bosnian war as the

25     correspondent of Reuters Television - I refer to his testimony, 756 page,

Page 34398

 1     22 July 2008 - was not able to explain the exact meaning of the term.

 2     The exact meaning of the term could not be explained by Vuga, although he

 3     agreed that was mildly derogatory and appears in vernacular.  Although

 4     such term was not appropriate in the official documents, it was commonly

 5     used in the VRS, just as the other side used derogatory terms for Serbian

 6     sides.  However, it does not reflect a deep-seated ethnic animosity

 7     toward Muslims.  Many witnesses in this case testified that Popovic had

 8     no hate towards Muslims and had many friends among them.

 9             Popovic was the officer of the former JNA, educated in the

10     military schools in the spirit of fraternity and unity, as the crucial

11     concept of the former JNA.  His former superior and associates gave

12     statements in this regard.  Its reference is witness statements at

13     1D1318, 1320 and 1317, witnesses Mico Vlaisavldjevic [phoen], Nermin

14     Jusufovic and Boris Mazibrada.

15             Just for a short time, if we can move to the closed session -- to

16     private session, please.

17             JUDGE AGIUS:  Yes.  Private session, please.

18                           [Private session]

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 34399

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             JUDGE AGIUS:  Yes, we are in open session now.

 8             MR. ZIVANOVIC:  One of the witnesses, Nermin Jusufovic, who is

 9     Muslim, stated that he met Popovic in 1991 in the former JNA multi-ethnic

10     unit.  The witness was friends with Popovic and they socialised at the

11     time, and he never noticed Popovic express any negative attitude towards

12     people of other ethnicity or comment about their behaviour or character.

13             The second witness, Popovic's former command,

14     Mico Vlaisavldjevic, stated that he met Popovic in 1978 after Popovic

15     graduated from the Military Academy.  He was his superior from 1978 to

16     1992.  He described Popovic as an extremely pro-Yugoslav-oriented officer

17     without any intolerance towards many members of other ethnic groups in

18     the unit.  The witness named some of Popovic's close non-Serb friends.

19     Finally, the witness stated that Popovic helped many people when the war

20     broke out to get passports and leave the territory of Republika Srpska.

21     He named some of them in his statement.

22             Boris Mazibrada also confirmed that Popovic had very good

23     relations with people of different ethnicity.  Witness Milan Vojnovic,

24     who had contacts with Popovic, testified that he never felt any animosity

25     from Popovic towards other ethnic groups except towards armed formation

Page 34400

 1     of enemy.  The witness Mikajlo Mitrovic, who was Popovic superior in the

 2     2nd Krajina Corps testified that there were members of the other ethnic

 3     groups in that unit, but Popovic never showed intolerance towards them.

 4             Finally, the Prosecution submission of Popovic near pathological

 5     hate towards Muslim is quite inconsistent with testimony of PW-172, who

 6     saw tears in his eyes after the execution of the Muslim prisoners near

 7     Bisina.

 8             In light of the aforementioned reasons, I ask the Trial Chamber

 9     to acquit Mr. Vujadin Popovic of all charges from the indictment.

10             Thank you very much.

11             JUDGE AGIUS:  Mr. Zivanovic, Judge Kwon has a question for you.

12             MR. ZIVANOVIC:  Thank you.

13             JUDGE AGIUS:  Judge Kwon.

14             JUDGE KWON:  I was hesitating whether to ask this question or

15     not, but I didn't find the time to ask this before.

16             Do you remember when Mr. Svetozar Kosoric came to testify on the

17     30th of June?  During the course of cross-examination he was shown a

18     video in which Mr. Kosoric and Zoka and Mr. Popovic took a picture.  I'm

19     not sure whether you remember that.  During the course of dialogue,

20     Mr. Popovic said that -- to the effect of, Come on here, the entire OB is

21     present, and then he said "the war criminals."  I wonder whether you are

22     in the position to answer in what context he said that.

23             MR. ZIVANOVIC:  I believe that it was recorded when all of them

24     were a little bit tipsy, and it was a kind of joke, according to the

25     behaviour of all of them and according to the behaviour of Popovic

Page 34401

 1     himself.  It was my impression.  I cannot give any other details, but

 2     that's it.

 3             JUDGE KWON:  If you can expand why it was a joke.  You can answer

 4     the question tomorrow.

 5             MR. ZIVANOVIC:  Okay, thank you.

 6             JUDGE AGIUS:  So let's adjourn.

 7             I take this opportunity to thank the members of the staff,

 8     interpreters, technicians, and everyone, for having been patient and

 9     allowed us to sit some extended minutes.

10             Let it also be the practice that you should alert the Trial

11     Chamber if, at a certain point in time, it becomes obvious that you're

12     not going to conclude in two and a half hours.  I don't think we should

13     be faced with a situation where we have to check and find out that you

14     have already exceeded by a few minutes, and then ask you to leave us five

15     or seven minutes, and you don't even leave us that.  I don't think this

16     should be a healthy practice in this Tribunal, and you should try to

17     avoid it by all means.

18             Thank you, and have a nice afternoon.

19                           --- Whereupon the hearing adjourned at 1.54 p.m.,

20                           to be reconvened on Tuesday, the 8th day of

21                           September, 2009, at 9.00 a.m.